The welfare of the minor should be the predominating interest in proceedings for the custody of a minor child.

JUDGMENT : This is an appeal instituted by the respondent in the court below in an application by a father (Sri E.H.B. David) for the restoration to custody of his little daughter, now aged nearly 4 years, under S. 25 of the Guardians and Wards Act. The application was allowed by the learned Additional District Judge of Coimbatore on the merits, and the respondent below, who is the mother-in-law of the petitioner in the lower court and the grandmother of the child, now appeals.

2. At the outset itself I think it is important to stress the principles upon which the court should approach a matter of this kind. It has been repeatedly laid down, that, in such proceedings, the welfare of the minor should be the predominating interest. The law no doubt permits a person to have the custody of his minor child, and the right in law is really one which flows from certain universal feelings in nature, and the common organisation of society all the world over. But that right is not an absolute right. It is subject to the overriding power of the Court, which may interfere in the interests of the infant.

But, while enunciating this, it is equally important to emphasize that the court will not ordinarily take away or negative this right, unless it is predominantly for the welfare and interest of the minor child, that the minor child should be brought up by some person other than the father and the natural guardian. In the present case, the petitioner below (Sri E.H.B. David) has admittedly married again, his first wife (the mother of the minor) having died some years ago in the house of the appellant (the mother-in-law), and one of the arguments advanced by the learned counsel on behalf of the appellant is that a step mother may not be fit and proper person to bring up a child of tender years.

In Bindo v. Shamlal, ILR 29 All 210 a Bench of that court took the view that where the father married again it will be in the interests of the minor that she should reside with her maternal grandmother, rather than with her step mother. Learned Judges observed "weighing all the circumstances, we think that it will be more for the welfare of the minor to live with the maternal grandmother than with the step mother. But with very great respect, I find myself unable to agree with this approach. It is difficult to generalise with regard to such situations, and certainly instances are not wanting where the father and the second wife have bestowed great affection on the child by the first wife, and brought up that child in a proper manner.

Otherwise, we would be really assenting to a proposition that a second marriage per se involves a father which is adverse to a claim of a father for the custody of his minor child. I am fortified in this view by the authority of this Court in Soora Reddi v. Chenna Reddi, AIR 1950 Mad 306, where Govinda Menon and Basheer Ahmed Sayeed JJ. have clearly laid down that the father ought to be the guardian of the person and property of the minor under ordinary circumstances, and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.

Again, in that case also, it was argued that the minor might have developed love and attachment to the other relations with whom he was and this argument was also negatived. Consequently, the fact that the petitioner has a second wife, or the fact that the appellant might have developed considerable affection for the child cannot ordinarily stand in the way of the rights of the respondent to have the custody of the minor.

3. But the facts of this case are somewhat peculiar and exceptional, in the sense that relations between the respondent and his first wife appear to have seriously deteriorated at the time that she gave birth to this child, or shortly thereafter. The first wife went away to the house of the appellant, and notices passed between the parties followed by proceedings in courts. It is alleged that, in the context