CHAKKI Vs. AYYAPPAN

JUDGEMENT

(1.) The mother of a miner child aged about six years now appeals the decision of the District Court, Manjeri in O.P. (Guardians and Wards) No 21 of 19S3. The Trial Court found that the father was the natural guardian under S.6 of the Hindu Minority and Guardianship Act (for short 'the Act'). He also found that by reason of her conversion, the mother had disentitled herself to act as natural guardian under the proviso to that section. The appellant submits that the child was illegitimate and therefore, the mother was the natural guardian. She also contends that inspite of her conversion out of Hinduism, she is entitled to act as the natural guardian for the we fare of the child. These contentions naturally throws up a complex of serious questions. They are: (a) Whether there was a valid marriage according to Hindu Law modified by custom between the appellant and the respondent (b) Whether the minor child was illegitimate and (c) Whether the welfare of the child requires the continuance of the mother as the guardian

(2.) The husband and wife, both were Hindus. They belong to neighbouring villages; the appellant wife to Cheriyamundam, and the respondent husband to Thanalur in Tirur Taluk of Malapuram District. The husband, who was the petitioner before the Trial Court, urges that they were married according to custom on 3-4-1977, lived together for about four years, and the child was born on 23-3-1981. He urges further that after the child-birth, for which she was taken to her parent's house, the appellant refused to go back with him. On the intervention of mediators, there was a customary divorce. The husband had agreed to pay Rs. 25/- to Rs. 35 towards the maintenance of the child and that is being duly paid. He realised somewhere in 1983 that the appellant wife had gone to Ponnani and converted herself into Islam at the Mounathul Islam Sabha. He bad to wait for five years for custody of the child till the child attained five years of age. Soon thereafter, he filed the application.

(3.) The appellant mother resisted the application stating that there was no valid marriage between them, that they bad not lived as husband and wife in the first respondent's house as alleged, that they fell in love about for years prior to the date of the child's birth, that there was no need for a divorce, since there was no marriage, that the first respondent had married again and has a child in that marriage, and that the welfare of the child justified the continuance of the appellant mother as the guardian. The parties examined themselves as PW. 1 and RW. 1, The husband examined two more witnesses. One of them was the brother inlaw of the first respondent. The husband also produced two documents Ext. A1 invitation letter dated 2-3-1977 to support his contention of valid marriage and A2 extract of the birth register dated 27-3-1981 to show that he was the father of the minor child.