Judgment : The petitioner is the father of the minor child Samuel Raily Macon. This petition is filed under Section 25 of the Guardians and Wards Act, 1890 (for short GAWA) for a permanent custody of the minor child. The respondent is at present having the custody of the minor child. .2. Admittedly, the child was born to the petitioner and one Malliga on 8. 2002. The petitioner got married to the said Malliga on 25. 1998. Subsequent to the birth of the minor child, barely after 2 months, the said Malliga had allegedly committed suicide on 110. 2002. The petitioner abandoned his one month old baby in a Church premises. One Vasanthi took care of the child for about 15 days and the minor child was handed over to the Pastor of the Church. The Pastor of the Church handed over the child to the respondent’s mother one Buela, who was also a member of the same Church. It is also admitted that the child was in a nursery school by the respondent who had brought up the child till date. 3. While it is so, it was stated that the petitioner tried to take custody of the child, which resulted in the respondent complaining to the police station. At the intervention of the police, the petitioner handed over the child to the respondent. The petitioner got married to one Maria on 20.9.2004. It was stated by him that the Pastor of the Church told him to get married second time, so that he can bring up his child. It was stated that after the marriage, on 1. 2005, the petitioner once again took back the custody of the child by force. This necessitated the respondent filing a Habeas Corpus petition being H.C.P. No. 187 of 2005 before this Court. .4. A Division Bench of this Court dealt with the matter and by its final order, dated 7. 2005 disposed of the HCP. Prima facie, the Division Bench held that in the best interest and welfare of the minor child, the custody was given in the hands, ci the respondent. However, in paragraph 23, the Division Bench had observed as follows: .“23. It is true that the first respondent is the natural guardian and he has got a legal right. Prima facie, the Division Bench held that in the best interest and welfare of the minor child, the custody was given in the hands, ci the respondent. However, in paragraph 23, the Division Bench had observed as follows: .“23. It is true that the first respondent is the natural guardian and he has got a legal right. In the light of the legal position, it is open to the first respondent to approach the appropriate forum to establish his legal right. The observation made by this Court with reference to the interim custody of the child in the hands of the petitioner would not stand in the way of the appropriate forum deciding the issue raised before it.” 5. After getting liberty from the Division Bench, the petitioner filed the present OP. Notice was ordered to the respondent on 23. 2006. Thereafter, on 26. 2006, the matter was directed to be posted for recording evidence. The petitioner examined himself as P.W.1. Though the name of the counsel who appeared for the respondent in the HCP was directed to be printed, they did not make their presence felt. Subsequently, when the matter came up on 13. 2007, this Court directed a fresh notice to be served on the respondent. Accordingly, a fresh notice was served and she had engaged a counsel. Thereafter, the petitioner was cross examined and the evidence of R.W.1. commended on 29. 2007. 6. Subsequently, when the matter came up before this Court on 7. 2009, this Court directed the continuation of the evidence to be recorded before this Court. Accordingly, on 7. 2009, the respondent was cross examined. Thereafter, the matter was posted for arguments on 17. 2009. Heard both sides. 7. The petitioner who had examined him self as P.W.1, deposed that after his second marriage, he had approached the respondent’s mother for returning the custody of the child and his request was refused. He had also given a police complaint in Exhibit P-4 against the respondent’s mother. He had stated because his place was affected by Tsunami, he could not get the child’s custody. In the cross examination, he had denied that his first with Malliga had committed suicide. He also denied the suggestion that he had abandoned the child. In fact, the miner child was taken care of by his in-laws, who were staying with him a Kelambakkaia. In the cross examination, he had denied that his first with Malliga had committed suicide. He also denied the suggestion that he had abandoned the child. In fact, the miner child was taken care of by his in-laws, who were staying with him a Kelambakkaia. He only approached the Church Pastor Dannis H. Johnson to take care of the tender child in the absence of his in-laws going away. He never wanted in-laws to take care of his child as both of them were alcoholics. In fact, he was visiting the child weekly twice from 110. 2002 to 111. 2004. He also stated that he never handed over the child to Buela. 8. The respondent filed a proof affidavit and she had examined herself as R.W.1. In the proof affidavit, she has stated that more than once, the petitioner wanted to take away the child by force. The child got attached to her. The child is now looking hale, healthy and cheerful. She had put the child in a reputed School. Since the petitioner never bothered to visit the child, the respondent is taking care of the child. 9. In cross examination, she had admitted that her mother was asked by the Church Pastor to lock after the child. Earlier, the pastor had asked one Vasanthi to take care of the child. She stated that the petitioner never asked her mother to return the custody of the child and that was why the child was not returned. She also stated that she was aware of the petitioner being the father of the child and that at the request of Pastor alone, they were taking care of the child. 10. The short question that is to be decided is whether the petitioner is entitled to have the custody of child. 