Judgment :- 1. The appellant is the father of the minor child Anusha Mohan. He wants her custody from the respondent, who was his erstwhile wife. Their marriage was declared as a nullity on the application of the appellant in C.S. No. 83 of 1990. The appellant is a Christian and the respondent is a Hindu and the marriage was not registered under the Special Marriage Act. It was in that circumstance, the marriage was declared as a nullity. 2. Out of the wedlock, which was declared invalid, the respondent gave birth to two daughters. The elder daughter, by name Regina Mohan, is with the appellant. In his application for getting custody, the appellant alleges that in the interest and welfare of the children, both of them will have to be brought up together. It is also stated that the respondent is professing Hindu faith and she is bringing up Anusha also in that faith. It is further alleged that she is unfit to be the guardian of the child and that she has forfeited that right after leaving the matrimonial home. It is also stated that the petitioner will be in a position to meet the requirements of both the minors and look after their interest and welfare since he has got the capacity, status and better financial background, and will be able to discharge his duties as guardian. He also says that the children have to be brought up according to Christiam Religion to which he belongs. The respondent being a Hindu, it will not be possible for her to bring up the children on in a Christian way of life. He also says that being the father, as natural guardian he has got the preference to get a custody of the child. The appellants parents are living with him in his house only to look after the children. His father has resigned his job and has settled down with him only to look after the grandchildren. 3. He has also stated that considering the welfare of the minor children, custody must be given to him, and he has no objection for the respondent having access to the children at any time even without any notice. The separation of the two children, according to him has very much affected the welfare of the children. 3. He has also stated that considering the welfare of the minor children, custody must be given to him, and he has no objection for the respondent having access to the children at any time even without any notice. The separation of the two children, according to him has very much affected the welfare of the children. He, therefore, prays that the custody of his younger daughter minor Anusha Mohan be given to him. 4. In her counter, the respondent has denied the allegations made by the petitioner (appellant herein). According to her, she was sent out of the matrimonial home along with the second child. She also admits that welfare of the children requires that both the children must be brought up together, and she prays that the elder daughter may also be handed over to her. She has further stated that even though in 1990 the marriage was declared as null and void, from that time onwards the appellant was staying away from the first child and she was left in the custody of her grandparents. The petitioner was all along employed in Port Blair and did not make any arrangement even for the elder daughters education. She further avers that it was one of the pre-conditions even before marriage, that the children should be brought up by professing Hindu religion and only in accordance with that condition, the children were never baptised and they never followed Christianity. According to her, the present case of the petitioner that the children have to be brought up as Christians is only for the purpose of this case. She says that herself and her daughter were all along following Hindu faith and were also treated as Hindus by the petitioner himself. She also alleges that the job requirement of the petitioner is such that he has to be away for days together from station and has to be in the High seas. In such circumstances, enrusting the second child also to his custody will amount to weparating the children from both the parents. The minor child Anusha is being looked after by her properly, and there is no necessity to entrust the child to the appellant. The welfare of the child also demands that she (respondent) must have the continued custody of her younger daughter, Anusha. 5. The minor child Anusha is being looked after by her properly, and there is no necessity to entrust the child to the appellant. The welfare of the child also demands that she (respondent) must have the continued custody of her younger daughter, Anusha. 5. On the above pleadings, the learned Judge held as per order dated 29.4.1994, that the welfare of the minor child demands that she must be in the custody of her mother, and dismissed the application. The learned Judge further held that the petitioner (Appellant herein) has given a religious colour only for the purpose of seeking custody of the child. From the evidence, the learned Judge inferred that the children were all along brought up as Hindus and even the petitioner changed his name from Joseph Mohan Patrik to Balasubramaniam Mohan. The learned Judge also found that the younger child, being of tender age, needs maternal care, and that the mother (respondent) is not disqualified from having the continued custody of the child. The learned Judge further held that the respondent cannot be disqualified to have the custody of the child, merely because she is employed and is leaving the child in creche. The petitioners mother was examined as P.W. 2 in the case. Her evidence was not accepted by the learned Judge. The learned Judge held that if the child is entrusted to the maternal grandmother, that will amount to leaving the child without any parent, and though P.W. 2 is the grandfather, according to the learned Judge so for as the child is concerned. She is only an utter stranger. Therefore, taking into consideration the welfare of the child, the learned Judge held that there is no necessity to change the present custody. The application was dismissed, permitting the petitioner (appellant) to have the custody of the child once in a month in any one of the holidays between 8.00 AM and 5.00 PM and also for three days each during Pooja and Christmas Holidays and fourteen days during summer holidays. It is against the dismissal of the application, the father has filed this appeal. 