APPU MENON Vs. JANAKI AMMA

JUDGEMENT

(1.) This appeal arises from an order of the learned District Judge of Anjikaimal refusing to restore a minor child below the age of 3) to the custody of its father. The childs mother died on the same day as the child was born. Since then the maternal grandmother, the respondent to this appeal, has been bringing up the child. According to the petitioner appellant he had entrusted the child to the respondent to be looked after and he was from time to time supplying the child with whatever necessaries were found needed and had also engaged a nurse to look after it. Latterly however, differences arose between the appellant and the respondent and the petition giving rise to this appeal was filed claiming custody of the child.

(2.) The appellant has no case that the respondent is in any way disqualified or incompetent to look after the child. The learned District Judge has written a very elaborate and well considered order meeting all the points raised in support of the appellants claim. Quite recently in CMA 63 of 1955 we had occasion to point out that the paramount consideration which should weigh with a court in an application of this kind is the welfare of the minor. We are not prepared to say that the learned Judge exercised his discretion in the matter improperly when he refused to allow the appellants prayer that the child should be handed over to him. It has repeatedly been held in decided cases that the fathers right for the custody of the child is not absolute, that it is circumscribed by considerations of the welfare of the minor and that if the minors welfare requires that custody should not be given to the father, he cannot get it merely because he happens to be the father. Practically all the cases the appellants learned counsel depended upon during the course of his arguments before us have been reviewed in two decisions brought to our notice on behalf of the respondent. These are Mrs. Susila Gangu v. Kanwar Krishna AIR 1948 Oudh 266 and Manjir Singh v. Bakish Singh AIR 1952 Punjab 129. As the view taken in these cases accords with our view on the question and with what we said in CMA 63 of 1955 we do not propose to enter into an elaborate discussion of the case law bearing on the point. S.25 of the Guardians and Wards Act (VIII of 1890) enacts that in the matter of restoring a minor to the custody of the guardian the welfare of the minor is the decisive factor on which the courts decision should turn. As stated earlier we feel fully satisfied that the lower court has kept this consideration in view in making the order under appeal.

(3.) The facts of the cases reported in Bindo v. Sham Lal (1907) ILR 29 All. 211 and Batcha Chetty v. Ponnuswami Chetty 1912 (22) MLJ 68 are very similar to the present case. As here, in those cases also the dispute was between the minors father and the maternal grandmother. After the death of the minors mother, in one case the maternal grandmother and in the other, the maternal grandfather and the maternal grandmother brought up the minor and in either case the court of first instance allowed the application made by the father-guardian for the custody of the minor. Those decisions were, however reversed in appeal and the considerations which weighed with the Allahabad and the Madras High Courts were that the minor would and could better be looked after by the grandparents with whom the minor in either case was after the mother died than by the stepmother. The fact that the father had no other female relation to look after the minor also weighed with those courts. In this case also the father has married again and indeed out of his community. Even the second wife does not live with him and he is a busy businessman.