P.A. Choudary, J.
1. The petitioner Chandran of Chingleput District an employee of the Government of Tamil Nadu, married Sundari, the daughter of the first respondent on 11-7-1973 at Secunderabad Sundari of Secunderabad, an Arts graduate aged then about 24 years was working before her marriage as a school teacher at Secunderabad after her marriage, Sundari went to Tamil Nadu and lived with the petitioner in various places of Tamil Nadu and came back to Secunderabad for confinement and died in a nursing home at Secunderabad on 23-10-79 after giving birth to a female child on 17-10-1979 which is the subject-matter of this contentious litigation. The child, after the death of its mother, was not taken by the petitioner to his care or place in Tamil Nadu, Instead it was left at Secunderabad with its grandmother. The mourning grand-mother who is a widow and aged over 50 years took her grand-daughter into her care and custody and since then has been bringing her up in her home at Secunderabad. Now, the petitioner, the father of the child, moves this application under Article 226 of the Constitution for the issuance of a writ in the nature of habeas corpus directed against the child's grandmother, the first respondent, for the production of the child into this Court and for handing over the baby to the custody of the petitioner.
2. The petitioner's mainstay of his case is his argument based on his paternal right to the custody of the child. He being the father and the natural guardian of the child, the petitioner asserts he has an unlimited right to claim back the custody of the minor from the hands of the maternal grand-mother. He also states that the child would be happier with him than with its maternal grandmother with her moderate financial resources. In view of the fact that one day in the none-too distant future the child has to live with the petitioner-father the petitioner also argues that it would be in the best interest of the welfare of the child for this court to direct today the grand-mother to hand over the baby to the petitioner.
3. The first respondent, the grandmother resists this application mainly on the ground that forcing this babe-in-arms out of her six-months old company and custody, would not be in the best interests of the minor child as that would deprive the child of the sense of security and safety which a child needs more than most of any other thing. She also alleges lack of paternal warmth on the part of the petitioner who almost deserted the child and denies her financial inability. She says that the petitioner himself being liable to be transferred from place to place cannot look after the child. As ha is without female support he has to leave the child with his parents. She alleges that the petitioner's application is a preliminary step to get back the child before he remarries. Considering the tender age of the child and its apparently happy company with its grand-mother and taking into account the father's natural love for his daughter and being conscious that such matters as these are better settled by the consent of the parties than coercion, of law, we suggested to the parties to agree to an amiable course of compromise. But unfortunately the parties failed to arrive at a compromise leaving us with no option except to decide according to our lights this unfortunate case involving _the welfare of an innocent and motherless child.
4. We may begin this case on a sad reflective note that this is the kind of human tragedy from which there is no help that drove away the compassionate souls like those of Lord Buddha and Lord Russel from the theological solutions to agnostic answers for solving problems of human misery.
5. Should we today deliver this motherless child to the petitioner by taking it away from the first respondent's custody, is the substance of the debate before us. Has the petitioner as a father got an unlimited right to claim the child's custody without reference to the latter's well being?
6. Smt. Malini Ganesh, the petitioner's counsel who moved this application, answered those questions in unhesitative affirmatives. She said that the baby should be handed over to her client, the petitioner herein, because he is its father. She contended that the petitioner being the father of the child is the natural guardian and as such he has an absolute and unlimited right to the custody of the minor child. She said that in issuing this writ, this court would be doing nothing more than enforcing the general law of the land and helping the father in the enjoyment of his legal rights to the custody of the minor child. She has also argued that the first respondent maternal grand-mother of the child is not financially in a position to bring up the child. She said that her client's parents, both of whom are retired teachers owning some landed property in Tamil Nadu and the petitioner-father himself being a Government employee would be in a far better position financially to look after the welfare of the baby. Finally, she argued that the court even from the angle of the child's welfare has to look not to the immediate welfare of the child, but to the question of the eventual upbringing of the child, which can only be done by the father and not by the old grand-mother. Considering all these Smt. Malini said the child should be handed over to the petitioner.
