1. This civil miscellaneous appeal concerns the guardianship and custody of two Hindu minor girls. The first minor girl named Meena alias Aarthi was born on 13th May, 1972. The second minor girl named Priya was born on 12th September, 1973. They hive lost their mother. The mother is stated to have died on 10th August, 1982. Their father is alive and he is the first respondent in this appeal. The Appellant is their maternal grandfather. The facts placed in the case have disclosed that the marriage between the parents of the minor children took place on 26th May, 1969. The father is an Engineer and he is a M. Tech., and his profession took him to Bhopal, Delhi and Tiruchirapalli. During these years, his wife, the mother of the minor girls was alive. His employment as such was with Bharat Heavy Electricals Ltd., (BHEL) and he was so employed last at Tiruchirapalli. The mother of the minor children seemed to have fallen sick and she had come to her parents' house at Madurai for treatment. The two minor children seemed to have been brought to Madurai in May, 1982, since their mother was taking treatment there and they were joined in a school at Madurai. Until the death of the mother, no problem seemed to have cropped up. But the demise of the mother seemed to have brought about problems over the guardianship and custody of the two minor children. The father is stated to have resigred his assignment with BHEL with the intention to start an industry of his own and it is stated that he borrowed moneys from the maternal grandfather, namely, his father-in-law. The father also was indicating his anxiety to raise a loan over the jewels of the mother, namely his late wife, for this commitment. It is admitted that the said jewels are in the custody of the maternal grandfather. The father also began to re-claim the custody of his two minor children, which he is lawfully entitled to and he had been writing letters with that end in view. But the maternal grandfather seemed and seems to have a different idea and he wants to have the custody of the two minor children with him. The maternal grandfather preferred O.P No. 98 of 1983 before the District Judge, Madurai South, to declare or in the alternative to appoint himself as the guardian for the two minor children and for continuing their custody with him. The father of the two minor children contested the Original Petition and the learned District Judge did not countenance the case of the maternal grandfather and dismissed the petition, and the maternal grandfather has preferred this civil miscellaneous appeal against the orders of the learned District Judge.
2. Mr. G. Ramaswami, learned counsel appearing for the maternal grandfather, the appellant in this appeal, would draw a chart of comparison to impress upon this Court that though the father is the natural guardian of his two minor children, yet on the facts and circumstances of the case, this Court should go by the principle of the paramount interest of the minors and if that principle is kept in mind, the Court should only countenance the case of the maternal grandfather for guardianship and custody. Learned counsel exposed the anxiety of his client that if not guardianship, at least the custody of the minor children should be left with the maternal grandfather. As points speaking in favour of retaining the guardianship and custody of the minor children with the maternal grandfather, the following factors were delineated by the learned counsel: (1) The maternal grandfather is aged 60 and the maternal grandmother is aged 50 years; (2) The financial position of the maternal grandfather is sound; (3) Ever since May, 1982, the minor children are with the maternal grandparents. The minor children are studying in a school at Madurai, and it is not worthwhile to disturb their education by taking them away from the custody of the maternal grand-parents at Madurai; (4) The jewels of the deceased mother are with the grand-parents and they shall give to the minor children at the appropriate time of their marriages; and (5) The children have been with the maternal grand-parents sufficiently long and they are being tended to by the maternal grand-parents with love end affection and if they should be snatched away from the said atmosphere, it will bring about a trauma in the minds of the minor children In contrast, learned counsel for the maternal grandfather would also stress the following factors as speaking against leaving the guardianship and the custody of the minor children with the father: (1) The financial position of the father is not good and he bad been borrowing loans from the maternal grandfather and was not averse to pledge the jewels of the mother, namely, his late wife. He started his business venture only recently and cannot be stated to be in a stabilised financial position; (2) The father is a widower and he lives only with his own father (paternal grandfather of the minor children), who is also a widower and the age of the paternal grandfather is 70; (3) There is no female member in the household of the father and it is claimed that an aunt of the father, who is stated to be aged 50 and who is living away from her husband, is living with the father of the minor children. There is no guarantee that the said aunt will continue to be in the household of the father and that she may not go away to join her husband. In the said circumstances it is not safe to entrust the two minor children under the impression that a reliable lady would be in the household to take care of the minor children, who are girls; (4) The minor children are not willing to go and live with their father and any compulsion over them to do so will bring about a trauma; and (5) The father is a temperamental man and the evidence placed in the case has disclosed that he used to beat his children.
