B. Kishore v. Manju alias Manjula — 1999 DIGILAW 592 (MAD)

Judgment :- A. SUBBULAKSHMY, J.: 1. This appeal is directed as against the order passed by the learned single Judge in O.P.No.706 of 1993. The petitioner filed the O.P. under Sec.10 of the Guardian and Wards Act read with O.21, Rule 3 of Original Side Rules contending as follows: Petitioner is the father and the respondent is the mother of K.Dinesh born on 22.9.1983. After the marriage, the petitioner and the respondent were living in Madras in so many places. The terms between the petitioner and the respondent were not cordial and there were frequent quarrels on account of incompatibility and the respondent was not able to adjust herself to the conditions of the petitioner. The respondent along with the minor son K.Dinesh without any just or cause or reason, abruptly left for Bombay in the beginning of October, 1993 and never chosen to come back. The efforts taken by the petitioner have not resulted in any fruitful result so far. The respondent out of ill will and malice is bent upon withdrawing herself from the marital home of the petitioner for unknown reasons. The petitioner is employed in a decent organisation and is also earning from his financial business which is being done by his mother Rajkumari at Bombay. The petitioner being the father, is able to maintain the minor son, provide him with all comforts, good education besides love and affection in his company. The minor son is with his mother at Poona and he had to necessarily forego his studies. The petitioner is able to look after the welfare of the minor boy by providing him good health, good education and nourishments and the petitioner being the father is quite fit for the custody of the child and he cannot be refused that. The petitioner being the father and natural guardian is entitled to have custody of the minor son in preference to the respondent on account of her conduct which is neither just nor proper. The interest of the minor son is paramount. His interest will be protected if the petitioner is appointed as guardian and no prejudice would be caused to the respondent. The respondent is bent upon spoiling the educational career of the minor son. Hence, the petition is filed directing the respondent to handover custody of the minor son to the petitioner. 2. His interest will be protected if the petitioner is appointed as guardian and no prejudice would be caused to the respondent. The respondent is bent upon spoiling the educational career of the minor son. Hence, the petition is filed directing the respondent to handover custody of the minor son to the petitioner. 2. The respondent filed counter contending as follows: The petitioner has not come to court with clean hands. The petitioner is not a person worth to act as a guardian of the minor son. The petitioner has no earnings at all. The petitioner was an addict to alcohol. In fact he has not sufficient money even for his drinking purpose. In spite of advice and warning, the petitioner had not stopped taking alcohol daily. The respondent was subjected to all sorts of cruelty and on account of taking alcohol daily, the petitioners health was affected and so, he was admitted in T.T.K. hospital and other private hospitals for treatment. In spite of sufficient advices, the petitioner did not put an end to his habit of drinking alcohol and he used to drink in front of the minor boy and use bad and filthy language against the respondent. Even the petitioners mother came down to Madras and advised to the petitioner to which he never listened. Unable to bear the mental torture and the cruelty of the petitioner, the respondent informed her parents and after the arrival of the mother of the petitioner the respondent left the company of the petitioner with the consent and knowledge of the petitioner and his mother. The minor son was taken with the consent and knowledge of the petitioner and his mother. The petitioner was doing call job at the race course. he is not having any income and even if he earns. it is not enough for his drinking purpose. Even the mother of the petitioner knows that the petitioner will not mend his ways. The welfare of the minor son is paramount The education, character and shaping of the minor boy would be affected if he is left with the custody of the petitioner who is an addict to drinking alcohol. The minor son is studying well in the custody of the respondent. The father and brother of the respondent are at Poona. The welfare of the minor son is paramount The education, character and shaping of the minor boy would be affected if he is left with the custody of the petitioner who is an addict to drinking alcohol. The minor son is studying well in the custody of the respondent. The father and brother of the respondent are at Poona. The respondent had secured a job with a building contractor and is getting a decent income for herself and to spend for the education and other needs of the minor son. The respondent is also earning by way of tuition. The welfare of the minor son would be greatly affected if he is left in the custody of the petitioner. The minor boy cannot be deprived of the mothers affection at his tender age. The petitioner had issued instructions to the Rajaji Vidyalaya wherein the minor boy was studying, not to issue the transfer certificate. It is only with the consent and knowledge, the petitioner, the respondent took the minor boy with her and so, the petitioner is estopped from claiming the custody of the minor son. There is no merit in the petition and it has to be dismissed. 