The welfare of the child is the paramount consideration in determining custody, as established by relevant legal provisions and Supreme Court decisions.

In the petition the following have been stated:

The petition filed in H.M.O.P.No.131 of 2008 against the respondent/husband for divorce on the ground of cruelty. Out of the lawful wedlock, a female child was born on 30.4.2003 at Kasthuri Hospital, Tambaram, Chennai. The petitioner got admission at R.St.Marys Matriculation School, Nandivaram, Guduvancheri in 2006. The respondent/husband was not present at the time of admission in the school. The petitioner was working as a teacher in that school. On 16.03.2008 the respondent took the child and now she is with the parents of the respondent. The petitioner is willing to educate her in the same school. If she is allowed with the respondent, her life and education will be spoiled. Hence the petitioner is seeking interim custody of the child.

2. In the counter filed by the respondent, it is stated that on 12.03.2008 the petitioner had handed over the child to him by saying that Suwaashas life will be prosperous in future only under the custody of himself and after that she left the family and went to her parents house. Now the child is aged about 6 years, she is going to school regularly. The present petition is not maintainable and the petition has to be filed under Section 6 of the Hindu Minority and Guardianship Act 1956. In the main petition for divorce, the petitioner has not whispered anything regarding the custody of her daughter. Only to harass him and the child, the petition has been filed. Hence, the petition has to be dismissed.

3. The Principal Subordinate Judge, Chengleput, after hearing the parties and examining personally the child Suwaasha, daughter of both the parties, aged about 6 years, directed this petitioner to hand over the child Swaasha to the respondent within a week, granting visitation right to him to visit the child on the school holidays. Aggrieved against the order the petitioner is before this court.

4. Mr. Mathivanan, learned counsel for the petitioner would submit that the petition is not maintainable under Section 26 of the Hindu Marriage Act 1955; that there is no allegation against the petitioner that he had any immoral habits nor unfit to be a guardian; that the court below has not taken into consideration that better choices will be the father in this case; that he would take care of the childs health, education and intellectual development and that the reasons adduced by the Court below are not enough to pass the order for interim custody.

5. Repelling the arguments, Mr. C. Ravichandran learned counsel for the respondent would state while the welfare of the child is considered, since it is a female child, it must be with the mother and that the respondent is a teacher who would be more concerned with the welfare of her daughter and that nothing warrants interference with the order challenged.

.6. It transpires from the order of the Court below that the child Swaasha is with the parents of the petitioner in Kariapatti village in Virudhunagar District and is studying in St. Marys Matriculation School, Kariapatti, Virudunagar District. A copy of the school marks card has been produced, which shows that the child is studying first standard during the year 2008-2009. The petitioner is admittedly residing in Chennai and he is in military service and he is likely to be transferred to anywhere across the country and hence the Court below is of the view that since he could not be always available at Chennai, he let the child with his parents at Kariapatty. It is stated that the respondent has secured teacher post in the same school viz., R.St. Marys Matriculation School, Nandivaram, Guduvancheri, where the child was studying earlier. It is well settled principles of law that the paramount consideration is in the interest of the child rather than the rights of the parents, the court has to weigh the circumstances in which both the parents are placed, thoroughly scrutinise them and then to reach a conclusion with whose custody will be mor