Kerala High Court
Kurian C. Jose vs Meena Jose on 5 June, 1992
Equivalent citations: II(1992)DMC281
JUDGMENT Manoharan, J.
1. Appellant is the counter petitioner in O.P. (G&W) No., 296 of 1991 on the file of the District Court, Ernakulam. Respondent instituted O.P. (G&W) 296 of 1991 under Sections 9,10 and 25 of the Guardians and Wards Act, 1890 (for short 'the Act') praying that she may be appointed the guardian of her minor son Anith who is now living with his father, the appellant. The child was born on 23-3-1985; and when the O.P. was filed he was aged 51/2 years.
2. Appellant and respondent have two sons of whom Anith is the elder and the younger is aged 21/2 years. The younger son is living with the respondent. The parties are Christians. Respondent alleged that in April 1990 appellant developed illicit relationship with Sona Mammen, her youngest sister which culminated in her elopement with the appellant and that P.W-2 the mother of the respondent had to file O.P. 7396 of 1990 for the issue of a writ of habeas corpus. Both the appellant and Sona Mammen appeared before the Court and stated that they are living together of their free will and consent and that she has attained majority. Respondent alleged that the appellant is keeping the said Sona Mammen as his concubine. She also alleged, the appellant used to consume liquor. Therefore, she alleged that, it is against the welfare of Anith to permit him to be with the appellant. Respondent is residing with her mother and her another sister at Ernakulam; she is in a position to provide necessary education and maintain him.
3. Appellant contended that Sona Mammen is residing with the appellant only as his sister-in-law, that the minor child is studying in the First Standard in Girideepam English Medium School at Kaftjikuzhi, Kottayam and that his mother is looking after the welfare of the appellant and his son. He maintained that his mother is rich and capable of looking after her only son the appellant and his minor son. He contended that the respondent does not have sufficient means to maintain the minor.
4. On behalf of the petitioner P.Ws. 1 to 3 were examined. P.W-1 is the respondent and P W-2 is her mother. Appellant was examined as RW-1. Respondent produced Exts. Al and A2, and the appellant produced Ext. Bl.
5. After considering the evidence tendered by both sides, the learned District Judge allowed the Original Petition appointing the respondent as guardian of her minor son Anith. Learned District Judge also directed that the respondent will not obstruct the appellant from seeing the child for a reasonable time once in a month either at the house of the respondent or at the educational institution in which the child will be admitted.
6. Learned Counsel for the appellant raised two points against; the order of the learned District Judge. It was contended that, learned District Judge committed a grave error as he did not ascertain the preference of the minor as enjoined under S. 17 (3) of the Act. The other point urged was irrelevant matters weighed with the learned District Judge in reaching the conclusion. According to the learned Counsel the fact that Sona Mammen. was residing with the appellant has nothing to do with the welfare of the minor. Oh the other hand, the learned Counsel for the respondent contended that in evaluating the welfare of the minor, the conduct and disposition of the appellant is relevant and is of paramount importance. According to him failure to ascertain the preference of minor cannot affect the conclusion as the same is not mandatory.
7. In the circumstance we may first deal with the latter contention of the learned Counsel for the appellant as preference of the minor is only one of the factors to be taken into consideration in considering the welfare of minor.
8. S.17 (1) of the Act enjoins that in appointing the guardian of a minor, the Court should "be guided by what, consistently with the law to which the minor is subject appears in the circumstance to be for the welfare of the minor". Sub-Section (2) thereof states that in considering the welfare of the minor the Court should have regard to factors inclusive of age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor.
9. Though appellant being the father, is the natural guardian of the minor and hence has a preferential claim to be the guardian, the same cannot by itself be decisive in the matter of appointment of guardian. The paramount consideration in this regard is the welfare of the minor. In the decision in Veena Kapoor v. Varinder Kumar, (AIR 1982 SC 792) the Supreme Court observed :
"It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party", The father's fitness cannot override the consideration of the welfare of the minor; it is the welfare of the minor and not the legal rights of the parents that should weigh with the Court. The very reading of S.17 of the Act would show the anxiety and concern for the welfare of the minor.
10. The welfare of a child has to be given a wide meaning. It cannot be equated with the monetary status of the claimant. The totality of the circumstances has to be taken into consideration. All factors which have nexus with the bring up of the child-factors which have bearing in relation to the forming of the personality of the minor-are to be given due weight in judging the welfare of the child. After all "child is the father of man". The innocence and inquisitiveness of the age would absorb all that happen around him. Therefore, the conduct and character of those who are to associate with him certainly should acquire overriding consideration in deciding his welfare.
