LEKSHMI Vs. VASANTHA KUMARI

JUDGEMENT

(1.) This appeal is at the instance of the counter petitioners in O.P.(G&W) 85 of 1998 on the file of the Additional District Court, Alappuzha. The parties are referred to hereinafter according to their status in the District Court. Petition was filed by the grand mother of the third respondent Rahuldas (who was described as unmarried child in the petition) for appointing her as guardian of the child born to the first respondent. Originally the prayer was for visitorial right and subsequently it was amended for joint guardianship. Thereafter the petition was amended for appointment of the petitioner as guardian. The reason stated was that the mother got herself converted to Islam after marrying a Muslim. The first respondent's husband died in a motor accident. Thereafter the child was brought up by the mother. The petitioner before the Family Court is the mother of the deceased father of the child. The Family Court has appointed the petitioner as guardian of the child and directed custody to be handed over to her. According to the Family Court the mother has married a Muslim and therefore the mother will not be able to bring up the child as a Hindu. Since the first respondent and her husband were Hindus the Family Court thought that it would be desirable that the child also was brought up as a Hindu. The Family Court further assumed that the members of the family of the new husband of the first respondent may not allow the first respondent to continue as a Hindu. Further the Family Court found that the first respondent had no substantial source of income. The conduct of the first respondent in marrying another person within two years of the death of the first husband also persuaded the Family Court to hold that the custody of the minor child cannot be given to her. However, it was also found that the second respondent mother of the first respondent was working in a college and since she had to travel about 60 to 70 kms. to reach the college from the house, she may not have any time to look after the child. On these grounds the petition was allowed.

(2.) In this appeal learned counsel for the appellant pointed out that the child was with the mother ever since his birth and he is now about ten years old. He is prosecuting his studies very well and is studying in CBSE School in 5th standard. It is also pointed out that if the child is displaced at present it may affect his studies and he may not be able to get accustomed in the new environment of his grand mother. The further argument is that mere marriage to a person belonging to another religion by itself is not a ground to take away the custody from the mother and give it to the grandmother. It is also argued that both the mother and the new husband have undergone a ceremony converting them to Hinduism and they are now Hindus and the apprehension of the Family Court that the child will be brought up as a Muslim is without any basis.

(3.) After hearing the learned counsel on both sides we find merit in the contentions of the learned counsel for appellants. The fact that the mother has married a person belonging to another religion by itself is not a ground to take away the custody of the child from the mother. We are of opinion that there is no substitute for the mother's affection and care for the child.