3. The learned single Judge dismissed the petition. 4. Point for consideration is whether the petitioner is entitled to have custody of the minor son. 5. The petitioner married the respondent on 12.1.1982 at Bombay according to Hindu Customary rites. Son K.Dinesh born on 22.9.1983 out of that lawful wedlock. The petitioner and the respondent were not able to get along well and their married life was unhappy. The petitioner was addicted to alcohol and because of that lot of problems were created in the domestic life of the petitioner and the respondent. The petitioner also admitted that he was addicted to alcohol, but, he had over come that habit after successful treatment in T.T.K. Hospital, Madras, So, the petitioner claims that he being the father and natural guardian, is entitled to guardianship of the minor son. The respondent contends that the petitioner had not given up the alcohol habit as contended by him. She admits that the petitioner was admitted in T.T.K. hospital in the year 1986. The respondent contends that the petitioner had not given up the alcohol habit as contended by him. She admits that the petitioner was admitted in T.T.K. hospital in the year 1986. But, she contends that even after discharge from the hospital, he started to take liquor and he is not earning anything and he is leading a wavered life and he cannot maintain the child and so, the welfare of the child would be much affected if the petitioner is given the custody of the child. The minor son is now in the custody of the mother, the respondent and he is staying in Poona. The respondent vehemently contends that the minor son is very good in his studies getting very good rank and he had secured highest marks. The minor by is residing with his mother at Poona and studying there. The respondent is residing along with her parents and brother at Poona and she is also working there. It is seen from the evidence that the minor son is very good in his studies and he is getting highest marks. 6. After the marriage between the petitioner and the respondent. the respondent was constrained to leave the petitioner, and she started to live with her parents at Poona and she took the minor boy to Poona. She is taking care of the boy giving him good education. She has also got employment at Poona and she is earning. So, the respondent is able to maintain the boy and the welfare of the minor boy is well protected under the care and custody of the respondent. 7. The petitioner claims that he being the father and natural guardian, is entitled to custody of the minor son. The petitioner as P.W.1 states that he is working and also having his own finance company. But, he admits that he was an alcoholic and his relationship with the respondent was not cordial and sometimes there were quarrels between him and the respondent because of incompatibility. He states that when the respondent left him without his knowledge and consent, she took the minor son when he was out of home and the minor son is very much attached to him and he was looking after his son with fatherly love and affection. He states that when the respondent left him without his knowledge and consent, she took the minor son when he was out of home and the minor son is very much attached to him and he was looking after his son with fatherly love and affection. He states that his son is willing to join him and study in Madras and he can give him good education, nourishment and comfort at Madras and his mother can look after him. He further states that after he underwent treatment at T.T.K. Hospital he left the habit of alcohol and he is offering blood donation often and he can give excellent education to his son if the custody of the son is given to him. 8. The evidence of P.W.1 shows that he is an alcoholic. he states that only after his marriage, he got that habit, he admits that he was admitted in the hospital for alcohol addiction in February 86 an he was under treatment for the whole year. Even though he has spoken in his evidence that after treatment he gave up the habit of alcohol, the evidence of R.W.1 shows that the petitioner is an addict to alcohol and he used to drink in the presence of his minor son. So, from the evidence, it is evident that the conduct of the petitioner is not so conducive for the well being of the minor son. The evidence of R.W.1 shows that the minor son is studying at Poona and is getting good ranks. P.W.1 also admits that he has no knowledge about his sons studies from V Standard to VI Standard. He states that he had once sent money order for his sons studies which the respondent refused to accept. The petitioner has not filed any document to prove with regard to sending of money to the respondent for his sons education. The respondent also denied in her evidence on this aspect. The minor son is aged about 14 years and is residing with this mother, the respondent. The evidence shows that the respondent is working on a monthly salary of Rs.2,000 in A.K.Investment. She is earning by giving tuition and her brother is having an electrical shop. The respondent is residing with her parents and her brother. The respondent is a B.Com. graduate giving tuition to the students and