G. Bakthavatsalam and others v. K. Srinivasan — 1999 DIGILAW 1189 (MAD)

Judgment : Appellants 1 and 2 are the sons of the third appellant Andalammal. Andalammal had a daughter by name, Vijaya. who was given in marriage to the respondent Srinivasan on 210. 1988. Minor Monisha was born to Vijaya on 211. 1997. Shortly within days after delivery, Vijaya died on 211. 1997 Monisha is being brought up by the appellant herein. Vijaya was working in child Development Project Centre and because of her death, the child is entitled to certain monetary benefits by way of pension, gratuity etc., Apart from that, she house property also stands in the name of Monisha, Srinivasan father of Monisha had instituted proceedings in G.W.O.P.No.65 of 1998 on the file of the Principal District Court, Chengalpattu under Sec.25 of the Guardian and Wards Act, 1890 seeking custody of the child. 2. Thelearned Principal District Judge, Chengalpattu, after enquiry, came to the conclusion that the father, being the natural guardian, in prima facie entitled to the custody of the child and accordingly ordered the appellants herein to hand over the child to the respondent herein, Srinivasan. Aggrieved by the orders passed by the learned Principal District Judge, the respondents in the G.W.O.P. have come forward with the instant C.M.A. 3. Heard both the sides. According to the learned counsel for the appellants, the appellants have the natural love and affection and wherewithal to look after the child. According to them, one another sister of appellants 1 and 2, by name, Santhi also died long back leaving behind her two minor daughters by name, Anitha and Sunitha and that the appellants have been bringing about these two children for more than fourteen years. According to them though aged the third appellant is rebust. Appellants 1 and 2 are the earning members and they would be in a position to look after the child well. They also claims that the respondent-father had taken a second wife and therefore, it may not be conducive to the interest of the child, if the child is allowed to be brought up by her father. 4. Onthe other hand, the respondent has contended that the third appellant Andalammal is very old and the first respondent is suffering with some lepramatus disease. The second respondent is not an earning member. 5. 4. Onthe other hand, the respondent has contended that the third appellant Andalammal is very old and the first respondent is suffering with some lepramatus disease. The second respondent is not an earning member. 5. A Hindu father is the natural guardian of the children during their minority and has prima facie a paramount right to their custody and must be given such custody unless he is unfit or there are other circumstances. But, the welfare of the minor child is a very important matter for consideration and the interest and welfare of the minor are even paramount to the rights of the father. 6. The principal considerations or tests which have been laid down under Sec.17 of the Guardian and Wards Act in order to secure the welfare of the minor are equally applicable in considering the welfare of the minor under Sec.25 of the Guardians and Wards Act. The father marrying a second wife is not a valid ground for his disqualification. Even the fact that the first wife was not properly treated is not a ground for presuming that the child will not be properly looked after by the father. 7. There is a dispute regarding the minors property. The learned Principal District Judge has held that both the contesting parties are interested in the properties which would yield benefits to the custodian of the minor. Even in such a case, the father, being a near relative then the grandmother and maternal uncles, have knowledge over them to administer the properties. It is not as if the minor is in the custody of the appellant for a long time. After all, the child is in their custody for 2 1/2 years. It is submitted by the learned counsel for the appellant that the father had not evinced any interest in the welfare of the minor, in that he had not even visited the minor even once after the death of his wife. It is evidence that a litigious atmosphere is prevailing between the appellants and the respondent, and therefore, the respondent might have thought that it may not be conducive to visit the child. 8. Both the learned counsel have referred the certain earlier decisions to lay stress to their respective claim that the minor should in the custody of the respective party. 