This petition is filed under S. 25 of the Guardian and Wards Act 8 of 1890 read with S. 6 of the Hindu Minority and Guardianship Act 32 of 1956. This Original Petition concerns guardianship and custody of the minor girl Dhanalakshmi alias Chithra aged about 9 months on the date of the petition. She was born to the petitioner Velan and one M. Nagewari on 23-3-1987 in Madras. The petitioner/father is natural guardian for the minor. The child lost her mother due to jaundice.
2. The facts placed in this have disclosed that the marriage between the parents of the minor child took place on 102-1986 in Madras, according to Hindu rites and customs. The parents of the minor were residing at Nos. 21, Kannabiran Koil Street, Perambur, Madras-11. However, unfortunately on 15-10-1987 the mother of the child died due to jaundice. Even before the petitioner could complete all the ceremonies for his wife, respondents 2 and 3 mother-in-law and sister-in-law of the petitioner, without the permission or consent of the petitioner stealthily removed the child on 16-10-1987, when the petitioner was away. It is seen from the records that the demise of the mother of the child seems to have brought about problems over the guardianship and custody of the minor child. The petitioner approached respondents 1 to. 3 and demanded them, to return the custody of the child to the petitioner, but the respondents refused to hand over the custody of the child. Thereafter, on enquiry the petitioner came to know that the child was left by respondents 1 and 2 grand-parents, with the third respondent. The third respondent is the sister of the petitioner's wife and the 4th respondent is the rother of the petitioner's wife. Several attempts made by the petitioner through mediations also failed. So the petitioner gave a police complaint on 12-12-1987 with the police and the 4th respondent who appeared for enquiry, agreed to hand over the child on 15-12-1987, but he did not turn up to hand over the custody of the child inspite of the undertakings given by the 4th respondent. But on the other hand respondents 1 and 2 caused a notice dated 17-12-1987 to be issued to the petitioner with frivolous and imaginary allegations as if the child should be only with the custody of the third respondent. It is also stated in the petitioner that the third respondent is already having four children of her own. It appears from the records that the third respondent's husband is a record clerk in the Raj Bhavan and they are residing in Raj Bhavan Residential Quarters. In addition, it was claimed by the respondents that there was no female helper in the residence of the petitioner. Respondents 1 and 2 reside in the village and also they are rustic. The petitioner's child cannot be allowed to be with the family of the third respondent because the petitioner's child requires special attention and care. The petitioner alone can give the child a better health, food, medicines, dress and education and better atmosphere and as the natural father.
3. In contrast the respondents would stress the following factors as speaking against having guar dianship and custody of the minor child with the father/petitioner :—
The child being of tender age it was impossible for the petitioner to take care of the child. The petitioner hand no female members to help in his family. The only relative who was living with him was his father Jayaseelan, who is also of old age having ill-health. The petitioner and his father are addicted to drinks. The respondents had their own doubts about the availability of the jewels belonging to the deceased Nageswari with the petitioner. The petitioner being legal and natural guardian of the child, that right alone will not give him the right to have the custody of the child. The respondents are not strangers to the minor child. The welfare of the minor child will be better only in the hands of respondents 2 and 3. The first respondent is a land-lord and has got properties worth about ten lakh rupees, and that they are leading a comfortable life without any need or suffering. The third respondent had got four male children who are aged about 15, 13, 11 and 8 years respectively. She does not have any female child in that family. The child knows the third respondent only as its mother, and if the custody is handed over to the petitioner, it will cause great suffering not only to respondents 2 and 3 but also to the minor child. The respondents have no intention of depriving the rights of the petitioner in toto. The petitioner is always at liberty to come to the child and give all his love and affection. The respondents have no objection for the petitioner to visit the child everyday.
4. Before I deal with 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 minor child being Hindu girl, 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 the 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. In the instant case the mother hand gone out of the picture by her demise on 15-10-187. The father/petitioner as such does not suffer any disqualification set forth in the proviso to S. 6 of the Act 32 of 1956.
