Bhagyalakshmi and Another vs K.N. Narayana Rao

This is an appeal u/s 47 of the Guardians and Wards Act 1890, against the order in O. P. 103 of 1978, District Court, Salem allowing an

application filed by the respondent herein u/s 25 of the Guardians and Wards Act (hereinafter referred to as the Act) praying that the appellants

should be directed to hand over custody of three minor children Rama Rao, Punitha and Nagaratnam to the respondent. The first appellant is the

wife of the respondent herein, while the second appellant is the father of the first appellant. The first appellant and the respondent were married in

195 7 at Katapadi Village, Udipi taluk. The respondent secured a job with Kandasami Spinning Mills, Komarapalayam, in 1964, and brought the

first appellant to that place where they lived together. Three children, viz., Rama Rao, Punitha and Nagaratnam were born to the first appellant and

the respondent and the children had been admitted into school at Komarapalayam where they were studying. There were some minor quarrells and

misunderstandings between the first appellant and the respondent. The first appellant appears to have suggested that she may be allowed to go to

the village of Kote for a brief stay to which the respondent agreed and persuant to this, the first appellant and the three minor children left

Komarapalayam in or about July, 1975, and the first appellant promised to return back to Komarapalayam with the children within a short time.

Thereafter, the respondent also is stated to have visited the first appellant and the children several times, when he was informed by her as well as

the second appellant that the first appellant was suffering from a severe form of Arthritis and that she was undergoing treatment and believing this,

the respondent had allowed the first appellant and the children to continue to live at Kote. Even thereafter, the respondent had visited the first

appellant and the children once in every month and also looked after their needs. While so, in or about March 1978, according to the respondent,

the appellants suggested that the respondent should deposit a substantial sum in the name of the first appellant at Udipi so that she may draw the

interest thereon and incur the expenditure on behalf of the children. This suggestion, according to the respondent, was only to enrich the second

appellant, as he was a man of no means and when it was found by the respondent that all the sums given by him had been utilised for the family

expenses of the second appellant and only very little had been spent on the children, the respondent appears to have informed the first appellant

that she should come back to Komarapalayam with the children and that further treatment can be had at that place. On the refusal of the first

appellant to do so, the respondent returned to Komarapalayam and thereafter made attempts through one Y. Ramakrishnaiya to get back to

Komarapalayam the first appellant and the minor children, but all attempts in that direction failed. The first appellant sent a notice on 15-4-1978,

claiming a sum of Rs. 1000 per month as maintenance for herself and the minor children. According to the respondent, he even thereafter

requested the first appellant to come back to Komarapalayam with the children, but she did not do so as she was only determined to exploit the

situation to squeeze some money out of the respondent. The respondent stated that he is entitled to the guardianship and custody of his minor

children Rama Rao, Punitha and Nagaratnam, aged about 14, 12 and 9 respectively. It was also the further case of the respondent that in Kote

village proper facilities for the education of children were not available and that the appellants also did not command the means as well to give

good education to the minor children. In addition, the respondent claimed that minor Punitha was about to attain puberty and that it became

necessary to make arrangements for her marraige as well. The respondent further claimed that owing to lack of adequate educational facilities as

well as other psychological factors, it will not be in the interest of the minors to allow them to remain to Kote. He therefore prayed that they should

be directed immediately to return to Komarapalayam. It was under these circumstances that the respondent filed O. P. 103 of 1978, District

Court, Salem, praying that his minor children Rama Rao, Punitha and Nagaratnam should be restored to him.

