Welfare of minor is of paramount consideration.

C. SHIVAPPA, J.:

1. This is an appeal against the order dated 21.1.1998 in O.P.No.209 of 1996 relating to the custody of a minor girl, by name, N.Asha, aged about 12 years, whose parents have unhappily been living apart. The learned single Judge came to the conclusion that the custody of the minor girl should be with the father and the mother now appeals to this Court.

2. In deciding the question as to the custody or up-bringing of a minor, the court must regard the minors ‘welfare’ as the first and paramount consideration and not the legal right of any particular party. In making order appointing a guardian for the person of a minor, the tests ought to be. What order under the circumstances of the case would be best for securing the welfare and happiness of the minore With whom will the minor be happye Who is most likely to contribute to the well being of the minor and look after her health and comforte Who is likely to bring up and educate the minor in the manner required to develop the entire personality worthy of living, keeping the interest, well-being and happiness of the minor in view. The court must also give due weight to the possible effects of a change in custody, on the minors future happiness and sense of security. What is “proper” custody depends upon the circumstances and, in particular, upon the minors position and prospects in life.

3. In Dhanwanti Joshi v. Madhav Unde Dhanwanti Joshi v. Madhav Unde Dhanwanti Joshi v. Madhav Unde , (1997)3 L.W. 161 the Apex Court, referring to Lindlev, L.J. in Mc.Grath, (Infants) IN RE. Mc.Grath, (Infants) IN RE. Mc.Grath, (Infants) IN RE. , (1893)1 Ch. 143 has held thus:

“…The welfare of the child is not to be measured by money, alone nor by physical comfort only. The word ‘welfare’ must be taken in its widest sense. The moral and religious welfare must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.” …As to the “secondary” nature of material considerations, Hardy Boys, J. of the New Zealand Court said in Walker v. Walker & Harrison , (See.: 1981 N. Z. Recent Law 257) cited byBritish Law Commission, working paper No.96 para 6.10) ….“Welfare is an all-encompassing word. It includes material welfare, both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships, that are essential for the full development of the childs own character, personality and talents.”

4. In order to appreciate the question whether the appellant is entitled for the custody of her minor daughter, it is better to advert to certain facts which are as under: The appellant and the respondent are Indian Christians married on 9.10.1985 at Madras as per Christians’ rites and ceremonies and a daughter was born to them, for whose custody they are making their respective claims.

5. The appellant was employed as a steno-typist in Electronics Corporation of Tamil Nadu, commonly known as ELCOT, which is a State Government Undertaking, at the time of her marriage. The respondent was employed as an Engineer in M/s.Hindustan Motors Limited, Truvellore,Madras. He had given up his job as an Engineer and started and running a proprietary firm of his own, dealing in chemicals, under the name and style “Nirma Agencies”. After the marriage, the appellant lived with the respondent along with his parents at Vadapalani, for seven months, and thereafter, they were living separately at various places within the city and due to strained feelings they fell apart, started living separately since 1993 and the minor daughter continued to be in the custody of the respondent. The appellant sought permission under E