GOPALAN Vs. RAJAN

JUDGEMENT

(1.) Maternal grandfather of two minor children, Raghul aged five years and Rahana aged three years is the appellant. Respondent who is their father filed the Original Petition under S.25 of the Guardians and Wards Act for the custody of the minor children from their mother's father. Mother of the minors (wife of the respondent) committed suicide by consuming poison. She died on 10-12-1990. Respondent issued notice dated 19-10-1992 to the appellant for the custody of the minor children. The Family Judge allowed the Original Petition and directed the appellant to hand over custody of the minors to the respondent.

(2.) Appellant's contention is that the impugned order cannot be sustained as the Judge obviously overlooked the welfare of the minor children. Respondent examined as P.W.1 deposed that at the time of his wife's death eldest child was aged 2 1/2 years. The evidence in the case would show that the minor children were all along with their maternal grandfather. It is also the admitted evidence that the eldest child is studying in Government Ganapathi English Medium School and that the second one is admitted in a Nursery School. Though P.W.1 stated that if the children are allowed to be with the appellant it would adversely affect their future, he could not substantiate it by any cogent evidence. P.W.1 admitted that his wife died by consuming poison and that he was tried in Sessions Case 132 of 1992 in the Sessions Court, Kozhikode on the allegation that he was responsible for her death. It is also admitted by him that Crl.A. 527 of 1993 which is the appeal against his acquittal by the Sessions judge, is pending before this Court. Appellant examined as R.W. 1 testified that prior to sending Ext. A-1 notice respondent never cared to enquire about the welfare of his children and he never demanded their custody. His evidence would also show that only after issuing Ext. A-l notice respondent had sent Rs. 100/- and Rs. 200/- by money orders. The evidence in the case categorically shows that the minor children are residing along with the appellant, their grandfather ever since their mother's death.

(3.) In a petition under S.25 of the Guardians and Wards Act, the paramount concern, of the Court is nothing but the welfare of the minor children. Court cannot start with a presumption that interest of the minor would always be safe with the legal guardian under all circumstances. Merely on the basis that the respondent who seeks the custody of his children is their legal guardian, Court cannot jump to the conclusion that their welfare would be safe with him. While deciding as to whom the custody of the minor has to be given in a particular case Court has necessarily to consider mental or emotional feelings of the children, their up-bringing and also their tender age. Though father is the natural guardian of the minor, on that count alone he cannot have any preferential claim. Fact of legal guardianship cannot be decisive in a petition under S.25 of the Act. Totality of considerations should weigh with the Court while deciding the matter in issue.