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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SRINIVASAN & THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
Balasubramanian Mohan
Versus
Vidya Mohan
O.S. Appeal No. 264 of 1994
Decided On :Decided On : 27-03-1995
CUSTODY OF CHILD - RELIGION - WELFARE OF THE CHILD - GUARDIANS AND WARDS ACT, 1890 - SECTION 17(2) - HINDU MARRIAGE ACT, 1955 - SECTION 2(1) - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - SECTION 2(1) - HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - SECTION 3(1) - INTERPRETATION OF STATUTES - PARAMOUNT CONSIDERATION IS THE INTEREST OF THE CHILD RATHER THAN THE RIGHTS OF THE PARENTS.
Fact of the Case:
The appellant, the father of a minor child, Anusha Mohan, sought custody of her from the respondent, his erstwhile wife. Their marriage was declared as a nullity on the application of the appellant in C.S. No. 83 of 1990. The appellant is a Christian and the respondent is a Hindu and the marriage was not registered under the Special Marriage Act. Out of the wedlock, which was declared invalid, the respondent gave birth to two daughters. The elder daughter, Regina Mohan, is with the appellant. The respondent alleged that the appellant is unfit to be the guardian of the child and that she has forfeited that right after leaving the matrimonial home. The appellant claimed that the children have to be brought up according to Christian religion to which he belongs and that the respondent being a Hindu, it will not be possible for her to bring up the children in a Christian way of life.
Finding of the Court:
The court found that the welfare of the minor child demands that she must be in the custody of her mother. The court held that the appellant has given a religious colour only for the purpose of seeking custody of the child. The court also found that the younger child, being of tender age, needs maternal care, and that the mother (respondent) is not disqualified from having the continued custody of the child. The court further held that the respondent cannot be disqualified to have the custody of the child, merely because she is employed and is leaving the child in creche.
Issues: 1. Whether the child, Anusha Mohan, is a Hindu or a Christian? 2. Whether the welfare of the child demands that she must be in the custody of her mother? 3. Whether the appellant is unfit to be the guardian of the child?
Ratio Decidendi: 1. The court held that Anusha Mohan is a Hindu, as per the statutory provisions of the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956, and the Hindu Minority and Guardianship Act, 1956. The court also found that Anusha Mohan was brought up as a Hindu, and she has not been baptised. It was admitted by the petitioner himself that in the Birth certificate, he has declared both his daughter as Hindus. 2. The court held that the welfare of the minor child demands that she must be in the custody of her mother. The court considered the age, sex, and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property, as per Section 17(2) of the Guardians and Wards Act, 1890. 3. The court held that the appellant is not unfit to be the guardian of the child, but the welfare of the child demands that she must be in the custody of her mother.
Final Decision: The court dismissed the appeal and held that the welfare of the minor child demands that she must be in the custody of her mother.
1. The appellant is the father of the minor child Anusha Mohan. He wants her custody from the respondent, who was his erstwhile wife. Their marriage was declared as a nullity on the application of the appellant in C.S. No. 83 of 1990. The appellant is a Christian and the respondent is a Hindu and the marriage was not registered under the Special Marriage Act. It was in that circumstance, the marriage was declared as a nullity.
2. Out of the wedlock, which was declared invalid, the respondent gave birth to two daughters. The elder daughter, by name Regina Mohan, is with the appellant. In his application for getting custody, the appellant alleges that in the interest and welfare of the children, both of them will have to be brought up together. It is also stated that the respondent is professing Hindu faith and she is bringing up Anusha also in that faith. It is further alleged that she is unfit to be the guardian of the child and that she has forfeited that right after leaving the matrimonial home. It is also stated that the petitioner will be in a position to meet the requirements of both the minors and look after their interest and welfare since he has got the capacity, status and better financial background, and will be able to discharge his duties as guardian. He also says that the children have to be brought up according to Christiam Religion to which he belongs. The respondent being a Hindu, it will not be possible for her to bring up the children on in a Christian way of life. He also says that being the father, as natural guardian he has got the preference to get a custody of the child. The appellants parents are living with him in his house only to look after the children. His father has resigned his job and has settled down with him only to look after the grandchildren.
3. He has also stated that considering the welfare of the minor children, custody must be given to him, and he has no objection for the respondent having access to the children at any time even without any notice. The separation of the two children, according to him has very much affected the welfare of the children. He, therefore, prays that the custody of his younger daughter minor Anusha Mohan be given to him.
4. In her counter, the respondent has denied the allegations made by the petitioner (appellant herein). According to her, she was sent out of the matrimonial home along with the second child. She also admits that welfare of the children requires that both the children must be brought up together, and she prays that the elder daughter may also be handed over to her. She has further stated that even though in 1990 the marriage was declared as null and void, from that time onwards the appellant was staying away from the first child and she was left in the custody of her grandparents. The petitioner was all along employed in Port Blair and did not make any arrangement even for the elder daughters education. She further avers that it was one of the pre-conditions even before marriage, that the children should be brought up by professing Hindu religion and only in accordance with that condition, the children were never baptised and they never followed Christianity. According to her, the present case of the petitioner that the children have to be brought up as Christians is only for the purpose of this case. She says that herself and her daughter were all along following Hindu faith and were also treated as Hindus by the petitioner himself. She also alleges that the job requirement of the petitioner is such that he has to be away for days together from station and has to be in the High seas. In such circumstances, enrusting the second child also to his custody will amount to weparating the children from both the parents. The minor child Anusha is being looked after by her properly, and there is no necessity to entrust the child to the appellant. The welfare of the child also demands that she (respondent) must have the continued custody of h
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