7 On the other hand, Mr. M. Jagannadha Rao on behalf of the first respondent-grand-mother argued that the theory that father as a natural guardian has an unrestricted right to claim the custody of the minor children, is not a correct proposition in law. The right of the father or any other person to claim the custody of a minor child is according to the learned counsel subordinate to the right and duty of this court to protect and promote the welfare of the child. In answer to the second contention of the petitioner, Mr. Jagannadha Rao says that it is not correct to say that the grandmother is not in a position to look after the child. He has stated that one of the sons of the grand-mother by name Hariharan is in the Army as a Captain drawing about Rs. 2,400 per month, that another son by name Natarajan is working as a Medical Representative drawing around Rs. 2,000 per month and the respondent herself is getting a family pension of Rs. 150 per month and that in addition to the above, she is getting rents of nearly Rs. 300 per month on two houses which belong to her family. Mr. Jagannadha Rao also argued that the petitioner being a Government servant is being transferred from place to place and this child if given over to the petitioner, will have to be looked after either by his parents or his servants the Indian version of baby-sitters. Finally he has stated that the first respondent has been looking after the baby with great care and affection for the past several months from the time of its birth and the minor is greatly attached to the grand-mother and any severance of the child from its grand-mother at this stage would be harmful to the well-being of the child and might even injuriously affect the child's health.
8. In support of the first contention, the learned counsel for the petitioner, Smt. Malini Ganesh placed strong reliance on a judgment of a Division Bench of the Madras High Court in Atchayya v. Kosaraju Narahari, AIR 1929 Mad 81. In that case which arose under the Guardians and Wards Act (Act No. VIII of 1890) the material facts are the following: From the time of the birth of the child it was being brought up by the maternal grand-parents. A short time after the birth of the child, the ailing mother died. The father married a second time and then claimed the custody of the minor from the maternal grand-parents. This request of the father having been turned down by the maternal grand-parents, the father moved the District Court under Section 25 of the Guardians and Wards Act for an order directing the maternal grandparents to deliver the child to him. That application was opposed by the maternal grand-father on several grounds one of which was that the child was being brought up by the maternal grandparents from its birth and that it would be cruel to remove the child from them and deliver it to the father overruling the argument of the maternal grandparents that under Section 25 of the Guardians and Wards Act the Court has to consider whether it would be for the welfare of the child to direct the return of the child to the custody of the father, the District Court ordered in that case the child to be handed over to the father mainly on the basis of the father's right to his child's custody. Against that, the maternal grand-father filed an appeal to the High Court. That appeal was dismissed by a Division Bench consisting of Madhavan Nair and Thiru Venkatachariar, JJ. mainly on the ground that 'when the guardian of the person of a Ward applied for the custody of the ward, he is only asking the Court to help him to discharge the duty cast on him by law, with reference to his ward and it is for those who oppose such an application to make out that the welfare of the ward will be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made ........, the father has, therefore, a paramount right to the custody of has children of which he can-not be deprived unless it is clearly shown that be is unfit to be their guardian.' Basing upon the parts of the above decision, underlined by us, it is argued by Smt. Malini that inasmuch as the petitioner herein has not been shown to be unfit to be the guardian of the minor, this court has no option except to order this application and direct the first respondent to hand over the child to the custody of the petitioner-irrespective of the fact whether it is or is not in the interests of the minor child.
9. For more than one reason, we are unable to agree with this proposition of law as formulated by the counsel for the petitioner which on appearance seems to derive support from the above underlined parts of the Madras decision. Firstly, the decision reported in Atchayya v. Kosaraju Narahari (AIR 1929 Mad 81) (supra) as we read it does not deny para-mountcy to the welfare of the child as the governing factor in deciding this type Of cases where some times Courts may Overlook the claims of the father to the custody of the minor. We say this because the following extract from Mayne's Hindu Law was approvingly reproduced at page 83 of that decision. The extract reads thus:--
'If, however, his (father's) authority has been acted upon in such a way as to create association or give rise to expectations of the part of the infants which it would be undesirable in their interests to disturb or disappoint, the Court will interfere to prevent its revocation.'
10. Secondly, Section 25 of the Guardians and Wards Act itself statutorily recognized this limitation in a modified form, Section 25(1) of the said Act reads thus:
'If a Ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the Ward to return to the custody of the guardian, may make an order for his return, and for the purpose of enforcing the order may cause the Ward to be arrested and to be delivered into the custody of the guardian.'
