Venkata Ramaiya, J.:— This is an appeal under the Guardians and Wards Act. The controversy is between parents, who are both Hindus, about the guardianship of the person and property of their only daughter. The child was born in February 1942, had the benefit of the care and company of both father and mother till 31-5-1944 and is separated from the mother since then, as she left the husband's house on that day and renewal of association between her and her husband has not been possible so far. After the mother's departure, the child was brought up for some time by the father's mother in Bangalore and on the death of the grand-mother in December 1944, by a relation of the father, at Madras. The father married a second wife in June 1946 and the child has been living with the father from the time the second wife joined him.
2. The mother attempted at first to obtain custody of the child by means of an application for writ of Habeas Corpus in the High Court at Madras.
3. The application was dismissed on 5-8-46 with the observation “as respondent 2 ‘its father’ is the lawful guardian of the infant and as it is not suggested that the child is not being properly cared for, we cannot grant the petition”. Subsequently she filed the application under the Act in a Court at Bangalore for her being appointed guardian of the person and property of the minor alleging firstly that the child was not properly looked after especially because of the second wife of the fattier being occupied with the household work and in rearing up of her own child and secondly that the father attempted to kill the child on 23-5-1948 by administering chloroform with the object of rendering the guardianship proceedings infructuous. Both these allegations were repudiated by the respondent who is the father of the child. The learned District Judge on a consideration of the evidence and principles governing the case dismissed the application with costs. The mother has preferred this appeal.
4. Of the two grounds relied upon in the lower Court the one accusing the respondent of an attempt to kill the child is given up and we may add, very properly. The allegation is a very serious one and should not have been put forward without proper inquiries even though it was due to the information said to have been conveyed to appellant by others. What remains to see is whether the child is not properly taken care of in her present environments.
5. There can be no doubt that it is best for the well-being of the child to be under the protection of its parents and the child is entitled to joint care and affection of father and mother. As observed by Pearson J. in a similar case in — ‘re Elderston, (1883) 25 Ch D 220 at p. 229 (A).
“persons who choose to enter the sacred bonds of marriage take upon themselves a responsibility …….. towards such children as they may have so to live that those children shall have that to which they are entitled, the benefit of the joint care and affection of both father and mother and neither of them is entitled to so act as to deprive the children of that which they have thus guaranteed to them”.
6. Unfortunately in this case the child is deprived of this advantage on account of the estrangement between father and mother and even the consideration of the child's happiness has not served to bring about a reunion between them. It is, however, not disputed that in spite of the quarrels between the father and the mother both are interested in the child and are willing to do all that he or she can for the good of the child. The question is, when the father and mother have fallen out and live apart, is it necessary or proper to change the custody of the child from the hands of the father? Admittedly the mother went away leaving the child when it was about two years old and has failed in her efforts to come back. The father has reared it up all these years with the aid of his mother, relations and his second wife. The evidence shows that he has put the child in a school and arranged for tuition at home. As regards means, the father as the earning member with a decent salary and holding a responsible post is in a better position than the mother who is apparently not possessed of any property to provide for the needs of the child and for her settlement in life.
7. Sri Lakshminaranappa, the learned counsel for the mother, argued that having regard to the fact that attachments and affections of the mother are higher than those of any other towards a child and that step-mothers as a rule are not kindly to their step-children, the child should be allowed to live with the mother. He has also represented that the minor being her only child would receive from her undivided attention unlike the stepmother who has children of her own to be nursed. The sincerity of feelings and certainty of devotion of a mother towards an only child particularly when it happens to be a girl and that a stepmother however well-disposed is not an adequate substitute for a mother are beyond question. But these alone cannot be a determining factor for her being appointed guardian, the paramount consideration being the welfare of the minor. Welfare cannot mean merely physical comfort and must be taken in its widest sense to include amenities and arrangement required for the girl being educated and accomplished to be happy in the present as well as in the future. It is doubtful whether the facilities now afforded to the child for these by the father will be available with the mother as she herself has to live with others.
8. As mentioned in the order of the learned District Judge, S. 16, Guardians and Wards Act requires that the personal law applicable to the parties is to be taken into account while appointing a person as guardian. Under the Hindu Law the primary right to be the guardian of the children is that of the father. (See Colebrooke's Digest, Volume 3, Chap. 8). In ‘33 Mys HCR 226 (B)’ a Bench of this Court held
“a father as the natural guardian is entitled to have the custody of the infant as against other relations inclusive of even the mother and his claim must be allowed to prevail unless …………the Court is judicially satisfied that the welfare of the child requires that the parental right should be superseded.”
9. Though it was a case in which the dispute was not between father and mother, as in this case, but between father and maternal grandfather after the death of the mother, the principle enunciated in the decision is important. Sri Lakshminaranappa, learned counsel for the appellant cited some cases in support of his contention that the mother should be appointed guardian of the minor in preference to the father. ‘Saraswathibai Shripad v. Shripad Vasanji’, AIR 1941 Bom 103 (C) strongly relied upon was a case in which the minor was a boy of 2½ years living with the mother when the father who had taken a second wife applied for being appointed guardian. The application was dismissed on the view that though the father was the natural guardian the interests of the boy did not justify his being taken away from the custody of the mother, with a significant remark by Wadia J. “the father having married again may not be a ground for depriving him of the custody of his minor child”. —‘Kaliappa Goundan v. Valliammal’, AIR 1949 Mad 60 8 (D) is a decision of a single Judge in which this case is referred to as laying down that the mother's claim should be upheld in preference to that of the father. The decision cannot be taken to be that the father should be deprived of the custody of the child even though he is taking care of it well. —‘Narasimha Setty v. Chennamma’, AIR 1950 Mys 8 (E) was also a case in which the application of the father was dismissed, the reason being that the minor was brought up by the maternal relations for years ever since it was left with them by the mother and father, the father evinced no interest in the minor for years and after the settlement of properties for the benefit of the minor by the maternal relations and on the death of the mother the father put forward the claim. — ‘Bai Tara v. Mohan Lal Lallubhai’, AIR 1922 Bom 405 (F) and —‘Shushila Ganju v. Kunwar Krishna’, AIR 1948 Oudh 266 (G) are other cases in which the application of the father who had taken a second wife was dismissed. In —‘Bindo v. Sham Lal’, 29 All 210 (H) also his application against maternal relations was dismissed.
10. What may be gathered from all these cases is that the welfare of the minor is the primary and paramount consideration for the appointment of any one as guardian and that subject to this, if the minor is and has been in custody of the mother or other relations at the time the application is made and well looked after by them the Court will be loath to interfere. This is not a case of attempting to take away the child from its mother but a case in which the question is whether a child who has been away from her mother for a long period shall be ‘forced’ to go back to her against the inclinations of the minor as ascertained in the lower Court whatever value may be attached to it. It may look cruel to refuse the mother's request but no less painful would it be to snatch the child from the father who has been a de facto mother. Sympathy and sentiment apart, under the circumstances, we think that it is not in the interest of the minor to disturb her stay with the father.
11. The appeal is dismissed. Parties will bear their own costs.
B/M.K.S
Appeal dismissed.