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High Court of Kerala
T.S. Krishnamoorthy Iyer, Pokyarathu Unnikrishna Kurup, JJ.
K Parvathi Alias Leela - Appellant
Versus
K V Radhakrishnan - Respondent
C.M.A. No. 51 of 1971
Decided On : 26-08-1971
Custody - Guardians and Wards Act, 1890 - S.25 - Summary of Acts and Sections: The court discussed the provisions of S.25(1) of the Guardians and Wards Act, 1890, which allows the court to make an order for the return of a ward to the custody of the guardian if it is for the ward's welfare. The court emphasized the paramount consideration of the welfare of the child and the need to consider the moral, religious, and physical well-being of the child. The court also highlighted the importance of the child's happiness and the ties of affection in determining custody. The court referred to S.6 of the Hindu Minority and Guardianship Act, which affirms the rule that the father is the natural guardian of a Hindu minor, but also emphasizes that the welfare of the minor should be the paramount consideration. The court emphasized that the welfare of the child must be the main and paramount consideration in choosing the custody of the person with whom the minor can be kept. The court also discussed the principle underlying S.13 of the Hindu Minority and Guardianship Act, which prioritizes the welfare of the minor in the appointment of a guardian. The court concluded that the welfare of the child is a crucial factor in deciding custody, even if the father is the natural guardian.
Fact of the Case:
The appeal raised the question of competition between the appellant and her husband for the custody of their minor son Ramesh. The respondent filed a petition under S.25 of the Guardians and Wards Act, 1890 for the custody of the boy, which was dismissed by the District Judge. The appellant and respondent had been living separately since 1970, and the appellant alleged ill-treatment by her husband as the reason for leaving him. The court ascertained the child's inclinations and found that the boy expressed a desire to continue with the mother.
Finding of the Court:
The court found that the paramount consideration in deciding the custody of a Hindu minor is the welfare of the child, and emphasized the importance of considering the moral, religious, and physical well-being of the child. The court also highlighted the principle that the welfare of the child must be the main and paramount consideration in choosing the custody of the person with whom the minor can be kept. The court concluded that the welfare of the child is a crucial factor in deciding custody, even if the father is the natural guardian. The court set aside the decision of the lower court and allowed the appeal, granting custody of the minor to the appellant.
Issues: The main issue was the competition for the custody of the minor son between the appellant and her husband. The court also considered the interpretation and application of S.25(1) of the Guardians and Wards Act, 1890, and the relevance of the welfare of the child in determining custody.
Ratio Decidendi: The welfare of the child is the paramount consideration in deciding the custody of a Hindu minor, and the court must consider the moral, religious, and physical well-being of the child. The court emphasized that the welfare of the child must be the main and paramount consideration in choosing the custody of the person with whom the minor can be kept. The court also highlighted the principle that the welfare of the child is a crucial factor in deciding custody, even if the father is the natural guardian.
Final Decision: The court set aside the decision of the lower court and allowed the appeal, granting custody of the minor to the appellant. The court recorded the assurance given by the appellant's counsel that the appellant will always make the necessary arrangements for the respondent to visit the boy in her place of residence. The decision did not affect the rights of the respondent to continue as the natural guardian of Ramesh.
T.S. Krishnamoorthy Iyer, J.
1. This appeal raises the question of competition between the appellant and her husband who is the respondent for the custody of their minor son Ramesh aged 8 years.
2. The respondent filed a petition under S.25 of the Guardians and Wards Act, 1890 for the custody of the boy. It was dismissed by the District Judge of Palghat by the order dated 24-3-1971 which is challenged in this appeal.
3. The respondent married the appellant on 30-10-1961 and since then the husband and wife were residing in the husband's house at Govindarayapuram Palghat, till 23-3-1970 when the wife began residing separately with her father, R.W. 2. Ramesh was born on 17-8-1962.
4. The appellant is the daughter of R.W. 2 by his first wife. The first wife of R.W. 2 died long before the date of the appellant's marriage with/the respondent. R.W. 2 has got two daughters including the appellant and a son R.W. 3 by his first marriage. After the death of the mother of the appellant R.W. 2 has married again and through that wife he has children. R.W. 2 is residing with his second wife and children in Vaidynathapuram, Palghat, with whom the appellant is residing. The distance between the house of the respondent and that of R. W. 2 is very short. At the time of respondent's marriage with the appellant, respondent's mother was alive and she was also residing with him. Respondent's mother died on 17-6-1968.
5. It is the case of the respondent that in October 1966 R.W. 2 without the consent of the respondent took the appellant to his house and after one week she was brought back to his house by R.W. 3. The reason given by the appellant for leaving the house of the respondent in 1966 was because she was ill treated by her husband. Subsequent to her return things were practically alright until 22-3-1970 when she was taken to her father's place by her brother R.W. 3. Since then the appellant has not returned to the respondent and she is staying with her father.
6. It is the case of the respondent that Ramesh refused to go with the appellant on 22-3-1970 because of his unwillingness to leave the respondent and R.W.3 came to the respondent's house on 26-3-1970 and took away the child from him under some false pretences. The petition in the court below was filed on 16- 6-1970.
7. It is contended by the appellant that since 1966 the respondent had developed intimacy with two girls by name Tylambal alias Rajam and her sister Visalam. In view of the respondent's behaviour towards Rajam the appellant entertained a P feeling that the respondent is loving Rajam more than her. According to the appellant this was the cause for some quarrels between her and the respondent: which led to the respondent ill treating and beating her and this led to her leaving the respondent house in 1966 October and also for her leaving him on 22-3-1970. Since this figured to a pretty large extent in the course of the argument before us and also in the lower court, we shall deal with the same.
8. The respondent was at the time of his marriage a compounder in a psychiatric clinic in Palghat. In his cross examination as PW. 1 he stated that his substantive pay in 1971 was Rs.80/- per month. R.W. 2 is the Sales Organiser for Kerala of Unichem Laboratories, Bombay and on the date of his evidence in 1970 he was getting Rs. 2310/- towards pay and a touring allowance of Rs. 25/- per day and 25ps. per mile. R.W.3 who is the elder brother of the appellant is a Ground Engineer in the Indian Airlines at Bombay. According to his evidence he was getting a pay of Rs. 1500/- and an out station allowance at the rate of Rs.60/- per day. There is thus some difference in the social status of the respondent on the one hand and that of R.Ws. 2 and 3. It is admitted that the appellant was subjected to epilepsy and p she underwent treatment for the same. Ext. A-1 shows that this fact was disclosed to the respondent who in spite of the same expressed his willingness to marry the appellant. Even in
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