This appeal arises out of a petition filed by the father (appellant) under the Guardians and Wards Act for appointing him as the guardian of the four minor children and for directing the respondent herein to deliver custody of the said children to him. The petition was dismissed by the learned District Judge, Tiruchirapalli.
When this appeal came in the first instance for hearing before me, I gave an opportunity to both the husband apd wife to come to an understanding between themselves in the interests of the children and asked them to appear before me on a particular date. As they failed to come to any agreement, the appeal has come up for final disposal on the merits.
The appellant herein is a clerk in the Southern Railway, while the respondent herein is a B.A, B.T, employed as a teacher in the All Saints Training School, Tiruchirapalli. The appellant is a Hindu and the respondent is a Christian. They developed illicit intimacy in or about 1947, but they did not marry probably because each of them did not want to give up his or her faith. No doubt they continued to live as husband and wife for about 12 years but except for a period of about One year they never set up a home. For the rest of the period the respondent lived in her mother's house and the appellant took up residence in a room near the town railway station and they used to visit each other according to their needs and convenience. During the course of such relationship four children were born to them. Three of them are girls and one is a boy. The appellant and the respondent made an attempt to run a separate home for their own, but they were ablo to live together only for a year and in or about 1959 they fell out with the result that the respondent went away to her mother's house with the children and the appellant disbanded the establishment and resumed his residence in a room. The appellant filed the petition for the custody of the children presumably to compel the respondent to come and live with him. In the petition he has given various reasons for asking for the custody of the children.
The respondent resisted the application of the appellant for custody of the children on the ground that the children have been brought up as Christians and that the appellant never took any interest in the children. She also stated that the allegations made by the appellant against her sister and mother are defamatory and false and that the appellant promised to get himself converted into Christianity but failed to act up to his promise and that on account of the appellant's conduct, she had to break her relationship with him and that it would not bo in the interests of the children to hand them over to the custody of the appelant.
The learned District Judge after a deep consideration of all the circumstances of the case came to the conclusion that it would not be in the interests or welfare of the children to disturb them from the custody of the mother. In that view he dismissed the petition of the appellant for custody of the children. The appeal is filed by the appellant against the dismissal of his petition.
In the appeal the same arguments were addressed to me and it was urged that in the interests of the children the appellant should have been appointed as their guardian. Unfortunately the law is against the appellant. Admittedly, the appellant and the respondent belong to different religion. They were not legally married. But they lived as husband and wife and during the course of that relationship four children were born to them. According to law the children should be deemed to be illegitimate children as their parents are not legally married either in the Hindu or the Christian form. The question for consideration is who should be the legal guardian for the children born of such union. In similar circumstances while dealing with the question as to who is entitled to the custody of the minor child, it was held in Dorairaj v. Lakshmi(1), that the mother was entitled to the custody of the child, as there is no authority either in the texts of Hindu Law, or in the decided cases for recognising that the putative father of an illegitimate son by a permanently kept concubine has any right to the custody of the person of that son during his minority. It was also pointed out that the right does not necessarily flow from his duty to maintain the son or from the fact that the son has a limited right of inheritance to the putative father.
The appellant also relied on S. 3 of the Hindu Minority and Guardianship Act, XXXII of 1956 in support of his contention that the children are Hindus and he is entitled to their custody. S. 3 says it applies to any person who is a Hindu by religion and Explanation II to that section provides that any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a member of the family to which such parent belongs shall be considered to be a Hindu. The appellant contends that the children should be deemed to be Hindus as per the Explanation to S. 3. But the evidence in this case does not show that the children were brought up as members of a Hindu family. On the other hand, there is sufficient documentary evidence to show that the children were brought up by the mother, who still continues to be a Christian. Further, there was no scope for bringing up these children according to Hindu customs and manners, as the appellant never set up a separate home except for a brief period of one year for his wife and children to live together with him. In the ordinary course of things when the children are living with their mother, it should be presumed that they have been brought up as members of a Christian family to which the mother belongs.
The learned District Judge taking the paramount consideration, viz., welfare of the children, into account, came to the conclusion that the respondent-mother should have the custody of the children. He has given sound reasons for coming to that conclusion. He has pointed out that the respondent is a teacher earning Rs. 200 a month and can afford to maintain the children well and that ever since their birth, the children have been living with their mother and there are no strong and compelling reasons for disturbing the existing custody. The conclusion arrived at by the learned Diatrict Judge seems to be correct and justifiable in the circumstances of this case.
The appeal is therefore dismissed. No costs.
V.C.S