6. The learned counsel for the appellant put forward the same submissions before us also. According to him, it is the recognised custom that the child follows the religion of his father and therefore, in the instant case, the child must be brought up as a Christian. 6. The learned counsel for the appellant put forward the same submissions before us also. According to him, it is the recognised custom that the child follows the religion of his father and therefore, in the instant case, the child must be brought up as a Christian. He also brought up a Christian. He also brought to our notice while taking the into consideration the welfare of the child, the religion must also be considered. Section 17(2) of the Guardians and Wards Act was read before us for the said purpose It says that in considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. 7. In this case, the question whether the child is a Hindu or a Christian is not of much importance since, according to law, it is the welfare of the child that has to be taken into consideration. But the learned counsel for the appellant repeatedly insists on our deciding it. We are not inclined to express any opinion finally However we find on a prima facie view of the matter, Anusha Mohan is a Hindu. We enter such a finding for the following reasons. 8. Hindu Law was drastically amended in 1955 and 1956. Many persons who are not Hindus are brought into this fold by various enactments. Explanation to sub-section 1) of Section 2 of the Hindu Marriage Act provides thus:— “The following persons are Hindus, Buddhists, Jains or Sikhs by religion as the case may be:— (a) any child, legitimate, or ill-legitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion: (b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged. In Hindu Minority and Guardianship Act also, a similar definition is given under Section 3(1) Section 2 of the Hindu Adoptions and Maintenance Act also gives a similar definition. In Hindu Minority and Guardianship Act also, a similar definition is given under Section 3(1) Section 2 of the Hindu Adoptions and Maintenance Act also gives a similar definition. In view of the statutory provision, the child Anusha Mohan can be treated as a Hindu. The evidence also shows that she was brought up as a Hindu, and she has not been baptised. It is admitted by the petitioner himself that in the Birth certificate, he has declared both his daughter as Hindus. It is also admitted by him that even his marriage was performed in Hindu form. He also admitted that he was performed naming ceremonies for his two daughters in Hindu form. He also admits that till date in all records both his children are declared only as Hindus. In this connection, it is worthwhile to note that long after the marriage the petitioner himself changed his Christian name into a Hindu name. He also says that even though was a born Christian he had affinity towards Hinduism and he wanted his children to be brought up as Hindus. It is in this connection that we have to look into definition in the various statutes mentioned above. 9. Under the Hindu Law, any child, legitimate or illegitimate, one of whose parents is a Hindu and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged has all along been treated as a Hindu. 10. Even before the statute came, the law was the same. 11. In I.L.R. 52 Madras 160 (Ratanui) D. Morarji v. The Administrator-General of Madras the question as to who is a Hindu came up for consideration. The learned Judge was considering the term “Hindu” in the Indian Succession Act, 1925. It was held thus:— “In the Indian Succession Act (XXXIV of 1925) the term “Hindu” is used in a theological, as distinguished from a national or racial sense. A person of non-Hindu origin can become a Hindu by conversion. Membership of a caste is not a necessary pre-requistite for being a Hindu. It is a question of fact in each case whether a given person is a Hindu or not. A person of non-Hindu origin can become a Hindu by conversion. Membership of a caste is not a necessary pre-requistite for being a Hindu. It is a question of fact in each case whether a given person is a Hindu or not. A European does not become a Hindu merely because he professes a theoretical alliance to the Hindu faith, or is an ardent admirer and advocate of Hinduism, and its practices: but if he resides long in India, abdicates his religion by a clear act of renunciation, and adopts Hinduism by undergoing formal convertion, gives up along with Christianity his Christian name and deliberately assumes a Hindu name, marries in accordance with Hindu religious rites, a person who is a Hindu by race and religion and cuts himself off from his old environments and takes up the Hindu mode of life, in such a case the court may justly come to the conclusion that he is a Hindu within the meaning of the Indian Succession Act.” 12. Our