Madras High Court
N. Palanisami vs A. Palaniswamy on 2 April, 1998
Equivalent citations: AIR1998MAD264, 1998(3)CTC158, AIR 1998 MADRAS 264, (1999) 3 CURCC 344, (1998) 2 HINDULR 553, (1998) 2 MAD LJ 764, (1998) 3 MAD LW 529, (1999) 1 MARRILJ 172, (1999) 1 ICC 256, (2000) 1 CIVLJ 621
ORDER
1. This appeal has arisen out of an order dated 8.12.1989 made in G.W.O.P.No.291 of 1986 on the file of the I Additional Subordinate Judge, Coimbatore. The above said petition was filed under Section 6 of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) and under Section 25 of the Guardians and Wards Act, 1890.
2. The respondent is the father of the minor girl Indirani. He filed the petition for the custody of the minor child from the custody of the maternal grandfather. He married the appellant's daughter Subbulakshmi on 27.3.1985 and out of the wedlock, a female child was bom on 11.4.1986. The mother of the child died within few hours after the delivery. As the body of Subbulakshmi was taken to the house of the appellant for performing the funeral ceremonies, the child was retained by the appellant/maternal grandfather. But on account of the quarrel when the respondent demanded the return of the jewels and other articles belonging to his wife, the appellant refused to return the articles and the child also. The respondent is possessed of properties as he is the natural guardian of the minor child is entitled for the custody of the child.
3. In the counter filed, the maternal grandfather, the appellant herein has alleged that the marriage was performed by the appellant. Rs. 15,000 was paid in cash and jewels also given to the bridegroom. There were trouble between the husband and wife. The appellant's daughter was living in his house. The respondent used to visit and go away. Even on 11.4.1986 after hearing about the death, the respondent came to the hospital and stayed for only few minutes. He did not show any interest in the.child. On the other hand, he told the appellant to throw the child in the dust-bin. After abandoning the child, he never asked for the custody. The child was being educated. The future for the child will be safe and better in the custody of the appellant rather than in the custody of the respondent.
4. The trial Court considered the evidence and the law on this aspect and found that if the custody was given to the respondent, the future of the child would not be affected and hence he was entitled for the custody.
5. Against the order of the. learned I Additional Subordinate Judge, Coimbatore, the appellant/grandfather of the minor child has filed this appeal.
6. The appeal was admitted on 19.2.1990. In C.M.P.No.2134 of 1990, the stay of the operation of the order passed by the trial Court was granted on 19.2.1990 itself. The stay granted was made absolute on 30.3.1990. Now, the child is about twelve years old. The fact remains that it is almost an admitted fact that the child is from the birth with the appellant and even now continues to be with the appellant. Now in these background, we have to consider the right of the respondent as well as the welfare of the minor child.
7. There is no doubt that father is the natural guardian of the minor child. Section 6 of the Hindu Minority and Guardianship Act, 1956 reads as follows:
"6. Natural Guardians of a Hindu minor- The natural guardians of a Hindu minor's, in respect of the minor is person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl--the father, and after him, the mother : Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father;
(c) in the case of a married girl--the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--
(a) if he has ceased to be a Hindu or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)."
Section 17 of the Guardians and Wards Act, 1890 reads as follows:
"17. Matters to be considered by the Court in appointing guardian-- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) 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.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
.. .. .. .. .. (5) The Court shall not appoint or declare any person to be a guardian against his will."
As per Section 6 of the Hindu Minority and Guardianship Act, 1956, the natural guardian of a Hindu minor in respect of minor's person as well as in respect of minor's property; in case of an unmarried girl is the father. The disqualification prescribed under the said Section is (a) ceasing to be a Hindu; and (b) completely and finally renouncing the world.
8. The next Section that should be taken note of is Section 13 of the Hindu Minority and Guardianship Act, 1956. As per the said Section in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.