That application was resisted by the first appellant herein, who pleaded that there were quarrells owing to the ill treatment meted out to the first

appellant and the minor children and that after 1972, the respondent had been ill-treating the first appellant and the children which made it

impossible for them to live with the respondent, and therefore, the first respondent was obliged to live away from the respondent. The first

appellant further pleaded that she was obliged to leave the respondent in July 1975, with her minor children, as the respondent refused to maintain

them. The several visits to Kote village stated to have been made by the respondent were denied. The attempt of the first appellant to secure a

large sum of money from the respondent in her name to facilitate her to draw interest thereon was denied. The first appellant also denied that the

respondent had asked her and the children to come back to live with him. The attempts stated to have been made through mediators to secure the

first appellant and minor children were refuted. While admitting the issue of a notice dated 15-4-1978 to the respondent, the first appellant charged

the respondent with carelessness to look after the children and also stated that the welfare of the minor children will be in jeopardy, if they were left

in the care and custody of the respondent. The first appellant also claimed that proper facilities to educate the children at Udipi or Manipal were

available and that such facilities were better than those available in the place of the respondent. The first appellant also claimed that she had the

means to give good education to the minor children. The first appellant also put forth the plea that it would be proper and safe for Punitha, who

was about to atttain the age, to stay with the first appellant rather than with the respondent. An objection was also taken that the minor children

were not living with in the jurisdiction of the District Court of Salem, at the relevant period or at the time of the filing of the application. The welfare

of the minors, according to the first appellant, required that they should not be left with the respondent and the application filed by the respondent

was characterised as an attempt to forestall the maintenance claim of the first appellant and the minor children.

The second appellant adopted the counter of the first appellant.

Before the court below, the respondent examined himself as P. W. 1 and marked Exs. A. 1 to A 4, while, the first appellant examined herself as

R. W. 1 and relied upon Exs. B. 1 to B. 3. On a consideration of the oral as well as the documentary evidence, the Court below found that the first

appellant was unable to maintain herself and the minor children, that the second appellant is in indigent circumstances and unable to maintain them

and that the respondent was in a better position to look after the children and their welfare and also best suited to be the guardian of the minor

children. On that conculsion, the petition filed by the respondent was allowed and the appellants were directed to hand over custody of the three

minor children to the respondent herein. Aggrieved by this, the appellants have preferred this appeal.

The learned counsel for the appellants first contended that the application filed by the respondent herein could not have been entertained by the

District Court at Salem, since the minors did not `ordinarily reside'' at any place within the jurisdiction of that Court. Elaborating this contention, it

was further submitted that the first appellant along with the minor children, left Komarapalayam on 1-7-1975 and thereafter all of them had been

living at Kote village within the jurisdiction of the District Court at South Canara and therefore, the District Court at South Canara alone had

jurisdiction to entertain the application. Reliance in this connection is also placed by the learned counsel for the appellant on the decisions reported

in Jagir Kaur and Another Vs. Jaswant Singh, and Mst. Firoza Begum v. Akhataruddin Laskar, AIR 1963 Gua 193. It is also further pointed out

that the Court below had not adverted at all to this jurisdictional objection. On the other hand, the learned counsel for the respondent and the first

appellant had been living in Komarapalayam till July 1975 and that the minor children, should therefore, be taken to have been ''ordinarily residing''

within the meaning of Section 9(1) of the Act at Komarapalayam within the jurisdiction of the District Court at Salem. It is also submitted that the

actual place of residence of the minors at the time of the filing of the application does not determine the jurisdiction of the Court and that in the

absence of anything to indicate that there was an intention to abandon Komarapalayam as a place of residence the mere circumstances the minors

were in the custody of the first appellant at Kote village would not make them ordinarily residing at Kote so as to render the proceedings initiated

before the District Court at Salem without jurisdiction. A further point is also raised by the learned counsel for the respondent that the order was

passed by the Court below on the merits of the application after due hearing and that technicalities should not be allowed to prevail when there was

no failure of justice. In this connection, reliance was also placed on the decision in Shah Harichand Ratanchand Vs. Virbbal and Others, .

It would be pertinent to notice the relevant statutory provisions which have a bearing on the question debated. Section 4(4) of the Act defines a

''District Court'' as having the meaning assigned to that expression in the Civil P. C. and includes a High Court in the exercise of its ordinary original

civil jurisdiction. Section 4(5)(a) states that ''the court'' means the District Court having jurisdiction to entertain an application under the Act for an

order appointing or declaring a person to be a guardian. S. 9 relates to the jurisdiction of the court to entertain an application. The provision

relevant in this case is S. 9(1) of the Act which reads as under :-

If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place

where the minor ordinarily resides.

