Appu Menon vs Janaki Amma

Koshi, C.J.—This appeal arises from an order of the learned District Judge of Aujikaimai refusing to restore a minor child below the age of 3 to the custody of its father. The child''s mother died on the same day as the child was born. Since then the maternal grandmother, the Respondent to this appeal has been bringing up the child. According to the Petitioner-Appellant he had entrusted the child to the Respondent to be looked after and he was from time to time supplying the child with whatever necessaries were found needed and had also engaged a nurse to look after it. Latterly however, differences arose between the Appellant and the Respondent and the petition giving rise to this appeal was filed claiming custody of the child.

The Appellant has no case that the Respondent is in any way disqualified or incompetent to look after the child. The learned District Judge has written a very elaborate and well-considered order meeting all the points raised in support of the Appellant''s claim.

Quito recently in C. M. A. No. 63 of 1955 (A), we had occasion to point out that the paramount consideration which should weigh with a Court in an application of this kind is the welfare of the minor.

We are not prepared to say that the learned Judge exercised his discretion in the matter improperly when he refused to allow the Appellant''s prayer that the Child should be handed over to him. It has repeatedly been held in decided cases that the father''s right for the custody of the child is not absolute that it is circumscribed by considerations of welfare of the minor and that if the minor''s welfare requires that custody should not be given to the father, ho cannot get it merely because he happens to be the father.

Practically all the cases the Appellant''s learned Counsel depended upon during the course of his arguments before us have been reviewed in two decisions brought to our notice on behalf of the Respondent. These are AIR 1948 266 (Oudh) and Manjit Singh Vs. Bakhshish Singh and Another, .

As the view taken in these cases accords with our view on the question and with what we said in C. M. A. No. 63 of 1955 (A), we do not propose to enter into an elaborate discussion of the case law bearing on the point. Section 25 of the Guardians and Wards Act (8 of 1890) enacts that in the matter bf restoring a minor to the custody of the guardian the welfare of the minor is the decisive factor on which the Court''s decision should turn. As stated earlier we feel fully satisfied that the lower Court has kept this consideration in view in making the order under appeal.

The facts of the cases reported in Bindo v. Sham Lal, ILR 29 All 210 (D) and Batcha Chetty v. Ponnuswami Chetty, 22 MLJ 68 (E), are very similar to the present case. As here, in those cases also the dispute was between the minor''s father and the maternal grand-mother. After the death of the minor''s mother, in one case the maternal grand-mother and in the other, the maternal grand-father and the maternal grand-mother brought up the minor and in either case the court of first instance allowed the application made by the father-guardian for the custody of the minor.

Those decisions were, however, reversed in appeal and the considerations which weighed with the Allahabad and the Madras High Courts were that minor would and could better be looked after by the grand-parents with whom the minor in either case was after the mother died than by the stepmother. The fact that the father had no other female relation to look after the minor also weighed with those Courts, In this case also the father has married again and indeed out of his community. Even the second wife does not live with him and he is a busy business-man.

In all the circumstances of the case we feel that the lower Court''s order has to be confirmed and we decide accordingly. The lower Court has made provision for the Appellant to visit his child at the house of the Respondent and if there be any difficulty on that account, he can move the lower Court for further directions. Regard being had to the wild allegations made by the Respondent against the Appellant in her objection petition filed before the lower Court; we make no order for costs in her favour even though we are dismissing the appeal. Order accordingly.