SACHAR, J. (Oral.) - (1.)This is an appeal against theorder of the learned single Judge by which he affirmed thejudgment of the trial court, dismissed the application filedby the appellant (mother) under Section 7 and 25 of theGuardian and Wards Act for custody of the child (son).
(2.)The parties were married on 23-11-1976. A malechild was born to them in November 1977. Unfortunatelyright since the beginning the parties have not had a happymarried life. According to the parties they are at varianceas to at what particular point of time the wife left the husband's house and came back and again went away. Thehusband's case being that for the first time she left the housesometime in March 1978, (leaving the child behind). Butafter a couple of months, she came back and staved on till19-3-1979 when she is said to have left again. Ail this timethe child is said to have been with the father. She is saidto have come back in July 1979 and stayed on till 8-5-1980,when she is said to have gone away leaving the child behind.The wife of course denied that she ever left the house inMarch 1978. Her case is that she was turned out of thehouse on 19-3-1979. She says the child remained with herat her parent's house when she was brought back by thehusband on 9-7-1979 and stayed on with the husband till8-5-1980, when she was turned out of the house. Her casefurther is that she was brought back to the house on 1-3-1981but was again driven out on 4-3-1981. The husband deniesthis and rather maintains that she alongwith her parentscame to kidnap the child and even a police report waslodged by his younger brother. On 4-3-1981 the appellantalso put in a police report and also got herself medicallyexamined.
(3.)By 24-3-1981 the husband moved an application fordivorce. That application is still pending and has beenadjourned sine die, because the husband/respondent hadfailed to pay the maintenance pendentelite which has beengranted by the court below. The divorce has been askedfor on the ground of cruelty, desertion and unsoundness ofmind. By 5-5-1.981 the present application under Section 7and 25 of the Guardians and Wards Act and under Section6 of-Hindu Minority and Guardianship Act 1956 was movedpraying that she be appointed as a guardian of the personof the minor and that respondent be directed to hand overthe custody of the minor to the appollant. The courts belowhave dismissed her application and that is why the presentappeal.