1. This appeal is instituted by the original respondents 1 and 2 against the order dated 30-7-1976 by the District Judge, Chickmagalur in Guardian and Wards Case No. 16 of 1975 on his file allowing the petition of the father for custody of the child.
2. Sri S. A. Satyakumar, presented an application to the District Court under Section 10 of the Guardians and Wards Act (hereinafter called the 'Act') praying for custody of his minor son Ravishankar. He has averred in the petition that Ravishankar was born on 7-8-1972 and that his wife, the mother of the child, died after delivery and ever since the time the child was born, the child was being brought up in the house of the maternal grand parents. He has further averred that he allowed the child to remain in the house of the maternal grand parents of the child as they were shocked by the death of their daughter, his wife. Of late, differences arose between him and his father-in-law and mother-in-law and they had taken hostile attitude towards him and they were not allowing him to see his son. A panchayathi was held in June, 1974 in connection with the handing over of the child as also the movables belonging to the petitioner in the custody of the respondents. His parents-in-law agreed for the handing over the child in August, 1974, as soon as the child completed two years. Before instituting the petition, the petitioner demanded for the custody of the child but, his parents-in-law did not handover the child to him. According to him, the child had to be put in a good school as the child would be completing three years. He instituted the petition on 5-9-1975 before the learned District Judge praying for the custody of the child from the respondents in the petition who are his father-in-law and mother-in-law.
3. The petition was resisted by respondents in the petition. While admitting that the child was born on 7-8-1972 and the mother died after delivery, they contended that the welfare of the child would he better served if the child is left with them, and that was also the last wish of Vimala, their daughter, before her death. They denied that they prevented the petitioner from seeing the child or visiting their house. According to them, the petitioner nursed ill-will against them and instituted the petition with an ulterior motive to spoil the future of the boy. They denied all other allegations made by him against them. They further asserted that the words of the father were a mere make believe story and he was not really interested in the welfare of the child. When the petition came up for hearing, the petitioner examined himself as P. W. 1 and spoke to the averments made in the petition. In addition, it was elicited from him that he had married again. He examined P. W. 2, B. Srinivasa Rao, on the point that the child was not sent to the petitioner's house on the occasion of the annual death ceremony of the mother. As against that, Venkatakrishnaiah, the first respondent, gave his evidence in support of the objections statement. He got marked the letter written to his wife, mother of the deceased Vimala, by her daughter, as also the letters written by the petitioner to him in connection with the bringing up of the child. He has sworn that the welfare of the child would be better served if the child were left with him. The learned District Judge, on appreciating the evidence on record, held that the father of the child was in law entitled to the custody of the child unless he was shown to be unfit for the custody of the child and in that view he ordered the custody of the child in favour of the petitioner, the father of the child, by his order dated 30-7-1976 as stated above. Aggrieved by the said order, the respondents have come up in appeal before this Court.
4. The learned Advocate appearing for the appellants-respondents vehemently argued that the learned District Judge did not take into consideration the facts that in such cases the court should consider the welfare of the child and also the last wishes of the deceased mother. According to him, the father had taken the second wife and a boy was born as a result of the wedlock and it was not congenial for the welfare of the child to hand him over to the custody of the father. As against that, the learned counsel for the respondent-petitioner, strenuously urged that while deciding the question of guardianship, the father could not be disallowed the custody, unless the Court found that he was unfit for the custody of the child as laid down in Section 19 of the Act. According to him, the father was getting a salary of more than Rs. 500/-per month and he had all the affection for the child and the mere fact that he had taken a second wife should not be made a ground to hold him unfit to be the guardian of the child. The sole point, therefore, that arises for our consideration in this appeal is : whether it is in the welfare of the child to allow the custody of the child to the father as is done by the learned District Judge.
5. Section 17 of the Act reads as follows :
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what consistently with the law to which the minor is subject appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to 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.' Section 19 of the Act reads as follows:
'Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person--
(b) of a minor whose father is living and is not, in the opinion of the Court, Unfit to be guardian of the person of the minor, or
These provisions will have to be read along with Section 13 of the Hindu Minority and Guardianship Act 1956, which reads as follows :
'(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus if the court is of opinion that his or her guardianship will not be for the welfare of the minor.'
Thus, reading these provisions together it becomes obvious that the rigour of the prohibition contained in Section 19(b) of the Act is considerably whittled down by the positive provision made in Section 13 of the Hindu Minority and Guardianship Act which unequivocally declares that the Court shall be guided by the paramount consideration of the welfare of the child, while appointing his guardian.
6. In the instant case, the learned counsel appearing for the respondent-petitioner relying on clause (b) of Section 19 of the Act, quoted above, submitted that when the father was living, unless he was declared to be unfit to be the guardian of the person of the minor by the Court, any other person could not be appointed as the guardian of the minor. It is needless for us to point out that the said provision has to yield place to Section 13 of the Hindu Minority and Guardianship Act which states that in spite of any provision made in any other Act, the sole criterion for appointing the guardian should be the welfare of the child. In fact, Section 17 of the Act states inter alia, that the court shall, subject to the provisions of the section, be guided by what consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. The minor is subject in this case to Hindu Law. Therefore, Section 13 of the Hindu Minority and Guardianship Act prevails over Section 19(b) of the G. and W. Act. The three sections should be read harmoniously and if there be any conflict, it is Section 13 of the Hindu Minority and Guardianship Act that prevails. This over-riding effect is clearly provided in Sections 2 and 5 of that Act. The dominant consideration, therefore, in appointing the guardian should be the welfare of the child, and not merely the right of the father. The father's right to the custody of his minor child is no longer absolute; it is circumscribed by the consideration of welfare of the minor.