Section 25 of the Act provides as follows:-

Title of guardian to custody of ward:

(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court if it is of opinion that it will be for the welfare of the

ward to return to the custody of the guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to

be arrested and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by Section 100 of the

code of Criminal Procedure, 1882 (now the code of Criminal Procedure 1973 (Act 2 of 1974) and the corresponding section is S. 97).

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not itself terminate the guardianship.

In the light of the aforesaid statutory provisions, the question whether the minor children in the present case ''ordinarily resided'' at

Komarapalayam within the jurisdiction of the District Court at Salem or not, has to be decided. If it is to be held that they were so residing, it is not

disputed that in that event, the District Court at Salem will have jurisdiction to entertain the proceedings. The words ''ordinarily resides'' would in

my view connote, a regular, normal or settled home and not a temporary or forced one to which a minor might have been removed either by stealth

or by compulsion. The place of residence at the time of the filing of the application under the Act does not help to ascertain whether a particular

court has jurisdiction to entertain the proceedings or not, as it would be easy to stifle proceedings under the provisions of the Act by the mere act

of the moving the minors from one place to another and consequently from one jurisdiction to another. The question whether the minors were

ordinarily residing in any particular place has to be primarily decided on the facts of the particular case. The paternal family of the house of the

family residence may normally be taken to be the place of ordinary residence of the minors as well. The words ''ordinarily resides'' are incapable of

any exhaustive definition as those words have to be construed according to the purpose for which the enquiry is made. The intention of not

reverting back to the former place of residence would normally be relevant; but in the case of the minors, it is rather difficult to impute any such

intention to them. It has also be borne in mind that mere temporary residence or residence by compulsion at a place however long, cannot be

equated to or treated as the place of ordinary residence. Bearing in mind these considerations, it is necessary to ascertain from the materials

available in this case as to where the minors ''ordinarily resided'' for purpose of the Act. There is no dispute that till 1-7-1975, the first appellant,

the respondent and the minor children were all living together under one roof in Komarapalayam. It is thereafter that the first appellant left

Komarapalayam taking the children also with her and continued to live with her father''s house at Kote village with the children till the proceedings

were initiated by the respondent under S. 25 of the Act. The evidence of the first appellant, examined as R. W. 1, is to the effect that she and the

respondent resided together with the children at Komarapalayam. In the course of her cross-examination R. W. 1 admitted that the respondent

requested her and the children to come and live with him. It is also further admitted that an ex parte decree for the restitution of conjugal rights had

also been obtained by the respondent. On this evidence of R. W. 1, it is rather difficult to hold that she had completely abandoned her husband''s

house at Komarapalayam as a place of residence and had decided permanently to stay at Kote. The minor children had been taken by the first

appellant when she left her husband''s abode, presumably on account of certain misunderstandings and quarrels that had arisen between the first

appellant and the respondent and though the differences between them apparently had not been patched up later, there is nothing in the evidence

which would disclose that there was any idea of abandonment of the family house at Komarapalayam on the part of the first appellant. At any rate,

the minor children cannot be imputed with any intention of abandoning the family residence at Komarapalayam, as they are obliged to stay with

their mother, who had taken them to Kote village. The residence of the minors at Kote village, though for some years, has necessarily to be

regarded as a temporary one or under compulsion or force of circumstances and could not therefore be regarded as the ordinary place of

residence, which as stated earlier connotes the idea of a settled home, which is only in Komarapalayam. Though the words used in S. 9(1) of the

Act are ''ordinarily resides'', the mere residences on the date of application, as stated earlier, cannot be decisive of the matter. In the present case,

the evidence points out that the settled home or abode of the minors is only at Komarapalayam and not at Kote, village, to which place they had

been merely removed by the first appellant owing to certain misunderstandings between her and the respondent and such residence at Kote village

is merely a temporary residence taken up not with the idea of permanently abandoning Komarapalayam as a place of residence. In Mst. Firoza