Court had occasion to consider the same question in 1970-II M.L.J. 334 = 83 L.W. 326 = AIR 1970 Madras 249 Sridharan v. Commissioner of Wealth-tax ). hat was a case where there was a marriage between the assessee, a Hindu and an Austrian lady under the Special Marriage Act, 1954. A son, Nicholas Sundaram was born to them. Whether the marriage between a member of the twice-born community and a Christian under the Special Marriage Act is recognised as valid in law, was the matter in issue. While considering the same, their Lordshins took note of the enactments mentioned above. They further gave importance to the declaration by the deceased stating that his son is a Hindu. After stating the facts, their Lordships held thus:— “The assessee married an Austrian lady under the Special Marriage Act, 1954. A son, Nicholos Sundaram was born to them Marriages between a member of the twice-born community and a Christian under the Special Marriage Act is recognised as valid in law. Therefore Nicholas Sundaram is a legitimate son even viewing it with the lynxs eye of orthodox Hindu Law. The Explanation (b) To Section 2 of the Hindu Succession Act, 1956, expressly provides for the conferment of the status of Hindu on a person even though such status is doubtful when the personal law of the parties is invoked. Therefore Nicholas Sundaram is a legitimate son even viewing it with the lynxs eye of orthodox Hindu Law. The Explanation (b) To Section 2 of the Hindu Succession Act, 1956, expressly provides for the conferment of the status of Hindu on a person even though such status is doubtful when the personal law of the parties is invoked. The Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956, prove that the expression ‘Hindu’ shall be construed as if it included a person who though not a Hindu by religion, is nevertheless a person to whom this Act applies by virtue of the provisions contained respectively in such Acts. The assessee when he declared that he and his son do form members of a Hindu undivided family, has done so obviously to preserve the solidarity of his family an d indeed his religion. His lapse, even if it is to be considered as one, in marrying outside the community, does not necessarily mean that he is not a Hindu and his legitimate son, born of such a lawful wedlock even though in his fold, under his care and protection and brought up by him is also not a Hindu. In fact, such a status in the son as a Hindu is preserved by the above statutory provisions. 13. The matter was challenged by the Revenue before the Supreme Court. The decision of the Supreme Court is reported in 1977-I-M.L.J. (S.C)5 . 5. ( Commissioner of Wealth-tax Madras and others v. Sridharan ). Their Lordahipa followed the decision in A.I.R. 1966 S.C. 1119 ( Shastri Yagnapurushdasji and others v. Mulas Bhundardas Vaishya and another ), and held thus:— “The sole question which, however, falls for our consideration in these appeals is whether Nicholas Sundaram is a Hindu governed by Hindu Law. It is a matter of common knowledge that Hinduism embraces within itself so many diverse forms of beliefs, faith, practices and worship that it is difficult to define the term “Hindu” with precision. The historical and etymologival genesis of the word “Hindu” has been succintcly explained by Gajendragadkar, C.J. in Shastri Yagnapurushcasji and others v. Muldas Bjundarda Viashys and another). It is a matter of common knowledge that Hinduism embraces within itself so many diverse forms of beliefs, faith, practices and worship that it is difficult to define the term “Hindu” with precision. The historical and etymologival genesis of the word “Hindu” has been succintcly explained by Gajendragadkar, C.J. in Shastri Yagnapurushcasji and others v. Muldas Bjundarda Viashys and another). “In unabridged Edition of Websters Third New International Dictionary of the English language, the term ‘Hinduism’ has been defined as meaning “a complex body of social, cultural and religious beliefs and practices evolved in and laetely confined to the Indian Sub-Continent and marked by a caste system, an outlook tending to vies all forms and theories as aspects of one eternal being and truth, a belief in ahimsa, Karma, Dharma, samsara and moksha and the practice of the way of works, the way of knowledge or the way of devotion as the means of release from the round of rebirths; the way of life and form of thought of a Hindu”. In Encyclopedia Britannica (15th Edition) the term “Hinduism” has been defined as meaning the civilization of Hindus (originally), the inhabitants of the land of the Indus River). It properly denotes the Indian civilization of approximately the last 2,000 years which gradually evove from Vedism, the religion of the ancient Indo-European peoples who settled in India in the last centuries of the 2nd millennium B.C. Because it integrates a large variety of heterogeneous elements, Hinduism constitutes a very complex but largely continuous whole, and since it covers the whole of life, it has religious, social, economic, literary, and artistic aspects. As a religion, Hinduism is an utterly diverse conglomerate of doctrines, cults and way of life. In principle, Hinduism incororates all forms of belief and worship without necessitating the selection or elimination of any. The Hindu is inclined to revente the divine in every manifestation, leaving others-including both Hindus and non-Hindus whatever creed and worship practices suit them best. A Hindu may embrace a non-Hindu religion without ceasing to be a Hindu, and since the Hindu is disposed to think synthetically and to regard other forms of