V.K. Agarwal, J.
1. This miscellaneous appeal is directed against order dated 8-2-1999 in Guardian Case No. 2 of 1998 by 1st Additional District Judge, Shahdol dismissing the petitioner/appellant's application under Section 6 read with Section 25 of the Guardians & Wards Act, 1890 (hereinafter referred to as 'the Act' for short), praying that he be appointed as guardian of person and property of his son, minor Harikrishan Yadav.
2. The facts not in dispute are that the parties are Hindus. The respondent is the wife of appellant. The minor Harikrishan is their son. He was born on 11-2-1987 at Shahdol. It is also not in dispute that the parties are not living separately. The petitioner/appellant had earlier also filed a petition for appointment as guardian of the minor as well as his sisters, the other children of the parties, which was registered as Guardians & Wards Case No. 5/1991. The said application was dismissed by the Lower Court on 23rd November, 1992. Miscellaneous Appeal No. 73 of 1993 preferred by the petitioner/appellant was also dismissed on 29-11-1996.
3. The averments of the petitioner/appellant in his petition were that since the relations between the parties embittered, therefore, they are residing separately since a long time. The respondent had taken away their son, minor Harikrishan alongwith her to West Bengal. It was also averred that the respondent is not financially capable to properly bring up the minor. It was averred in the above context that the respondent had filed an application under Section 125 of the Cr.PC for maintenance of herself and her minor children, which had been ultimately allowed and maintenance has been granted to the respondent and the minor children. It was averred that the respondent is a lady of easy virtues and resides in a village. The interest of the minor would be adversely affected, in case he is permitted to live with the respondent. It was further averred that the petitioner is financially capable to properly bring up his son, minor Harikrishan and to educate him. It was, therefore, prayed that in the interest and for the welfare of the minor Harikrishan, he should be given in the custody of the petitioner/appellant.
4. The petition as above was resisted by the respondent. She denied the averments of the appellant as above. It was averred by her that the appellant used to maltreat and malhandle her. The respondent got fed up and could no longer bear the maltreatment; hence, she went back to her parents' home. It was averred that the respondent is properly bringing up her children including minor Harikrishan. The minor also does not wish to live with the appellant.
5. The learned Trial Court, after consideration of the averments as above as well as after assessment of evidence placed on record, recorded a finding that the interest of the minor would be served in permitting him to continue in the custody of his mother, the respondent. Accordingly, the application filed by the petitioner/appellant was dismissed.
6. learned counsel for the petitioner/appellant urged that he is the natural guardian being the father of the minor Harikrishan. It was also submitted that the appellant was a Government Servant and has now retired. He was, therefore, in possession of sufficient means to bring up and educate his son, minor Harikrishan. It was submitted that the respondent has no source of income and that she even filed an application for grant of maintenance under Section 125 of the Cr.PC before the Chief Judicial Magistrate, Burdwan (West Bengal), wherein she averred that she had no means to maintain herself and her children. It was, therefore, submitted that the welfare of the minor is in giving him in the custody of the petitioner/appellant. In the alternative, it was submitted that the appellant should be granted visiting rights.
7. As noticed above, the appellant filed an application for custody of the minor children including minor Harikrishan earlier also. Said application was dismissed by the Lower Court. The order of the Lower Court was affirmed in Misc. Appeal No. 73 of 1993 (Document No, 2). Thereafter present application was filed by the appellant praying that he be appointed guardian of minor Harikrishan. It may be noticed that there is no substantial change in circumstances after the dismissal of the earlier petition, which may justify a fresh prayer by the appellant.
8. It may also be noticed in the above context that the minor Harikrishan was born on 11-2-1987 and is now aged more than 14 years. He was called in this Court on 26-4-2000 to ascertain his wishes on the question as to which of the natural guardians, he would like to reside with. He had categorically stated that he was not at all willing to live with the appellant even for a short period. Minor Harikrishan has thus unequivocally expressed his desire and inclination to continue to live with his mother - the respondent, and he in no case wishes to live with his father - the appellant. It may further be noticed that the minor is residing with his mother, since last many years from his birth. He is already an adolescent in his teens and has reached a stage when his future career is to take shape.
9. It is also noticed that the minor is living with his mother and two sisters in West Bengal. However, if the appellant's prayer was to be allowed, the minor would be facing the prospect of living with his father alone. Moreover, the parents of the minor belong to different castes. The mother is from West Bengal, where the minor is living for the last many years since his childhood; while the father is a resident of Madhya Pradesh. Therefore, directing the minor to be given in custody of the appellant, would result in the change of family atmosphere as well as change in his cultural and social environment. This may not be conducive to the interest of the minor and may adversely affect his future prospects and career.