5. In this context it is relevant to refer S. 13 of the Act 32 of 1956 which 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 the Act 32 of 1956 provides 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, 1890 (herein after referred to as Act 8 of 1890). S. 17 of the Act 8 of 1890 is also extracted hereunder —
“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 kind 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 no appoint or declare any person to be a guardian against his will.
6. In this background I shall first deal with the question on facts and then on law. In support the petitioner's case the petitioner has examined himself as P.W 1 and P.W 2 one Lakshmi. The petitioner Velan is P.W.2; s brother-in-law's son. On behalf of the respondents the third respondent/sister-in-law of the petitioner was examined as R.W.I
7. P.W.I has deposed that he did not give his consent for taking away his child by the third respondent, that he is dealing in kerosene business and he has got sufficient means to look after the child and maintain the child, and that P.W 2 is living with his, who will be able to look after the child. To a question put by the learned counsel for the petitioner, P.W.1 has answered that he still has not remarried and that he alone can take care of his child. To another question P.W.1 has stated that P.W.2 is living with him even prior to his marriage. He has further stated that he was not permitted to see the child and whenever he approached the respondents to see the child some explanations stating that the child was out of station and that some time as if the child was residing either at Raj Bhavan or at Vallur, with the result he cannot find the child anywhere. To a question specifically put by the learned counsel for the respondent whether the petitioner used to take alcohol, a categorical reply was given by P.W 1 that he has no such habits. He has also further deposed that he is prepared to dispose of the entire jewellery given to his wife at the time of marriage and convert into cash and put in Bank deposit in the name of the minor child. Nothing was elicited by the counsel for the respondents to discredit P.W.1 's testimony about his real and genuine intention to have the custody of the child and being the guardian of his minor daughter.
8. P.W.2 Lakshmi, who is aged about 60 years, has also deposed that she is willing to bring up Dhanalakshmi alias Chithra and that she has got the capacity to bring the child and that the distance between her son's house and the petitioner's house is about 10 feet away. She has also denied a suggestion put by the learned counsel for the respondent that she herself not in a position to take care of her welfare and she is not fit to take care of the minor child.
9. R.W.I who is the third respondent in this proceedings has deposed that the petitioner himself has arranged an autorickshaw and sent the child along with her on 18-10-1987 and that she alone will be fit and proper person to take care of the interest of the minor child.
10. In the light of the above facts we have to apply the law to the facts and circumstances of the case. The petitioner in this case is the father who is the natural guardian of his minor child as stated above. S. 19 of the Act 8 of 1890 lays down that a father cannot be deprived of the natural guardian ship of his minor children unless he is found unfit. Our High Court has also took the view that the guardianship of the father is a right of which he cannot be ordinarily be deprived, the father being the natural and legal guardian of the children as the paramount right of their custody. The other High Courts also took the same view that the father has inalienable rights over his children viz., right of guardianship and custody. Even in the recent times the tenor and tone continues to be the same. The father is not only the natural guardian of his children unless there are overwhelming circumstances to the contrary. The very principle of guardianship is that there is a presumption that the ather will be able to exercise good care in the welfare of his children if he does not happen to be unsuitable as guardian.
11. In Sukhdeo Rai v. Ram Chandar Rai AIR 1924 Allahabad, 622 = 1924 Vol. XXII Allahabad Law Journal, 680, a Division Bench of the said High Court has held as follows:—
The father is the natural guardian of his children. This guardianship is in the nature of a sacred trust, and he cannot, therefore, during his life-time, substitute another person to be guardian in his place. He may, in the exercise of his discretion as guardian, entrust the custody and education of his children to another, but the authority he thus confers is a revocable authority, and if the welfare of his children require it, he can, notwithstanding any contract to the contrary, take such custody and education once more into his own hands.
In case, however, where the Court is satisfied that it is for the child's welfare, it can interfere to prevent the revocation of the authority. (S. 27 of the Guardian and Wards Act, applied.)
A father is not liable to be deprived of the society of his child, or the control of his child, because he quarreled with the mother or distrusted the mother's moral character. An immoral father has just as good a right to his own children as a moral man.”