Thus the Court can, nay it should consider the welfare of the child. The Court can under Section 25 of the above Act, handover the custody to the father only subject to the overriding consideration of the welfare of the minor child. It is, therefore, possible to read the above underlined observations in Atchayya v, Kosaraju Narahari (AIR 1929 Mad 81) (supra) as being confined to its own facts although there is no gainsaying the fact that those observations do suggest that when the child's custody is claimed by its father, as it is being done in this case, the Court cannot but grant the custody of the child to the father except in the rare instances where it is proved that the father is unfit to be the guardian. In other words, proof of parental unfitness alone according to that judgment can defeat the father's claim for custody. That judgment cites as authority for that view. Beasant's case (AIR 1914 PC 41) and Vijayanagaram's case. The question is whether this absolute proposition of law is correct.
11. It is now well known that this broad view of the right of the father to claim the custody of the minor child without reference to the welfare of the minor, is not acceptable to law. It appears to us that such a view is not only untenable on authorities but is clearly wrong in constitutional principle. Child is a person within the meaning of Article 21 of the Constitution. It has, therefore, a right to its life as guaranteed by Article 21 of the Constitution. The word 'life should be understood in this context as expansively as it has been understood in other contexts as comprehending more than mere animal existence. (See Kharak Singh v. State of U. P. : 1963CriLJ329 . The theory that the father has an unlimited and unrestricted right to the custody of the minor child even to the extent of disregarding the welfare of the child would be theoretically inconsistent with this constitutional provision, It is no doubt true that the minor is not in a position to express its preferences. But that incapacity makes no difference to the legal theory with which we are now concerned because that incapacity would not take away the child's inalienable right to life recognized by the Constitution. The recognition of an unlimited right in another person, be it the father, to the custody of the Ward would not only be constitutionally inconsistent with this right of the minor under Article 21 of the Constitution but it would also be inconsistent with the constitutional power and duty of this court to protect and enforce the fundamental right to life of all persons including that of the minor. This argument of the learned counsel for the petitioner that the father has an unlimited right to claim the custody of the minor child without reference to the welfare of the minor child must, therefore, be rejected,
12. Normally, there can be no absolute rights in a social order. In a social formal rights can only be relational. As recently said by Lord Diplock in Maharaj's case, (1978) 2 WLR 902, 909, in a society one man's freedom is another man's restriction. The fetish of right has hitherto been the cause of many a confusion in our jurisprudence. We must not merely look to the subject of the right without identifying the person over which this right is to be exercised. In a social order all rights in the ultimate analysis are only rights and relations between persons and not between person and inanimate things sometimes called, 'nature', Recognition of father's unlimited right to the custody of the child would almost reduce the child to the position of a chattel from the position of a person. We cannot therefore, accept this absolutist legal proposition. Law is more than logic but is no more than social engineering. It is social policy backed by the State force. The sanctity of its dictum must be found in the ultimate analysis in its service of social goals as determined by the Constitution. Under the feudal order, allegiance and protection went together hand-in-hand and the feudal lord assumed protection of his vassal in return for the latter's allegiance. This is one of the legal principles that advent of capitalistic legal order did not choose to replace. Particularly in the case of minors who cannot be expected to express their intelligent preferences the modern State assumes the ultimate responsibility for their welfare. This is the origin of parens patriae jurisdiction of the Courts sharing in the sovereign power of the State. In exercise of this jurisdiction, which is derived not by reason of any statute but as an inseparable attribute of judicial power of the State, the Court should always look to the welfare of the minor in all matters relating to its life. Every claim including the one which has been advanced in this case by the father for the custody of the minor child, must be subordinate to the power and duty of this jurisdiction to look after the welfare of the minor. For these reasons, we have no hesitation in rejecting the submission made on behalf of the petitioner.
