Civil Revision No.4368 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4368 of 2009 (O&M) Date of Decision : 30th March, 2010 Ramesh and another ....Petitioners Versus Salochna and another .....Respondents CORAM: HON'BLE MR. JUSTICE L.N.MITTAL Present: Mr.G.S.Sidhu Advocate for the petitioners. Mr.Amit Rana Advocate for respondent No.1. * * * L.N.Mittal,J.(Oral) Salochna-respondent no.1 herein filed petition under the Hindu Minority and Guardianship Act, 1956 (in short “the Guardianship Act”) read with the Guardian & Wards Act, 1890 against the petitioners and proforma respondent No.2 herein. Salochna was married with Surinder Singh who died on 07.06.2002. It appears that posthumously a male child Azad Singh was born to Salochna on 21.01.2003. Ramesh-petitioner No.1 herein is younger brother of Surinder Singh whereas, Pala Ram-petitioner No.2 herein and Shimla @ Seema-proforma respondent no.2 herein, are the parents of Surinder Singh. Salochna-respondent no.1 alleged in her petition that after the death of her husband Surinder Singh, she along with her minor son Azad Singh shifted to her parental home and was looking after her minor son properly. About a month before filing of the petition, petitioner no.1 herein came to her parental village and took the minor child with him on the assurance that the child would be left back with respondent no.1 after some Civil Revision No.4368 of 2009 (O&M) 2 time. However when for few days, the child was not returned, respondent no.1 herein along with her father and maternal uncle went to the petitioners and proforma respondent no.2 and demanded back the child but they refused. Accordingly, respondent no.1 herein prayed for custody of the minor son Azad Singh to be provided to her. In their reply, petitioners and proforma respondent no.2 herein inter-alia pleaded that after the death of Surinder Singh, respondent no.1 went to her parental village leaving behind the minor son Azad Singh in her matrimonial home and since then, petitioners and proforma respondent no.2 herein have brought up the child. The respondent no.1 or his family members never came to take the child. It was also pleaded that respondent no.1 herein has remarried with one Dhamu Ram son of Chottu Ram of Village Daulatpur about eight months prior to filing of the reply. It was also pleaded that respondent no.1 was pregnant from her second husband and was residing with him. Various other pleas were also raised. Learned Civil Judge (Sr.Divn.), Fatehabad vide judgment dated 09.04.2009 allowed the petition filed by respondent no.1 herein and directed the petitioners and proforma respondent no.2 herein to hand over the custody of the minor child Azad Singh to respondent no.1-Salochna. First appeal preferred by the petitioners and proforma respondent no.2 herein has been dismissed by learned Additional District Judge, Fatehabad vide judgment dated 10.06.2009. Feeling aggrieved, the instant revision petition has been preferred under Article 227 of the Constitution of India challenging the judgments of both the courts below. I have heard the learned counsel for the parties and perused the case file. Civil Revision No.4368 of 2009 (O&M) 3 Learned counsel for the petitioners vehemently contended that respondent no.1 herein left the child in her matrimonial home i.e with petitioners and proforma respondent no.2 herein and went to her parental home after death of her first husband Surinder Singh and later on, respondent no.1 remarried with Dhamu Ram and also gave birth to a daughter out of the said wedlock. It was also contended that after the death of her second husband, respondent no.1 herein filed petition for custody of the minor child Azad Singh. I have carefully considered the aforesaid contentions, but find no merit therein. The respondent no.1 herein appeared herself in the the witness box as PW-1 and examined her father Mahabir as PW2, Anoop Singh, member Panchayat as PW3 and maternal uncle Mangat Ram as PW4. All of them have supported the version of Salochna-respondent no.1. On the other hand, Pala Ram-petitioner no.2 herein appeared as RW-1 and supported his own version. Shamsher-RW-2 Lab Technician from Primary Health Centre stated about the birth of a girl child Permila on 03.08.2007, whose parents were recorded to be Salochna and Ramesh son of Chottu Ram of Village Daulatpur. However, from the evidence of birth of Permila, as per statement of Shamsher-RW-2, it cannot be said that Salochna-respondent no.1 herein had remarried and gave birth to the child Permila. Salochna mother of said Permila is not shown to be Salochna- respondent no.1 herein. There is no evidence whatsoever to link Salochna, who is recorded to be mother of the newly born girl child Permila with Salochna respondent no.1 herein. On the other hand, according to said evidence, one Ramesh is father of said Permila whereas, according to the reply filed by petitioners and proforma respondent no.2 herein, Salochna- Civil Revision No.4368 of 2009 (O&M) 4 respondent no.1 herein was married with one Dhamu Ram and not with Ramesh. Thus, entire version of the petitioners is falsified. Moreover, except self-serving statement of Pala Ram-petitioner no.2, there is no other evidence whatsoever to depict that Salochna respondent no.1 herein had remarried with anybody else after the death of her husband Surinder Singh. On the contrary, Salochna has herself entered into the witness box and examined her father, maternal uncle and a member Panchayat and they have denied that Salochna-respondent no.1 herein had remarried. Thus, remarriage of Salochna-respondent no.1 herein with anybody else after the death of her husband Surinder Singh is not established at all. As per Section 6 of the Guardianship Act, the natural guradian of a Hindu minor is father and after him, the mother. In the instant case, father of the minor child Azad Singh has already died and therefore, Salochna- respondent no.1 herein being mother of Azad Singh is natural guardian of the said minor. She is, therefore, entitled to the custody of the minor child. It is true that in cases of custody of minors, paramount consideration is the welfare of the minor child. However, in the instant case when father of the minor child has already died, it cannot be said that welfare of the minor would be in his custody with the petitioners and proforma respondent no.2 herein. On the other hand, respondent no.1 herein being mother of the minor child would be more appropriate to act as guardian of the minor child. There is also no cogent evidence led by the petitioners herein that the minor child remained in their custody since after the death of Surinder Singh. There is self-serving statement of petitioner no.2 only in this regard whereas, on the other hand, respondent no.1 herein has led sufficient Civil Revision No.4368 of 2009 (O&M) 5 evidence that she had taken the minor child with her to her paternal home after the death of her husband Surinder Singh. Learned trial Court has observed that it is not disputed that Salochna got remarried and the second husband has also expired and Salochna has a minor daughter to look after. However, this is factually incorrect observation by the trial court because there is no such admission by Salochna-respondent no.1 herein as is evident from the perusal of the trial court file. On the other hand, consistently Salochna as well as her witnesses denied all these facts. The courts below have taken a reasonable view of the matter. Respondent no.1 herein being mother of the child is entitled to the custody of the minor child. There is no illegality or perversity in the judgments of the courts below so as to warrant interference at the hands of this Court in exercise of power of superintendence under Article 227 of the Constitution of India. In view of the aforesaid discussion, I find no merit in the instant revision petition which is accordingly dismissed. 30th March, 2010 ( L.N.Mittal ) Seema-II Judge