Applying the said ratio to the facts of this case, it can be held that the father can desire the return of the child to his custody even though he left the child for few years in charge of his wife's relatives. It is not sufficient to deprive a father of the custody of his child that he left the child for the first few years in charge of respondents 1 to 4 and desires to return to his custody of the girl child.
12. In Atchayya v. Kosaraju Narahari AIR 1929 Madras 81, a Division Bench of our High Court has taken the view that the refusal by a person to deliver back the child to its natural guardian when asked to do so by the latter, amounts in effect to a removal from his custody and he can, therefore, apply under S. 25 of the Act. In the said case a child of four years was brought up from its birth by its maternal grandparents. The father applied to recover custody of the child's person. The maternal grandfather opposed the application on the grounds that (1) the application was made through spite and was not bonafide, inasmuch as the father was led to make it because of the grandfather's threatening to sue him for partition of the child's property which the father was wasting; (2) that the father had ill-treated the child's mother before her death and had married a second wife and (3) that as the child was brought up from its birth by its maternal grandmother, it would be cruel to remove him from her. The Division Bench of the Allahabad High Court held that none of these grounds even if true, would be sufficient to deprive the father of the custody of the child. Even considering the matter entirely from the point of view of the welfare of the minor, it could not be to the minor's welfare to estrange him from his father at this tender age. It was further held,
“When the guardian of the person of a ward applies for the custody of the ward, he is only asking the Court to help him to discharge the duty cast on him by law with reference to his ward and it is for those who oppose such an application to make out that the welfare of the ward will be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made. This onus is especially heavy when the guardian is the father of the child.”
13. In Mr. Richard v. Mrs. Richard AIR 1955 Madras 451, this court has held as follows:—
“Under the Act there are no words confining the guardianship of the girls only to females. Any one can be appointed guardian provided it was necessary for the welfare of the girl. The Court has ample powers and wide discretion to make any order which may be necessary with regard to the sex of the minor. But considerations of sex gain importance when the age of the girl was considered.
In the case of a girl aged 13, who would be soon attaining age, held that it should be the mother who should be in custody of the girl.”
14. G.A. Ayyadorai Pillai v. E.H.B. David AIR 1960 Madras 519 = 73 L.W 345, Anantanarayanan, J. (as he then was) held as follows:
“The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that he has married a second wife after the death of his first wife is no ground for depriving him of his parental right of custody. The father may have shortcomings, but that does not imply that he is not deserving of the solace and custody of his child. Considerable latitude will have to be allowed for the father, who being a young man loses his head momentarily under the stress of a bitter quarrel with the family of his first wife. If the Court forms the impression that the father is a moral and intelligent young man and shows no indication of imbalance of mind in him, then it should not refuse to him the custody of his minor child his first wife.”
In Soora Reddi v. Chenna Reddi, where Govinda Menon and Basheer Ahmed Sayeed, JJ. have clearly laid down that the father ought to be the guardian of the person and property of the minor under ordinary circumstances, and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody. In the said case it was argued that the minor might have developed love and attachment to the other relations with whom he was and this argument was also negatived. In the instant case the very same argument was advanced by the learned counsel for the respondents that the minor has developed love and attachment to the third respondent, with whom she was. Applying the said ratio in the abovesaid decision, I have to negative the said contention. In the instant case the petitioner has not so far married. Even if he married for the second time, that cannot ordinarily stand in the way of rights of the father to have the custody of the minor child.
15. In B.N Ganguly v. C.H Sarkar, learned single Judge of Madhya Pradesh High Court has held as follows:
“According to the Hindu Law, the natural guardian of a minor child is the father. In the next place, the guardian of a child is the mother. The very principle of guardianship is that there is a presumption that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians.”
16. The latest reading decision relevant for this case is reported in D. Rajaiah v. Dhanapal, J. has held as follows:
“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 the 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 appointment. The father as natural guardians 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 differences 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 Aact 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 paramouns consideration. The rule of Hindu law recognising the father to be the guardian and custodian of his unmarried minor daughters, the maternal grand father, 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.”
