RAJARATHINAM Vs. DAVID RAJ

JUDGEMENT

(1.) THE respondent in GWOP.No.136 of 1993 is the appellant herein. THE respondent herein filed GWOP under Sec.10 of Guardian and Wards Act.

(2.) THE case of the petitioner is as follows: THE petitioner married one Diana Isabel, daughter of the respondent on 15.9.1988. After the marriage, there were several police cases between them. But some how, they prolonged their day as husband and wife and during that wedlock, the petitioner's wife delivered a male child on 18.9.1990. But the petitioner and his wife lived separately for several months. Subsequently I.D.O.P. No.117 of 1991 was filed before the District Court, Nagercoil by the petitioner's wife for judicial separation and finally on 21.7.1992, judicial separation was ordered. THE petitioner's son was in the custody of the petitioner's wife from the date of judicial separation. THE petitioner's wife suddenly became ill while she was in custody of respondent and she expired on 11.9.1993, leaving behind the custody of the child with the respondent. THE petitioner sent many of his relatives for securing the custody of his son from the respondent. But the respondent turned down the request of the petitioner. THEreupon, the petitioner issued notice on 5.10.1993 for which, replay was sent. THE petitioner is the legal guardian of the minor child. If the minor child is allowed to continue living under the custody of the respondent, the petitioner's right will be affected and the petitioner's son's education and brought up will not be upto the expected lines and the respondent may not have interest over the minor after the death of his daughter. THErefore, the O.P. is filed for declaring that the petitioner is the guardian of the minor and for directing the respondent to hand over the custody of the minor to the petitioner.

(3.) IT is no doubt true that the respondent being the father of the minor child is the natural and legal guardian. The fact that the respondent is the natural and legal guardian of the minor child cannot be disputed by the appellant. The question whether the petitioner is incompetent and unfit to act as guardian has not been decided by the trial Court. As already stated, the petitioner being the father of the minor child is the legal and natural guardian of the minor child. But the question is, whether it would be just and proper to direct the respondent to handover the custody of the child to his father. On this aspect, the learned counsel for both parties have cited number of decisions. IT is well settled that the matter relating to custody of the minor child or handing over the custody is a sensitive matter and certain sentimental values are attached towards the claim for custody of the minor child. IT is also well-settled that it is the welfare of the child and not legal right to have the custody of the child that has to be considered in the petition filed for custody of the child. In Indira Kumari v. B.Ramakrishnan Indira Kumari v. B.Ramakrishnan Indira Kumari v. B.Ramakrishnan (1995)1 L.W. 671 the Division Bench of this Court has held that welfare of the child is important consideration. As regards the change of custody of the child, the Division Bench of this Court has observed thus: "The boy expressed his desire that he wanted both his mother and father to be with him. But at the same time, he was definite that in the present circumstances, he cannot go with his father, leaving alone his mother. In those circumstances, he prefers to be only with his mother. He has also expressed his desire that he prefers to be with his mother for the purpose of his education. According to him, the mother gives him very good coaching. He also said that he is within the first 10 ranks in the school and that he has secured more than 90% marks in Mathematics. We found him to be intelligent and in a position to give answers on not on the basis of any coaching from any side. Even in our presence, he was very happy in the company of both his father and mother. We feel that any change in the custody will affect the welfare of the child."