1. The appellant in this appeal is the petitioner in Guardian Wards Original Petition No. 68 of 1986 on the file of the District Judge, Kanyakumari at Nagercoil. The proceedings before the Lower Court will hereinafter be referred to as the Original Petition. The respondent in this Court was the respondent before the Lower Court. That was a petition filed under Section 7 of the Guardians and Wards Act, 1890, hereinafter referred to as the Act for brevity sake. The petitioner and the respondent are Christians by religion and they were married on 17.1.1977 as per Christian form. A child by name D. Rajesh was born to them out of this wedlock on 8.11.1977 The spouses were living together as per the counter statement of the wife till 15.10.1984 But, due to circumstances set out in the counter she left the company of her husband and started living with her parents with the child Rajesh. The allegation in the petition is that the respondent was a woman of loose character and that she was leading an immoral life, which was objected to by the petitioner, his parents, relatives and their neighbours. The petitioner, being the father, is entitled to the custody of his minor son, and the mother, in view of her bad character and conduct, was unfit to have the custody of the minor. It is his further averment in the petition that there are good schools near the petitioner's house, and that he has the capacity and ability to take care of the minor if he is allowed to have his custody. The petitioner would state in his petition that even though he had no properties, he would work and maintain his minor son and also educate him. If the minor is allowed to remain any more with the mother of such questionable character and conduct, then, it will have a direct impact on the character and future development of the minor. On these pleadings, the petitioner prayed before the Lower Court to direct the respondent to hand over the custody of the minor son Rajesh to him. The necessary statutory declaration of willingness was also made.
2. In the counter statement, the wife denied the allegation regarding adultery attributed to her. She would add that, at the time of her marriage, her father gave 12 sovereigns of ornaments to her and three sovereigns of chain and ring to the petitioner besides a sum of Rs. 10,000 cash. It is her further case in the counter that she was ill-treated, and the petitioner even went to the extent of beating her of ten. The jewels given to her at the time of marriage were misappropriated by the petitioner and his father, and they were demanding additional dowry, which demand could not be met by her father. On 15.10.1984, the petitioner took the respondent and the minor child to her father's house and left them there, reiterating their demand of additional dowry. Thereafter, he did not turn up at all to take them back to the matrimonial abode. Under these circumstances, she went on her own to the petitioner's house, but she found the door locked, and the petitioner did not turn up. The petitioner's father did not allow her even to go inside the house, and under those circumstances, she had no other option except to come back to her parents' house. The respondent also filed O.P No. 4/86 as an indigent person against the petitioner in the court of the District Munsif, claiming past and future maintenance at the rate of Rs. 250 per month for self and at the rate of Rs. 150 per month for the minor child. The respondent is looking after the interest of the minor child and he is in her safe custody. He is studying in school in Fifth standard at Kappicaud. The child needs the nursing of the mother. On these grounds, she resisted the claim of the petitioner.
3. The petitioner did not enter into the witness box to give evidence in support of his claim. However, the respondent examined herself as R.W 1. Besides reiterating what she had stated in her counter statement and also denying the averments contained in the petition filed in support of the application for custody, she would depose that she had studied upto Pre- University and that she was coaching her son for the school subjects. Her husband, the petitioner had studied only upto 8th standard. Her parents having been taking care of not only herself, but also the minor child, and that the minor's interest in the area of education and his personal life was fully taken care of by her. There are no women folk in the house of the petitioner and the present case has been filed as a counter-blast to O.P No. 4/86 filed by her and referred to earlier. She was willing to live with her husband, and that the child is living very happily with her.
4. On the basis of the materials placed before the learned Trial Judge, he came to the conclusion that the petitioner has not made out any case at all for custody of his child and thus dismissed the petition. The correctness of the order in the above Original Petition is questioned in the present Civil Misalliances Appeal before this Court. I heard Mr. K.N Thampi, learned counsel appearing for the appellant and Mr. P.N George Graham, learned counsel appearing for the respondent. The learned counsel for the appellant argued that the father, being the natural guardian, is entitled to the custody of the child as a matter of right, unless he is disqualified on any known ground in law. His client is employed as admitted by the respondent herself and schools being very near to his client's house, and he having the ability and capacity to take care of the minor child, he would be the best and proper person on the circumstances available in this case to have the custody of the child. He would further add that the welfare of the child also requires, when considered with the circumstances available in the house of the respondent, also indicate that his client would be the best person to have the custody of the child. He would further add that there was no need for his client to get into the box and give evidence since his entitlement in law was not disputed and cannot be disputed and as no disqualifications were attributed to him, there was no need for his client to give evidence. On the contrary, Mr. George Graham submitted that the child in this case is a ‘Ward’; a ward is defined under Section 4(3) of the Act as a minor etc., Section 4(1) of the Act defines a minor as a person, who, under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority. Relying upon Section 3 of the Indian Majority act, the counsel would add that as the child was born on 8.11.1977, he is over the age of 18 years as on date, and therefore, no order which is capable of being enforced could be passed as on date under the Act. He would next submit that on the facts and circumstances of this case, the order passed by the Lower Court is supported by legal reasons and therefore, no interference is called for at the hands of this Court.