9. A scrutiny of the provisions contained in the Hindu Minority and Guardianship Act, 1956 shows that the said Act mainly deals with the natural guardian, his or her rights and powers. As per the said Act, so long as the father and the mother are alive, the question of appointment of a guardian does not arise at all, because they become the guardian immediately when a child is born, i.e., the father and mother are the natural guardian and not guardian appointed or to be appointed by Court. Further, the father and mother are guardians for the person as well as property of the minor. Since Section 6 of the Hindu Minority and Guardianship Act, 1956 states that the natural guardian in respect of a minor's person is the father and the mother, depending upon the age it is implied in the said Section that the natural guardian is entitled to the custody as well, even though it has not been specifically mentioned in the said Section. When the minor is removed from the custody of the natural guardian or is kept in the custody of a relative i.e., grandfather or grandmother, uncle or aunt, what is the remedy for the natural guardian to get the custody? The Hindu Minority and Guardianship Act, 1956 has not provided for any specific remedy. Section 2 as well as Section 5(b) of the Hindu Minority and Guardianship Act, 1956 have made the provisions of the Guardians and Wards Act, 1890, applicable in such a case. Since there is no provision in the Hindu Minority and Guardianship Act, 1956 only the provisions in the Guardians and Wards Act, 1890, which are inconsistent or derogation of the provisions of the Hindu Minority and Guardianship Act, 1956 are made ineffective. Further Section 2 makes it clear that the Hindu Minority and Guardianship Act, 1956 is in addition to the Guardians and Wards Act, 1890.
10. Even under the Guardians and Wards Act, 1890, there is a provision for the Court to direct the return to the custody of the guardian only in the case of the minor ward leaving or being removed from the custody of the guardian. If a minor child in the custody of the mother completes the age of five and continues to be in the custody of the mother or in a case where the mother dies while the minor was in her custody and the custody of the minor is continued in the hands of the mother's parents after the death of the mother, there is no question of the ward leaving or being removed from the custody of the guardian. Therefore, an argument is possible in a case like the present one where the grandfather has taken the custody from the daughter, the mother of the minor on her death and continuing to have the custody, to contend that neither there is leaving nor being removed from the custody of the guardian of the minor child in question. Even though, technically there is a possibility of raisin such an argument, it can be answered by giving a liberal interpretation to Section 25 of the Guardians and Wards Act, as it is being done now.
11. Even though Section 13 of the Hindu Minority and Guardianship Act, 1956, is not directly involved in a case where the custody of the child is sought for by the natural guardian, since there is resort to the provisions under Section 25 of the Guardians and Wards Act, 1980, the welfare of the minor needs to be taken into account.
12. In the present case, the facts are that the father has married the second wife and has got another female child. Admittedly the father and his family are owning lands. The father is having building, yielding rental income. There is also no dispute about his means to support the family and to bring up the child or give good education.
13. As regards the appellant is concerned, the allegation is that the first wife committed suicide. He married a second wife, while the first wife was alive. He has got a male child through the second wife. Further, the respondent has alleged that the appellant is having drinking habit and is having contact with other women. The paternal grandmother is said to have committed suicide and she is not alive. Therefore, the second wife of the respondent may not show the interest as the maternal grandmother. This answers the contention that there is only a stepmother with the father and the apprehension of stepmother's illtreatment is always there. Between the stepmother and a stepgrandmother, the step-mother will be entitled for preference. Because, the step-mother is under the control of the father. In our society, normally, between the father and the grandfather, the father is considered to be more attentive than the grandfather, as regards a minor child, because, normally, the father is closer than the grandfather. This is also fortified by Section 6 of the Hindu Minority and Guardianship Act, 1956, which prefers the father and mother only and the grandfather is not mentioned in the said Section. From another point of view also, the father is preferred because, he has to choose the kind of education and to pass on the traditions which he has inherited from his ancestors. It is true that if it is a question of paternal grandfather, the kind of tradition which the family has inherited may not differ. But in the case of maternal grandfather there may be some subtle but at the same time discernible difference in the traditions, even though both the paternal grandfather and the maternal grandfather belong to the same time discernible difference in the traditions between the two families will be there. A father will always be proud of and passing on his tradition to his children and the children also will have more interest in inheriting the tradition from the paternal side, rather than the maternal side.
14. From another angle also, the father has to be given preference. It is an admitted fact that he is owning properties. The minor child is entitled to inherit the same. Separating the minor child from him and keeping it in the custody of the grandfather may lead to an aversion likely to be developed by the father towards the minor child, resulting in bequeathing the properties owned by him to the other children, even though born through the second wife.