11. A perusal of the pleadings and evidence recorded clearly shows that the petitioner is the father of the minor child. He has no adverse interest against the minor. He is also married for the second time. He had asserted that the second marriage itself was only to take care of the child. The respondent is, only a third party and did not get the custody of the child by any law. It is an admitted case that the Church Pastor had given the minor to them for its upbringing. He had asserted that the second marriage itself was only to take care of the child. The respondent is, only a third party and did not get the custody of the child by any law. It is an admitted case that the Church Pastor had given the minor to them for its upbringing. If there, is any abandonment of child, the child will have to be handed over to the Child Welfare Committee under the Juvenile Justice (Care & Protection of Children (Act, 2000 and no one can have any private dealing with such abandoned child. 12. The petitioner has given sufficient reason about his inability to maintain the child, especially after the death of his first wife. Though it is claimed that it is a case of suicide, there is no proof forthcoming on this issue. In fact, in Exhibit R-1, the Pastor Dennis H. Johnson himself had stated that his involvement was only for the child’s placement on a volunteer and he did not have any authority in such placement matters. 13. Under Section 8 of the Guardians and Wards Act, the guardian of a minor can apply for an order under this Act. Under Section 19, the Courts are forbidden to appoint any other person regarding the property of minor if the minor’s father is living,. Only when in the opinion of the Court if the father is unfit to be the guardian of the person of the minor, another person can be appointed as the guardian. In the present case, the petitioner is Christian and even by his personal law, he the natural guardian of the minor child. He did not suffer from any disqualification except for the allegation that he had abandoned the child immediately was also not substantiated and the petitioner has given an explanation for the same. 14. The respondent having custody of the minor child was not based upon any legal entrustment. It was done only as a humanitarian gesture by the Church Pastor, as evidenced from Exhibit R-1. In this factual background, the learned counsel for the petitioner relied on the following judgments: (i) Ms. Annie Besant v. G. Narayaniah and Another AIR 1914 Privy Council 41: (1913) 2 MLJ 661. It was done only as a humanitarian gesture by the Church Pastor, as evidenced from Exhibit R-1. In this factual background, the learned counsel for the petitioner relied on the following judgments: (i) Ms. Annie Besant v. G. Narayaniah and Another AIR 1914 Privy Council 41: (1913) 2 MLJ 661. (ii) D. Rajaiah v. Dhanapal and Others AIR 1986 Mad 99 : (1985) 1 MLJ 97 (iii) S. Abboy Naidu and Another v. R. Sundara Rajan AIR 1989 Mad 129 (iv) J. Velan v. G. Mutjhu and Others (1990) 2 MLJ 417 (v) Jayalakshmiammal v. L. Venkataramaiah and Another (1997) 2 MLJ 494 : (1997) 2 CTC 37 (vi) Krishna Raj v. Rajasekar and Another (1997) 1 MLJ 645 : (1997) (2) CTC 92 (vii) k. Mathivanan v. R. Jayalakshmi (Died) and Another 2000(4) CTC 212 (viii) G. Bakthavatsalam and Others v. K. Srinivasan (2000) 1 MLJ 330 (ix) R. Kasthuri v. R. Raveendran (2003) 1 MLJ 738 (x) V. Maria Pushpa Janet Rajam v. G. Anantha Jeyakumar 2003 (3) CTC 577 and (xi) Anokha v. State of Rajasthan and Others 2004 (1) CTC 702. 15. The principles laid down in those decision can be set as follows: “(1) No order declaring a guardian can, by reason of Section 19 of the Guardian and Wards Act, 1890, be made during the life time of the father, unless in the opinion of the Court he is unable to be the guardian,- (2) Failing the father only, the mother comes into picture and she could assume such guardianship. (3) The dominant factor for consideration of the Court is the welfare of the child. The welfare of the minor children is not to be measured only in terms of money and physical comforts. The words “welfare” must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. .(4) The father as natural guardian is, primarily entitled to the custody of the children unless there are overwhelming circumstances to, the contrary. .(5) The Court is bound to take into consideration of the facts and circumstances of the case, bearing in mind that the pivotal factor is the benefit and well being of the minor. .(6) The father ought to be the guardian of the person and property of the minor under ordinary circumstances. .(5) The Court is bound to take into consideration of the facts and circumstances of the case, bearing in mind that the pivotal factor is the benefit and well being of the minor. .(6) The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody. .(7) A Hindu father is the natural guardian of the children during their minority and he has prima facie a paramount right to their custody and must be given such custody unless he is unfit or there are other circumstances. .(8) The welfare of the minor child is a very important matter for consideration and the interest and welfare of the minor are every paramount to the rights of the father. .(9) In a matter relating to the custody of a minor child, the interest and welfare of the child are of paramount consideration and not the convenience or pleasure of the parents. .(10) The question regarding the custody of a minor child cannot be decided on the basis of the legal rights of the parties. The custody of child has to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor. .(11) The orders relating to custody of children are by the very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change or circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child.” 