1. The petitioner is the wife of the respondent. The above petition has been filed u/Ss. 3, 7 to 10 and 25 of the Guardian and Wards Act, 1890 to declare the petitioner to be the guardian of the persons of the two female minors viz., 1. Vijayalakshmi and 2. Aswini alias Anuradha and to direct the respondent to give custody of the two female children to the petitioner.

2. The marriage between the petitioner and the respondent was performed according to Hindu rites and ceremonies at the cost of the parents of the petitioner at Madras on 30-4-1990. The two minor children were born to them out of the said wedlock on 2-6-1981 and 5-7-1983 respectively. From her savings, the petitioner purchased two plots of house sites, one at Avadi and another at Iyyap-panthangal. The respondent, who was employed for a meagre salary with a real estate dealer suggested to the petitioner to dispose of the house site at Iyyappanthangal and purchase a small house at K.K Nagar. According to his suggestion, the plot of land at Iyyappanthangal was sold and out of the amount raised through the sale of the land and from her savings, a small house at No. 4, 10th Sector, 54th Street, K.K Nagar, Madras-600 078 was negotiated. At the time of registration, of the sale of that house, the respondent suggested that the sale may be registered in his name. The petitioner being a dutiful, faithful and affectionate Hindu wife agreed to the said suggestion and the property was registered in the name of the respondent on 3-4-1989. The family occupied the new own house and continued their profession. In the meantime, the petitioner out of her own income and earnings, purchased T.V mixi and wet grinders and other household utensils. Immediately after the purchase of the house in the name of the respondent, he started showing his true colour and behaved in an erratic manner. He started accusing the petitioner of her morality, which caused not only physical suffering but also mental torture to the petitioner. The respondent has also caused unbearable physical and mental cruelty, such as abusing of immorality and causing bodily injury by beating her. The petitioner was able to tolerate all the sufferings meted out by the respondent for the sake of her two minor children. The petitioner submits that the respondent has no love or affection for the children and that he did not take any interest in the welfare of the minor children. His mother is aged about 80 years and she is in no way helpful to the children. The petitioner further states that the respondent detained the children with him with a view to sell the house property at K.K Nagar. He was of the view that the petitioner may not take any action to make a claim on the house property as the respondent was having the” custody of the children. When he achieved the custody, he has sold the house property for a throw away price. Immediately after the sale of the house, the respondent took all the sale proceeds and the children to an undisclosed place and all the efforts by the petitioner to trace his residential address ended in failure. According to the petitioner, the respondent paid no interest in the welfare of the children. They were not provided with proper clothing or food. They were made to walk to the School and the children were not at all interested in the studies. That apart the respondent never stays in the house. The children were left with the mercy of the 80 year old of the mother of the respondent, who is unable to provide even the minimum requirements to the children. The petitioner also learnt that the respondent is keeping the children in a slum locality. The environment is so bad that, if the children are allowed to continue to live in such an environment it may affect the welfare and future of the children both mentally and physically. The petitioner further submits that the respondent is not a suitable person to have the custody of the female children and that he is unfit to be the guardian of the person of the minor children. The atmosphere and environment and treatment of the children are so bad as stated above besides the character and capacity of the respondent are also against the interest and welfare of the minor children. According to the petitioner, the respondent is not a fit person to be the guardian and custodian of the minor children. The petitioner is now living with her mother who is aged about 60 years. Besides mother the petitioner's brother, who is employed is also helping the family. The family is living in a decent locality. The mother of the petitioner is hale and healthy and is capable of giving all the required assistance to the minor children during the absence of mother at work. The petitioner is also always available to give the female children the proper and suitable advice as and when required by them. She is also capable of extending the required guidance, help and assistance not only counselling but also accompanying them to the School and can easily bring them back when she return from her office. The petitioner is now earning more than Rs. 2000/- per month and she can give more comforts to the children from her earnings. She had no other burden. Her survival is only for the welfare of her children and her entire earnings is only for the children. It is further stated that the first child Vijayalakshmi is now running 10th year. The mother of the respondent is fairly very old lady. The female children need their mother's advice and guidance in several matters of importance at this stage. The custody of the minor children especially female children when given to the mother will lead the children to get the appropriate advice in matters of importance from the mother. With these averments, the petitioner has filed the above original petition to declare herself to be the guardian of the person of the minor female children Vijayalakshmi and Aswini alias Anuradha.

