Welfare of minor is the paramount consideration.

P. Sathasivam, J.,

The appeal is directed against the common order passed by the Additional District Judge, Kanyakumari at Nagercoil dated 30-8-2001, made in O.P.Nos. 21/2001 and 32/2001 in and by which the District Judge dismissed O.P.No. 21/2001 filed for judicial separation under Section 22 of the Indian Marriage Act and allowed O.P.No.32/2001 granting custody of the minor children in favour of the applicant, namely G. Anantha Jeyakumar, respondent in this appeal. Since the present appeal is directed only against the order granting custody of the minor children made in O.P.No.32/2001, it is unnecessary for us to narrate the facts relating to O.P.No.21/2001.

2. The case of the petitioner-husband is briefly stated hereunder:

For convenience, we shall refer the parties as arrayed before the District Court. According to the petitioner, the marriage between him and the respondent-wife was performed on 3-9-87 at Saint Antony's R.C. Church, Anthoniar Vattom, Thiruvithamcode as per Christian Roman Catholic rites. The respondent begot two children. The petitioner is practising as Homeopathy Doctor. He constructed a house for the benefit of their family and children. It was he, who incurred all the expenses for the birth of two children. The respondent-wife was forcibly taken from the matrimonial home on the ground that specialised treatment has to be given for her mental illness. The children are with the mother and grand-parents. In order to educate them in good school particularly in English medium, he sent a notice through his lawyer for sending his wife and children to his matrimonial home. However, the same was not acceded to. The respondent-wife was suffering from mental illness from 1996 and she is unable to understand anything, responsibilities etc.

3. The respondent-wife has filed a counter denying all the allegations made in the petition. Since the petitioner was not having enough income, she was driven out from his house with her children and her parents are taking care of them. Since he demanded money often, she left the matrimonial home and because of the attitude of her husband, she was forced to live with her parents along with her children. The house was constructed only with the help and assistance of her father and the contrary statement made by the petitioner is false and incorrect.

4. Before the Additional District Judge, the petitioner himself was examined as P.W.1 and marked Exs. P-1 to P-22 in support of his claim. On the side of the respondent-wife, one Varuvel was examined as R.W.1 and Exs. R-1 to R-7 were marked in support of her defence. The learned District Judge, after framing necessary issues and after considering the relevant materials, dismissed O.P.No.21/2001 filed for judicial separation and allowed O.P.No. 32/2001, granting custody in favour of the petitioner-husband. As said earlier, only against the direction regarding custody of the minor children, the respondent-wife through her father filed the present appeal under Section 47 of the Guardian and Wards Act, 1890.

5. Heard Mr. D. Sadhasivan, learned counsel for the appellant and Mr. G.S.Thampy, learned counsel for the respondent.

6. The only point for consideration in this appeal is, whether the learned Additional District Judge is right in granting custody of the minor children in favour of the petitioner-father or whether the minor children have to be entrusted to the custody of the respondent-appellant herein in the facts and circumstances of the case?

7. There is no dispute that the respondent, mother of the children is mentally unsound and that is the reason she is represented by her father M. Varuvel. The petitioner being the father of the children is their natural guardian. If it is established that the father is a qualified person without any vices, he is entitled to be appointed as guardian for the minor children. Before considering the claim of both parties, it is useful to refer the relevant provisions of Guardian and Wards Act,