3. Before I approach the question on facts, I would like to delineate and keep in mind the provisions of law, which should form guidelines in matters like this. The two minor children being Hindu girls, with regard to natural guardianship as such the provisions of Hindu Minority and Guardianship Act, 1956 (32 of 1956, hereinafter if occasion comes, referred to as Act 32 of 1956, shall first speak. S. 6 of Act 32 of 1956 says that in the case of an unmarried Hindu minor girl, the father and after him, the mother shall be the natural guardian. The mother had gone out of the picture by her demise. The father as such does not suffer any disqualification set forth in the proviso to S. 6 of Act 32 of 1956. S. 13 of Act 32 of 1956 reads as follows;
13. (1) “In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.”
S. 2 of Act 32 of 1956 says that the provisions of the Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of, the Guardians and Wards Act, 1980 (8 of 1890), hereinafter referred to as Act 8 of 1890. S. 17 of Act 8 of 1890 reads as follows:
17. Matters to be considered by the Court in appointing guardian.
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this sections, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) Omitted by Act III of 1951.
(5) The court shall not appoint or declare any person to be a guardian against his will.”
The rule of Hindu law is that no one other than the father and failing him the mother has an absolute right to have the guardianship over and custody of an unmarried Hindu minor girl. 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 ordinarily be in the custody of the mother. As stated above, the mother is not in the picture at all. Furthermore, the minors have passed the age of 5. The first minor has completed the age of 12 and is running the 13th year and the second minor has completed the age of 11 and is running the 12th year. S. 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, S. 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 appoinment. 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 minor. 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 S. 17(1) of Act 8 of 1890 and S. 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 and 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. Keeping in mind the above salient principles of law, this Court has to examine the facts of the case to find out as to whether strong and convincing circumstances have been made out against the father to take away from him the guardianship and the custody annexed to it of his unmarried minor daughters or to deny him the custody of his unmarried minor daughters, maintaining guardianship with him. I am visualising the latter contingency because in the course of arguments advanced on behalf of the maternal grandfather, it was stated that though the guardianship of the father need not be disturbed, yet the custody of the two minor children should be permitted to be with the maternal grandfather.
4. The father has not disqualified himself from being the natural guardian of his two minor children. He has not ceased to be a Hindu and he has not completely and finally renounced the world by becoming a hermit or an ascetic so as to attract the proviso to S. 6 of Act 32 of 1956. Until May, 1982, the father, mother and the two minor children lived together in the places where the father was working. Of course, there were periodical visits to the place of the parents of the-mother. The mother died on 10th August, 1982. She had come earlier to her parents' house for treatment. The two minor children were also brought to Madurai and they were joined in a school there. The father seemed to have planned to start an industry of his own and he had borrowed loans from his father-in-law, the maternal grandfather of the two minor children. He had requested for further loans and he also indicated an idea that if the loan was not forthcoming from his father-in-law, he had to think about the pledging of the jewels of his late wife, the mother of the two minor children. This is evident from his letter, dated 7th March, 1983 addressed to his brother-in-law (brother of his late wife), marked as Ex. A13. …
[Discussion of facts omitted.]—Ed.
5. These are the documents which throw light on the attitude of the parties. On an assessment of these materials. I am not able to spell out that the father has in any manner lost his filial affection towards his two minor children. The fact remains that he has remarried. The borrowing of loans and the earlier indication to raise loan over the jewels of his late were the mother of the two minor children, wife, contingencies which he could not avoid because the father obviously wanted to start an industry of his own, resigning the job which he held. There is nothing unnatural for a young man, fully qualified in seeking other affluent financial ventures and for the purpose of raising loans, if at some point of time, the father had an idea of raising loans over the jewels of his late wife, the mother of the two minor children, obviously with the intention to redeem them subsequently, the Court cannot characterise the father either as a spendthrift and who will fritter away the jewels, or one, who has no interest at all with regard to the safeguard and security of the jewels for the benefit of his minor children. I find that in Ex. A15, he has accepted the proposal to keep the jewels in safe deposit for the benefit of his minor children, since finance through other source, namely, his father-in-law was expected.