16. Subsequent to the decisions relied on by the counsel for the petitioner, the Supreme-Court has dealt with the issue in a number of cases of similar nature The Supreme Court in Rosy Jacob v. Jacob A. Chakramakkai AIR 1973 SC 2090 : (1973) 1 SCC 840 held that object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of ward’s health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor. The power and duty of the Court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship. 17. The Supreme Court further quoted the said judgment with its approval in its latest decision in Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 : (2009) 2 MLJ 1036. In paragraphs 50 and 51, it has held as follows at p.1046 of MLJ: “42. When the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor) As observed recently in Mausami Moitra Ganguli case, the Court has to give due weightage to the child’s ordinary contentment/health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the orders; 43. The word “welfare” used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.” 18. The Supreme Court even earlier vide its judgment in Lekha v. P. Anil Kumar (2006) 13 SCC 555 has held that the father ought to be the guardian of the person and property of the minor under ordinary circumstances. The father marrying a second wife cannot be a ground to deprive of his parental right of custody. It was also held that even if the father’s conduct was blameworthy in a few occasions, it cannot cloud the Courts’ decisions. The father marrying a second wife cannot be a ground to deprive of his parental right of custody. It was also held that even if the father’s conduct was blameworthy in a few occasions, it cannot cloud the Courts’ decisions. People may have shortcomings, but, that does not imply that they are not deserving of the solace and custody of their deserving of the solace and custody of their children. The relevant passages found in paragraphs 19 and 20 may be usefully extracted below: “19. The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody in cases like the present one, the mother may have short-comings but that does not imply that she is not deserving of the solace and custody of her child. If the Court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of Y mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court s. Soora Reddi v. S,. Chenna Reddi where GOVINDA MENON and BASHEER ADMED SYED, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody. 20. A man in his social capacity may be reckless or eccentric in certain respects and others may even develop a considerable distaste for his company with some justification but all that is a far cry from unfitness to have the natural solace of the company of one’s own children or for the duty of bringing them up in proper manner. A man in his social capacity may be reckless or eccentric in certain respects and others may even develop a considerable distaste for his company with some justification but all that is a far cry from unfitness to have the natural solace of the company of one’s own children or for the duty of bringing them up in proper manner. Needless to say the respondent husband, in this case, seems to be anxious to have the minor child with him as early as possible in order to look after him property and to provide for his future education. The feelings being what they are between the respondent and the appellant we think it is also natural on the part of the husband to feel that if the minor child continues to live with his former wife, it may be brought up to hate the father or to have a very adverse impression about him. This certainly is not desirable. Needless to say, this Court is not called upon to find that the respondent husband has been entirely blameless in his conduct and few occasions referred to in this case and by the boy at the time of interview, it is not the duty of this Court even to ascertain whether the respondent is responsible and good citizen and a preferred individual. Many people have shortcomings but that does not imply that they are not deserving of the solace and custody of their children.” 19. There is no evidence let in, in this case by the respondent to show that the petitioner being the father had disentitled himself from having the custody of the child. It is needless to state that there is no substitute for the child being brought up with its biological parents. Before the custody being entrusted with any person, the real parents’ custody must be explored. Only such care and concern alone can bring up the child in a natural environment. The Courts have reiterated that what was the best interest of the child must be taken into account in deciding the custody matter. In the present case, the dispute is not between the father and the mother or between the father and the near relatives of the mother. The Courts have reiterated that what was the best interest of the child must be taken into account in deciding the custody matter. In the present case, the dispute is not between the father and the mother or between the father and the near relatives of the mother. The dispute is between the natural guardian being father and a third party, who got the child’s custody by an outsider and who was not legally competent to do it. 20. The petitioner also deposed that his intention of getting married for the second time was only to bring up the child. This Court is of the opinion that the petitioner is entitled to have the custody of the child. 21. In the light of the above, this original petition is allowed. No costs. 22. The respondent is directed to entrust the custody, of the minor Samuel Raily Macon to the petitioner forthwith. The petitioner is directed to continue the education of the child in the same school where he is studying at present till the end of this academic year (April 2010) and thereafter, decide about the further schooling in any other place where the child can get good education and that place may have close proximity to the Petitioner’s residence.