N. Kalavathi and Another vs Nagarajan

K.M. Natarajan, J.—This appeal is directed by the respondents in O.P. No. 16 of 1984 on the file of the District Judge, East Thanjavur at

Nagapattinam, challenging the legality and correctness of the order passed by the said court directing second appellant herein to hand over the

minor boy Manikandan aged about 9 years to the respondent herein.

The facts which are necessary for the disposal of the appeal may briefly be set out as follows :--For the convenience of proper appreciation of

the case, we shall adopt the rank of the parties given before the lower court. The petitioner is the father of the minor boy Manikantan and he filed

the petition u/s 10 of the Guardian and Wards Act read with Section 6 of the Hindu Minority and Guardianship Act, for declaring him as the

guardian of the minor Manikantan and he is entitled to receive the custody of the boy from the second respondent and also for directing the second

respondent to handover the child to him. It is seen that the petitioner had married the first respondent on 22-6-1972, at Mayiladuthurai. Since he

was employed at Coimbatore, he settled there along with the first respondent and they lived happily for two years. During the said period, a son by

name Manikantan was born to the first respondent. The parents of the first respondent were in Singapore; When the father of the first respondent

came to India in the year 1974, the first respondent without knowledge of the petitioner left the house with the child and went to Sitharkadu, a

suburb of Mayavaram Town, where the paternal grandfather of the first respondent was living. On coming to know of the same after making

necessary enquiries, he came there and learnt that the first respondent and her father had left for Singapore somewhere in January, 1975 after

leaving the minor boy in the custody of her paternal grandfather. According to the petitioner, he visited the said place where the boy was kept,

many times, and since the paternal grandfather of the first respondent pleaded with him to retain the boy with him as he was alone and that his

loneliness would be relieved by the young boy. The petitioner out of sympathy towards the paternal grandfather of the first respondent left the child

with him, without insisting upon him to hand over the said child to him. The paternal grandfather of the first respondent died. Thereafter the child

was handed over to one Govinda Thevar at the instance of the first respondent, and as he was not properly attending the child, it was entrusted in

the custody of the second respondent who is now looking after the child as ayah after receiving money every month from the first respondent. The

petitioner and his parents are very eager to get back the custody of the child from the second respondent. All attempts of the petitioner to get back

his wife proved of no avail. To a notice issued by the petitioner, she replied that she has no objection for the petitioner getting a decree of divorce

and also taking custody of the child. Hence he filed the petition.

That second respondent filed a counter which was adopted by the first respondent, wherein it is stated that the second respondent has been

looking after the child very carefully, that she is very much attached to the child, that the first respondent has been sending Rs. 300 to her for the

upbringing of the child. Though it is not disputed that the petitioner is the lawful guardian of the minor child, it is stated that the petitioner has not

cared for the child and that if the child is handed over to him, its health would be spoiled.

On the side of the petitioner, he examined himself as PW 1 and marked Exs. A1 to A3. On the side of the respondents, the second respondent

was examined as RW 1 and Exs. B1 and B2 were marked. The learned District Judge, for the reasons assigned in the judgment, allowed the

petition and directed the second respondent to hand over the child to the petitioner. Hence this appeal.

Learned counsel for the appellants, Mr. K. Ramamurthi, submitted that though the petitioner is the natural guardian of the boy, he did not

choose to visit the boy for so many years, that only after 8 years he filed the petition, that the welfare of the child is the paramount consideration

and that the court below ought to have ascertained the wishes of the child before passing the order. It is submitted that though the wishes of the

minor boy are not conclusive, the lower court has not ascertained the wishes of the minor while passing the order and as such the order is liable to

be set aside. The learned counsel for the respondent herein would submit that there is no dispute that the welfare of the child is the paramount

consideration. He also submitted that in the instant case admittedly the child was born in 1974, that the first respondent left the child at Mayavaram

and settled at Singapore for the last 13 years and that she did not like to go over to India but only wants to live at Singapore. She did not care for

the child and that the child is in the custody of a third-party, the second respondent. Further, even in the reply notice she has stated categorically

that she has no objection for the petitioner getting divorce from her and also taking custody of the child. The petitioner has been making all efforts

to bring his son and in spite of that, he could not secure his son. The parents are also anxious to maintain the child. Even though he got divorce, he

did not marry again, as he is interested only in the welfare of the child.

It is not in dispute that the petitioner it the father and natural guardian of the minor. It is also not in dispute that the first respondent, who is his

wife, left for Singapore along with her father after leaving the child at Sitharkadu, a suburb of Mayavaram, wherein her paternal grand father was

put up. After the death of the said paternal grandfather, the child once again passed on to the hands of one Govinda Thevar. Since he was not

properly attending on the child, it then passed on to the hands of the second respondent. The second respondent, is not in any way related to the

child. She has absolutely no concern with the child except the fact that she has been looking after the child as ayah as requested by the first

respondent who has been sending money every month. The mere fact that, on account of the present custody of the child by the second

respondent, the second respondent developed some attachment towards the child is not a ground to negative the lawful claim of the father of the

child as observed by the trial court. Even though the first respondent is adopting the counter of the second respondent, it is seen that to a notice

dated 6-4-1982, sent by the petitioner calling upon the first respondent to come and live with the child, she sent a reply stating that she has no

objection for the petitioner to obtain an order for dissolution of marriage forthwith and seek custody of the child. The above reply notice clearly

establishes that the first respondent is not interested either in the petitioner or in the child. Further, she has no objection for the petitioner taking

custody of the child. As rightly observed by the trial judge, in view of the attitude of the first respondent, it is not open to the second respondent to

resist the claim of the petitioner under law.

