Distinction between guardianship and custody.

The appellant herein married the respondent in 1986 and a male child was born to them on 16. 1987. The respondent-wife instituted O.P.No.5 of 1990 in the Court of District Judge, Salem against the appellant alleging that soon after the birth of the child, her husband developed a version towards her and drove away from his house. Some two weeks later he came to her residence and forcibly snatched away the child. All mediations failed and the husband refused to hand over the child. And considering the welfare of the child which is 21/2 years old, the husband must be directed to give the custody to the mother.

2. The husband resisted the application contending that the wife chose to live with him only for a short time. Therefore she was practically residing in her mother’s house. She treated him with contempt. After delivery, the mother and child were taken to her mother’s place at Namakkal. There was nobody to look after the child or mother. His mother-in-law is employed as a teacher in Namakkal High School and so she could not attend on the child. When the child attained the age of 3 months, he brought his wife and son to his house at Varguarampatti and wanted his wife to stay there. But the respondent did not like to live with him in the village. His mother-in-law brought a car from Namakkal and took away his wife and infant son even without informing him. He longs for the company of his wife. He is prepared to take her back and lead a happy marital life. He undertakes to provide his wife with all comforts. The child also cannot be brought up in congenial atmosphere in his mother-in-law’s place at Namakkal. The mother and brother’s widow of the appellant are affectionate towards the child and bestowing attention on him. In the interest of the child and harmony of the family life, the custody of the child is to be with him only.

3. The trial court found that admittedly on the date of the application the child was in the custody of the father at Varguarampatti village and that the mother was residing with her mother in Namakkal. Considering the welfare of the child it is proper that the child is in the custody of the mother. Accordingly it passed a decree directing the appellant to entrust the child to his wife on or before 22. 1991. And this appeal is directed against the said order.

.4. Though the respondent wife examined herself as P.W.I in the trial court, he did not speak anything about her husband taking away the child forcibly from her as mentioned in her application. The appellant also as R.W.1 is silent as to how the child came into his custody after his wife left him. It has been elicited in his cross examination that the wife left the child in his house of her own accord. Whereas the allegation in his counter is to the effect that one day the relatives of his wife came in a car and took away his wife and infant son from his house at Varguarampatti. Had this claim in his counter been true, it is not known how the child in Namakkal came to his custody. The appellant in the witness-box offers no explanation on this aspect. His stand during trial that his wife the child in his house is quite contrary to the averment in his counter. So as it has been rightly pointed out by learned District Judge, it is evident that the appellant had forcibly taken away the child from the mother’s custody as stated in the petition.

5. Though the child was 21/2 years old at the time of filing of the application, there is no dispute that now it is 6years old having been born on 16. 1987. Learned counsel for the appellant argued on the basis of Sec.6(a) of the Hindu Minority and Guardianship Act that the custody of the child must be entrusted to the father since the child has completed the age of five years. He also contended that this subsequent event should be taken into consideration by the court in passing orders in this appeal. In support of his contention he relied on the decision in Yousuf v. Sowramma, A.I.R. 1971 Ker. 261