worship, strange Gods, and divergent doctrines as inadequate rather than wrong or objectionable, he tends to believe the highest divine powers complementar to each other for the well-being of the World and mankind. Few religious ideas are considered to be finally irreconcilable. Few religious ideas are considered to be finally irreconcilable. The core of religion does not even depend on the existence or non-existence of God or on whether there is one God or many. Since religious truth is said to transcend all verbal defination it is not conceived in dogmatic terms, Hinduism is, then both a civilization and a conglomerate of religions, with neither a beginning, a founder, nor a central authority, hierarchy or organisation. Every attempt at a specific definition of Hinduism has proved unsatisfactory in one way or another, the more so because the finest Indian scholars of Hinduism including Hindus themselves, have emphasized different aspects of the whole.” In his celebrated treastise “Gitarahasya” B.G. Tilak has given the following broad description of the Hindu religion:— “Acceptance of the Vedas with reverence; recognition of the fact that the means or ways of salvation are diverse; and realisation of the truth that the number of Gods to be worshiped is large, that indeed is the distinguishing feature of Hindu religion” In Bhagwan Koer v. J.C. Bose and others, it was held that Hindu religion is marvellously catholic and elastic. Its theology is marked by eclectism and tolerance and almost unlimited freedom of private worship. Its social code is much more stringent, but amongst its different castes and sections exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror of using the meat of the cow. This being the scope and nature of the religion, it is not strange that it holds within its fold men of divergent views a and traditions who have very little in common except a vague faith in what may be called the fundamental of the Hindu religion. It will be advantageous at this stages to refer to page 671 of Mullas principles of Hindu law (Fourteenth Edition), where the position is stated thus: The word ‘Hindu’ does not denote any particular religion or community. During the last hundred years and more, it has been a nomenclature used to refer comprehensively to various categories of people for purposes of personal law. It has been applied to dissenters and non-conformists and even to those who have entirely repudiated Brahminism. During the last hundred years and more, it has been a nomenclature used to refer comprehensively to various categories of people for purposes of personal law. It has been applied to dissenters and non-conformists and even to those who have entirely repudiated Brahminism. It has been applied to various religious sects and bodies which at various periods and in circumstances developed out of or split off from, the Hindu system but whose members have nevertheless continued, have generally put a liberal construction upon enactments relating to the personal law applicable to Hindus.” 14. If the facts in this case are considered in the light of the above principles, there is no difficulty in rejecting the contention of the appellants counsel. The version of the respondent that the appellant converted himself to a Hindu is also worthy of consideration as such conversion does not require formal ceremonies. But we do not decide the question conclusively. 15. The prima facie finding naturally implies that Anusha Mohan is Hindu and she is how in the custody of her mother. Whether there is any necessity to change the custody has to be considered taking into consideration the facts and circumstances of the case. 16. In (1973) I S.C.C 840 ( Rosy Jacob v. Jacob A. Chakramakkal ), the Supreme Court held that merely because the father is a natural guardian, he is not getting an idefeasible right to get custody of the child. Their lordships of the Apex Court held thus:— “Section 25 of the Guardians and Wards Act contemplates not only actual physical custody, but also constructive custody of the guardian which term includes all categories of guardians. The object and purpose of this provision being ex facie., to ensure the welfare of the minor, which necessarily involves due protection of the rights of his guardian to properly look after the wards health, maintenance and education, this Section demands reasonably liberal interpretation so as to effectuate that object. Hyper-technicalities should not be allowed to deprive the guardian, the necessary assistance from the court in effectively discharging his duties and obligations towards his ward so as to promote the latters welfare. Hyper-technicalities should not be allowed to deprive the guardian, the necessary assistance from the court in effectively discharging his duties and obligations towards his ward so as to promote the latters welfare. Where there is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and consideration of their welfare, the fathers fitness has to be considered, determined and weighed predominantly in terms of the welfare of the minor children in the context of all the relevant circumstances. “If the custody of the father cannot promote their welfare equally or better than the custody the mother, then, he cannot claim indefeasible right to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for his children which every normal parent has- Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. Thus the Guardian Court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.” 