Singh, J.
1. This appeal is directed against the-order dated 5th July, 1996 passed by the learned 'Judge, Family Court, Udaipur in Civil Misc. Case No. 249/95 Sita Ram v. Smt. Narbada, whereby the petition filed by Sita Ram under Section 25 of the Guardians and Wards Act, 1890 was allowed and the appellant (non-petitioner) Smt. Narbada was directed to hand over the custody of her mior child Nitesh to the respondent (petitioner).
2. The learned Counsel for the appellant has submitted that Nitesh is only eight years old. He has been living with the appellant and the appellant is looking after him satisfactorily and it would not be in the interest of the minor Nitesh to hand over the custody of Nitesh to the respondent (Sita Ram) and the learned Judge, Family Court, Udaipur has committed a grave error by accepting the petition filed by the respondent (Sita Ram) under Section 25 of the Guardians and Wards Act, 1890. On above grounds the learned Counsel for the petitioner has prayed that the order passed by the learned Judge. Family Court, Udaipur on 5th July, 1996 be set aside. The learned Counsel for the respondent has supported the order passed by the learned Judge. Family Court, Udaipur.
3. The facts of the case may be briefly stated as below:
The marriage of the appellant Smt. Narbada with the respondent Sita Ram was solemnised in the month of April. 1984 according to the provisions of Hindu Marriage Act, After her marriage the appellant gave birth to two children, namely, Nitesh and Kapil. Nitesh is eight years old and Kapil is six years old. The appellant lived with the respondent up to the year 1995. On 7th May, 1995 the appellant left the house, or her father where she was residing with her son Nitesh. Information about the disappearance of the appellant was given to the Police by the respondent. The police recovered the appellant during the investigation of the case registered at the police station. The respondent Sita Ram filed the petition under Section 25 of the Guardians and Wards Act on 30th November, 1995 praying that the custody of his minor son Nitesh be ordered to be given to him. In his petition the respondent (petitioner) alleged that the appellant had gone with Kailash Mali and that the appellant (non-petitioner) had accepted some other person as her husband and if Nitesh is allowed to live with her his life is likely to he spoiled.
4. The appellant (non-petitioner) in her reply denied the allegation that she had elloped with Kailash Mali and pleaded that in fact the respondent (petitioner) had ill treated her and turned her out of his house. It was further stated in the reply that the appellant (non-petitioner) wants to live with her husband and that she can look after her minor son Nitesh in a better way than the respondent (petitioner). The respondent Sita Ram (AW-1) examined himself and produced Pradeep Bhatnagar (AW-2) in support of his application. The appellant (non-petitioner) Smt. Narbada N.A. W-1 examined herself and produced Hari Narain (N.A.W.2). Laxmi Narain (N.A.W.-3) in rebuttal. Nitesh was also examined by the Court. He told the Court that he was being looked after well by his mother and that he wants to live with his mother. A question was made to Nitesh that he was tutored by her mother but he denied the suggestion.
5. The learned Judge, Family Court after taking into consideration the evidence produced by the parties and ascertaining the desire of the minor Nitesh, came to the conclusion that the interest of the minor would be best served in the application filed by the respondent (petitioner) is allowed under Section 25 of the Guardians and Wards Act and the custody of the minor is given to him. Consequently the learned Judge, Family Court allowed the petition filed by the petitioner under Section 25 of the Guardians and Wards Act.
6. We have carefully considered the evidence produced by the parties and all the facts and circumstances of the case. It has not been disproved that in the month of July, 1995 the appellant left the house of the respondent with the minor Nitesh, at that time she left behind her second child aged six years in the custody of the respondent. Nitesh has slated in his examination in Court that he never went to Surat with his mother. This statement has not been challenged by the appellant. If the statement of Nitesh is correct, it would mean that when the appellant went to Surat she did not take with her minor son Nitesh and left the son in the custody of some other person. The conduct of the appellant in leaving her younger son in the custody of respondent when she left the house of respondent on 7th May, 1995 and her subsequent conduct in leaving the minor Nitesh in the custody of some other person when she went to Surat, clearly shows that she does not consider herself responsible for the lives and well being of her children. If she really loved and cared her children she would not have left behind her younger son Kapil aged six years when she left the house of respondent on 7th May, 1995 nor she would have abondened the custody of Nitesh by leaving him in the custody of some other person when she went to Surat. On the other hand the fact that the respondent has looked after his younger son Kapil aged six years after the departure of the appellant from his house has not been controverted. The evidence produced by the parties further shows that the appellant has no independent source of income and, therefore, she is not in a position to fulfil the needs of the minor Nitesh. These two circumstances (1) that the appellant (non-petitioner) left Kapil aged six years at the house of the respondent when she left the house on 7th May, 1995 and that she left Nitesh in the custody of some person other than her husband when she went to Surat and (2) that she has no independent income of her own clearly shows that she is not in a position to look after the minor Nitesh properly on the other hand the respondent Sita Ram who is the father of the minor kid looking after well his second son Kapil. He is gainfully employed and has means to fulfil the needs of his minor son and appears to be a sincere and devoted father.
7. Having regard to all the facts and circumstances of the case we are of the opinion that the learned Judge, Family Court, has not committed any error by allowing the petition filed by the respondent under Section 25 of the Guardians and Wards Act, 1890. We, therefore, find no force in the appeal it deserves to be rejected and is hereby rejected. In the circumstance of the case the party shall bear their own costs.