Kerala High Court
Munnodiyil Peravakutty vs Kuniyedath Chalil Velayudhan on 14 February, 1992
Equivalent citations: AIR1992KER290, I(1992)DMC530, AIR 1992 KERALA 290, 1992 (1) HINDULR 664.2, (1992) ILR(KER) 2 KER 731, (1992) 1 DMC 530, (1992) 1 HINDULR 664(2), (1992) 1 KER LJ 385, (1992) 1 KER LT 474, (1992) MATLR 55, (1992) 1 CURCC 689
JUDGMENT Guttal, J.
1. Welfare of the child is the paramount consideration. This appealing phrase, easy to understand but less easy to apply, is invoked by the parents of the mother of the child, Anisha. The Additional District Judge, Kozhikode, in the O.P. No. 136 of 1989 filed by Anisha's father, Velayudhan, ordered that Anisha be given in his custody. The parents of the deceased mother of the child, impugn the order.
2. In this appeal the appellants are referred to as 'maternal grand parents' and the respondent as the 'father'. The child's mother died by drowning in a well on the evening of 6th September, 1988 when the father was away. According to the father, she committed suicide as she was depressed by the fact that her husband, a sergeant in the Indian Army, was summoned to Sri Lanka to continue his duties in the I.P.K.F. The grandparents, on the other hand, urge that the father, by practice of cruelty drove her to commit suicide. The conduct of the father in relation to his wife is not under investigation in this case. Therefore we are not called upon to inquire into the circumstances in which the child's mother died, unless, of course, such circumstances are shown to be relevant for considering what is in the best interest of the child, which has not been done.
3. The facts relevant to the question of the welfare of the child which emerge from the evidence are as under :
(i) The father, a sergeant in the Indian Army, has after the death of his wife taken a transfer to Kozhikode with a view to looking after the child,
(ii) The father has a modest and regular monthly income, as sergeant, in the Indian Army.
(iii) Since he has taken a transfer to Kozhikode his desire to bring up the child and educate her under his supervision is established.
(iv) The child is attached to the matrimonial grand parents, due to its association with them during the preceding one year and 8 months.
(v) The maternal grandfather is a cononut plucker by occupation. In comparison with the economy of the father, his economic condition does not endow him with the ability to spend for the welfare of Anisha.
(vi) The maternal grandfather is 76 years old and the grandmother is over 65 years old.
(vii) The parents of the father of the child are in their 50's and not as old as the maternal grandparents.
(viii) While the child lived with the maternal grandparents after the mother's death, the father did send a money order for meeting the expense of the child; but the maternal grandparents refused to accept the money order.
(ix) While the child's father lives with his parents the maternal grandparents arc living with their sons, one of whom is mentally retarded and the other is divorced, from his wife.
4. Anisha has to live with the father or her maternal grandparents. Which of them are able to provide conditions of life conducive to her welfare? This question has to be answered by considering the facts set out in paragraph 3 above. The paramountcy of the welfare of the child is axiomatic. It is the most dominant consideration in the consciousness of the court. Yet the courts have found no subject more difficult to deal with than the meaning and application of the phrase. The attitude of the courts, where parents battle over children, has not been uniform; though a tendency to lean in favour of the mother is discernible where the contest is between the parents. In this case the contest is not between the parents but between a parent -- the father -- on the one hand, and the maternal grandparents on the other. Therefore we have to reckon not only the paternal love but also the claim of the maternal grandparents.
5. The father and mother being the most natural claimants to custody of the child a straight contest between them has the virtue of directness. But the claim for custody by maternal grandparents introduces consideration of wide range of factors relevant to the child's welfare. Consistently with this claim and the increasing consciousness of the community towards the welfare of children, we shall presently endeavour to discover the factors which contribute to the welfare of the child. It is impossible to catalogue exhaustively the factors which contribute to the welfare of the child. We venture to set out some of the relevant considerations.
6. Capacity of the custodian to supply the daily necessities such as food, clothing and shelter is the primary consideration. Secondly the education of the child. The custodian must possess the capacity to create surroundings in which the child will be in touch with education. In the case of a custodian who is himself educated and given to reading and writing it is easier for the child to keep itself abreast of letters. If the custodian is not educated, he cannot create the requisite background in the home. Thirdly awareness of the need, to keep good health and the capacity to provide the means of keeping good health is another important factor. Fourthly a knowledgeable parent would greatly contribute to the child's welfare by taking steps like emphasising healthy eating habits, providing for vaccination, other measures of health-care, timely treatment and the company of books. Less educated or ignorant parents may not be able to create these conditions. Fifthly, the economic capacity to educate in a good school, with private coaching, where necessary, meeting expenses of transport, children's excursions and so on is no less an important factor.
