Court:MADRAS HIGH COURT
Bench: JUSTICE A.R. Lakshmanan
ETTIAPPA MUDALIAR & ANOTHER Vs. T. SUBRAMANIAN on 19 November 1992
Law Point: In the absence of strong positive proof of father suffering any disqualification. He remains, fit and proper person to have the custody of the child. Maternal grand parents directed to handover the custody of the minor to father.
The respondents before the lower Court are the appellants herein. The present appeal has been directed against the judgment and decree dated 9.1.1992 in G.W.O.P. No. 156 of 1990 on the file of the District Judge, Chengalpattu.
The respondent herein, who is the father of the minor Ramachandran alias Anandan now aged about 4-1/2 years, has filed the Guardian Wards O.P. No. 156 of 1990 under Section 25(1) of the Guardian and Wards Act, read with Section 6(a) of the Hindu Minority and Guardianship Act, 1956, to direct the respondents/appellants herein, who are the maternal grand-parents of the minor, to hand over the custody of the minor to the respondent herein.
2. The shorts facts are the respondent married the appellants’ daughter Dhanalakshmi on 12.2.1987 at Villivakkam and that the marriage was solemnized according to Hindu rites and Custom. The respondent is employed in Tamil Nadu Civil Supply Corporation at Kancheepuram, which is his native place. They were living happily for two years after the marriage at Kancheepuram. The minor child was born on 7.2.1988 at Rakki Hospital, Ambattur. The respondent was then transferred to Ponnamallee and was living with his wife at the residence of the appellants at Ambattur. The respondent was again transferred to Chengalpattu Hence, he has once again moved to Kancheepuram with his wife and the minor. On 3.4.1990, the respondent’s wife got injured in the stove fire accident and was admitted to Kancheepuram Headquarters Hospital. In spite to best treatment given to her, the hospital authorities advised the respondent to take her to Kilpauk Medical College Hospital for further treatment and for plastic surgery. But, on 29.5.1990, she expired in the Kilpauk Medical College Hospital. The dead body was handed over to the respondent after post-mortem. The body was taken to Ambattur at the request of the appellants. The appellants, with the aid of police and under threat and coercion, forced the respondent to sign in a blank stamp paper. The appellants are very poor people and have no means of livelihood. The minor is of tender age and has to be admitted in a school and has to be given proper nourishment. The respondent is very much attached to the minor and he alone is the fit and proper person to maintain and have custody of the minor. The respondent is now working as a Helper in the Tamil Nadu Civil Supply Corporation and earning Rs. 1,200 per month. He can properly bring up the minor. The appellants are not entitled to have the custody of the minor. The respondent issued notice to the appellant on 7.6.1990. He issued another notice on 14.7.1990 seeking custody of the minor child. The appellants, though received the notice, have not complied with the demand. Hence, the respondent has filed the above Guardian and Wards O.P. for the relief mentioned above.
3. The appellants, as respondents, resisted the petition by filing a counter. Though several contentions have been raised in the counter, it is ralevant if I refer to the contentions which are necessary. According to the appellants the respondent never cared to look to the child’s wants. The minor child is in the custody of the appellants ever since its birth. It is false to state that they did not provide necessary food and medicine. The respondent cannot maintain the minor as he is living separately after he got divided from his father, step-mother and step-sister. The respondent himself has to look for someone else for his daily bread. The respondent is incapable of attending on the tender child. The welfare of the minor shall be the paramount consideration and no person shall be entitled to the guardianship by virtue of the provisions of the abovesaid Act or any law relating to guardianship if the Court is of opinion that the guardianship will not be for the welfare of the minor. There are not bona fides on the part of the respondent. It will not be in the interest of the minor child to appoint the respondent as the guardian of the minor.
4. The appellant filed an additional counter stating that the respondent had executed an agreement on 30.5.1990 agreeing to leave the minor child with the appellants as per the wishes of his wife. He had also agreed to pay Rs. 300/- per month for the maintenance of the child. Further, he had returned all the articles that were given to the respondent’s wife as Stridhana and had also agreed to give his ancestral property to his minor son. The said agreement was executed by the respondent on his own accord. It was attested by his father Thangavelu, his brothers Karunanidhi and Dayalan and by his uncle Arunachala Mudaliar and two others of Ambattur. As such, the minor was looked after by the appellants as per the best wished of their deceased daughter Dhanalakshmi and as agreed by the respondent. If the minor child is entrusted with the respondent, it will be detrimental to the welfare of the minor child.
