MANNAMBAT ABOOBACKER HAJI Vs. SAINABHA

JUDGEMENT

(1.) The judgment of the court was delivered by Viswanatha Iyer, J.- This appeal is filed by the petitioner in a proceeding under the Guardians and Wards Act. He is the father of four minor children aged 10 years, 8 years, 6 years and 2 years respectively on the date of the application. The application was filed on 22nd May 1978. The mother of the minors died in 1976. Three months thereafter the petitioner married a second time and has a child in the second wife at the time of the application. According to him during the lifetime of his first wife, namely, the mother of the minors, all of them were staying in the respondent's house, the respondents being the mother and father of the deceased first wife, as per the custom in the community. After her death according to the petitioner with the consent and blessings of the respondents and mainly to look after these minor children he married a second time and stayed with the respondents with the second wife for some time until he was able to purchase a house for himself and his family. That he was able to do and he moved into his own house. But the minor children were not taken there immediately as the respondents requested that that may be done after some time. He used to visit the children and attend to all their needs. But as he found that this arrangement involves a lot of difficulties he wanted to take the children with him to his house which the respondents did not allow. His repeated requests in this regard also was not successful and according to him he needs the help of the court to get their custody. The respondents denied the right of the petitioner to have the custody of the children. According to them the children had all along been living with them and the petitioner was not properly maintaining them or attending to their needs. He chose to marry soon after the death of his first wife. They did not give their blessings to his second marriage. The second wife while she was staying with the respondents did not exhibit any sympathetic disposition against the children and she left the house when the petitioner took a separate building for residence. They further allege that the children will never be happy in the new surrounding. They further allege that they are healthy and capable of looking after the children, they have sufficient means to get on and the children are properly fed and educated. It was alleged that this application for custody is filed as a counter blast to the application filed by them on behalf of the children for maintenance under S.125 Criminal Procedure Code. The lower court after examining the petitioner and the first respondent, heard the matter and passed orders dismissing the petitioner's application. It is against this that this appeal has been filed.

(2.) In a case of this kind the welfare of the minors is the paramount consideration of the court. It is admitted fact that the petitioner appellant was residing with the respondents during the lifetime of his first wife. That appears to be due to two reasons. Firstly as per the custom, similar to that prevailed among the Marumakkathayees the husband used to go and stay in the house of the wife. Secondly the petitioner had not purchased a house for himself then. When the mother of the minors died it is his responsibility to look after the children and his evidence in his case that he married a second time mainly to enable him to look after the children with a female help appears to be true. This is further strengthened by the admitted fact that the second wife also resided with the respondents and the children in the house of the respondent's house for some time until the petitioner purchased a house for himself. The second wife is not a member of the respondent's family. That she went and stayed with them until he purchased another house is clear proof that the petitioner has been anxious to make every arrangement to look after children. Again he is the natural guardian. It is his responsibility to bring up the children and make them useful citizens of the country. Three of them - minors 1, 2 and 4 - are girls. A time is come when they have to be educated, soon they will have to be given in marriage. All these are not the responsibility of the respondents, but only that of the petitioner. The third, a son, has to be educated and brought up with all discipline. All these are part of the parental duty and respondents have, if at all, only a moral responsibility. Nothing has been brought out in the evidence of the second respondent to accuse the second wife and call her a "proverbial step mother" the expression used by the lower court. In a situation like this instead of withholding the children, what one expect of the respondents is to send the children with the petitioner and give him all encouragement and support to bring them up. Instead of that the respondents have gone to a criminal court and asked for maintenance from the petitioner for the minors. This will only aggravate the hostility, cut of tie of affection and may lead to a disruption of the petitioner's family by corrupting the minor children. Considering the future of the minors and the responsibility of the petitioner we are satisfied that the minors should be brought up by the petitioner in his surroundings as members of his family. His care, affection and sense of discipline have to be there to bring up the children.

(3.) There are two factors which are highlighted by the respondents against the appellant. Firstly it is said that under the personal law, next to the mother, it is the grandmother who is the first respondent, who is entitled to the custody of the girls until they attain puberty and of the boy until he attains seven years. But this rule is subject to another rule that the custody of the mother and the female relations are subject to the supervision of the father which he is entitled to exercise by virtue of his guardianship. It is seen from the evidence that the grandmother has filed a petition under S.125 of the Criminal Procedure Code for obtaining maintenance for the children from the father. This has again created hostility between them. The petitioner appellant complains that he is not allowed to look after the children. In such circumstances the claim of the respondents on the basis of personal law has to be subordinated to the provisions of the Guardians and Wards Act, S.19, which says that during the lifetime of the father his right to be in custody of the children cannot be overlooked in an application under the Guardians and Wards Act. We are supported by the decision in Mt. Siddio-Un-Nissa Bibi v. Nisam-Uddin Khani (AIR 1932 Allahabad 215) where Sulaiman, Acting C. J. has stated the principle thus at page 217: -