8. Both the learned counsel have referred the certain earlier decisions to lay stress to their respective claim that the minor should in the custody of the respective party. The learned counsel for the appellants cited the decision reported in Chenaraj v. T.Rajammal Chenaraj v. T.Rajammal Chenaraj v. T.Rajammal (1997)2 C.T.C. 237 . That is a case where the father sought for the custody of the minor child aged 9 years. It was observed that the mere fact that the father is the natural guardian does not cloth him with any unfettered right to custody of ward if welfare of ward is opposed to it. That was a case relating to a dispute between the father and the mother regarding the custody of the child and considering the circumstances of the case. It was held that for a boy aged 9 years who have been all along brought up by the mother, it was conducive to the welfare of the child, if he is to stay in the with the mother though the father may not suffer with any disqualification. 9. Thelearned counsel for the respondent cited the following decisions: .• (i) Jayalakshmiammal v. Venkataramiah Jayalakshmiammal v. Venkataramiah Jayalakshmiammal v. Venkataramiah (1997)2 MLJ. 494 :(1997)2 C.T.C. 17 is a case where there was dispute between the father and the grandmother regarding the custody of the minor children. It has been held that the father, who is the natural guardian and who did not suffer any disqualification. is entitled to the custody of the children. It was also observed that continued stay of minor children with grandmother will lead to aversion to father. .• (ii) In Krishna Raj v. Rajasekar (1997)1 MLJ. 645 : (1997)2 C.T.C. 92 a Division Bench of K.A.Thanikkachalam, as his Lordship N.V.Balasubramaniam, JJ., has other uncle or material grandmother cannot claim the custody of the minor child, unless it is proved that the father or natural guardian is not a fit person to be a guardian of person and property of minor child. .• (iii) In N.Palaniammal v. Palaniswamy N.Palaniammal v. Palaniswamy N.Palaniammal v. Palaniswamy (1998)2 MLJ. .• (iii) In N.Palaniammal v. Palaniswamy N.Palaniammal v. Palaniswamy N.Palaniammal v. Palaniswamy (1998)2 MLJ. 764 : (1998)3 L.W. 529 where the child was in the custody of the material grand-father, who had taken a second wife after the death of girls grand-mother and the father of the child had taken a second wife, S.M. Abdul Wahab, J. observed that the father is to be considered as more attentive then the grand- father and also observed the step-mother has an edge over the step grand-mother, and .• (iv) In Nirmala v. Nelson Jayakumar Nirmala v. Nelson Jayakumar Nirmala v. Nelson Jayakumar (1998)3 MLJ. 619 : (1998)3 L.W. 626 a Division Bench of this Court consisting of C.Shivappa and K.Natarajan, JJ. in the matter of deciding as to who should be given the custody of the minor child, where the wife claimed custody of the from the father has observed that the child had not suffered any injury from being with the father and there was no suggestion that she will suffer any injury, if contained to be with the father, and that there was no allegation that the father is of bad character. Their Lordships also observed that having regard to the totality of the circumstances and keeping in view of the minors position and prospects, the father is the most likely to contribute to the well-being of the minor, which includes education, health care and development of the entire personality with a sense of security. 10. Considering the over all circumstances in this case, it is evident that the appellants herein are not nearer relatives then the respondent to the minor child the minor is aged 2 1/2 years, child of tender age, which has not developed any likes or dislikes towards any of its relative. No bad character or antecedent is alleged against the father. In other words, there is nothing to show that the father had made himself unfit to loose the custody of the child. By virtue of being the natural guardian, he has prima facie and paramount rights to the custody of the minor. The appellants are the maternal uncles and the maternal grand-mother. They have the custody of the child only for the past 2 1/2 years. To mould the future of the child, it would be conducive if the child is left in the custody of the father. The appellants are the maternal uncles and the maternal grand-mother. They have the custody of the child only for the past 2 1/2 years. To mould the future of the child, it would be conducive if the child is left in the custody of the father. The trial court has rightly held so. But, the trial court could have given visiting rights to the appellants. The appellants have the right to visit the minor as and when they wish. It is said that the appellants and the respondent are living in the apposite houses. The respondent would also allow the childs maternal relations to visit the child as and when they desire. It would be conducive, if the respondent sends the child to the grand-mothers house one day in week to enable them to show their love and affection to the child. 11. With the above observations, this C.M.A. is dismissed confirming the orders passed by the learned Principal District Judge. No costs. Consequently, C.M.P.No.16588 of 1999, which is for stay of all the further proceedings in G.W.O.P.No.65 of 1999 before the trial court, is also dismissed.