13. The authority of the judgment of the Division Bench of the Madras High Court in Atchayya v. Kosaraju Narahari (AIR 1929 Mad 81) has been shaken considerably by a series of decisions that have taken a different view laying down that the child's welfare is the paramount consideration even under the Guardians and Wards Act, 1890 and more particularly under the Hindu Minority and Guardianship Act, 1956. In M. Basavalingam v. M. Swarajyalakshmi, AIR 1957 Andh Pra 704 the father moved under Article 226 of the Constitution for the issue of a writ of habeas corpus claiming the custody of the minor child from the maternal grand-parents. The father in that case, relied upon the aforesaid Madras judgment in Atchayya v. Kosaraju Narahari. A Division Bench of this Court consisting of Chandra Reddy and Satyanarayana Raju, JJ. ruled negativing this claim. The learned Judges observed in para 7 of the report.
'It is manifest that the learned Judges were not laying down any proposition different from the accepted notions which have been established by long chain of authorities that the supreme consideration in deciding the question of the custody of the child is its welfare,'
On that basis the learned Judges dismiss ed the writ petition.
14. In Narasimha Rao v. Manikyamma, (1968) 1 Andh LT 132 a Division Bench of this Court consisting of Basi Reddy and Chandrasekhara Sastry, JJ., refused an application made by the father for the custody of the minor child from the child's maternal grand-mother. In that case, the grand-mother was bringing up the child on the death of the child's mother. Rejecting the claim of the father for the custody of the minor 'child, the learned Judges posed the question, 'Whether in the present it will be for the welfare of the minor to be put in the custody of the 1st petitioner?' and answered it in the negative. In doing so, the learned Judges took into account the fact that the father married a second time, that the second wife is lame and is suffering from a permanent and incurable physiological defect and he being an employee would be away from the house practically all the day. The learned Judges concluded 'we are not satisfied that it will be for the welfare of the minor girl to be put in the custody of the 1st petitioner, for the present, though he be her father and natural guardian'. In V. V. Narasaiah v. Ch. Peddi Raju, : AIR1971AP134 father applied under the Guardians and Wards Act claiming custody of his child from the child's maternal grand-mother who had been bringing it up on the death of the mother of the child. The learned District Judge held that considering the welfare of the minor child the child should be continued to be in the custody of the maternal grandmother. But that judgment was reversed by a learned single Judge of this court on grounds similar to those adopted by the Madras High Court in Atchayya v. Kosaraju Narahari (AIR 1929 Mad 81) (supra), namely, that so long as the father is not found to be unfit to be the guardian of the minor girl, the custody of the minor girl cannot be denied to the father. In appeal, justice Vaidya, writing for the Division Bench, in a well considered and through going judgment ruled that the paramount consideration for appointment or declaration of the guardian is the welfare of the minor. The learned Judges quoted with approval the following passage from Rattan Amol Singh v. Kamaljit Kaur, .
'The father's right to the custody of his minor child is not absolute: nor is it indefeasible in law; it is circumscribed by the considerations of the benefit and well fare of the minor.'
15. In C.M.A. No. 231 of 1979 dated 22-6-1979 a Division Bench of this court consisting of Alladi Kuppuswami and Madhava Rao, JJ., held in a case relating to Muslims that guardianship and custody need not go together and while one person may be the legal guardian another person may be given the custody of the Child.
16. Budhulal v. An Infant Child, : AIR1971MP235 , is a case which recognises the paramountcy of the child's welfare in the matter of its custody. In that case, a new born child which lost its mother immediately after its birth was put in the care and custody of neighbours. The father claimed custody of the child after 21/2 months. It was argued in that case that;
'The petitioner being the father is the natural guardian of the infant according to the Hindu Minority and Guardianship Act, 1956...... the respondents have no legal right whatever to the custody of the infant and that the refusal of the respondents to make over the infant to the petitioner amounts to illegal detention of the infant.'
The Court had negatived this contention by holding that the child's welfare is the paramount consideration. The Court rejected the application filed by the father for the custody of the child on the ground that it would not be in the interests of the child to give custody to the father, who is single and employed in a factory and having no female support to look after the child. Their Lordships followed the decision of the Supreme Court in Gohar Begum v. Suggi, : 1960CriLJ164 where the facts are the following: The appellant before the Supreme Court was a Moslem woman and a singing girl by profession. She had an illegitimate daughter of fix years which was in the custody of the respondent, who was the appellant's mother's sister, The mother claimed the custody of the minor illegitimate daughter supported by an affidavit filed by her paramour undertaking to support and bring up the appellant's child as his own child. The Supreme Court reversing the judgment of the Bombay High Court held that in the circumstances of the case the interests of the child would be better served if she was left in the custody of the appellant rather than in custody of the respondent. In those circumstances, the Supreme Court directed the child to be handed over to the mother.
