The welfare of the children is the paramount consideration in the appointment or declaration of any person as guardian of a Hindu minor. The father's right to custody is not absolute and is circumscribed by the considerations of the benefit and welfare of the minor. The order for custody is capable of review time to time and on new circumstances. The conditions imposed in the order can be modified as per the changing circumstances and the welfare of the children.

VARGHESE KALLIATH, J. :- Niraja and Neeratha are two little kids aged 4 years and 3 years. Their father Vijayakrishnan Nair and their grandmother are fighting a fierce legal battle for them. Vijayakrishnan Nair married Sreedevi on 5-7-1984. It was not an arranged marriage. They met and decided to live in marriage bond. The parents of Sreedevi were not very happy about the marriage. Sreedevi is now no more. She died on 30-1-1990. It was not a natural death. Sreedevi's parents believe that it is a homicide and Vijayakrishnan Nair is responsible for the death of Sreedevi. Vijayakrishnan Nair tells the Court that it was a suicide and the cause was not at all attributable to him, but the end result of an intense remorse, Sreedevi had on the guilty feeling of her own marital infidelity and deviations. These unhappy events made two innocent children, the spear-head of a hotly contested litigation.

2. The maternal grandmother of Niraja and Neeratha reached the Guardian Court (District Court) for the custody and guardianship of Niraja and Neeratha. It was seriously opposed by the father, Vijayakrishnan Nair. The legal battle with all its fury and frenzy followed. The District Court discussed the evidence thoroughly, appreciated, assessed and weighed all the circumstances and facts emerged in the case, applied the law on the subject, keeping in mind the paramount consideration, when such a litigation comes before the Court, viz., the welfare of the child; of course, under a legal setting and found that the father cannot be dumbed as an unfit person to be the guardian of the person of the children, but thought it fit to entrust the custody of the two minor children with the grandmother. Of course, the order is not a permanent one, it is an order, which is capable of review time to time and on new circumstances. Liberty was given to both parties to approach the Court for modification of the order or for cancellation of the order or substituting fresh orders.

3. When the custody was given to the maternal grandmother, the Court made it not free from conditions; it attached certain conditions, for creating a genial and cordial atmosphere so as to bring together all who are fighting with canine madness but are intensely concerned with the welfare and interest of the minor. The grandmother is aggrieved both on account of the conditions imposed in the order and also on account of the refusal to appoint her as the guardian of the person of the minor children. The father is more aggrieved on account of the conditions in the order and on account of the deprivation of the primary right of the guardian to have the custody of the minor children. Both the parties are dissatisfied and disappointed. Learned counsel on both sides by their lengthy, simmering and high spirited arguments before us echoed the

dissatisfaction of their clients with the order. Grandmother's appeal is M.F.A. No. 363 of 1991 and father's appeal is M.F.A. No. 771 of 1991.

4. The grandmother filed the appeal challenging only the conditions imposed in the order. She did not challenge the refusal to appoint her as the guardian of the person of the minor children. Apprehending that such an appeal may be incompetent or defective insofar as the appellate provisions contained in the Guardian and Wards Act, 1890, for short, the Act, did not allow an appeal only against the conditions imposed in the matter of custody of a ward, the appellant-grandmother wanted to amend the appeal memorandum adding a prayer challenging the order on the ground of refusal to appoint her as the guardian of the person of the minor children. The amendment was also considered along with the appeal.

5. The respondent-father submitted that in view of the appeal provisions contained in the Act, viz. S. 47, the appeal filed by the grandmother cannot be considered as an appeal at all, because such an appeal is not maintainable and so, the amendment is not possible and the application to amend the appeal has to be