We do not suggest that the question of custody should be decided upon consideration as to which of the two rival claimants is more affluent. While economic condition of a claimant to the custody is an important factor, no less important a factor is : which of the rival claimants to the custody shows greater concern for the welfare of the child? The child does not grow merely on food and clothing. The growth of its personality needs love of parents, the denial of which warps the mind and distorts the vision of life. A barren life, devoid of emotional attachment, love of parents, brothers and sisters and even of friends, retards and impairs growth of a child. Therefore the sum and substance of the matter is : neither economic affluence nor a deep mental or emotional concern for the well-being of the child, by itself, is determinative of, where the welfare of the child lies. The answer depends upon the balancing of all these factors and determining what is best for the child's total well-being. That is what we now propose to do.
7. Learned counsel for the appellant with the aid of certain judicial decisions, emphasised that the removal of Anisha from the custody of maternal grandparents may have traumatic effect on her health and urged us on not do so. We are aware that the paramountcy of the child's welfare is so paramount that even the father as the natural guardian does not have absolute unlimited right to the custody of the child. His right too is subject to the paramount consideration of its welfare : Vegesina Venkata Narasaiah v. Chintalapati Peddi Raju, AIR 1971 Andh Pra 134; L. Chandran v. Mrs. Venkatalakshmi, AIR 1981 Andh Pra 1. The courts have so jealously guarded the welfare of the child that where the separated parents were unable to look after the education of the minor, the child was kept in a Boarding School: Smt. Meera Devi v. Shyam Sundar Agarwalla, AIR 1985 Orissa 65. Father's company is necessary for a child's growth. If the father due to his pre-occupation with business could not give such company leaving the child in the care of servants, with the resultant mental strain, it was held that the child should not be with the father: Smt. Meera Devi v. Shyam Sundar Agarwalla, AIR 1985 Orissa 65. These cases, as indeed many other judicial decisions, to which a reference is not necessary, emphasise the court's duty towards child's welfare.
8. Learned counsel relied upon, Vegesina Venkata Narasaiah v. Chintalapati Peddi Raju, AIR 1973 Andh Pra 134; L. Chandran v. Mrs. Venkatalakshmi, AIR 1981 Andh Pra l; Smt. Meera Devi v. Shyam Sundar Agarwalla, AIR 1985 Orissa 65 and C. Madhavan Nair v. Viswanathan, 1977 Ker LT 479, to urge that the child should not be removed from the care of the maternal grandparents. We will consider these cases.
In Vegesina Venkata Narasaiah v. Chintalapati Peddi Raju, AIR 1971 Andh Pra 134, the custody was continued with the maternal grandmother because the father had married again bringing a stepmother, who had her own children and had made no effort to establish contact with the child.
In L. Chandran v. Mrs. Venkatalakshmi, AIR 1981 Andh Pra 1, custody of the child was continued with the mother's mother because after the wife's death, father had no female member in the house, his parents, living far away, were passive towards the child, and in contrast, the maternal grandmother was loving and active.
As already stated, in Smt. Meera Devi v. Shyam Sundar Agarwalla, AIR 1985 Orissa 65, the father was denied custody of the child because, living alone and always engaged in business, he was unable to take care of the child.
9. None of the above cases in which custody of the child was denied to the father derogates from the principle of paramountcy of child's welfare. The facts of every case cited by learned counsel show that living with the father was not conducive to the welfare of the child. The father's unsuitability or lack of fitness to be the custodian went into the making of these judicial opinions. Therefore these cases have no application to the case before us.
10. C. Madhavan Nair v. Viswanathan, 1977 Ker LT 479, is closer to the case with which we are concerned. The father, married after his first wife's death, was employed as a clerk. The child was with the maternal grandparents. The father was willing and able to educate and bring up the child. The Division Bench laid down these principles relevant to the custody of a child:
(i) there is a presumption in favour of the natural guardian as opposed to those who are not natural guardians.
(ii) the claim of the natural guardian to the custody of the child should ordinarily be accepted.
(iii) the claim of the natural guardian should be rejected if he is not fit to be guardian or for some other reason giving custody to him is not conducive to the child's welfare.