7. The view that we have taken finds full support in the following decisions :
(i) Captain Rattan Amol Singh v. Kamaljit Kaur
(ii) Raichand v. Sayar Bai : AIR1966Mad173 ;
(iii) Sunil Kumar Chowdhary v. Satirani Chowdhari : AIR1969Cal573 ; and
(iv) Lalta Frasad v. Ganga Sahai .
8. It is in evidence that ever since his birth the child has been brought up by the maternal grand parents. When this case came up for hearing in the month of March 1978 and when the child was present before this Court, the child was unable even to recognise the father and when the father went near the child, the child got startled which only shows that the father has not been affectionate enough towards the child all these years as he ought to have been and that he has not even befriended the ' child. It is not the case of the father that ever since the death of his wife he was prevented from seeing the child, though he has stated in his evidence that a few months prior to the presentation of the petition there was misunderstanding between him and his parents-in-law. If really the father was affectionate and considerate to the child he should have befriended the child by visiting the child often and making presents to the child on occasions like his birthday. Even though this Court directed on 10-3-1978 that the father should befriend the child by going to his father-in-law's house, when the case came up for hearing to-day, it was verified that the father went to the house of his father-in-law only once but, since it was already late in the evening he returned without even seeing the child. It is not his case that his parents-in-law prevented him from seeing the child. In the course of these five months, if he could not find time to visit the child even once and befriend the child, in spite of a direction from this court, it would be doubtful what affection and consideration he is capable of rendering to this child.
9. It is not disputed that he has taken a second wife and a male child is born out of the wedlock and the child is 1 1/2 years old now. Consideration being had to the normal state of affairs, it would not be congenial for the welfare of the present child to stay with his step-mother. Step-motherly attitude has become proverbial in our society. It is not suited for the healthy and normal growth of emotional and moral personality of the child.
10. Moreover, while considering the question of appointment of a guardian, we have to take into consideration the last wish of the mother as provided in Section 17 of the Act as also the welfare of the child which is of paramount consideration. Our attention was drawn to Ex. Rule 1 a lengthy letter written by Vimala, the deceased mother of the child, when she was with the child. It makes a pathetic reading. She has poured out her heart to her mother and has in detail described the woes suffered by her at the hands of her brother-in-law and mother-in-law in the house of her husband. Her husband was always keeping mum, supporting the cruel attitude of mother-in-law and brother-in-law. As a culmination to this letter comes the last wish of the deceased lady which reads:
'In the event of delivery and my dying, and the child surviving, you alone bring up the child and attend on him till he grows. For certain do not deliver the child. This is my last wish.'
It appears that even then she had a premonition about her death after delivery, the child surviving and in view of the miseries and suffering undergone by her at the hands of her brother-in-law and mother-in-law, she made her last wish very clear to her mother. That, certainly is one of the factors to be taken into consideration while appointing the guardian of the child under the provisions of Section 17 of the Act which are not inconsistent with the provisions made in Section 13 of the Hindu Minority and Guardianship Act.
11. The grand-father of the child has sworn that all attention is bestowed on the child and we are told that the child is attending a Kindergarten school. We are told that the brother of D. W. 1 is issueless and he is very fond of the child. He is an Officer in the Vijaya Bank and even several fixed deposit receipts were shown to us with regard to deposits kept in the name of the child. That makes it clear that the child is looked after well, brought up very well and interests of his education are looked after well in the house of his grand parents.
12. The question is whether he should be dislodged from this surrounding to land him in the house of his step-mother. It is in evidence that the father goes to the office and spends most of the time there. Then, the child would be under the care of his step-mother, The step-mother has her own child and she was married just two years back. Other children also in all probability would make their appearance in due course. That being so, it becomes obvious that the welfare of the child cannot be secure In the house of the petitioner though no doubt, he is the father of the child. It is in that sense that we hold that the father is not a fit and proper person on the facts of this case to be the guardian of his minor child,
13. The learned counsel for the father next invited our attention to a decision of this Court in Kamalamma v. Lakshminarayana Rao (1971) 1 Kant LJ 307: (AIR 1971 Mys 211). In that decision, His Lordship Justice Ven-kataramiah who delivered the judgment for the Bench has observed that the question whether the father is fit or unfit to be the guardian of the person of a minor is a question of fact. There cannot be any dispute about this proposition. Whether the father is fit or unfit to be the guardian of his minor child has to be decided on the facts of each case and we have already discussed the facts of this case and we have held that the interests of the child would be better served by leaving the child in the custody of his grand parents. It is decided in that case that the fact that the father is unfit should be pleaded and proved. We have already pointed out that the rigour of the provisions of Section 19(b) of the Act has been considerably relaxed in view of Section 13 of the Hindu Minority and Guardianship Act, In this case it is no doubt pleaded by the grandfather that it was the last wish of his daughter that the child should be brought up by them. He has also stated that the interests of the child would be better served by leaving the child with them. He has averred that the father's version in the petition is a make-believe story. In addition, it is elicited in the evidence of the petitioner himself that he married again and the second marriage took place during the pendency of this proceeding. These facts as we have discussed above, are proved in the case. Hence, the decision cited by the learned counsel for the petitioner cannot help him in any way.
14. In the result, the appeal is allowed and the impugned order of tha District Judge ordering delivery of the child to the father is hereby set aside, Accordingly, the petition of the father for the custody of the child is dismissed.
On the peculiar circumstances of this case, we make no order as to costs throughout.
15. Appeal allowed.