Smt. Pinki vs Abhey Singh and Another

Amarjeet Chaudhary, J.—Abhey Singh filed a petition under Sections 7 and 10 of the Guardian and Wards Act, 1890, read with Section 6(a) of the Hindu Minority and Guardianship Act, 1956, seeking guardianship of a female child named Teeru born on 18.11.1985 to his former wife Smt. Pinki, now wife of one Om Parkash.

Brief facts of the case are that marriage between Abhey Singh and Smt. Pinki was solemnized on 16.11.1983 and out of the wed-Iock a female child was born on 18.11.1985. However, the marriage was dissolved by a decree of divorce dated 3.5.1987. After the dissolution of the marriage, Smt. Pinki contacted second marriage with Om Parkash. Thereafter Abhey Singh filed a petition under Sections 7 & 10 of the Guardian and Wards Act at Gurgaon. The Guardian Court accepted the petition filed by Abhey Singh and he was declared guardian of his minor daughter Teeru alias Jyotika, vide judgment dated 4.8.1992. Smt. Pinki has filed the present appeal against the judgment of Additional District Judge, Gurgaon for setting aside the same.

The judgment of the Additional District Judge, Gurgaon, has been assailed on the ground that the first Court has not taken into consideration the welfare and wishes of the child. The learned counsel has laid emphasis that the interest of the minor while deciding the custody of the child is of paramount consideration. The learned counsel further urged that Abhey Singh who is father of the child is working as a labourer and is a low paid worker. He is not a fit perspn to look-after his minor daughter. Moreso, there is no female lady in his house who can look after the child.

Shri Arun Jain, Advocate, appearing for the respondents, who has been declared the guardian of the child, has argued that since the marriage has been dissolved between the parties and the lady has re-married, the interest of the child could be looked after only by her father. Mr. Jain argued that no fault could be found with the judgment of the Additional District Judge.

I have considered the submissions of the learned counsel for the parties and perused the paper book.

It would be pertinent to mention here that this Court had an occasion to talk to the parties as well as the child, whose guardianship has been claimed by both the parties. Baby Teeru, who is 10 years of age has informed this Court, on a Court query, that she is studying in a school and is being looked after by her mother. She has expressed her unwillingness to accompany her father, whom she has never met earlier. Abhey Singh on a Court query, has stated that he is working as labourer and the child can be looked after by his brother''s wife. Smt. Pinki, appellant, has also informed that she is working in a School and is drawing good salary.

After giving anxious consideration to the matter, the Court has reached the conclusion that the wishes of the child, who is about 10 years, cannot be ignored, who was not willing to part company with her mother with whom she is living ever since her birth. Her father Abhey Singh is a stranger to her as she has never lived with him. If the child is taken away from the guardianship of mother and her custody is entrusted to her father, it will adversely affect her emotionally and psychologically. The child has not complaint against her mother and her foster-father and she is being looked after very well. The child being of tender age, requires not only love and care but also constant vigil which can only be given by the mother alone. The respondent-Abhey Singh is residing alone and goes out for work and there will be none to look after the child throughout the day. In such a situation, chances of child abuse at the hands of somebody cannot be ruled out, which otherwise has become quite common these days especially in villages. Therefore, it will not be in the interest and welfare namely Teeru alias Jyotika that her custody is given to her father.

In view of the matter, this appeal is allowed, the judgment of Additional District Judge, Gurgaon, dated 4.8.1992 is set aside and the petition of Abhey Singh under Sections 7 and 10 of the Guardian and Wards Act, is dismissed. The mother of the child shall remain her guardian.

There will be no order as to costs.