N KALAVATHI Vs. NAGARAJAN

JUDGEMENT

(1.) THIS appeal is directed by the respondents in O.P.No.16 of 1984 on the file of the District Judge, East Thanjavur at Nagapattinam, challenging the legality and correctness of the order passed by the said court directing second appellant herein to hand over the minor boy Manikan-dan aged about 9 years to the respondent'herein.

(2.) THE facts which are necessary for the disposal of the appeal may briefly be set out as follows:2. For the convenience of proper appreciation of the case, we shall adopt the rank of the parties given before the lower court. THE petitioner is the father of the minor boy Manikandan and he filed the petition under Section 10 of the Guardian and Wards Act read with Section 6 of the Hindu Minority and Guardianship Act, for declaring him as the guardian of the minor Manikandan and he is entitled to receive the custody of the boy from the second respondent and also for directing the second respondent to handover the child to him. It is seen that the petitioner had married the first respondent on 22-6-1972, at Mayiladuthurai. Since he was employed at Coimbatore, he settled there along with the first respondent and they lived happily for two years. During the said period, a son by name Manikantan was born to the first respondent. THE parents of the first respondent were in Singapore. When the father of the first respondent came to India in the year 1974, the first respondent without knowledge of the petitioner left the house with the child and went to Sitharakadu, suburb of Mayavaram Town, where the paternal grandfather of the first respondent was living. On coming to know of the same after making necessary enquiries, he came there and learnt that the first respondent and her father had left for Singapore somewhere in January, 1975 after leaving the minor boy in the custody of her paternal grandfather. According to the petitioner, he visited the said place where the boy was kept, many times, and since the paternal grandfather of the first respondent pleaded with him to retain the boy with him as he was alone and that his loneliness would be relieved by the young boy, the petitioner out of sympathy towards the paternal grandfather of the first respondent left the child with him, without insisting upon him to hand over the said child to him. THE paternal grandfather of the first respondent died. THEreafter the child was handed over to one Govinda THEvar at the instance of the first respondent, and as he was not properly attending the child, it was entrusted in the custody of the second respondent who is now looking after the child as ayah after receiving money every month from the first respondent. THE petitioner and his parents are very eager to get back the custody of the child from the second respondent. All attempts of the petitioner to get back his wife proved of no avail. To a notice issued by the petitioner, she replied that she has no objection for the petitioner getting a decree of divorce and also taking custody of the child. Hence he filed the petition.

(3.) THE learned District Judge rightly observed that the decisions reported in Muthusami Chettiar and another v. K.M. Chinnamuthuswamy Mooppanar, A.I.R. 1935 Mad. 195, 156 I.C. 480 and G.Ponniah Asari v. Suppiah Asari, 68 M.L.J. 213: A.I.R. 1935 Mad. 363, are not at all applicable to the facts of the present, case. THE decision relied on by the learned counsel for the appellants, in Rosy Jacob v. Jacob Chakramakkal, A.I.R. 1973 S.C. 2090: (1974)2 S.C.J. 129, is not of any help to the case of the appellant. That relates to the case of dispute between the father and mother and in the circumstances it is stated:"THE father's fitness has to be considered determined and weighed predominantly in terms of the welfare of his minor children in the context of all relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then he cannot claim an indefeasible right to their custody under Section 25 of the Guardian and Wards Act merely because there is no defect in his personal character and he has attachment for his children. In case of a dispute between the father and the mother, the Court is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of the respective parents over them.".