The learned District Judge rightly observed that the decisions reported in Muthuswami Chettiar and Another Vs. K.M. Chinna Muthuswami

Moopanar, and G. Ponniah Asari v. Suppiah Asari, 41 LW 400 are not at all applicable to the facts of the present case. The decision relied on by

the learned counsel for the appellants, in Rosy Jacob Vs. Jacob A. Chakramakkal, is not of any help to the case of the appellant. That relates to

the case of dispute between the father and mother and in the circumstances it is stated :

The father''s, fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all

relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then he cannot

claim an indefeasible right to their custody u/s 25 of the Guardians and Wards Act merely because there is no defect in his personal character and

he has attachment for his children. In case of a dispute between the father and the mother, the ""Court is expected to strike a just and proper

balance between the requirements of welfare of the minor children and the rights of the respective parents over them.

Now, the dispute arose in this case about the custody of the minor child between the father on one hand and the housemaid of the first

respondent on the other side. For the reasons already stated, considering the welfare of the child in the circumstances of the case, the order passed

by the lower court is perfectly justified. The learned District Judge took into consideration the fact that ever since the first respondent left the

petitioner, he remains unmarried and he has been longing for the child under the fond hope of getting custody of the child, even though he had

obtained a decree for dissolution of marriage. Further, it is clear from the evidence that his mother and father are very anxious to get at the child

and they are also longing for him. It is not as if he wants custody of the child with any malafide intention. On the other hand, there is acceptable

evidence to the effect that he was frequently visiting the child when he was under the custody of the first respondents'' grandfather at Sitharkadu

and he allowed the child to remain with the first respondents grandfather on compassionate grounds. Subsequent to his death, the child passed one

hand to another and now with the second respondent who after receiving a sum of Rs. 300 per mensem from the first respondent has been

maintaining the child. Since the child is under the care and custody of the second respondent for a pretty long time and the child is only 13 years,

we cannot get any useful assistance even if the wishes of the child are ascertained. The learned counsel for the respondent herein submitted that this

court is not bound by the wishes of the minor child. The learned counsel for the respondent would also submit that we cannot expect the child to

say that he would come and live with his father in regard to the present state as he is living with the second respondent for a long time and it is for

the Court to decide the question of welfare and interest of the minor in the circumstances of the case on the evidence available. The learned

counsel for the respondent drew my attention to the decision reported in D. Rajaish v. Dhanapal etc., 98 LW 135 wherein it was held as follows:

The Hindu Law recognises primarily the father as the legal guardian and custodian of his unmarried minor daughter when he is alive. Failing the

father only, the mother comes into the picture and she could assume such guardianship and custody only in such a contingency. But, an unmarried

Hindu minor girl, if she has not completed the age of 5 years, shall originally be in the custody of the mother.

Section 6 of Act 32 of 1956 does not make any substantial alteration in the law on the subject and gives legislative sanction to the principle well

established already. As such, the father could legitimately claim the right to have the guardianship over and custody of his unmarried minor girls. In

this context, Section 19 of Act 8 of 1890 can also be adverted to, when it countenances that if the father of the minor is alive, no other guardian

can be appointed, unless, in the opinion of the court, the father is not fit for appointment. The father as natural guardian is primarily entitled to the

custody of his minor children unless there are overwhelming circumstances to the contrary. It is true that there is an appreciable difference between

custody and guardianship, for guardianship is a more comprehensive and a more valuable right than mere custody. The sole consideration both in

the case of guardianship and custody of the minor should be the welfare of the miner. The Court is bound to take into consideration all the facts

and circumstances of the case, bearing in mind that the pivotal factor is the benefit and well-being of the minor. That the dominant factor for

consideration of the court is the welfare of the child, has found statutory footing both in Section 17(1) of Act 8 of 1890 and Section 13 of Act 32

of 1956. Both the provisions emphasize that the powers of the Court are to be exercised for the welfare of the minor, which should be the

paramount consideration. The rule of Hindu law recognising the father to be the guardian and'' custodian of his unmarried minor ""daughters, the

maternal grandfather, cannot straightway insist that he should be declared or appointed as the guardian ahd custodian of such minors. The father

being primarily entitled to the guardianship over and custody of his unmarried minor daughters, it is for the maternal grandfather, who wants to

maintain a contrary position, to demonstrate that there are peculiar and strong circumstances which warrant deprivation of such a parental right of

the father. The father can be deprived of such rights only if the facts and circumstances of the case warrant it.

I am in respectful agreement with the view expressed in the said case. Applying the ratio laid down to this case, there is absolutely no circumstance

which warrants deprivation of parental right of the father. He does not suffer from any circumstance which would deprive his parental right. The

mere fact that the second respondent is much attached to the minor itself is not a ground to negative the claim of the petitioner. In any event, such

custody cannot have any preference to the legitimate claim of the father. For all these reasons, I am of the view that the order passed by the

District Judge directing the second respondent to hand over the child to the petitioner is perfectly legal and correct and no interference is called for.

In the result, the appeal fails and stands dismissed. However, in the circumstances of the case, there will be no order as to costs.