5. The learned District Judge, Chengalpattu, on a consideration of the entire facts and circumstances of the case, allowed the petition filed by the respondent herein and directed the appellants to hand over the custody of the minor child to the respondent within two months from the date of his order. However, the appellants were permitted, if they so desire, to take the minor child during quarterly, half yearly and summer vacations and have his custody temporarily. Aggrieved against the judgment and decree of the Court below, the respondents therein have filed this appeal-
6. In the appeal, the appellants have raised the following grounds : —
(i) The claim of the father/respondent is not bona fide when he himself has admitted about the second marriage in the witness box;
(ii) The Court below has not considered the welfare of the minor child.
(iii) The Court below ought to have held that the welfare of the child will be better if it is with the grand-parents/appellants since the child was brought up by them from the date of death of the respondent’s wife :
(iv) The Court below ought to have considered the agreement executed by the respondent wherein he undertook to provide maintenance as well as the ancestral properties to the minor child, which should be brought up by the appellants.
(v) The Court below ought to have found that the wife of the respondent died in suspicious circumstances and that the appellants did not pursue the matter since the respondent volunteered for certain conditions as stipulated in the agreement dated 30.5.1990;
(vi) The Court below ought to have found that the respondent has lost his right to claim the custody of the minor child in view of his conduct and treatment of his wife Dhanalakshmi, which resulted in her death.
(vii) The Court below ought to have found that the appellants have sufficient means and capacity to bring up the minor child.
(viii) The Court below ought to have examined the minor child to know about his likes and dislikes as well as the harassment caused to his deceased mother by the respondent.
7. I have heard Mr. R. Subramaniam, learned Counsel for the appellants and Mr. S. Balasubramaniam, learned Counsel for the respondent.
8. Mr. R. Subramaniam reiterated the grounds raised by him in the appeal at the time of argument. I have been taken through the entire pleadings filed by both parties and the order of the Court below. I am unable to accept the contentions raited by the learned Counsel for the appellants. I have also carefully gone through the order of the Court below and I am of the view that the Court below has allowed the respondent’s claim for custody of his minor child on a proper consideration of the entire facts and circumstances of the case and also following the decisions of our High Court reported in J. Velan v. G. Muthu, 1990 (2) MLJ 417 and Mary Vanitha v. Babu Royan, 1991 (2) MLJ 231. It is pertinent to notice here that the Counsel for the appellants herein appeared for the respondents in O.P. No. 30 of 1988, J. Velan v. G. Muthu, 1990 (2) MLJ 417. Similar contentions raised by the learned Counsel for the appellants herein have also been raised in the above case and the same was negatived by me on an elaborate consideration of the same. It is also further pertinent to notice that the appeal (O.S.A ) filed by the respondents therein was also dismissed by a Division Bench of this Court.
9. Let me now consider the contentions raised by Mr. R. Subramaniam, learned Counsel for the appellants in this appeal. According to Mr. R. Subramaniam, the respondent is unfit to have the custody of the child since he has married for the second time, which has been admitted by him in the witness box. I am unable to accept this contention in view of the decision of our High Court reported in Sorra Reddi v. Chenna Reddy, 1950 (1) MLJ 83, wherein Govinda Menon and Basheer Ahmed Sayeed, JJ. have clearly laid down that the father ought to be the 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 of depriving him of his parental right of custody. In the said case, it was argued that the minor might have developed love and attachment to the other relations with whom was, and this argument was nagatived. In the instant case, the very same argument was advanced by the learned Counsel for the appellants that the minor has developed love and attachment with the grand-parents/ appellants with whom he was. Applying the said ratio in the abovesaid decision, I have no hesitation to negative the said contention.
10. Mr. R. Subramaniam next argued that the welfare of the child will be better with the appellants since the minor was brought up by them from the date of death of the respondent’s wife. Here again, I am unable to accept the said contention. The father is the natural guardian of his child. He cannot, therefore during his life-time substitute another person to be the guardian in his place. He may, in the exercise of his discretion as guardian, entrust the custody and education of the child to another, but the authority he thus confers is a revocable authority, and if the welfare of his child requires it, he can, notwithstanding any contract to the contrary, take such custody any education once more into his own hands. Therefore, it can be safely held that the father can desire the return of the child to his custody even though he left the child for a few years in charge of his parents-in-law and it is not sufficient to deprive a father of the custody of his child simply because he left the child for a few years in charge of the appellants and desire to return to his custody of the minor child. Therefore, I reject the contention of the learned Counsel for the appellants that the welfare of the child will be better only if it is with the appellants since the child was brought up by them from the date of death of the respondent’s wife.
