The welfare of the child is the paramount consideration in appointing a guardian under the Guardians and Wards Act.

JUDGMENT

Mukherji, J. - The appellant, Victor Justin Walter, is the husband of the respondent 1, Marie Josephine Walter. They are European British subjects within the meaning of the Guardians and Wards Act 8 of 1890, and are Roman Catholics by religion. They were married in 1921 and the child, Leon Walter, born on 27th September 1923, is the only issue of that marriage.

2. On 16th June 1926, respondent 1 applied to be appointed guardian of the person of the child under circumstances which have been set out in detail in the order from which this appeal has been preferred. This application was opposed by the appellant. The Second Additional District Judge, by an order dated 17th January 1927, allowed the application of respondent 1 with costs and also made an order on the appellant to pay a sum of Rs. 100 a month to respondent 1 for the maintenance of the child. Hence this appeal.

3. The marriage, it seems, has not been quite a happy one. The appellant is a purser in the employ of the British India Steam Navigation Company drawing a pay of Rs. 250 or so. His duties keep him away from his home for nearly nine months in the year, if not more, and he can only be at home for a few days at the end of every two months or so. Respondent 1 suffers badly from severe filarial troubles and, as far as we can gather, is a young woman somewhat sick of her environments, with a feeling of deep-rooted disgust for what she considers to be neglect on the part of her husband; and a vein of utter dissatisfaction runs through all her utterances, which sometimes border on hysterics. For a few months after the marriage, she she was left by the appellant with his sister with whom she could not agree and thereafter she returned to her mother, Mrs. Bridget Katherin Antonio, to Lucknow, where the latter lived at the time. The mother is a trained nurse, and husband is fairly well off and in service.

4. When respondent 1 thus went to Lucknow, the appellant issued an advertisement in the Statesman that she had left his protection. About the end of 1922 a reconciliation was brought about by the parish priest. Respondent 1 remained in Calcutta or at Lucknow from time to time. The child was born in Calcutta and, when it was about five weeks old, she again went to Lucknow to her mother, as the child was ill. When the child was about 18 months old she came down to Calcutta with the child and Mrs. Antonio at the appellant's request. This was in February 1925. A temporary lull was sought to be brought about by an agreement (Ex. D) which she executed or was made to execute. The two essential condition in this agreement were that she was to look after the home and the child for a round sum of Rs. 170 a month and that if she again left her husband she was to leave the child with the husband's sister-in-law and waive all claims for maintenance and support. We do not think much of this agreement and shall not refer to it again beyond stating that, apart from the circumstances under which it was executed and which would make us hesitate to act on it, it is somewhat like an agreement by a father to give up entirely the custody and control of his child to the mother and is therefore opposed to public policy : Hope v. Hope [1857] 8 De. G.M. & G. 731, St. John v. St. John [1805] 11 Ves. 531. A house, 16 Crooked Lane, was taken on rent, and this was shared by the appellant and his wife and child, and by the appellant's brother and sister-in-law. On 1st June 1925- the wife was obliged to go to the Medical College Hospital on account of filarial troubles. She returned home on 16th June but found that the child had disappeared. The appellant had in the meantime put it into St. Vincent's Home at Kidderpore. He tried to make her believe that it had been sent to Rangoon as he apprehended that if she knew that it had been put into the Home, she would go and worry the nuns there. He tried to send her again to the hospital, but either she was refused admission or she refused to be admitted