D RAJAIAH Vs. DHANAPAL

JUDGEMENT

(1.) This civil miscellaneous appeal concerns the guardianship and custody of two Hindu minor girls. The first minor girl named Meena alias Aarthi was born on 13-5-1972. The second minor girl named Priya was born on 12-9-1973. They have lost their mother. The mother is stated to have died on 10-8-1982. Their father is alive and he is the first respondent in this appeal. The Appellant is their maternal grandfather. The facts placed in the case have disclosed that the marriage between the parents of the minor children took place on 26-5-1969. The father is an Engineer and he is a M. Tech., and his profession took him to Bhopal, Delhi and Tiruchirapalli. During these years, his wife, the mother of the minor girls was alive. His employment as such was with Bharat Heavy Electricals Ltd., (BHEL) and he was so employed last at Tiruchirapalli. The mother of the minor children seemed to have fallen sick and she had come to her parents' house at Madurai for treatment. The two minor children seemed to have been brought to Madurai in May, 1982, since their mother was taking treatment there and they were joined in a school at Madurai. Until the death of the mother, no problem seemed to have cropped up. But the demise of the mother seemed to have brought about problems over the guardianship and custody of the two minor children. The father is stated to have resigned his assignment with BHEL with the intention to start an industry of his own and it is stated that he borrowed moneys from the maternal grandfather, namely, his father-in-law. The father also was indicating his anxiety to raise a loan over the jewels of the mother, namely his late wife, for this commitment. It is admitted that the said jewels are in the custody of the maternal grandfather. The father also began to re-claim the custody of his two minor children, which he is lawfully entitled to and he had been writing letters with that end in view. But the maternal grandfather seemed and seems to have a different idea and he wants to have the custody of the two minor children with him. The maternal grandfather preferred O. P. No. 98 of 1983 before the District Judge, Madurai South, to declare or in the alternative to appoint himself as the guardian for the two minor children and for continuing their custody with him. The father of the two minor children contested the Original Petition and the learned District Judge did not countenance the case of the maternal grandfather and dismissed the petition, and the maternal grandfather has preferred this civil miscellaneous appeal against the orders of the learned District Judge.

(2.) Mr. G. Ramaswami, learned counsel appearing for the maternal grandfather, the appellant in this appeal, would draw a chart of comparison to impress upon this Court that though the father is the natural guardian of his two minor children, yet on the facts and circumstances of the case, this Court should go by the principle of the paramount interest of the minors and if that principle is kept in mind, the Court should only countenance the case of the maternal grandfather for guardianship and custody. Learned counsel exposed the anxiety of his client that if not guardianship, at least the custody of the minor children should be left with the maternal grandfather. As points speaking in favour of retaining the guardianship and custody of the minor children with the maternal grandfather, the following factors were delineated by the learned counsel: (1) The maternal grandfather is aged 60 and the maternal grandmother is aged 50 years; (2) The financial position of the maternal grandfather is sound; (3) Ever since May 1982, the minor children are with the maternal grandparents. The minor children are studying in a school at Madurai, and it is not worthwhile to disturb their education by taking them away from the custody of the maternal grandparents at Madurai; (4) The jewels of the deceased mother are with the grandparents and they shall be given to the minor children at the appropriate time of their marriages; and (5) The children have been with the maternal grandparents sufficiently long and they are being tended to by the maternal grandparents with love and affection and if they should be snatched away from the said atmosphere, it will bring about a trauma in the minds of the minor children. In contrast, learned counsel for the maternal grandfather would also stress the following factors as speaking against leaving the guardianship and the custody of the minor children with the father : (1) The financial position of the father is not good and he had been borrowing loans from the maternal grandfather and was not aversed to pledge the jewels of the mother, namely, his late wife. He started his business venture only recently and cannot be stated to be in a stabilised financial position; (2) The father is a widower and he lives only with his own father (paternal grand father of the minor children), who is also a widower and the age of the paternal grandfather is 70; (3) There is no female member in the household of the father and it is claimed that an aunt of the father, who is stated to be aged 50 and who is living away from her husband, is living with the father of the minor children. There is no guarantee that the said aunt will continue to be in the household of the father and she may go away to join her husband. In the said circumstances, it is not safe to entrust the two minor children under the impression that a reliable lady would be in the household to take care of the minor children, who are girls; (4) The minor children are not willing to go and live with their father and any compulsion over them to do so will bring about a trauma; and (5) The father is a temperamental man and the evidence placed in the case has disclosed that he used to beat his children.

(3.) Before, I approach the question on facts, I would like to delineate and keep in mind the provisions of law, which should form guidelines in matters like this. The two minor children being Hindu Girls, with regard to natural guardianship as such the provisions of Hindu Minority and Guardianship Act, 1956 (No. 32 of 1956), hereinafter if occasion comes, referred to as Act 32 of 1956, shall first speak. Section 6 of Act 32 of 1956 says that in the case of an unmarried Hindu minor girl, the father and after him, the mother shall be the natural guardian. The mother had gone out of the picture by her demise. The father as such does not suffer any disqualification set forth in the proviso to S.6 of Act 32 of 1956. Section 13 of Act 32 of 1956 reads as follows :