The welfare of the child is the paramount consideration in custody disputes, and the rights of the guardian should not outweigh the child's welfare.

1. This C. M. Appeal arises out of an order passed by the court below dismissing a petition filed by the appellant under S.25 of the Guardian and Wards Act.

2. The petitioner is the father and the respondent is the mother of the two minor boys aged 8 and 6 respectively who are the subject of the petition. After six years of married life, in or about November, 1953 the parents had separated and the boys had from that time onwards been in the custody of the mother. It was the appellant's case that his father-in-law took away the wife and children without his consent or knowledge. The respondent's explanation on the other hand which the court below accepted was that she was suffering from a very bad tooth-ache and the appellant took her and the children from the marital home to her father's house where he stayed three or four days and then left but not to return. On 9-11-1956 the appellant took a second wife in marriage and this led to a criminal complaint by the respondent, soon after on 13-11-1956 for bigamy. Before yet that prosecution was over respondent filed petition on 23-11-1956 for maintenance of herself and the children under S.488 of the Criminal Procedure Code. The bigamy complaint was thrown out in acceptance of the plea of divorce according to the custom of the Thiyya Community to which the parties belonged, set up by the appellant. The respondent withdrew immediately the claim for her own maintenance in the light of the divorce verdict which she acquiesced in and got order dated

19-11-1957 for maintenance to the children at the rate of Rs. 30 for each per mensem with effect from the date of the petition. It was thereafter on 3-12-1957 that the appellant filed this petition on the allegation that he has been wrongfully deprived by the respondent of the custody of the children about four years back and he was entitled to be restored the same. The petition also alleged that the children were not being properly taken care of by the respondent and their welfare required that they should live with the appellant their father and natural guardian who could afford to maintain them and meet all their needs.

3. The petition was contested by the respondent on the basis that the appellant had not evidenced any love or affection to the children so far and the application was only a device to avoid payment of maintenance ordered by court. Indeed the appellant had to be compelled by order of court on her motion after this petition on 23-12-1957 to pay the maintenance at all to the minors, though in instalments. She contended that the children had been already put to school and their welfare demanded that they continue in her custody.

4. The parties examined themselves on their respective pleas and also filed documents before the court below. It transpired from the evidence that the appellant had become divided from his family and was living alone with his second wife who was enceinte, on the other side that the children were well looked after and being educated by their mother and that though she was not a person of any means her father was a rich man. In the opinion of the court the appellant's second wife insulted and disgraced as she was by the conduct of the respondent, could not be expected to have a warm heart for the children. Also that the present petition in the context it was made, was more to evade the maintenance order in favour of the children than to properly look after them. The court below, therefore, dismissed the petition and hence this appeal.

5. Mr. P. Govinda Menon, learned counsel appearing for the appellant, strenuously contended that the right of the Hindu father to the custody of his minor children is absolute and prevails even against the natural mother, particularly as according to him, there is no question here of tender years. He submitted that the appellant's apparent neglect of the children so far should not be weighed too much against him in the light of the severe strain of criminal prosecu