17. Bailey, an eminent Jurist, on Habeas Corpus Vol. I, page 581, considered the question of custody and held thus:— “The reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separate from him without the shadow of a pretense of justification; and yet the interests of the child may imperatively demand the denial of the fathers right and its continuance with the mother. The tender age and precarious state of its health make the vigilance of the mother indispensable to its proper care; for, not doubting that paternal anxiety would seek for and obtain the best substitute which could be produced, yet every instinct of humanity unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her offspring, is prompted by deeper and holier feeling than the most liberal allowance of nurses wages could possibly stimulate”. 18. In 1994-I M.L.J. 381 (Suresh Babu v. Murthy alias Kanchana ), V. Ratnam, J. (as he then was), held thus:— “It is not merely the rights of parties with reference to custody that have to be considered and adjudicated upon, but what is most essential is that any such adjudication should be for the welfare of the infant child. The expression ‘welfare” must be read in its widest amplitude as meaning and including every circumstance which must be taken into consideration. The welfare of the child, particularly of an infant of about two years of age as in this case cannot merely be measured on the scales or yardstick of money or physical comfort only. The physical well being of the infant is no doubt important, but that is not all.” The learned Judge followed the earlier decisions of the Bombay High Court, namely, A.I.R. 1932 Bombay 405 ( Bai Tara v. Mohanlal Lallu Bhai ) and A.I.R. 1941 Bombay 103 Saraswathibhai Ved v. Shripad Ved ). 19. In A.I.R. 1941 Bombay 103 (surpra), it was held thus:— “I think the law on questions of this sort is the same in this country as in England, though, of course, social habits may be different. The modern view of judges in England is that it is impossible, in the case of young child, to find any adequate substitute for the love and care of the natural mother. If the natural mother is suitable person, the Courts in England will as a general rule hand over the custody of a child of tender years to the mother. “The mothers position is regarded as of much more importance in modern times than it was in former days, when a wife was regarded as little more than the chattel of her husband. “The mothers position is regarded as of much more importance in modern times than it was in former days, when a wife was regarded as little more than the chattel of her husband. The view of society in India as to the position of women may not have advanced so far or so fast as in England, but at the same time, the rights of the mother to the custody of her young children is undoubtedly recognised in this country. However, 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 an adequate substitute for her for the custody of a child of tender years. 20. In 1991-2-M.L.J. 231 ( Mary Vanitha v. Babu Royan ), it is held thus:— “.. The mothers position is regarded as of much more importance in modern times than it was in former days, when a wife was regarded as little more than the chattel of her husband. The view of society in India as to the position of women may not have advanced so far or so fast as in England, but at the same time, the right of the mother to the custody of her young children is undoubtedly recognised in this country. However, the paramount consideration is the interest the child rather than the rights o f the parents. Human nature is much the same all the World over, and in the opinion of the court, 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. Applying the above test to the facts and circumstances of the present case, the best way to serve the welfare and interest of the minors who are aged about 5 years and 3 years respectively would be to remove the child from the custody of the father. The mother had a steady income, out of which she was in a position to meet all the expenses of her children. The mother had a steady income, out of which she was in a position to meet all the expenses of her children. It is seen that it is her desire and she wanted her daughter and son to lead a healthy normal life essential for their better growth and development. The girl now aged about 5 years was reaching an age when she would need the guidance of her mother. Therefore, the custody of the girl and the boy should be given to the mother. Thus, the view of the court is that the fathers right to the custody of his minor child was not absolute; . nor is it indefeasible in law, it is circumscribed by the consideration of the beneficial welfare of the minor.“ 21. In 1993-2-L.W. 193 (Karuppannan v. Sudhamathi ). a learned Judge of this court (Thangamani, J.) has reiterated the above position and held thus:— “The paramount consideration is the interest of the child rather than the rights of the parents. The expression “Welfare of the minor” though has not been defined, undoubtedly has to be given a very wide meaning. It ought not to be measured is money only or by physical comfort alone. It has many facets, such as financial, educational, physical, moral and religious welfare. It would not be right to snatch this child of tender age from his mother and force it to make a new start with his father. So long as a child is young enough to need the day to day care of his mother it is better to leave the child with the mother, unless mother is an entirely suitable person. If mother is a suitable person to take charge of the child, it is quite impossible to find a child of tender years. The mothers lap is Gods own cradle for a child of this age, and as between father and mother, other things being equal, a child of such tender age should remain with the mother. 