In support of her companytentions, the appellant examined herself as PW 1 and two doctors.
Resisting her claim, it was alleged that having left him when he was less than three years of age, the appellant had numberemotional bond with the child after leaving Allahabad, she had number even talked to the minor child over the telephone or enquired about his welfare being the natural guardian of the child he was capable of and was, in fact, looking after the welfare of the child the child was studying in a prestigious school at Allahabad for which he was paying a fee of Rs.25,000/ per annum and had also numberinated him in his insurance policy.
It is significant to numbere that the child had stated so despite the fact that he was living with his mother since 7th November, 2005, under the orders of the Court.
Since numberappeal was preferred by the respondent against the said decree, it attained finality.
On 5th April, 2003, the appellant moved a petition under Sections 10 and 25 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and Guardianship Act, 1956 before the Family Court, Allahabad seeking a declaration in her favour to be the lawful guardian of her minor son, Satyajeet and a direction to the respondent to hand over the custody of the child to her.
Accordingly, the application was allowed the appellant was declared to be the lawful guardian of her minor son and the respondent was directed to hand over the custody of Satyajeet to the appellant, within one month of the date of judgment.
It was alleged that the respondent would force her to keep all her savings in a joint bank account, from which he used to withdraw money.
Any other further arrangements mutually agreed to between the appellant father and the respondent mother in the interest of the child.
It was a love marriage against the wishes of the parents.
On reaching Calcutta, where her parents were living, she filed a suit for divorce against respondent, which was decreed ex parte on 12th September, 2002.
The appellant, who was employed as a teacher, felt that the respondent had misrepresented to her about his occupational status he did number have any regular income to support the family he was addicted to alcohol and smoking and also had companytacts with anti social elements.
She was subjected to physical violence, due to which, on 16th August, 2001, she was forced to leave her matrimonial home at Allahabad, leaving the infant with the father.
On the other hand, the respondent examined himself as DW 1 and two of his neighbours as DW 2 and DW 3.
Vide order dated 28th February, 2007, the High Court has set aside the order of the Family Court and granted permanent custody of Satyajeet to the respondent.
It is this order of the High Court which is under challenge in the present appeal.
According to the Family Court, several applications moved by the appellant for interim custody, during the pendency of the custody application, showed that she had affection for her child.
On 28th May, 1998, a boy, namely, Master Satyajeet was born from the wedlock.
The Court felt that the appellant had never neglected her child but had to leave Allahabad to save her life.
Finding the testimony of the appellant and her two witnesses to be credible, the Family Court held that for the welfare of the child, the custody should be with the mother.
The application was hotly companytested by the respondent.
The Court observed that the appellant was a highly qualified teacher drawing a salary of Rs.22,000/ per month whereas the respondent was only a private companytractor without regular source of income and though the child was studying in a prestigious school in Allahabad, there was lack of companystant care and protection of the child in the house of the respondent.
During the pendency of the appeal, vide order dated 7th November, 2005, as an interim measure, the High Court granted the custody of the child to the appellant.
However, within a short time, the relationship between the spouses came under strain.
Inter alia, observing that the welfare and interest of the minor is of utmost importance in relation to grant of custody to either of the parents and taking into companysideration the evidence adduced by the parties, the Family Court found the respondent to be unfit to act as a guardian of the minor child.
As regards his financial position, it was stated that he owns a house, telephone and a motor car whereas the appellant has numberhouse of her own and is living with her mother and brother in a two room flat at Calcutta.
Being aggrieved, the respondent preferred Regular Appeal to the High Court.
The appellant, it is claimed, had to support the respondent and his family with the meagre income she earned from her school job and private tuitions.
K. JAIN, J. Leave granted.
Whether the father or the mother should have the custody of an almost ten year old male child is the short question which falls for companysideration in this appeal.
The appellant mother and respondent father got married on 18th April, 1996.
