Sharma J:

The applicant in these proceedings claims the custody and care of the three daughters born to her through her marriage with the respondent. The three children are: -

(1) Sia Yet Wah (f) - born in September 1958

(2) Sia Guek Yin (f) - born in November 1960

(3) Sia Yek yen (f) - born in June 1962

The applicant in fact gave birth to another girl in April 1967 but that child has already been given in adoption and is not the subject matter of these proceedings.

The respondent is a goldsmith and is, according to his own evidence, now earning about $150 per month. He was at the time of his marriage to the applicant in 1957, employed as an assistant in a gold smith's shop at Merlimau. Now he runs his own business at Malacca. He lives in a house at Bachang and the three children live with him there. He leaves his house at 8.00 a.m. and returns home at 6.00 p.m. but on two nights every week he sleeps in his shop at Malacca. All the three children leave the house at about 7.30 in the morning to attend school. He can thus be with the children for about three to four hours a day in the evenings. The respondent has a mother aged about 58. She lives in the same house and shares the bedroom occupied by the children. There are two more rooms in the respondent's house. One room is occupied by the respondent's younger brother and the other by his younger sister both of whom are married.

It appears from the affidavit of the applicant that much of the trouble between the parties is attributable to the presence of the applicant's mother-in-law in the house and her disappointment at the failure of the applicant to present her with grandsons instead of granddaughters. It is unfortunate that this trouble should have spoilt the family life of the couple and have generated an atmosphere which could be far from conducive to the welfare of the family and the children. Whatever be the real cause of such disputes, discords and splits between the applicant and the respondent is not a matter into which I should go in these proceedings, although there are a number of allegations and counter allegations in the two affidavits filed in this originating summons. I am primarily concerned with the welfare of the children.

The applicant has after her marriage to the respondent worked as a maid servant and is prepared to find employment as a maid servant again. She is at present staying with her father who is a sundry goods shopkeeper at Merlimau. She is assisting her father in the sundry goods shop. Her father is prepared to bring up and educate the children. There are schools at Merlimau. The children are now attending a school in or near Bachang. They are quite intelligent and doing fairly well in their studies. They also seem quite well looked after as far as food and clothing are concerned. I had the advantage of a long and a free and friendly conversation with them in my chambers.

Section 5 of the Guardianship of Infants Act 1961 enacts as follows:-

Subject to the provisions of s. 10 the father of an infant shall be the guardian of the infant's person and property:

Provided that the Court or a Judge may make such order as it or he thinks fit regarding the custody of the infant, and the right of access thereto of either parent, and may vary or discharge such order at any time on the application of either parent."

Section 10 of the same Act says: -

The Court or a Judge may at any time remove from his guardianship any guardian, whether a parent or otherwise and whether of the person or the property of the infant, and may appoint from time to time another person to be guardian in his place."

The matters which have to be considered by the Court in exercising its powers in the appointment or removal of a guardian are cited in s. 11 of the Act and the Court is required primarily to have regard to the welfare of the infant. In this particular case as the dispute is between the parents and not between a parent and another, the question of