getting a remuneration of Rs.1,200 to Rs.2,000. The evidence shows that the respondent is working on a monthly salary of Rs.2,000 in A.K.Investment. She is earning by giving tuition and her brother is having an electrical shop. The respondent is residing with her parents and her brother. The respondent is a B.Com. graduate giving tuition to the students and getting a remuneration of Rs.1,200 to Rs.2,000. So, the evidence shows that the respondent has got sufficient income for maintaining the minor son and to give him good education. She has also categorically admitted that she is paying school fees for her son. So, the evidence shows that she has got sufficient means and able to spend for his sons education. Her evidence shows that in spite of best efforts to mend her husband, she could not succeed because, he did not listen to her words. Her categorical evidence is that she left her husbands house with her son in his presence and with his permission and knowledge. She states that at school in Poona, his son is studying well. Exs.R-6 to R-8 mark lists of the minor boy show that he is getting good rank in his class securing marks from 90 to 93 per cent in all examinations. The boy has also been awarded scholarship as evidenced by Ex.R-9. She states that the boy is a meritorious student and is very good in his studies. R.W.1 states that only if the boy is allowed to stay with her, he would have bright future and if he is allowed to stay with his father, the petitioner, he would also get all bad habits which would affect his future. It is seen from the evidence of R.W.1 that the petitioner is not working and is not earning anything. She has filed Exs.R-14 and R-15, letters to the proprietor of Maruthi Press, Madras making enquiry whether the petitioner was employed there and the letter was received stating that no person by the name of the petitioner was employed in that company. So, it has been established that the petitioner, at no point of time, had any regular employment and was earning any income to maintain his wife and child. The oral and documentary evidence proves that the minor boy is being well maintained by the mother, the respondent by giving good education and taking care of his health and he is very good in his studies at Poona. The oral and documentary evidence proves that the minor boy is being well maintained by the mother, the respondent by giving good education and taking care of his health and he is very good in his studies at Poona. So, the contention of the petitioner that the minor sons education would be affected if he is allowed to live with his mother has no basis at all. It has been amply established by oral and documentary evidence that the boy is well in the custody of his mother, the respondent and the claim of the petitioner is baseless. The petitioner has no income and he has got all bad habits. So, if the boy is allowed to be in the custody of his father, the boys career will be spoiled. The boy, being a bright student, has got a very good future. For his welfare, he must be in the custody of the mother, the respondent. The learned single Judge has also stated in the judgment that the boy has been brought to court and it has been ascertained by two of the Judges and the boy has expressed in clear terms about his willingness to be in the custody of his mother and grand-mother. The Supreme Court has observed in Dhanwanti Joshi v. Madhav Unde, (1997)3 L.W. 161 that questioning of the child by the court leaving the impression that the boy preferred to stay with mother and not with the father indicates that the preference of the child is accepted. 9. The petitioner claims to be the natural guardian. Counsel for the petitioner submitted that the petitioner, being natural guardian, is entitled to have custody of the child. 10. The minor boy is aged about 14 years, His willingness is also to be taken into consideration be cause he has become sufficiently old even though a minor to come to a rational conclusion especially when a dispute is pending in court in regard to his custody between his father and mother. The minor boy is living happily with his mother, the respondent and grand parents and is well nourished and he appears to be happy in the company of his mother and grand parents. The minor boy is aged about 14 years. He has sufficient age to understand things. The minor boy is living happily with his mother, the respondent and grand parents and is well nourished and he appears to be happy in the company of his mother and grand parents. The minor boy is aged about 14 years. He has sufficient age to understand things. He must be brought up under the love and affection of his mother for his studies and to have a bright future since he appears to be a bright student getting good marks. The boy would certainly be happy and his welfare also would be looked after only if he is in the custody of his mother. Absolutely, there is no evidence to show that the father, the petitioner was showering love and affection on his son or spending any money for the education or well being of the minor son. The respondent is taking very good care of the minor boy by giving good education and she has also got sufficient means to spend for his maintenance and education. A Division Bench of Karnataka High Court has considered with regard to appointment of guardian in Radha Laxmi v. Dr.M.V.C.Sastri Radha Laxmi