Begum v. Akhtaruddin Laskar, AIR 1963 Assam 193, on the facts, it was found that the minors had been ordinarily residing at Silchar for a period

of about 3 years prior to the making of the application and therefore the requirements of S. 9 of the Act satisfied with reference to the Court at

Silchar. There were also rival applications filed by the father as well as the mother. On the facts of the present case, that decision cannot, therefore,

be applied. The reliance placed upon Jagir Kaur and Another Vs. Jaswant Singh, , does not also assist the appellants as the Supreme Court in that

case was concerned with the interpretation of Sec. 488, Cr. P. C. The language employed in that provision is very different from that in S. 9(1) of

the Act. Apart from this, it is also pointed out by the Supreme Court that the meaning of the word ''residence'' has to depend upon the context and

that S. 488 Crl. P. C. is intended to serve a social purpose and also to enable a deserted wife or a helpless child to get urgent relief against the

husband or the father, as the case may be, in a place where he resides, permanently or temporarily, or where he last resided, or even where he

happens to be at the time of the proceedings are initiated. Such consideration cannot be applied with reference to S. 9(1) of the Act. On a

consideration of the evidence, it has already been found that the settled home of the first appellant and the minors is only Komarapalayam, where

they had ordinarily resided and as there has been no manifestation of any intention to abandon that as a home or abode, it must be held that the

minors ordinarily resided only at Komarapalayam and not at Kote village. The proceedings under S. 25 of the Act initiated by the respondent

where thus properly laid before the District Court at Salem.

There is yet another point of view from which the question of jurisdiction may be considered. The objection with reference to the jurisdiction of

the District Court at Salem to entertain the petition filed by the respondent was no doubt raised in the counter but it does not appear to have been

seriously urged, as otherwise, that would have been dealt with by the court below. But even otherwise, the appellants had participated in the

proceedings and had also given evidence and on a consideration of the evidence that was placed before the court and taking into account the

welfare of the minors, the court below had directed the appellants to hand over the custody of the minor children to the respondent. It cannot be

said that there has been a consequent failure of justice. S. 21 C. P. C. is intended to avoid technicalities based on local or territorial jurisdiction in

the upholding of the orders of the court. In Shah Harichand Ratanchand Vs. Virbbal and Others, , it has been laid down that S. 21 C. P. C. is a

transcendental and curative provision to see that technicalities do not prevail, when there is no failure of justice and that the appellate court was

bound to resort to this curative provision before declaring the order of the District Court to be null and void by upholding the objection about

territorial jurisdiction. Even on this ground, the contentions of the appellants that the District Court at Salem had no jurisdiction to entertain the

application filed by the respondent has to fail.

The next contention of the learned counsel for the appellants is that the court below has not considered the question of the welfare of the minors

at all but had proceeded to judge only the suitability of the respondent and that such an approach is bad. It is also further submitted that the

custody of the children should be allowed to remain with the first appellant that she is the mother and she is also best suited to look after the

children with all her love and affection. On the other hand the learned counsel for the respondent submits that the criticism of the learned counsel

for the appellants that the court below proceeded to consider only the suitability of the respondent to be a guardian is not justified at all as the

entire evidence had been considered and only thereafter the respondent had been declared to be the person with whom the minors should be

allowed to live having regard to their welfare. The further point made is that the evidence discloses a definite incapacity on the part of the appellants

to look after even the daily needs and the minimum requirement of the minors and that under these circumstances, the court below was quite

correct in directing the appellants to hand over the custody of the minor children to the respondent. In deciding the question of custody, the

paramount consideration is the welfare of the minors. The expression ''welfare'' is wide enough to include material as well as spiritual welfare. The

court has to consider as to what order would be best for securing the welfare and happiness of the minors. The welfare of the children cannot at

the same time be confined to either physical comfort or the comfort that money can secure. The children have to be properly brought up, educated

in healthy surroundings in order to enable them to have the benefits of education and also to secure a footing in life later on. Under S. 6 of the

