Welfare of child is paramount.

(Civil Miscellaneous Appeal filed under Section 47 of the Guardians and Wards Act, 1890, against the judgment and decree dated 06.10.1997 in O.P. No.40 of 1996 on the file of the District Court, Nilgiris at Uthagamandalam.)

This Civil Miscellaneous Appeal is directed against the judgment and decree dated 06.10.1997 passed by the District Court, Nilgiris (in short "the Tribunal) in O.P. No.40 of 1996.

2. Sharli Sunitha who is the appellant herein filed a petition under Sections 7 to 10 and 25 of the Guardians and Wards Act, 1890, before the Tribunal against her husband/respondent herein, seeking guardianship of their child by name Aldheeya.

3. The case of the appellant in brief is as under:

a. The marriage between the appellant and the respondent who belong to Christianity took place on 22.06.1991 and the appellant gave birth to a child named Aldheeya on 05.04.1992. In 1993, the appellant left her matrimonial home due to difference of opinion with the respondent and the respondent filed O.P. No. 13 of 1994 seeking guardianship of their child and on the basis of a memo to the effect that the respondent can meet the child every Sunday between 3 p.m. and 5 p.m. at Holy Velankanni Church, Kothagiri, the petition was dismissed as not pressed.

b. Subsequent to this, the parties were living happily for a few months. But, the respondent had started ill-treating the appellant once again and since the appellant was all alone in their house, she was subject to mental agony and consequent deterioration of health. Hence, on 25.03.1996, after informing the respondent over phone, the appellant had left for her aunt's house taking the child with her. But, the very next day, the respondent and his elder sister had taken the child from the appellant saying that they would give back the child once she recovered from her illness. On 02.09.1996, when the appellant had come to her matrimonial house with the intention of living together with the respondent, she was ill-treated. With a view to render motherly care and affection and considering the fact that the respondent would be fully engaged in his work all through the day, the appellant filed the Original Petition seeking guardianship of the child.

4. The respondent-husband contested the case by filing his counter and his case is as follows:

The appellant did not leave the matrimonial house on account of misunderstanding with him but she had done so since it was really her habit to leave the matrimonial home quite frequently without even informing him. The appellant had illicit relationship with his sister's husband Benson and she had left with him for Chennai on 25.03.1996 and stayed in an hotel at Chennai and not in her aunt's house as claimed by her. The appellant phoned up to the respondent's sister saying that the respondent can collect the child from one Jothinathan's house and accordingly, the respondent went to Chennai on 26.03.1993 and took the child. The appellant who has illicit affair with Benson may run away any time and since the respondent owns a workshop, he can work as and when required and as such, he can take care of the child with the help of his sister who has also got two children.

5. On the side of the appellant, she was the only witness and four documents were marked and on the side of the respondent, four witnesses were examined and five documents were marked and the Tribunal, on an analysis of the oral and documentary evidence, dismissed the petition holding that the child should be under the guardianship of the respondent against which the present appeal.

6. Heard both sides.

7. Mr. R. Subramanian, learned counsel for the appellant would contend that the Tribunal went wrong in holding that the appellant went away with Benson. It would be his further contention that the Tribunal has grossly erred in dismissing the petition without even considering the tender age of the child. It was also his strenuous contention that the Tribunal has erred in holding that the appellant