3. The respondent has filed a detailed counter-affidavit denying all the allegations contained in the petition of the petitioner. He also has denied the facts alleged by the petitioner and states that he only purchased the two house sites and disposed of the house site at Ayyappanthangal and that he purchased a house site at No. 4, 10th Sector 54th Street, K.K Nagar, Madras in April, 1989 and that it is utter false to state that he wanted the said house to be registered in his name. The respondent further submits that he has purchased the two house sites and he has purchased the house at K.K Nagar out of his own income. In fact he has purchased the colour TV and mixi and other household articles out of his own income. The respondent has also denied that he is leading a wavered life etc., and according to him, he has not committed the act of any cruelty on the petitioner and he is leading a duty to the husband towards the family and having much affection over the minor children. On the other hand, the respondent states that the petitioner is only leading a wavered life and is having illicit intimacy with one Allah Baksh, who was working as a Peon in the Sub-Registrar's office, Virugambakkam. As soon as the matter was brought to his knowledge, the respondent advised her not to have any affairs with the said Allah Baksh. Even after his repeated warnings, she has not meanded her ways and on the other hand, the said Allah Baksh used to visit their house quite frequently. The respondent further submits that on 27-8-1989 his elder brother and his wife advised the petitioner not to have any affairs with the said Allabaksh and requested her to lead a life with the respondent. Even after this, her behaviour did not change and again she used to visit his house frequently. The respondent and his mother are looking after the interest and welfare of the minors and imparting the education of the minor children. The allegations contained in the petition of the petitioner is not correct and have been made only to suit her purpose and have been invented for the occasion. The respondent is residing in a decent locality and the children are all being brought up very well. The petitioner is not a suitable person to have the custody of the minor children since she is living in adultery with another peson. She is also involved in a criminal offence under S. 420 and she was arrested and later remanded before the 17th Metropolitan Magistrate's Court and later was released on bail and the surety was also given by the respondent. The said criminal case is still pending. Since the petitioner is leading an adulterous life she is not the fit and proper person for appointment of guardian of the minor children. Thus, it is seen that the petitioner cannot be appointed as the natural guardian of the two minor children and that the minor children are never living to live with the petitioner since she is leading an adulterous life. She has deserted the children without any valid and reasonable cause. On the other hand, the respondent is having good character and capacity and having every right to act as a guardian of the minor children. With these averments, the respondent has filed a counter in the main original petition.

4. On behalf of the petitioner two witnesses were examined. The petitioner has examined herself as P.W 1 and her mother Bakiyalakshmi aged 65 years was also examined as P.W 2. On behalf of the respondent, the respondent was examined as R.W 1. Exs. PI to P. 12 have been marked on behalf of the petitioners and Exs. R1 to R5 have been marked on behalf of the respondent.

5. On the above pleadings the following two questions may arise for consideration by this Court:

1. Whether the petitioner who is the mother of the two minors is to be declared the guardian of the minors Vijayalakshmi and Aswini alias Anuradha and

2. Whether the respondent is to be directed to give custody of the two female children viz., Vijayalakshmi and Aswini alias Anuradha to the petitioner.

6. I have heard the arguments of Mr. C. Rajagopalan on behalf of the petitioner and Mr. K.R Thiagarajan, learned Counsel appearing on behalf of the respondent.

7. Point No. 1: In my view, the petitioner mother cannot be appointed or declared as the guardian of the minor children when the father is alive. The father is the lawful and natural guardian of his children during their minorities. So long as the father is alive and he does not suffer from any disqualification, he is entitled to act as such until by orders of a competent Court he is deprived of his lawful right. Hence, the petitioner is not entitled to be declared as the guardian of the minor children. That apart it is unnecessary for me to decide the same in this case as virtually. I have given the custody to the mother. I should however state that the father is the natural guardian which cannot be parted away. This question did not arise in the circumstances.