15. In the case of a female child, she would be continued in the custody of the father or grandfather only till her marriage is performed, thereafter the custody will be with the husband. Therefore, the Court must take note of these facts, especially in the case of the father who has to select a bridegroom and spend for the marriage of the female child. From the evidence and the arguments, this Court was able to note that the father is richer than the grandfather. The minor child is already twelve years old. For another few years only her custody can be either with the appellant or respondent. As I have indicated above, she has been all along with the appellant. Even after the respondent/father succeeded before the lower Court, by the grant of stay, the appellant alone is continuing to have the custody of the minor child and normally this position is taken advantage of to hold that the interest of the minor will be better served if the custody is continued for some more time. But in the light of the discussions mentioned above, that cannot be a sounder argument to deny the custody to the father. As mentioned above, the custody with the appellant or respondent is going to be for few more years. If the custody of the father even during this period is denied, he is deprived of the custody of child, once for all. It will be an injustice done to the father.
16. If there is any proof that the respondent/father his disentitled himself for the custody, that is altogether a different matter. Here absolutely there is no evidence at all. When we consider the welfare of the minor child, it does not mean the opinion of the minor child. Normally, when the minor child is brought to Court from the custody of the grandfather or third party, especially when the minor child has been allowed to continue for quite some time in such custody, as a young child, her preference will be to continue the status quo. We have to consider the present and future of the minor child, not merely the close proximity of the child with the person having custody. In this case, the respondent has filed a petition in September, 1986 itself, within five months from the birth of the child and the passing away of the mother. The minor herself has admitted when questioned by the Court that the father used to meet her in the School and provide her with eatables and other articles of interest. From this, it is clear that he is continuing to have the interest in the child. It is true that when questioned she gave her preference to be with the appellant and even started crying and stated that the custody should not be changed. I found certain amount of tutoring involved in the conduct of the minor child when she appeared before the Court and questioned about her preference.
17. Therefore on a consideration of all the aspects and circumstances of the case, I am of the view that the natural guardian, the respondent is entitled to have the custody and he has not done or committed any act to disentitle himself for the custody of the minor child. The interest or welfare of the minor will be better served in the custody of the father/respondent, rather than in the custody of the appellant/grandfather.
18. The learned counsel for the respondent has cited the following decisions in support of his contentions:
1. J.Velan v. G.Muthu and three others, 1991 (1) LW 643 and 2. Jayalakshmiammal v. L.Venkataramaiah and another,
19. In the first case Justice AR.Lakshmanan, after citing number of decisions, has held as follows:-
"I am in respectful agreement with the views expressed by Nainar Sundaram, J. and K.M.Natarajan, J., in the decisions cited supra. Applying the ratio laid down in these two cases there is absolutely no circumstance which warrants deprivation of parental right of the father. It is not proved by the respondent that the father does suffer from any circumstance which deprive his parental right. The mere fact that the respondents are much attached to the minor itself is not a ground to negative the claim of the petitioner. In any event such custody cannot have any preference to the legitimate claim of the natural father."
20. In the second cited decision, Justice C.V.Govardhan, J., has also held in paragraph 9 as follows:
"The learned counsel appearing for the appellant has finally argued that the minors are capable of taking a decision of their own and it is desirable that they are summoned to the Court and their desire is also ascertained. The minors are with the grandmother for the past more than 8 years. Therefore, I am of opinion that even if they are summoned to Court and their desire is also ascertained, it may not give a correct solution to decide whether the first respondent is entitled to the custody of his children or not. From the materials placed before the Court, I am of opinion that the appellant has not established any disqualification for the first respondent, in order to have the custody of his two minor children..."
21. From the aforesaid two decisions, it is clear that if the father is not disentitled to the custody of the minor child, as a natural guardian, he is entitled to it.
22. In the circumstances, I find that the lower Court has fairly, properly and correctly held that the custody should be with the father and the appellant should handover the child to the respondent/father. The appeal is therefore dismissed. The appellant is directed to handover the custody of the minor child to the respondent/father within a period of two months from today and in the mean time, the father should also be allowed to have the custody of the minor child during week ends, namely, Saturday and Sunday. The respondent/father should also be permitted to meet the child in the school during interval time or in the evening, for which there should be no objection or protest from the appellant. There will be no order as to costs. Consequently, CMP No.2134 of 1990 is dismissed as unnecessary.