L CHANARAJ Vs. T RAJAMMAL

JUDGEMENT

(1.) THE appellant in this appeal is the petitioner in Guardian Wards Original Petition No. 68 of 1986 on the file of the District Judge, Kanyakumari at Nagercoil. The proceedings before the Lower Court will hereinafter be referred to as the Original Petition. The respondent in this Court was the respondent before the Lower Court. That was a petition filed under Section 7 of the Guardians and Wards Act, 1890, hereinafter referred to as the Act for brevity sake. The petitioner and the respondent are Christians by religion and they were married on 17.1.1977 as per Christian form. A child by name D. Rajesh was born to them out of this wedlock on 8.11.1977. The spouses were living together as per the counter statement of the wife till 15.10.1984. But, due to circumstances set out in the counter she left the company of her husband and started living with her parents with the child Rajesh. The allegation in the petition is that the respondent was a woman of loose character and that she was leading an immoral life, which was objected to by the petitioner, his parents, relatives and their neighbours. The petitioner, being the father, is entitled to the custody of his minor son, and the mother, in view of her bad character and conduct, was unfit to have the custody of the minor. It is his further averment in the petition that there are good schools near the petitioner's house, and that he has the capacity and ability to take care of the minor if he is allowed to have his custody. The petitioner would state in his petition that even though he had no properties, he would work and maintain his minor son and also educate him. If the minor is allowed to remain any more with the mother of such questionable character and conduct, then, it will have a direct impact on the character and future development of the minor. On these pleadings, the petitioner prayed before the Lower Court to direct the respondent to hand over the custody of the minor son Rajesh to him. The necessary statutory declaration of willingness was also made.

(2.) IN the counter statement, the wife denied the allegation regarding adultery attributed to her. She would add that, at the time of her marriage, her father gave 12 sovereigns of ornaments to her and three sovereigns of chain and ring to the petitioner besides a sum of Rs. 10,000 cash. It is her further case in the counter that she was ill -treated, and the petitioner even went to the extent of beating her of ten. The jewels given to her at the time of marriage were misappropriated by the petitioner and his father, and they were demanding additional dowry, which demand could not be met by her father. On 15.10.1984, the petitioner took the respondent and the minor child to her father's house and left them there, reiterating their demand of additional dowry. Thereafter, he did not turn up at all to take them back to the matrimonial abode. Under these circumstances, she went on her own to the petitioner's house, but she found the door locked, and the petitioner did not turn up. The petitioner's father did not allow her even to go inside the house, and under those circumstances, she had no other option except to come back to her parents' house. The respondent also filed O.P. No. 4/86 as an indigent person against the petitioner in the court of the District Munsif, claiming past and future maintenance at the rate of Rs.250 per month for self and at the rate of Rs.150 per month for the minor child. The respondent is looking after the interest of the minor child and he is in her safe custody. He is studying in school in Fifth standard at Kappicaud. The child needs the nursing of the mother. On these grounds, she resisted the claim of the petitioner.

(3.) ON the basis of the materials placed before the learned Trial Judge, he came to the conclusion that the petitioner has not made out any case at all for custody of his child and thus dismissed the petition. The correctness of the order in the above Original Petition is questioned in the present Civil Misalliances Appeal before this Court. I heard Mr.K.N.Thampi, learned counsel appearing for the appellant and Mr.P.N. George Graham, learned counsel appearing for the respondent. The learned counsel for the appellant argued that the father, being the natural guardian, is entitled to the custody of the child as a matter of right, unless he is disqualified on any known ground in law. His client is employed as admitted by the respondent herself and schools being very near to his client's house, and he having the ability and capacity to take care of the minor child, he would be the best and proper person on the circumstances available in this case to have the custody of the child. He would further add that the welfare of the child also requires, when considered with the circumstances available in the house of the respondent, also indicate that his client would be the best person to have the custody of the child. He would further add that there was no need for his client to get into the box and give evidence since his entitlement in law was not disputed and cannot be disputed and as no disqualifications were attributed to him, there was no need for his client to give evidence. On the contrary, Mr.George Graham submitted that the child in this case is a 'Ward' a ward is defined under Section 4(3) of the Act as a minor etc., Section 4(1) of the Act defines a minor as a person, who, under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority. Relying upon Section 3 of the Indian Majority act, the counsel would add that as the child was born on 8.11.1977, he is over the age of 18 years as on date, and therefore, no order which is capable of being enforced could be passed as on date under the Act. He would next submit that on the facts and circumstances of this case, the order passed by the Lower Court is supported by legal reasons and therefore, no interference is called for at the hands of this Court.