R. LAKSHMI Vs. P. RADHAKRISHNAN

JUDGEMENT

(1.) This appeal is against an order on a Petition under Sec. 25 of the Guardians and Wards Act. The applicant in the trial court is the father of the minor son Bhargavan who was aged more than six years at the time of the application. The present appellant is the mother, who is aggrieved by the order passed by the trial Judge.

(2.) Admittedly, the husband and wife have separated and already a decree for divorce has been passed. The learned Judge has found that the father cannot be entrusted with custody of the minor son permanently as it will not be for the welfare of the son. The learned Judge has pointed out that the father is employed and he used to go on tours often and in his absence, the child will have to be left in the custody of the grand-parents. On the other hand, the mother is a teacher in a school and the son is also been admitted as a student in the same school. The learned Judge has found that it will be in the best interests of the minor son to continue in the custody of the mother. The learned Judge has also taken into account the fact that the father had advertised seeking particulars about persons who are prepared to marry him in second marriage. On that ground, the learned Judge had negatived the prayer of the father. However, the learned Judge has proceeded to hold that the father will be entitled to temporary custody for certain periods every year. The reasoning of the learned Judge is as follows :

(3.) The father is not aggrieved by the order of the learned Judge. But on the other hand, the mother has preferred this appeal. Learned counsel for the appellant has raised three contentions. The first is that under Sec. 25 of the Guardians and Wards Act, the Court is not entitled to order temporary custody of the minor as such temporary custody could be granted only during the pendency of the proceedings by interlocutory orders under Sec. 12 of the said Act. It is submitted that under Sec. 25 of the Act, once the Court finds that the applicant is not fit to have custody of the minor, no orders shall be passed in his favour and the only course available to the Court is to dismiss the application. We are unable to accept this contention. It is too well settled by now that the Guradian Court is entitled to pass an order for the welfare of the minor and in the best interests of the minor. Sec. 6 of the Hindu Minority and Guardianship Act provides that in the case of a boy, the father is a natural guardian and after him the mother, provided that the custody of a minor, who has not completed, the age of 5 years, shall ordinarily be with the mother. In the present case, the boy has completed 5 years and odd by the time the application was filed. So, in the normal course, according to the provisions of the Hindu Minority and Guardianship Act, the father will be entitled to custody of the minor child. It is on that basis, he has filed the application under Sec. 25 of the Guardians and Wards Act. When the Court finds that it is not proper for giving custody to the father, the Court can certainly pass an order, which is for the Welfare of the minor and give custody to the father for a limited period under that section. That is what has been done in the present case. While ordering the application under Sec. 25 of the Act, period of custody with the applicant/father has been limited by the Court to certain periods mentioned in the order. With reference to the other part of the prayer, the application can be considered to have been dismissed. The Court is certainly entitled to pass such an order. This also well settled that when a party comes to Court praying for a larger relief, the Court is entitled to grant a lesser relief in favour of the said party.