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1977 DIGILAW 116 (KER)

C. MADHAVAN NAIR v. M. VISWANATHAN

1977-06-03

T.KOCHU THOMMEN, V.BALAKRISHNA ERADI

body1977
Judgment :- 1. This appeal arises from an order of the learned District Judge, Manjeri, in an application under S.7 of the Guardians and Wards Act, 1890 (8 of 1890). The learned judge held that the father of a minor is the natural guardian of the child under the Hindu Minority and Guardianship Act, 1956, and consequently he was entitled to the custody of the minor. The father was accordingly allowed the custody of the child. 2. The child by name Rajeev was born on 22-1-1971 to the respondent (the petitioner in the original application and hereinafter called the father) and his deceased wife Sobhana. The child was only two years old when his mother Sobhana died in 1973 Upon the death of the mother the child was brought to Calicut from the Kavarathy Island in Lakshadweep where the father is employed and the boy has been living with his maternal grand-parents ever since. 3. The father has married again and it is stated at the bar that a baby boy has been recently born to him by his present wife. The father's case is that he is employed as an Upper Division Clerk and that he draws a salary of Rs. 650/- per month. He is financially secure and is absolutely capable of looking after the child. His present wife is perfectly willing and able to look after the child and the child will be happy and comfortable in their home. There is a Central School in Kavarathy Island where as a Government employes he will be in a position to have his son educated free of cost. If the child is left with the maternal grand-parents as he is now, he will not have the same advantages educationally, socially or culturally as he will have with his father, step-mother and stepbrother. 4. Shri Govinda Warrier appearing for the appellants who are the maternal grand-parents of the child submits that the learned judge had not considered the welfare and interest of the child which are of paramount importance but had accepted the father's contention purely on the basis of the technical provisions contained in the relevant enactments. He submits that the welfare of the child was not a matter which had exercised the mind of the judge. It is therefore submitted by him that the order of the court below is unsustainable. 5. He submits that the welfare of the child was not a matter which had exercised the mind of the judge. It is therefore submitted by him that the order of the court below is unsustainable. 5. No doubt the interest and welfare of the child are matters of paramount consideration. Only if the court is convinced that it would be in the best interest of the child that he should be with the natural guardian, will the court be inclined to accede to the prayer of the natural guardian for the custody of the minor by taking him away from his present custodians. However there is a presumption in favour of the natural guardian as opposed to the claims of persons who are not considered to be natural guardians in law. Unless there is evidence to suggest that the natural guardian is not a fit person to be the guardian of bis child or that for other reasons it will not be in the interests of the child's welfare to entrust his custody to the natural guardian, the court would ordinarily be inclined to accept his claim in preference to the claim of any other person. 6. There is no evidence whatsoever to throw doubts on the bona fides of the father's claim for the custody of his minor son. There is absolutely no suggestion in this case that the father is either an incompetent person or an undesirable person to bring up the child On the contrary the evidence is that he is an affectionate father who desires to undertake the responsibility of bringing up his child. He has been regularly sending the child's maternal grandparents money for the child's maintenance Long before the present dispute arose the father had taken out an Educational Annuity policy with the Life Insurance Corporation of India in the name of the minor child for Rs. 5000/- to provide for the expenses of the future education of the child. Now that bis son has become old enough to join a proper school, he feels that it is only proper that the boy should he given the best education possible. For this purpose, he desires to put him in the Central School, Kavarathy, where education would be free for him. 7. Now that bis son has become old enough to join a proper school, he feels that it is only proper that the boy should he given the best education possible. For this purpose, he desires to put him in the Central School, Kavarathy, where education would be free for him. 7. We have no doubt that the child will go to a happy home for there is a young mother who will look after him and a little baby to play with. This is the kind of congenial atmosphere in which, in our opinion, a child should grow up. To deny him this opportunity and leave his with him ageing grandparents would be not only unfair to the child but opposed to the legislative intent evidenced by the Hindu Minority and Guardianship Act, 1956 We are of the view that the learned judge has correctly held that the father who is a natural guardian of the child is entitled to its custody. 8. It is submitted at the bar that the child should be given an opportunity during the summer vacation to live with his maternal grand-parents for a few weeks. Shri Govinda Warrier submits on behalf of the appellants that the father would be welcome to stay with the child in the appellants' house during the summer vacation. Shri P. C. Balakrishna Menon appearing for the father undertakes that his client will bring the child to the home of the maternal grandparents every summer vacation during the period of his guardianship and stay with him for not less than two weeks. We think that this is a reasonable arrangement. 9. Accordingly we dismiss the appeal and confirm the judgment of the court below. The father shall bring the child to the house of the maternal grand-parents and let him stay there for a period of not less than two weeks every year during the summer vacation of the school in Kavarathy Island until the child attains majority or until further orders in this regard are passed by this Court. There will be no order as to costs. Issue carbon copies of this judgment to the parties at their cost.