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 of the most interested person, viz., the other, who has come to be preferred to others. 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 of the most interested person, viz., the other, who has come to be preferred to others. “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.” 22. In this case, immediately after the separation, the respondent had to file a suit against the petitioner (appellant herein) for getting maintenance for the child. It is only after orders of court the appellant is paying Rs. 400/- per mensem towards the childs maintenance. We do not expect such an attitude from an affectionate father. It is also admitted by him that he may be away on the high-seas for six to eight days continuously and will return back to the shore and remain there only for ten days. Again he has to be on the high seas. It is also admitted by him that his job is a transferable one and during the last 11 years of service, he has obtained four transfer. His first appointment was in Porbahdhar in Gujarat. Then he was transferred to Madras. From there he was transferred to Maldia in West Bengal and thereafter he was transferred to Port Blair. At the time when the application was filed, he was at Port Blair, and later, he got a transfer at Madras. It is in evidence that at the time when he was in Port Blair, the elder daughter was in the custody of her grandparents at Tiruchirappalli. It has also come out in evidence that he was deputed on service to the Indian Peace Keeping Force at Ceylon, and during that time he used to be in Madras for about ten days, in a month. Rest of the days, he was either at Ceylon, or on the high-seas. Regarding Anusha Mohans education he pleads ignorance for the reason that he was not informed about the same by the respondent. But, as a father, it is expected of him to know about her education also. Rest of the days, he was either at Ceylon, or on the high-seas. Regarding Anusha Mohans education he pleads ignorance for the reason that he was not informed about the same by the respondent. But, as a father, it is expected of him to know about her education also. It is also admitted by him that he had not asked about her education and ascertained the sane from the respondent even though they have met a number of times, and both of them are even now residing within a few metres distance. It has also come out in evidence that the respondent is also employed. While she goes to her office she used to leave her daughter in the creche and will take her back on her return from the job. The same is argued as a circumstance against the respondent. In these days when both the husband and wife are employed, naturally the child has to be placed in the most suitable place. When the respondent is taking the child to the creche, the child is left with several other children of the same age group which is a better atmosphere, than the lonely grandmother. The child gets an opportunity to mingle with the other children and is in a pleasant and playful atmosphere. Therefore this cannot be put as a circumstance against the respondent. If the child is taken away from the custody of the mother, she can only be placed under the custody of her grandmother who is a stranger, so far as the child is concerned. From the evidence of P.W. 2 (grandmother) it can be seen that she herself has on the child only occasionally. The child may not even recognise the grandmother. The effect will be, the child who is now having atleast the affections of her mother, will be left at the mercy of the grand mother. She will be losing the affection of both the parents, which will be a greater disadvantage to her. It is true that for a better atmosphere in the family, both the children have to be brought up together. But, at least from 1990 onwards the younger child was living separately with her mother and the same has not affected her physical or mental growth. After the petition was filed, both the children have seen each other, and we find that both of them are affectionate. But, at least from 1990 onwards the younger child was living separately with her mother and the same has not affected her physical or mental growth. After the petition was filed, both the children have seen each other, and we find that both of them are affectionate. Merely because they are separate at present, it cannot be said their welfare is in any way affected. Certain photographs were filed as exhibits this case to show that both the children are happy with the petitioner (appellant). On that basis, an argument was advanced that the younger child also will be more happy if she is allowed to be with her elder sister and the petitioner. Such an argument cannot be accepted for the reason that at that time, the respondent was also present 23. From the records we also find that the learned Judge had the opportunity to see the children. The learned counsel for the respondent submitted that the elder daughter expressed her desire to continue to be with her mother. The learned Judge had seen the children, and has entered a finding which, according to us, is in the best interest of the child. 24. In paragraph 12 of the judgment, the learned judge has considered that if Anusha Mohan is snatched away from her mother, that will affect her welfare and that no grounds have been made out for the change of custody. We are in full agreement with the findings of the learned Judge. 25. In the result, we dismiss the appeal with no order as to costs.