6. One other factor that was pressed forth as speaking against the father is the beating which he is stated to have given to the first of his minor children. In the Original Petition, in paragraph 15, it is stated that the father beat the first child when she refused to accompany him to Ranipet, and after the ceremonies relating to the first anniversary of the demise of the mother were over, in August, 1983. This Court should not lose sight of the fact that the father had been pressing for the company of his minor children and had been pleading for their joining him, as we could see from Es. A13, A14, and A15. If the minor child, without due regard to those feelings of the father, declined to accompany the father as requested by him, naturally, the father would have lost his temper, but that was only momentary and he has expressed regrets for the same in Ex. A9. This instance cannot be magnified. Certainly, the evidence has not disclosed that the father was and is a cruel man. As rightly pointed out by the learned District Judge, beatings sometimes are resorted to correct erring children, and it is not possible to characterise occasional beatings by a parent of a child as tantamounting to an act of cruelty so as to disentitle the parent from having the guardianship or the custody of his minor child. It is only in this context, Mr. T. Martin, learned cousel for the father, drew my attention to the following aspects in the evidence of the maternal grandfather examined as P.W 1. P.W 1 has admitted that the father of the two minor children was taking case properly and in the right manner the two minor children and their mother. P.W 1 has also admitted that the father will look after the two minor children as he (P.W 1) himself proposed to do. Equally so, P.W 1 has admitted that the children came to be joined in a school at Madurai so as not to affect their education. We must remember at that time the mother was alive and she was taking treatment at Madurai in her parents' house. Signi Scantly, P.W 1 also has admitted that if the father is prepared to look after the children and bring them up comfortably, he has no objection for the same. My attention has not been drawn to any clinching factor, which would demonstrate that the father is in any way disqualified from having the guardianship and custody of the two minor children and that it is not desirable to continue the guardianship and custody of the two minor children with him. If this is so, the father alone would be entitled to have the guardianship over and custody of his two minor children, unless any other relevant factor indicated a contrary position.
7. Learned counsel for the maternal grandfather would urge that the fact that the two minor children have remained in the maternal grand parents' house from May, 1982 should not be lost sight of and if at this juncture they are to be snatched away from that atmosphere, which would be against their will, it will, bring about a trauma in their mind and will not behove well for the interests of the minors. It is true that the paramount consideration that should weigh with the Court is the welfare of the minor children. From the bare fact, for two years and more in the past the two minor children happened to be in the custody of the maternal grandparents, it is not possible to say that such a custody should be continued in preference to the legitimate claims of the father, on the ground of paramount interests of the two minor children. The financial affluence of the maternal grand-parents should not be the sole criterion. It is not claimed that the father is a man of no means and he could not maintain and bring up his two minor children comfortably and according to his status. On the other hand, as adverted to earlier, the evidence of the maternal grandfather examined as P.W 1 points out a different position; and makes out that the father will cater to all the comforts of his minor children and bring them up as good as the maternal grandparents. The coming over of the mother of the two minors for treatment at Madurai, her demise at Madurai and the children coming along with her earlier to that and staying with the maternal grand-parents could only be treated as temporary phases, and they cannot govern as paramount factors with regard to the welfare of the minors. After all, they are the children of the father and when the Court has found that the father has not suffered any disqualification from being a guardian and custodian of his two minor children and nothing has been brought to the notice of the Court that it will net be desirable to leave the guardianship and custody of the two minor children with the father, the situation that the maternal grandparents would look after the children in better and more affluent circumstances is not a relevant factor that should weigh with the Court to deny the legitimate parental right of the father to the guardianship and custody over his two minor children. A proposition that wherever affluence and luxury are prevailing that should be the proper atmosphere for minor children to be brought up, denying the legitimate rights of the parents and lawful guardians, would be dangerous one. Primarily, the children should be in the custody of their parents, who are their lawful guardians. They cannot expect a status and upbringing de hors the status of the parents while they are being brought up by them. No one else could be allowed to snatch away the children from the parental household on the ground that they could afferd luxury and affluence to the children. The welfare of the minor children is not to be measured only in terms of money and physical comforts. The word “welfare” must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well-being. The two minor children are girls. Shortly they will come up of age and they will have to be married. In our Indian society and in particular Hindu society anybody seeking matrimonial alliance will certainly give due importance to the girls living with the parent and a situation, where a girl is living away from her parent will be looked at askance, and may draw as perse remarks too.