11. PW-2, the mother of the respondent his five daughters; the eldest has already been in marriage. Respondent is the second daughter. Sona that Mammen is the youngest. Admittedly she is now residing with the appellant. Though the appellant would claim that she is there only as his sister-in-law, the recitals in Ext. Al the marriage Udambadi executed by the appellant and Sona Mammen reveal the character of the relationship between him and her. It states that, they have decided to live as husband and wife. Ext. B1 is purported to be a dissolution deed executed by them. The recitals therein cannot help the appellant as the same was executed after the institution of the O.P. This has got relevance as the same throws much light on the character and conduct of the appellant. The appellant said that his father expired on 4-5-1990 and that 10 days thereafter respondent left him. Ext. Al was executed in 16-5-1990 that is about 10 days after the death of his father. The sequence of events certainly would support the case of the respondent that closely on the heels of the death of the father of the appellant he eloped with Sona Mammen and started to live with her treating her as his concubine. The awareness that the father lives with a concubine who is none else than the youngest sister of the mother certainly is capable of creating hostile impact in the outlook and character of the minor. That by itself would vitiate the right of the appellant to be the guradian of the minor. Therefore, we are unable to accept the contention of the learned Counsel for the appellant to the effect that the fact that the appellant is residing with Sona Mammen is not a factor which needs consideration in deciding the minor.
12. Respondent is residing with her mother and her younger sister who is a Post Graduate. The youngest son also is with her. Respondent herself is a Graduate in Science. Her father is no more who has left an estate of good value. Even the evidence of RW-1 would show that, PW-2 the mother of PW-1 is financially sound. PW-2 has sworn that she is prepared to look after her daughter and minor son. There is no evidence on the side of the appellant to show that he has got sufficient means; on the other hand what he would contend is that his mother is having enough resources to maintian him and his son.
13. If the minor is left in the care of the appellant he would be robbed of the company of his kid brother and also the meternal affection; he is now in the company of his father and his concubine. The fact that he will get maternal affection and the company of his kid brother is a resourceful positive element that should weigh in the matter of his welfare. He cannot be denied that healthy environment in preferring his life with his father and his concubine. In the building up of his character which decides the making of his personality the conduct of his father and maternal aunt is bound to pay an adverse and negative role if he is allowed to be with them. The occasion for the same has to be eschewed and avoided. The preference certainly is in favour of the mother in the matter of the guardianship of the minor. The relative position of the mother and father when taken into account with particular reference to the welfare of the child, we have no hesitation to hold that the repondent's claim has to be allowed.
14. Learned Counsel for the appellant relying on the decision in K. Parvathi Alias Leela v. K.V. Radhakrishnan, (1971 KLJ 729) contended that the lower Court's order is vitiated as in deciding the welfare of the minor the lower Court failed to ascertain the preference of the minor. The learned Counsel submitted that the minor is present in Court and that we may ascertain his preference also. Learned Counsel for the respondent submitted that the child be permitted to be with the mother who is present in Court. We permitted the minor to be in the company of the mother for some time before we interviewed the minor. Then we interviewed him in our chamber to ascertian his preference. He could answer questions. He said he prefers to be with his father; but at the same time he loves his mother also. In Leela's case (1971 KLJ
729) it is stated that if the ward is capable of forming an intellligible opinion and is able to express his views independently the same also has to be taken into consideration in reaching the conclusion. For over two years, the minor was with the father. That circumstance also has to be taken into account in seeing whether minor is in a position to make an independent and intelligent preference. Even as per S. 17 (3) of the minor's preference need not necessarily be decisive, that can be one of the factors to be taken into consideration provided the Court is satisfied that the minor is capable of forming an independent and intelligent preference. We are satisfied that the minor's view cannot be treated as independent particularly in the context of the facts and circumstances already discussed. His perference, in the circumstances looks artificial. The fact that the minor loves his mother and his kid brother cannot be lost sight of. We are sure, the welfare of the minor demands that he should be under the protection and care of his mother the respondent. In that view, we see no merit in the appeal and the same is liable to be dismissed.
In the result the appeal fails and the same is dismissed; there will be no order as to costs.