The paramount consideration in determining the custody of a minor child is the welfare of the child, and the court should ensure that the child's ordinary comfort, contentment, health, education, intellectual development, and favorable surroundings are taken into account.

This appeal is directed against the judgment and decree, dated 08.07.2003 made in G.W.O.P.No.30 of 2001 on the file of the Principal District Judge, Vellore District.

2. In the petition, it is stated as follows:-

1. The marriage of this petitioner and one Sumeetha, the daughter of this respondent, was solemnised in 1998 at Rathinagiri Temple, on 212. 1999. Out of their wedlock, a female child was born to them and the said child was christened as Subbulakshmi. On 04.08.2000, the child developed diarrhoea and breathing trouble and hence, she was admitted to C.M.C.Hospital, Vellore. It was ascertained that the child had heart disease and a surgical operation was suggested, for which the infirmary estimated the expenses at Rs.64,000/-. Since the petitioner could not afford to spend that much of amount, he applied to the Government of Tamil Nadu for sanction of the amount from the Chief Ministers General Fund. While so, a male child was also born to them on 110. 2000. Since the second child was born by cesarean operation, Sumeetha, wanted to be in her parents house.

2. While the matter stood thus, suddenly on 012. 2000, Sumeetha, breathed her last due to heart failure. On the 16th day ceremony, the second male child aged one and half months was handed over to the petitioner by the respondent and she promised that she would hand over his daughter, whenever he demanded for custody. For the purpose of getting pension for his wife, the petitioner wanted photograph of the child, for which he approached the respondent, but she told that only if the respondent is made as a guardian to receive the pension, she would hand over the child. With a meager income earned by the second son of the respondent, who is an auto driver, the respondent is running family. She cannot spend any amount for the operation of Subbulakshmi. A number of times, the petitioner approached the respondent and requested to handover the child, but she refused. She is unfit to be the guardian for the child.

3. The continuous custody with the respondent will also affect childs health. The petitioner is the natural guardian and he has got all the love and affection towards the minor child. The male child by name Karthikraja has been well looked after by the petitioner. The petitioner has no idea to marry another girl. Hence, for the welfare of the minor Subbulakshmi, the petitioner has to be appointed as guardian for her person and property.

3. The following are the allegations found in the counter:-

1. After the death of her daughter, the respondent has looked after Subbulakshmi, the daughter of the petitioner, properly. The child has got asthma complaint and wheezing problems. She requires a constant care of a woman due to her health condition. As a grandmother of Subbulakshmi, she has got all love and affection. The petition has been filed only to get pension to show as if the child is in his custody. The petitioner is trying to have a second marriage and he has no love and affection on minor Subbulakshmi. The welfare and interest of the minor lies in the care and custody of this respondent. As the guardian of the minor, the respondent has not received any money from petitioner for taking care of the child. Hence, the petition may be dismissed.

4. The learned Principal District Judge, Vellore, has dismissed the application by observing that Subbulakshmi is only four years old and if the child is taken from the custody of the respondent, it will lead to her ill-health, that the minor child is in Lucknow along with her grandparents, where the respondents husband is working in Military and that, they are having opportunity to give best treatment at Military hospital. Aggrieved against the said order, the petitioner is before this Court.

5. Before entering into the discussion on merits, the cardinal principles of law on this subject have to be borne in mind by the Court in the light of the peculiar circumstances existing in this case. The mother of the child