8. Since a complaint was made that the learned District Judge did not resort to the process of ascertaining the wishes of the two minor children before he passed the order, subject-matter of challenge in this civil miscellaneous appeal, I completed that process also before this Court. The two minor children were produced before me on 13th December, 1984, at my Chambers and they were questioned in the presence of both the counsel. First I questioned the first minor girl by name Meena alias Aarthi. She categorically stated that while the mother was alive, they were all living happily. She has also answered that the father has not neglected them. She understood the question that for a child the father is the most reeded person and she answered the question in the affirmative. However, for a question as to whether she would like to go and stay with her father, she gave the answer in the negative. When I asked her why she said so, her answer was that even for a small thing, her father scolds and beats them. She has also understood the position that when she grows up, people will ask as to what happened to her father. The second minor girl was also questioned by me and she also says that she would not like to go and stay with her father because he will beat her and her sister. When I asked as to whether the father was beating them always, she said No’. She also understands that when she grows up, the world will say that she is living away from her father. I watched the demeanour of the two minor children intently, and I clearly gathered the impression that having had been under the influence of their maternal grandparents, their answers with reference to their declining to live with the father appeared to be tutored ones, apart from being unnatural ones. In my view, this is only a temporary phase and should not be given undue importance. Though the court may ascertain the wishes of the minor, such wishes are not controlling on the court, and this Court has to assess the entire facts and circumstances of the case, and in appropriate cases, can even disregard the wishes and preference expressed by the minors, especially when the Court gathers an impression as in the present case that the minors have not given answers on the question of their which voluntarily, but under influence and tutoring. In the petition only one instance of beating is referred to, but the version of the miner children that the father was beating always brings ample suspicion to my mind that the children have been tutored. I have this impression gathered on examination of the two minor children.
9. The father has actually started the industry at Ranipet and this has been admitted even by the maternal grandfather, P.W 1. The father examined as R.W 1 has spoken to about the details of his industry and he says that the investment would amount to rupees twelve lakhs and the shares of the other partners would amount to only Rs two and half lakhs and that he is getting an income of Rs. 4,000 to Rs 2,000 per mensem. Hence, even from the point of view of material comforts of the two minor children, they are not likely to suffer for want of the requisite finance and wherewithal on the side of the father. The maternal grand-parents are also equally aged and it is not possible to visualise a situation that the physical comforts of the two minor children will be property looked after by them, if we take note of their failing age and the infirmities, that are usually attendant thereto. In the household of the father, who is only aged about 40 or so, it is found that be has got an aunt of his, besides his own father, namely, the paternal grandfather of the two minor children. As on date the aunt is there. On the simple ground that there is no lady in the house, it is not possible to deny the custody of the two minor girls to the father. All said, on the facts of the case in my view, they must have their abode only in the father's household. Mr. T. Martin, learned counsel for the father, was anxious to state that the maternal grandfather could not be stated to be interested in the welfare of the two minor children. He draws my attention to the partnership which the maternal grandfather entered into with the mother of the two minor children when she was alive under Ex. A12, dated 18th August, 1969, wherein it is found that the share of investment was Rs. 25,000. In evidence, the maternal grandfather as P.W 1 would claim that amount as his, and further on the death of the mother, he has not cared to take the two minor children to the benefits of the partnership. On the other hand, he has taken his son as a partner. This factor cannot be eschewed as totally irrelevant on the question of interest and welfare of the two minor children.
10. My attention was drawn to certain pronouncements including one of the highest Court in the land to impress upon me that the paramount interest of the minor children should weigh with the Court and in appropriate circumstances, the custody of the minor child could be denied to the father. There is no need to refer to them because the said principle is a well accepted one. I have already delineated the principles and have not lost sight of them while dealing with the facts of the present case. The father could lose his legitimate parental right of guardianship over and custody of his minor children if the facts and circumstances justify them. But my analysis and discussion of the facts and circumstances of the present case do not bring conviction to my mind that there exists any clinching factor, which could turn and speak against the father to deny his parental right for guardianship and custody over his two minor children.
11. For the reasons expressed above, I am not able to persuade myself to interfere with the findings rendered and the ultimate conclusion reached by the learned District Judge and this obliges me to dismiss the civil miscellaneous appeal and accordingly the same is dismissed with costs.
VCS.