IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 4921 of 2011 Date of Decision: 05.12.2011 Rajwant Kaur ........Appellant Versus Balwinder Singh .......Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE G. S. SANDHAWALIA Present: Mr. Anil Chawla, Advocate for the appellant Ms. Rupinder Kaur Thind, Advocate for the respondent HEMANT GUPTA, J. Challenge in the present appeal is to the impugned order dated 29.04.2011 passed by learned Guardian Judge, Amritsar whereby the petition under Section 25 of the Guardian and Wards Act,1890 for the custody of the minor child – Harmanpreet Singh was dismissed. The appellant mother sought custody of her minor son namely – Harmanpreet Singh born on 8.12.2005. Learned trial Court has dismissed the petition as the appellant has not appeared as witness. Learned counsel for the appellant has filed an application for permission to lead additional evidence and has sought to be examined herself as witness. The appellant has also explained that appellant has examined two witnesses but the counsel engaged by the appellant made a statement before the Court that no evidence is F.A.O. No. 4921 of 2011 2 required to be examined without realising that the appellant is yet to be examined. It is contended that such statement was made in misapprehension of the facts and without specific knowledge and instruction of the appellant that appellant is not examined as witness. Keeping in view the fact that the appellant-mother seeks custody of minor child, we deem it appropriate that such claim of the appellant should be decided after giving an opportunity to record evidence of the appellant. It will be in the interest of justice that such cases should be decided on merits. Keeping in view the said fact, order passed by Guardian Judge dated 29.04.2011 is set aside and the matter is remitted back to learned trial Court for deciding the petition under Section 25 of the Act in accordance with law after recording the evidence of the appellant herself and such other evidence which the appellant may deem fit and necessary to lead. The appeal stands disposed of accordingly. Parties are directed to appear before the Guardian Judge, Amritsar on 09.01.2012 for further proceedings in accordance with law. (HEMANT GUPTA) JUDGE (G.S. SANDHAWALIA) 05.12.2011 JUDGE reena