Welfare of the minor is of paramount importance.

(Civil Miscellaneous Appeal filed under Section 47 of the Guardian and Wards Act, 1890, against the judgment and decree dated 04.11.1997 passed by the Principal District Judge, Cuddalore in O.P. No.75 of 1997.

This Civil Miscellaneous Appeal which is directed against the judgment and decree dated 04.11.1997 passed in O.P. No.75 of 1997 by the Principal District Judge, Cuddalore, (in short "the Tribunal") is preferred under Section 149 of the Guardians & Wards Act, 1890.

2. The respondent herein who was the petitioner before the Tribunal filed an Original Petition under Sections 7 and 10 of the Guardians & Wards Act read with Hindu Minority & Guardianship Act to appoint her as the guardian of her son Jayabalaji (who was a minor at that time) and for his custody as well.

3. Her case before the Tribunal was that she married the appellant on 29.01.1990 and out of their wedlock, a male child was born to them on 10.09.1993; the appellant was guilty of adultery with one Revathy and he brought her to their matrimonial house and forced her to live along with the said Revathy; in course of time, the appellant started inflicting cruelty upon the respondent and hence, she left the matrimonial house in May 1997 and started living with her mother and the child was in the custody of the respondent. According to her, the child was aged four years and it needed utmost care and affection; the respondent was not employed anywhere but was only running a finance business and was always busy in his business and hence, the child had to be in her custody. Before the Tribunal, she was the sole witness and she marked one exhibit as documentary evidence.

4. In response, the father of the child filed his counter contending that only the father is the natural guardian of the child. He denied the allegation that he was guilty of adultery with one Revathy and on the contrary, it was his case that the petitioner was having affair with one Jayaraman. It was his further case that the petitioner had left the matrimonial house when the child was one year old and the child had been in his custody and he had also admitted the child in a school and hence, the petition had to be dismissed. On his side, he was the sole witness and he marked seven documents to support his case.

5. The Tribunal, on consideration of the oral and documentary evidence and the settled proposition of law, allowed the petition holding that the mother of the child should be entitled to the custody of the minor child on the ground that the latter was only five years old.

6. Mr. R. Subramainan, learned counsel for the appellant-father would contend that the Tribunal has failed to consider the welfare of the child while deciding about its guardianship and no case was made out for removing the child from the care of its father.

7. Mr. K. Ramachandran, learned counsel for the respondent-mother, per contra, would submit that the Tribunal is very much correct in arriving at its conclusion by duly considering the age of the child as four years at that point of time and that being the case, the judgement of the Tribunal is, in no way infirmed.

8. As rightly opined by the Tribunal, there is no point in harping on the subject of adultery of both the parties since the same has not been substantiated by any evidence whatsoever. Thus, the only point for consideration is as to who is entitled to the custodianship of the child.

9. It is settled law that the mother is entitled to the custody of a son till he completes the age of 7 years and of a daughter till she attains puberty. As already stated earlier, since the child was aged less than even five years and taking into account, the welfare of the child, the Tribunal held that the child should be in the custodianship of its mother. I am in agreement with the view expressed by the Tribunal. Yet, in consideration of the developments which had taken place subsequent to the judgment of the Tribunal, I feel it would be only proper to review the guardianship o