11. According to counsel for the appellant, Anisha has been with the maternal grandmother for about 2 years and is attending a school. He therefore urges that removal of Anisha from the present environment and placing her in the house of the father will expose her to unknown and strange surroundings which, in turn, may prove traumatic. This argument of trauma likely to be caused by change of surroundings may be valid, if the child is uprooted from surroundings in which she is living happily for a reasonable length of time or if she is likely to be thrown into unpleasant or disagreeable surroundings, as it happened in Vegesina Vemkata Narasaiah v. Chintalapati Peddi Raju, AIR 1971 Andh Pra 134, Secondly in order that a child is uprooted, the circumstances must show that she has been rooted in certain surroundings. Anisha is now about 5 years old. She has been living with the maternal grandparents only from 6-9-1988 when her mother died. It cannot be said that she has been so "rooted" in the surroundings of the household of her grandparents, that going back to live with her father is likely to "uproot" her. Besides, as we will show a little later, the surroundings in which the father seeks to keep the child are healthy and conducive to Anisha's welfare. Her tender age, the short duration of stay with her maternal grandparents and the affectionate, econominally sound and healthy atmosphere in which the father is likely to place her do not justify an inference that living in the changed surroundings is likely to prove traumatic.
12. A fact which has been repeatedly urged by counsel for the appellant is that the husband treated the deceased mother of the child with such cruelty, that gave rise to a case under Section 498A of the Indian Penal Code. On the basis of the fact of this complaint against the father, counsel urged that it is not in the interest of Anisha to live with her father. No fact suggesting that the father was responsible for the death of the child's mother or that he treated her with cruelty are discernible from the material placed before us. It is the case of the father that his wife was unable to bear the mental stress caused by the prospect of the father rejoining the action in Sri Lanka. Therefore during the spell of mental depression she committed suicide. The maternal grandparents allege that she did so because of ill-treatment. We do not wish to hazard even a speculation about what actually happened. But the fact is that there is, as yet, no evidence of cruelty by the father. On the evidence on record, there is nothing in the past or present conduct of the father to suggest that he is not fit to receive custody of the child.
13. It was urged that it is not good for child's mental health to go back to live in the house in which her mother is alleged to have committed suicide. The argument assumes that the child when it was taken away by the material grandparents, was conscious of mother's death or circumstances in which she died. It is improbable that at the age of 1 year and 8 months the child's mind was able to grasp and absorb the idea of death, suicide or the reason therefor. All that the child might have understood is the disappearance of her mother. The argument that when the child goes back to live in the father's house, the memories of the frightful ghastly event might tell upon the child's mind is unsound, and opposed to human experience. We may assume that the child remembers her mother's death. But we are certain that the child did not know whether father was responsible for the death or that the mother was harassed by the father. The argument is unsound.
14. It was urged that the father has no regard for the child's welfare for the reason that while the child has been living with the maternal grandparents, the father never sent any money for the expenses of the child. This accusation is unfounded and contrary to the evidence. The father has asserted in his testimony that he did send a money order which the maternal grandparents refused to accept. This testimony has not been shaken in cross-examination. We reject the suggestion that the father did not send any money for the expenses of the child.
15. We will now attempt to balance the circumstances and judge which way the welfare of the child lies. The father, a sergeant in the Indian Army has a record of disciplined life. Secondly he has a regular monthly income which guarantees a continuous flow of money -- modest though -- which will enable him to look after the interests of the child. Thirdly he has demonstrated his urge to bring up the child and educate her under his supervision by taking a transfer to Kozhikode. Fourthly his parents, who live with him are in their 50's and therefore young enough to lend a helping hand to the father in his endeavour to look after the child, its schooling, food and health. These facts create the picture of a father willing and capable of looking after the welfare of the child. His awareness of the need to educate the child, regular income and presence of parents to lend a helping hand, assure that in his house Anisha's welfare will be best looked after.
As against the factors set out above, there is no evidence of regular earning by the grandparents. The maternal grandfather is a humble coconut plucker which does not guarantee regular or adequate flow of income. This is not to suggest that a humble man cannot look after the child. But the economy is an important factor in the concept of welfare. The economic condition of the maternal grandparents does not endow them with the ability to meet adequately the responsibility of looking after the health and education of the child. Secondly the maternal grandfather is 76 years old and the grandmother is 65 years old. At such old age and with income, which is by no means adequate or regular, it is unlikely that they would be able to take the same amount and kind of care of the child as would the paternal grandparents and the father do. Thirdly, there is a mentally retarded son living with the maternal grandparents. There may be occasions when the grandparents due to their age, might leave the care of the child to the mentally retarded son. This certainly does not create a healthy atmosphere for a child to grow up.
16. Having regard to the discussion in the foregoing paragraphs we are of the opinion that a balancing of the totality of the circumstances point to only one conclusion. The conclusion is that Anisha's welfare lies in living with her father.
17. For all these reasons we confirm the impugned order and dismiss the appeal