Mrs. Arun Gupta vs S.K. Gupta

S.B. Wad, J.—F.A.O 111 and 122/186 arise out of an order passed by the Guardian Court giving guardianship of child Rahul to mother Mrs. Arun Gupta and that of child Paras to Husband S.K. Gupta. Both the husband and wife, in their respective appeals have prayed to set aside the impugned orders and have demanded the custody of both the children. I have dismissed both the appeals on 1.4.1987. The reasons are now stated. The divorce petition between the parties is pending.

In F.A.O. 111/86, filed by the wife, two principal submissions are made. The first is that in the welfare of the children it is necessary that both of them are brought up together for their proper development, and separating one child from the other is detrimental to their interest. The second submission is that one of the sisters of the husband is mentally retarded since birth and as the husband goes out for his duties, it will not be in the interest and welfare of the child to leave him with a mentally retarded person.

The argument that both the children should stay together and be brought up together is appreciable. Even the husband does not dispute this proposition. In an ideal environment which is, of course, a natural environment, if both the children can live together as it will ensure them better development and welfare. However, since the father and the mother are at loggerheads and divorce petition is pending between them, there are difficulties in directing this solution. As regards the wife''s contention that one of the sisters of the husband is mentally retarded (in fact it was even argued that she is of unsound mind and is not educated at all) there is no evidence on record to establish this fact. I have been taken through the evidence of the husband''s father, mother and the independent witnesses. What has come on the record is that she suffered some illness in the childhood and, therefore, she would not pursue her education. The trial Court was quite right in holding that according to Hindu Minority and Guardianship Act the father is the natural guardian and he should not be displaced unless there is evidence to show that the welfare of the child is not safe in the hands of the father. The evidence further shows that the husband''s father and mother stay with the husband. Being the grand-parents they will, naturally look after the child. There is no merit in the appeal and the same is dismissed.

F.A.O. 122/86 is the husband''s appeal for demanding the custody of child Rahul also. At the initial stage when the petition for guardianship was pending, child Rahul was below the age of five and, therefore, the custody was given to the mother. The child is still under the age of five as it was born in December, 1982. The objection of the husband is that the mother has taken up a job and there is nobody to look after the child. However, on evidence it is found that there are other members of the family. Simply because the mother is a working woman the custody and guardianship of mother cannot be taken away, the trial court has awarded guardianship of Rahul to mother and I do not think that there are any circumstances to disturb it.

Since the divorce petition is pending between the parties, they will have one more occasion to reconsider their approach towards guardianship of the children and they are free to make any adjustments, if they are so advised, in the said proceedings. Both the appeals are dismissed. However, there shall be no order as to costs.