11. Mr. R. Subramaniam then contended that the Court below ought to have examined the child to know about its likes and dislikes as well as the harassment caused to its deceased mother by the respondent. This contention is wholly unacceptable and misconceived. Admittedly, the child is of tender age and on the date when the petition was filed, it was only 2½ years old and now it is 4½ years old. No child of tender age will be in a position to express any opinion in regard to its likes and dislikes as well as the harassment said to have been caused to its deceased mother by the father. In this connection, I have also carefully considered the counter-affidavit riled by the appellants, which is very silent on this aspect. Nothing is stated in the counter-affidavit with regard to the harassment said to have been caused by the respondent. It is well settled that in the absence of any pleadings, the parties are not permitted to put forth any case other than those which have been raised in the pleadings. Nothing has been said in the counter-affidavit that the respondent has ill-treated his wife Dhanalakshmi or that the respondent was responsible for the death of his wife. Hence, this contention has no merits.
12. Mr. R. Subramaniam next urged that the appellants have got sufficient means and capacity to bring up the child. I am unable to accept this contention as well. The respondent is employed in the Tamil Nadu Civil Supply Corporation and is earning Rs. 1,200 per month. Being the natural guardian having love and affection with the minor, besides sufficient monetary sources to bring up the minor child, the custody of the minor was ordered in his favour by the Court below. The appellants are not financially sound to bring up the minor. There is nothing to show or seen from the counter-affidavit that the appellants are under affluent circumstances. A specific averment has been raised by the respondent in paragraph 5 of his petition that the appellants are very poor and have no means of livelihood and that the respondent alone is fit to have custody of the minor child and to maintain it. Nowhere in the counter-affidavit it is stated that the appellants are in affiuent circumstances and they have sufficient means to bring up the child. The additional counter-affidavit is also very silent on this aspect. On the other hand, respondent has clearly stated in his petition that he is working as a Helper in the Tamil Nadu Civil Supply Corporation and is earning Rs. 1,200 per month and he can properly bring up the child and that he being the father, as the natural guardian has no adverse interest and that the interest and welfare of the child will be protected by him as the natural guardian.
13. Nextly, Mr. R. Subramaniam contended that the Court below ought to have considered the agreement executed by the respondent on 30.5.1990 wherein undertook to provide maintenance as well as the ancestral properties to the minor child, which should be brought up by the appellants, and in the circumstance, the Court below ought to have held that the respondent is estopped from claiming custody of the minor child. There is nothing to show that this point has been argued before the learned District Judge, Hence, I am of the view, the appellants are not entitled to raise this point in this Court when the same has not been argued in the Court below. Even otherwise, I am of the view, the said point now argued for the first time is not germane to the point involved in this appeal. Further this is not forum to decide such a dispute.
14. Lastly, it was argued by the learned Counsel for the appellants, that the welfare of the minor will be better with the appellants. I am unable to accept the said contention as well. There is absolutely no circumstance which warrants deprivation of parental rights of the father. It is not proved by the appellants that the father does suffer from any circumstance which would deprive his parental right. The mere fact that the appellants being grand-parents, are much attached to the minor is not at all a ground to negative the claim of the father, the natural guardian. In any event, such custody cannot have any preference to the legitimate right of the natural father. It is also not proved in this case that the respondent has shown any lack of interest in the minor, If that is so, that will be a circumstance, which will have a bearing on the question of interest and welfare of the minor. In the absence of proof in that context, in my opinion, the custody of the minor cannot be denied to the father. The interest of the infant will be saved if the infant is in the custody of natural father, least the child will forget the face of the father for ever. There are no indications in this case which are likely to unfit the respondent to bring up the small boy. The respondent seems to be anxious to have his own child with him in order to properly look after the child and also to provide further education. The feelings between the parties being what they are, I think it is also natural for the father to feel that if the minor child continues to live with its maternal grand-parents, it may be brought up to date the father or to have adverse inference against him at a later stage. This, in my opinion, is not desirable. In the absence of any positive proof that the father has suffered any disqualification from being the guardian and custodian of the minor child, the father alone will be the fit and proper person to have the child’s custody. Thus, on a consideration of the entire facts and circumstances of the case and also the law on the subject. I am of the clear view, that the respondent/father alone is the fit and proper person to have the custody of his child. I am also of the view that the welfare of the child will be amply protected only if the child is allowed to be in the custody of its father atleast from now. No other points were argued by both sides.
15. For all the foregoing reasons, I confirm the order of the Court below and dismiss the appeal. However, there will be no order as to costs. I make it clear that the appellants being the grand-parents are entitled to have the custody of the minor child on festive occasions and also during school holidays as directed by the Court below. The parties will sink their differences and will have a good relationship at least hereafter in the interest of the minor child. Time for delivery one week from today.
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