v. Dr.M.V.C.Sastri Radha Laxmi v. Dr.M.V.C.Sastri , A.I.R. 1953 Mys. 123 and has held that in appointing guardian personal law of parties should be considered and in the case of Hindu child father is primarily entitled to be guardian and girl child living with father ever since estrangement between him and mother and where the father is in good circumstances though married a second time and taking proper care of child and giving it education and training to becomes accomplished and mother being not in possession of any means and dependant on others and the child expressing preference for father, it is not in interest of child to disturb stay with father and hand her over to the care of mother. In C.S.Reddy v. Yamuna C.S.Reddy v. Yamuna C.S.Reddy v. Yamuna, A.I.R. 1975 Karn. 134 a Division Bench of Karnataka High Court has held that the welfare of the minor is the dominant factor while considering the custody of the minor. The Supreme Court has held in Githa Hariharan v. Reserve Bank of India, (1999)2 MLJ. In C.S.Reddy v. Yamuna C.S.Reddy v. Yamuna C.S.Reddy v. Yamuna, A.I.R. 1975 Karn. 134 a Division Bench of Karnataka High Court has held that the welfare of the minor is the dominant factor while considering the custody of the minor. The Supreme Court has held in Githa Hariharan v. Reserve Bank of India, (1999)2 MLJ. (S.C.) 62: (1999)1 C.T.C. 481 that “The expression ‘natural guardian’ is defined in Sec.4(c) of H.M.G. Act as any of the guardians mentioned in Sec.6 (supra) The term ‘guardian’ is defined in Sec.4(b) of H.M.G. Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of ‘guardian’ and ‘natural guardian’ do not make any discrimination against mother and she being one of the guardians mentioned in Sec.6 would undoubtedly be a natural guardian as defined in Sec.4(c) The only provision to which exception is taken is found in Sec.6(a) which reads” the father, and after him, the mother“. That phrase, on a cursory reading, does give an impression that the mother can be considered to be natural guardian of the minor only after the life time of the father. In fact that appears to be the basis of the stand taken by the Reserve Bank of India also. It is not in dispute and is otherwise well settled also that welfare of the minor in the widest sense is the paramount consideration and even during the life time of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of court, where to do so would be if the interest of the welfare of the minor. 8. Whenever, a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a court of law, the word ‘after’ in the Section would have no significance, as the court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as guardian of the minor during the lifetime of the father. The question, however, assumes importance only when the mother acts as guardian of the minor during the lifetime of the father. Without the matter going to court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of Sec.6(a) In the present case, the Reserve Bank of India has questioned the authority of the mother. even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the life time of the father and not during his life time… We are of the view that the Sec.6(a) is capable of such construction as would retain it within the constitutional limits. The word ‘after’ need not necessarily mean ‘after the life time. In the context in which it appears in Sec.6(a) it means in the absence of’, the word ‘absence’ there in referring to the fathers absence from the care of the minors property or person for any reason whatever. If the father is wholly in different to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively, in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of harmonious construction of Sec.4 and Sec.6 of H.M.G Act, without causing any violence to the language of Sec.6(a). Such an interpretation will be the natural outcome of harmonious construction of Sec.4 and Sec.6 of H.M.G Act, without causing any violence to the language of Sec.6(a). While both the parents are duty bound to take care of the person and property of their minor child and act in the best interest of his welfare, we hold that in all situations where the father is not in actual charge of the affairs of the minor either because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother, can act as natural guardian of the minor and all her actions would be valid even during the lifetime of the father, who would be deemed to be ‘absent for the purposes of Sec.6(a) of H.M.G. Act and Sec.19(b) of G.W. Act.” 11. Following the decision of the Apex Court, it has to be held that since the petitioner is an addict to alcohol who has no earning and who is not bestowing any attention or showering love and affection on his son, the career of the minor son will be affected if he is left in the custody of the petitioner. Taking into consideration the welfare, education and maintenance, the custody of the son can be/with the respondent, mother who can act as natural guardian of the minor son. 12. For the foregoing discussions, we are of the view that the petitioner is not entitled to have custody of the minor son. We agree with the finding of the learned single Judge. The petitioner is permitted only to visit his minor son K.Dinesh in the respondents residence once in two weeks on Sundays. 13. In the result, the original side appeal is dismissed. No costs.