Hindu Minority and Guardianship Act, the natural guardian of a Hindu Minor in respect of the minor''s person as well as the property is the father

and only after him, comes the mother. This is no doubt, qualified by the circumstances that the custody of a minor who has not completed five

years, shall certainly be with the mother. In this case all the minors have completed five years. Normally, the natural guardian is entitled to the

custody of the minor and as stated already, in so doing the court will be concerned only with the welfare of the minor. In the present case, the

children were aged 14, 12 and 9 even at the time the application was filed on 30-5-1978, and by now, they have grown up considerably. With a

view to ascertain the wishes of the minors, they were directed to be produced before Court and when questioned, they were not averred to the

idea of staying with their father. It was also attempted to be stated that the respondent was leading a wayward life. It is atone evident that the

children of tender years cannot really have any knowledge of the wayward life stated to have been led by the respondent and that they have been

tutored to say so, especially when even the case of the first appellant is not that. Needless to say, this attempt is only to prejudice if possible, the

claim of the respondent. It is therefore not possible to act upon what has been expressed by the children. That leaves for consideration the question

of the proper custody of the minor children. Out of the three children, the first is a boy and the other two are girls. The evidence of the first

appellant, examined as R. W. 1, discloses that the appellants have borrowed large amounts and that the second appellant owns a house and an

acre of land. The annual income therefrom is stated to be only Rs. 1000 or Rs. 1500, R. W. 1 would also admit that the respondent commands

better facilities and that while living with him in Komarapalayam he was drawing a monthly salary of Rs. 3000. Ex A-1 issued at the instance of the

first appellant also refers to the inability of the first appellant to maintain herself and the minor children as her parents are not in a position to

maintain the first appellant and her children. From Ex. A-1 and the evidence of R. W. 1, it is evident that she is unable to maintain herself and the

children. It is therefore not possible even according the first appellant to give a comfortable living to the children and also see to it that they are

properly brought up and educated. The evidence of the respondent, examined as P. W. 1, would show that he is earning substantial amount and

that he can also look after the children and give them the best of education available in Komarapalayam where they had been studying earlier. It

may be that the children have lost touch with the respondent who has also been close to them. It is also evident that there has also been a

calculated attempt by the appellant to paint a distorted picture of the respondent, in the impressionable minds of the children. But the environment

in which the children are now being brought up does not appear to be very congenial for their growth and development. In so far as the son is

concerned, he needs the care, love, protection, guidance and advice of the father in order to enable him to embark upon a course of useful study to

secure a good footing in life and employment as well. In such matters the father''s advice and guidance would be more valuable and conducive to

the welfare of the son rather than that of the mother. The other two are, no doubt, girls and even in respect of them as noticed earlier, the father

would be the natural guardian. No doubt, those two children will be soon attaining age and during that period they have to be carefully looked

after. The respondent, who also appeared before the court, impressed me as a very decent gentleman and a loving father and had assured that he

would endeavour to do his very best to see to it that even the girls are looked after carefully with all comforts and convenience and also provided

with education benefiting his status and means. The respondent is decently employed in Komarapalayam and is also holding a responsible post in a

textile mill earning substantial amount, and it would, therefore, be not difficult for the respondent to command the comforts as well as the

conveniences that may be required by the children to make up their life comfortable, happy and cheerful. The environment in which the children are

now being brought up is not so congenial to their welfare as the second appellant on whom the first appellant is dependant, is heavily indebted and

has practically no property and he is also very old and is not expected to live for many years. In the event of something happening to the second

appellant the first appellant will be completely left in lurch without any male help or assistance. It would also be exceedingly difficult for her to

maintain the children on further borrowings living away from the respondent. In my view, on the facts and circumstances of the present case, the

welfare of the minor children compels that they should be allowed to remain with the respondent, rather than with the first appellant, though she is

the mother. Having regard to these considerations, it cannot be said that the Court below was in error in having directed the appellant to handover

the custody of the minor children to the respondent. Consequently, the civil miscellaneous appela fails and is dismissed, but having regard to the

close relationship between the parties, there will be no order as to costs.

Appeal dismissed.