KALIAPPA GOUNDAN Vs. VALLIAMMAL

JUDGEMENT

(1.) This appeal is against the order of the District Judge, Coimbatore, appointing the respondent, the mother of the minor girl, aged about two and a half years, as the guardian of her person, giving the appellant, the father, only the right to visit her at all convenient times, and expressing the hope that the appellant and his first wife, the minor's mother, would again join together in spite of the appellant's having taken for himself a second wife.

(2.) The learned Counsel for the appellant urged that the lower Court's order cannot be sustained as the parties are Hindus governed by the Mitakshara law and the father's right to be the guardian of his minor children cannot be taken away unless he is proved to be unfit to be the guardian. He relied on the ruling in In the matter of the petition of Prankrishna Sarma (1882) I.L.R. 8 Cal. 969. That was a criminal case, and there the learned Judges were unable to find any authority for the proposition that the mother can ever have a right to the custody of her legitimate children adverse to the father, the emphasis being on the adverse nature of her custody. That ruling is a very old one, and the law has moved, consciously and unconsciously, further in favour of the rights of women and of mothers. The latest ruling relevant for this case is that reported in Saraswathibai Shripad V/s. Shripad Vasanji I.L.R. (1941) Bom. 455, where it has been held that though the father is the natural guardian of a Hindu child, if the mother is suitable and is living, it is impossible to find an adequate substitute for her for the custody of a child of tender years, and that it is in the interests of the child, whose interest should be the paramount consideration with Courts, that the mother should have the custody. We agree, with respect, with the principle laid down in that ruling.

(3.) So, the proper order to pass in this case is to give the custody of the child to the mother till the child is 18 years, and to enable the father to take the child to his house for three days in every quarter, so that he may not lose the society and affection of the child, in addition to allowing the father and the other relatives to visit the child in its mother's house at all convenient times. We modify the order of the lower Court accordingly. In the circumstances, we direct all the parties to bear their own costs throughout.