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1987 Supreme(Mad) 429
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE NATARAJAN
S. Abboy Naidu, and Other - Appellant
Versus
R. Sundara Rajan - Respondent
Case No : Appeal Against Order No.371 of 1987
Decided On : 01 December 1987
The welfare of the child is the paramount consideration in determining custody, and the court has the discretion to determine custody based on the specific circumstances of each case, even if there is an agreement between the parties.
Headnote:
GUARDIAN AND WARDS ACT - SECTION 25 - CUSTODY OF MINOR CHILD - WELFARE OF THE CHILD - PARAMOUNT CONSIDERATION - FATHER'S RIGHT TO CUSTODY - CIRCUMSTANCES WHERE FATHER ENTITLED TO CUSTODY - AGREEMENT BY FATHER TO HAND OVER CUSTODY TO GRANDPARENTS - VALIDITY - COURT'S DISCRETION TO DETERMINE CUSTODY BASED ON CHILD'S WELFARE.
Fact of the Case:
The petitioner, the father of a minor child, filed a petition under Sections 25 and 7 of the Guardians and Wards Act, seeking custody of his daughter from her maternal grandparents (respondents). The child was born in 1985 and was in the custody of the petitioner and his wife until her death in 1985. The respondents claimed custody of the child based on an agreement signed by the petitioner after his wife's death, while the petitioner alleged that the agreement was obtained under duress and that he was the natural guardian of the child.
Finding of the Court:
The court held that the petition under Section 25 of the Act was maintainable as the child was removed from the custody of the petitioner. The court also held that the agreement signed by the petitioner was not valid as it was obtained under duress and was opposed to public policy. The court further held that the paramount consideration in determining custody was the welfare of the child, and that in the present case, the petitioner, as the natural guardian, was better suited to provide for the child's welfare than the respondents.
Issues: 1. Whether the petition under Section 25 of the Guardians and Wards Act was maintainable in the circumstances of the case? 2. Whether the respondents were entitled to have the custody of the child by virtue of the agreement and on the ground of welfare of the child.
Ratio Decidendi: 1. The court held that the petition under Section 25 of the Act was maintainable as the child was removed from the custody of the petitioner, even though the child was handed over to the respondents by virtue of an agreement. 2. The court held that the respondents were not entitled to have the custody of the child by virtue of the agreement as it was obtained under duress and was opposed to public policy. The court also held that the paramount consideration in determining custody was the welfare of the child, and that in the present case, the petitioner, as the natural guardian, was better suited to provide for the child's welfare than the respondents.
Final Decision: The court allowed the petition and directed the respondents to hand over custody of the child to the petitioner.
This appeal is directed by the respondents here in the lower court (maternal grand-parents of the minor Anitha) against the judgment passed by the Second Additional Sub Judge, Coimbatore in G.W.O.P. No. 68 of 1986, directing them to hand over the child to her father, who is the petitioner before the lower court.
2. The facts which are necessary for the disposal of this appeal are briefly as follows :(For the sake of convenience, the array of parties before the court below is adopted in this appeal also). The petitioner, who is the father of the minor Anitha whose date of birth is 30-1-1985, filed the petition under Sections 25 and 7 of the Guardians and Wards Act. It is alleged in the petition that the petitioner married the respondents' daughter Sarojini on 2-6-1982 and out of the lawful wedlock, the female child Anitha was born on 31-1-1985 at Coimbatore Town and was brought up by the petitioner and his wife at Perianayakanpalayam. At the time of filing of the petition, the child was aged one year. On 12-11-1985 the second respondent insisted on the petitioner's wife to hand over the jewels for her other daughter's use and that there was a quarrel among them due, to the said demand. Due to the said quarrel, the petitioner's wife was upset and committed suicide on the same day immediately after her mother left the house, by pouring kerosene over her body and setting fire. The petitioner immediately took her to the C.M.C. Hospital and in spite of treatment, she died on 13-11-1985.
Taking advantage of the above situation, the respondents insisted on the petitioner to return back the jewels and valuables and they also refused to permit the petitioner to take the dead body of his wife to his place for performing ceremonies. It was only in the circumstances, he was forced to hand over the valuables as well as the custody of the child. The petitioner was upset by the sudden collapse of his wife. A list was prepared by the interested persons and after acknowledging the goods, the respondents took away the valuables on 14-11-1985 representing that they will deposit the value of the articles, worth about Rs.75,000/-, in the name of the minor. At that time, the petitioner was not in a mood to realise the consequences of parting company of his daughter. Subsequently the petitioner learnt that the respondents sold away some of the jewels and gave some jewels and valuables to their other daughter Amirtham, and that they had not utilised the valuables for the welfare of the minor. The respondents are very old and sickly and they are unable to give adequate care to the minor and in fact they are not even providing the minimum comforts to the minor. The respondents are unfit and disqualified persons. The child is now being brought up by third parties without proper care. It is further stated that the respondents are not having sufficient income to look after the minor's interest and the sons of the respondents are addicts to alcohol. According to the petitioner, he is the natural guardian and loving father of the minor Anitha. He is employed as a teacher and is in Government service drawing a salary of Rs. 910/- per month. He owns lands and a house. His parents also are living with him. They are very much attached to the minor. It is they who were looking after the child from the date of birth. He is very much attached to the minor and the minor is also attached to her grandmother. Hence, he issued a notice on 8-2-1986 calling upon them to hand over custody of the child. Though the first respondent received the notice and the second respondent evaded the same, they did not choose to send any reply and comply with the demand. The petitioner apprehends that the life of the minor is not safe in the hands of the respondents. Hence he filed the petition.
3. The said petition was resisted by the respondents and in the counter filed by the first respondent, adopted by the second respondent, it is stated that in the absence of a prayer for