5. I applied my mind very carefully to the submissions of the counsel on their respective sides, as well as went through the pleadings and order in this case and the relevant provision in the 1890 Act. Since I have decided to dispose of this case on facts, I am not deciding the first question raised by the learned counsel for the respondent as to whether as on date, sine the ward had crossed the age of 18, could any order at all be passed regarding his custody? It is no doubt true that the father, as a natural guardian and in his capacity as such and depending upon the age of the minor, is entitled to have the custody of the ward in normal circumstances unless he is proved to be unfit on any known grounds in law. It is also well settled that even if the father had not suffered any disqualifications, yet, if the child is of a tender age, then, the Courts have always left the custody with the mother. Of course, that situation does not arise in this case, because the ward in this case is a boy aged about 9 years on the day when the petition was filed. The question that falls for my consideration in this appeal is whether the father, solely on the ground of he being the natural guardian, would be entitled to the custody of the minor without reference to his welfare. The power to order custody is entrusted with the Court under Section 25 of the 1890 Act. Section 25 of the said Act is attracted to the fact of this case. Therefore, while exercising power under Section 25, the court should be primarily concerned with the welfare of the ward and only when it comes to the conclusion that the welfare of the ward requires custody being handed over to the guardian, then only, the order can be passed under this section. Therefore, ‘welfare of the ward’ must be the prime concern in the mind of the court before ordering custody of the ward. The fact that the father is a natural guardian by itself will not confer on him any unfettered right to the custody of the ward, if the welfare of the ward is opposed to it. In a decision of the Supreme Court reported in Rosy Jacob v. Jacob A. Chakramakkal., A.I.R 1973 S.C 2090, of this principle has been stated very clearly. It is stated therein that the controlling consideration governing the custody of the children is the welfare of the children and not the right of their parents. Therefore, when the welfare of the ward is pitted against the right of the father as a natural guardian, then, the father will not be entitled to the custody, if the welfare of the ward is not in favour of the custody being handed over to him.
6. In this background, I went through the records as well as heard the learned counsel for the appellant to find out what steps' the father had taken towards the welfare of the ward on the facts and circumstances of this case, which alone would decide the fate of this case. The husband had not even gone into the box to give evidence. The child was born on 8.11.1977, and the Original Petition came to be filed in the year 1986. Even before that, the wife had filed a petition in O.P No. 4 of 1986 for maintenance. There is neither plea nor evidence before Court as to what the father in this case, namely the petitioner had done to his child, namely the ward, all these years, namely from 1977 till 1986. As a father, and the natural guardian, he has his own responsibilities towards his children and every father is expected to take care of their child. In this case, there is absolutely no evidence at all as to what the father has done for his child in the filed of education; getting him the necessary clothes; providing him with all other minimum comforts which a child requires and expects from his father, from the year 1977 to 1986. There is no evidence at all in this case to show that the father had spent even a single pie on his child, and the evidence of the mothers that the child's welfare in the field of education and personal needs are completely taken care of by her with the help of her father. Therefore, I am of the firm opinion that in this case, the father has not shown to have done anything for his son towards his welfare and that being so, he will not be allowed to come all of a sudden and ask for the custody of the child. The evidence available in this case establishes beyond doubt that the mother had completely taken care of the child without any help at all from her husband, namely the father. Therefore, the welfare of the ward, on the facts and circumstances of this case clearly disentitles the father from asking for the custody of the ward. No doubt, the Lower Court proceeded on the basis that the petitioner, having come forward with the allegation that the wife is leading an immoral life and he having failed to prove the allegation, he is not entitled to the custody. This will be yet another circumstance to show how reckless a father could be in making such wild allegations. If really, he was serious about those allegations, which would normally disentitles the mother to have the custody he should have proved it. But he had not chosen to get into the box and substantiate the same. Under these circumstances, I find no merits in the appeal and it is accordingly dismissed.