10. In the foregoing circumstances, there is no justification for taking a different view than the one taken earlier on a similar petition filed by the petitioner/appellant, as noticed above, and the minor should be permitted to continue in the custody of his mother - the respondent.
11. The appellant's learned counsel laid great emphasis on the fact that the respondent/wife had filed a petition under Section 125 of the Cr.PC stating that she had no means to maintain herself and her minor children. It was submitted that in the circumstances, the appellant, who is financially well off, should be permitted to take custody of his minor son - Harikrishan and to bring him up properly. It was urged that his future would be adversely affected, if he is permitted to continue in the custody of his mother. Learned counsel for the appellant relied upon Master Zubeen v. Principal Judge, Family Court, Lucknow and Ors. (AIR 1994 ALLAHABAD 147). It appears that in the said case Habeas Corpus petition under Article 226 of the Constitution was filed for the custody of the minor. In that case, it was observed that the welfare of the child should be kept in mind, while deciding the question of custody of the child and that Courts could refuse custody of the minor child to the mother, when the child was neglected or deserted by the mother for a long time. In that case, it was also observed that since an application under Section 125 of the Cr.PC was moved by the mother of the minor child; it was held that she was not able to maintain herself and, therefore, she was also presumably unable to maintain her minor child. In the circumstances of that case, it was considered that the welfare of the child would not be in entrusting his custody to the mother and that it would be better subserved by keeping him in the custody of the father, who was in a position to maintain and educate him.
12. However, in the instant case, it is clear that for the last many years prior to the filing of the application under Section 125, Cr.PC, the mother had been maintaining the minor Harikrishan and her two other daughters. Therefore, it cannot be said that the interest of the minor would not be served in case, he continues in the custody of and lives with his mother, simply because she filed an application for maintenance under Section 125, Cr.PC.
13. Learned counsel for the appellant also relied on a decision of the Madras High Court in Bhagyalakshmi and Anr. v. K. Narayana Rao (AIR 1983 MADRAS 9) wherein the custody of the minor was given to the father. It was observed that normally the natural guardian is entitled to the custody of the minor and in so doing, the Court will be concerned only with the welfare of the minor, which is the paramount consideration. In that case, custody of the minor was given to the father as it was held that the mother of the minor was highly indebted and was not in a position to look after and educate the minor, whereas the father was found to own immovable property as well as a job with substantial income.
14. Undisputably, the welfare of the minor is the paramount consideration while considering the application for appointment of guardian and custody of the minor. In the instant case, as already noticed, the mother is maintaining the minor who appears to be happy and satisfied in living with her as well as his two sisters. Moreover, the minor is unwilling to go with the appellant even for a short period. It may also be noticed that though the appellant had previously also filed an application for his appointment as guardian, the same was dismissed. The appellant has not been able to show that there is any material change in circumstances of the parties, justifying renewal of his prayer.
15. It may also be noticed that the Apex Court in Jaiprakash v. Shyam Sunder Agarwala and Anr. [(2000) 6 SCC 598], referring to another judgment in Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840] observed that the orders relating to custody of children are by their very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody, but such change in custody must be proved to be in the paramount interest of the child.
16. On consideration of the aforesaid facts and circumstances of the case, as also the wishes of the minor; it appears that the welfare of the minor lies in his continuing to live with the mother and that the appellant is not entitled to his custody, though he is the minor's father.
17. In the alternative, learned counsel for the appellant has also submitted that the appellant should be permitted to visit the minor Harikrishan and to take him out in case the minor does not object. Learned counsel for the appellant, in this connection, referred to a decision of the Apex Court in Poonam Datta v. Krishanlal Datta and Ors. (AIR 1989SC 401). The prayer as above regarding visiting rights of the appellant has not been opposed by the learned counsel for the respondent. It would also be fair, just and proper to permit the father, i.e., the appellant to visit his son and to take him out also with him, in case the minor has no objection in that regard.
18. Accordingly, this appeal, so far as the prayer of the appellant for the custody of the minor Harikrishan is concerned, is dismissed. However, it is directed that the appellant will be permitted to visit the minor as and when he likes to do so at the place where the minor resides with his mother. The appellant will also be entitled to spend reasonable time with the minor, if he so wishes and without affecting the studies of the minor. The appellant may also take the minor out with him during day time, in case the minor is willing to go with him. The respondent shall not object to and obstruct the appellant meeting and visiting the minor in the above manner.
19. Misc. Appeal dismissed.