In the abovesaid decision, it was also held by the learned Judge that because of the fact that for two years and more in the part the minor child 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 minor child. The financial affluence of the maternal grand-parents should not be the sole criterion. In the case on hand though it was elicited in the evidence that the grand-parents of the child are financially sound and owning vast extent of lands etc., that should not be the only criterion to have the custody of the minor child in preference to that of the natural guardian viz., the petitioner herein. Further it is not proved by the respondent that the father has suffered any disqualification from being a guardian and custodian of the minor child. Nothing has been brought to the notice of this Court that it will not be desirable to leave the guardianship and custody of the minor child with the father. The situation that the maternal grand parents, respondents 1 and 2 and respondent No. 3 sister-in-law of the petitioner would look after the child in better and more affluent circumstances is not a relevant factor that should weigh with this Court to deny the legitimate parental right of the father to the guardianship and custody over his minor child. This Court has further held in paragraph 7 of the abovesaid decision as follows:
“They cannot expect a status and upbringing dehors 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 afford luxury and affluence to the children. The welfare of the minor children is not 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 weight 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 asperse remarks too.”
Further, the petitioner/father is actually carrying on his business in kerosene as spoken to by him in the evidence, after examining himself as P.W 1 and has spoken to about the details of his business etc. Hence even from the point of view of material comforts of the minor child, the child is not likely to suffer for want of the requisite finance and wherewithal on the side of the father. Respondents 1 and 2 who are the maternal grandparents are also equally aged and it is not possible to visualise a situation that the physical comforts of the minor child will be properly looked after by them. The third respondent, as admitted by her in her evidence, is also having four children and that her husband is employed in the Raj Bhavan. In the household of the petitioner/father, who is only aged about 30 years or so, it is found that he has got P.W.2 to look after the child. It is also in evidence that P.W.2 is also living with P.W.1 even before his marriage. As on date P.W.2 is there. On the simple ground that there is no lady in the house, as alleged by the respondents, it is not possible to deny the custody of the minor child to the father. In my view, the girl must have her abode only in her father's household. If the petitioner is not ordered as prayed for, the father could lose his legitimate parental right of guardianship over and custody of his minor child if the facts and circumstances justify them.
17. Another latest decision reported in N. Kalavathi v. Nagarajan, J. while dealing with an identical situation held as follows:
“In 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.”
Learned Judge has also followed the decision of Nainar Sundaram, J., reported in Rajaiah's case (stated supra).
18. I am in respectful agreement with the views expressed by Nainar Sundaram, J. and K.M Natarajan, J. in the decisions cited supra. Applying the ratio laid down in these two cases there is absolutely no circumstances which warrants deprivation of parental right of the father. It is not proved by the respondent that the father does suffer from any circumstance which would deprive his parental right. The mere fact that the respondents are 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 natural father. It is also in evidence in this case that the petitioner remains unmarried after the death of his first wife and he has been longing for the child under the fond hope getting custody of the child. It is also not proved in this case that the father has shown any lack of interest in the minor. If that is so, that will be a circumstances which bear on the question of interest and welfare of the minor and on the benefits of the petitioner. In the absence of any proof in that context, in my opinion the custody of the child cannot be denied to the father. The interest of the infant will be saved in the infant is in the custody of the natural father lest the child will forget the face of the father for ever. My impression of the petitioner in Court is that he is perfectly normal and an young man. There are not the slightest indications of imbalances of mind in him, or of anything that is likely to be unfit him to bring up a small daughter. He seems to be anxious to have the minor child with him as early as possible. In order to took after it properly, and it provide for its future education etc. The feelings between the parties being what they are, I think it is also natural on the part of the petitioner/father to feel that if the minor child continues to live with its maternal grand parents and her mother's sister, it may be brought up to hate the father, or to have very adverse impression about him at a later stage. This certainly, in my opinion, is not desirable,
19. In conclusion, I am definitely of the view, that the petitioner is in no way unfit to have the custody of the minor child and to bring her up. He need not be deprived of the child which he is entitled to in law.
20. Under the circumstances, therefore, the Original Petition is allowed as prayed for. I make no order as to costs. The respondents shall deliver the child to the petitioner within two days from this date.
RR/VCS
Comments