8. Point No. 2: The main question for determination is as to the custody of the two female children. I am fully aware and conscious that in the matter of my deciding the question of custody the foremost consideration must be the welfare of the child. The concept of welfare of the child should be given a judicious interpretation and not merely following the ritual of giving the custody of a child to a mother for the simple reason that there can be no substitute for a mother to take care of the child howsoever affectionate the mother (father—Ed.) of the child might be. 1 do not like to be petrified by common concepts in this regard ignoring altogether the peculiar circumstances of a particular case and bring to bear upon it an attempt to do justice according to the conscience. Let me make myself clear. I had the benefit of seeing the petitioner and her husband in Court deposing before me as P.W land R.W 1 respectively. I closely watched the demeanour of the witnesses during the cross of examination. I am able to see and have no hesitation to conclude that there is disproportionate as-sailment of the husband by the wife and of the wife by the husband in the course of their examination. The only allegation made by the respondent against the petitioner is that she is living in adultery with one Mr. Allabaksh, an employee of the Registration Department. It is not the case of the respondent that the petitioner is unfit to have the custody of the children. In my opinion, the respondent has miserably failed to establish the case of adultery against the petitioner by cogent and acceptable evidence. The only allegation that has been made in the counter affidavit is that the petitioner is leading a weavered life and that she is having illicit intimacy with one Allabaksh, who was working as a peon in the Sub Registrar's office, Virugambakkam and that the said Allabaksh used to visit the petitioner's house quite frequently. It is further stated that on 27-8-1989, the respondent's elder brother and his wife advised the petitioner not to have any affairs with the said Alia Baksh and they requested the petitioner to lead a life with the respondent. Even after this, the petitioner's behaviour did not change and again she used to visit his house frequently. Except this bald allegation, no convincing material has been placed before this Court to accept the case of adultery put forward by the respondent. The brother of the respondent and his wife who visited the house on 27-8-1989 as stated in the counter affidavit have not been examined at all. The petitioner as P.W 1 has categorically denied the case of adultery put forward by the respondent. Nothing has been elicited from the petitioner in the cross examination. The petitioner's mother who was examined as P.W 1 has also denied categorically the allegations made by the respondent in this context. The respondent who has examined himself as R.W 1 states that on 26-8-1989 his wife viz., the petitioner went to Alia Baksh's house and that on the next day Alia Baksh came to his house and told him that his wife and children came to his house on the previous day and stayed in his house.

9. He further told him that his wife had to go to office on Monday and that therefore he asked the petitioner to give her cloths and the children's cloths. At that time the respondent's brother Gopal and his wife and his brother in law Venkataraman came there. They advised Alia Baksh that he should not behave like that. Then he went to his house and send his wife and children by autorick-shaw along with one S.T Baskher. I am not impressed with the evidence tendered by R.W 1 in this regard. I reject his testimony as interested for the following two reasons:

1. The evidence of R.W 1 is not corroborated by any other independent witness. Though he says that on 27-8-1989 his brother, his brother's wife and his, brother in law Venktaraman were present at his residence, none of them were examined on the side of R.W 1 to prove the said allegations. It is also stated that the petitioner returned to the respondent's house with her children to auto-rickshaw along with one S.T Basker. The said Basker was also not examined. Hence in my opinion, the evidence let in by the respondent in regard to his case set up for adultery is not at all established and the evidence is not sufficient for this Court to come to the conclusion that the petitioner is living in adultery with the said Alia Baksh. The next question is whether the petitioner will be able to look after the minor children with all comforts. It is an admitted fact that the petitioner is running a Type-writing Centre and that she is getting enough income. The petitioner's mother is aged about-65 years and she is living with the petitioner and she is hale and healthy and mentally alert and physically allright to attend to the comforts of the two minor children. The mother's position is regarded as of much more importance in modern times than it was in former days. The paramount consideration is the interest of the child rather than the rights of the parents. Human nature is much the same all the world over and in my opinion if the mother is a suitable person to take charge of the child, it is quite impossible to find any adequate substitute for her for the custody of a child of tender years. It is also well settled that any matters concerning minor or minors has got to be considered and decided only from the point of view of the welfare and interest of the minors. In dealing with a matter concerning a minor the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minors' interest. In considering the question of custody of a minor the Court has to be guided by the only consideration of the welfare of the minor. Applying the above test to the facts and circumstances of the case on hand, the best way to save and serve the welfare and interest of the minors who are aged about 12 years and 9 years respectively would be to remove the children from the custody of the father, who in my opinion is not a fit and proper person to have the custody of the two minor female children. In my opinion, he is not a suitable person to be in the custody of the minor children. His behaviour in Court is not satisfactory and his evidence is shabby and not acceptable to this Court. The mother petitioner in this case has got a decent and steady income, as could be seen from her oral evidence, out of which she will be in a position to meet all the expenses of her children. I am also able to see that it is her desire and wanted her two female children to lead a healthy and moral life which is essential for their better growth and development. The first girl, as stated above is now aged about 12 years and the second girl is now aged about 9 years. Both of them are reaching the age when they need the guidance of their mother. Therefore, the custody of the two female children should be given to the mother/petitioner. In my opinion, it will be erroneous to refuse the custody of the two daughters to the mother mainly on the ground that the mother was employed and that she will not be in a position to look after the minor children. As stated above, the petitioner's mother is living with her and she will certainly be able to look after the welfare and interest of the two minor children. While considering the question of welfare and interest of the minor children, the right of the father as recognised by law has also to be kept in mind and given its due weight. But the primary and paramount consideration undoubtedly remains to be the welfare of the minors. The expression ‘welfare of the minors’ though has not been defined, yet undoubtedly has to be given a very wide meaning. It ought not to be measured in terms of money only or of physical comfort alone. It has many facets such as financial, educational, physical moral and religious welfare. In the instant case, the mother/petitioner is getting a decent income of more than Rs. 2000/- per month. She is also educated and is physically and mentally all right to bring up the minors. Further she is also affectionate towards her minor children. Though some allegations have been made by the respondent about her character, as stated above they have not been proved at all by the other side. At any rate, when the allegations are not proved they cannot be taken as the ground at this stage for denying the custody of the two female children to their mother/petitioner.

10. It is useful to notice the decision of Bombay High Court in Bai Tara v. Mohanlal, AIR 1922 Bom 405 which says that a boy of 7 years would be much better of living with his mother than with his father. Beaumont, CJ in Saraswathi Bai v. Shripad Vasanji, AIR 1941 Bom 103 said that ‘if mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years. Das, J. of Calcutta High Court in In re Kamairuthra, ILR (1949) 2 Cal 374 said ‘I have no doubt in my mind that the mother's lap is God's own cradle for a child of this age, and that as between father and mother other things equal, a child of such tender age should remain with the mother.’’ Our High Court in Kanliappa v. Valliammal, AIR 1949 Madras 608 held that it is impossible to find out an adequate substitute for the custody of a child of tender years whose interest should be the paramount consideration. In Samuvel v. Steala, AIR 1955 Mad 451 : (1955) Cri LJ 1192 our High Court had again reaffirmed its view by saying that since it is the mother who would have the interest of the minor most at heart the tender years of the child needing the care protection and guidance and the most interested persons viz., the mother who has come to be preferred to others. The Court gave custody of a female child of 13, who was delicate in health to the mother. Likewise in Bolanath v. Sharadadevi, AIR 1954 Patna 489), the Patna High Court held that the affection love and sympathy which the children require cannot be given by the father in the same measure as can be given by the mother, especially when the child is aged only about two years or little more.

11. In Alan v. Alan, 1948 2 All Eng Rep 413, the trial Court gave custody of a child of 8 years to the father as against the mother, who was found guilty of adultery. In the court of appeal it was held that it would not be right to snatch this female child of 8 years from her mother and force to make a new start with her father and step mother. The Court also gave care and control to the mother. In my view, so long as the child is young enough to need the day to day care of her mother it is better to leave the child with the mother, unless the mother is entirely an unsuited mother.

12. It seems to me that the Courts from, the very beginning has no difficulty in propounding this principle and that it has been accorded statutory recognition by the Hindu Minority and Guardianship Act, 1956 proviso to S. 6(a) provides the interest of the minor, who has completed the age of 5 years shall ordinarily be with the mother. Muslim Law has always recognised this principle as a rule of law. Under the Hanafee Law custody of a boy up to the age of 7 years and of a girl up to the age of puberty rests with the mother. The Punjab Chief Court in 1917 stated that a child of tender years should be committed in the custody of the mother, even if she had remarried. It is also natural on the part of the petitioner/mother to feel that if the minors themselves are allowed to live with their father, they may be brought up to hate the mother/petitioner or to have a very adverse impression about her at a later stage. This cetainly is not desirable.

13. Some of the decisions strongly relied on by the learned counsel for the petitioner Mr. C. Rajagopal may also be usefully referred to in this context. In the decision in Karnail Singh v. Mukhtiar Kaur, 1981 HLR 560, a learned single Judge of Punjab and Haryana High Court has held that the children being grown up females need very much the care and attention of the mother at the age at which they are now. Although according to the respondent (father, he has his mother to look after them but she is quite aged nearing 70 years. The father has to go out for work and it would not be possible for her to look after them. Moreover at this age the children need a particular attention of the mother and they cannot repose their confidence in the father in certain matters they being female children. Moreover nothing could be pointed out by the learned counsel for the respondent which could justify interference with the exercise of the discretion by this Court in favour of the mother.

14. In Sau Anasuyabai v. T.B Rakshe, (1985) 2 HLR 295, the Bombay High Cort held as under;

“Hindu Minority and Guardianship Act, 1956 Sections 6 and 13 custody of minor. No rule of law that child above five years should always be given in the custody of the father. Duty of Court to consider the facts and circumstances of each case whether it is in the interest of the child to hand over custody to the father — Female child normally kept in the custody of mother irrespective of her age — Assumption that child above the age of five years should normally be handed over in the custody of father is entirely misconceived.”

15. “Guardians and Wards Act, 1890 Sections 7 and 8 Hindu Minority and Guardianship Act, 1956, Sections 6 and 13 Custody of female of 10/11 years — No grown up female in the house of father who would take interest in the welfare of daugher baby — Would be absolutely necessary that her custody is retained with the mother.”

16. In C.S Reddy v. Smt. Yamuna reddy, 1975 HLR 214 : (AIR 1975 Kant 134), a Division Bench of Karnataka High Court has held as follows (at page 136 of AIR):

Held that since it is the mother who would have the interest of the minor must at heart, the tender years of a child needing the care, protection and guidance of the most interested persons, the mother has come to be preferred to others. The girl will soon attaining age and in that difficult period it should be the mother who should be in custody of the girl and not the father.”

17. That apart human nature is much the same all the world over and in our opinion if the mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years.”

18. In the decision reported in Paras Ram v. Kamlesh, 1982 HLR 50 : (AIR 1982 P&H 60, a Division Bench of Punjab and Haryana High Court held as follows:

Hindu Marriage Act, 1955 Section 13(1)(i) Evidence Act, 1872, Section 102 Adultery — Burden of proof — Allegation of adultery made by a spouse aginst the other in defence in written statement — A negative burden — To be usually discharged by mere averring that allegation of adultery is false — It is for the spouse alleging adultery to substantiate it.

19. Hindu Marriage Act, 1955, S. 13(1)(a) legal Cruelty — Allegation of adultery made by a spouse against the other in defence in written statement not legal cruelty unless such an issue is specifically put to trial and proved to be false.”

20. Thus I am definitely of the view that the petitioner/mother is in no way unfit to have the custody of the two female children and to bring them up. She need not be deprived of the two minor children, which she is entitled to in law. Under these circumstances, the above original petition is allowed as prayed for. The respondent shall deliver the children to the petitioner immediately. However, it is open to the respondent/father to see the children at any time. The petitioner shall permit the respondent to visit the children at her residence by intimating her in advance. This original petition is disposed of accordingly. No costs.

21. Petition allowed.