17. In Rosy Jacob v. Jacob, : 3SCR918 the Supreme Court ruled that
'the dominant consideration in making orders under Section 25 is the welfare of the minor children and in considering this question due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare.'
18. In J. v. C., (1969) 1 All ER 788, 808 the English House of Lords (Lord Guest) ruled.
'First, in my view the law administered by the Chancery Court as representing the queen as parens patriae never required that the father's wishes should prevail over the welfare of the infant, The dominant consideration has always been the welfare of the infant.'
Recently, the radical Swedes are contemplating enacting appropriate laws conferring rights on children to divorce their parents. 'Our civilization adores above all else the symbol of child'. ('The Ascent of man' by J. Bronowski at page 411). This is not without reason. Ever since Adam and Eve have lost the Paradise by being expelled from the Garden of Eden, Man is unable to free himself from the torments of alienation and to regain integrity and innocence except as a child.
19. It may now be taken as universally settled that State would not use its power in its parens patriae jurisdiction, against the welfare of the children. Speaking positively it will use that jurisdiction only for the promotion and the welfare of the child. We are, therefore, clearly of the opinion that the first submission advanced on behalf of the petitioner cannot be accepted. But we insist that in rejecting this claim of the father for the custody of the minor child in this case, we do not intend in any way to undermine or impair the legitimate rights of the father to the custody of his minor child. Patria Potestas is too ancient an institution to be lightly interfered with. Normally, there is nothing which a father and a mother would not do for the promotion and protection of the interests of their child. The noble practice of self-sacrifice in the interests of the minor children is imbedded in the system of Hindu family. Babur, the great Moghul was reported to have voluntarily courted death in order to save his son Humayun from the creeping effects of a consuming disease. We therefore do not use the welfare of the child as antithetical to the custody of the father. We only reject the absolutist doctrine advanced by the petitioner. As Lord Mac Dermott observed in the aforesaid House of Lord's decision in J. v. C. (supra).
'While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over other consideration, such rights and wishes recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases. The parental rights, however, remain qualified and not absolute for the purposes of the investigation,.....'
We are, therefore, in this case only rejecting the absolute argument advanced by the father.
20. We will now have to consider the question whether in this case our transferring the child to the custody of the father ministers to the total welfare of the child. In considering that question we start with the presumption that the minor's parents would be the best guardians. However we have to take into our consideration the fact that the mother of the child was dead and the petitioner is without any female help. The reason for the petitioner not taking the child with him immediately after its mother's death may be due to lack of female help though not for want of love and affection on the part of the petitioner for the late Sundari, as suggested by the first respondent and naturally denied by the petitioner. In any case it amounts to father allowing the child to develop new associations with the maternal grand-mother. The child, if given over to the father now, must have to live only with its paternal grandparents because the petitioner is without female help and the parents are living far away from the petitioner. It is no doubt true that Smt. Malini had stated that the paternal grand-parents both of whom are retired teachers will look after the child with love and affection. But in this case, we have nothing more than the statement of the learned counsel made across the Bar to assess the eagerness and the intensity of the feelings of the paternal grand-parents for the welfare and upbringing of this minor child. The paternal grand-parents have not filed any affidavit in this Court showing their willingness and expressing their undertaking to look after the child. Bringing up a child is not only a pleasure but also involves the discharge of a responsible duty. In the absence of any undertaking forthcoming from the paternal grandparents to take up that duty we do not consider it is safe to hazard any guess about their intentions. We do not therefore consider that it would be in the interests ' of the minor child to be handed over from the care and custody of the active and loving maternal grand-mother to the passive and silent paternal parents. We have seen the child in this Court. It looks not only very healthy but also very happy with its maternal grandmother. The maternal grand-mother appears to us to be rearing up the child for all these months with great love and affection. In the totality of these unfortunate circumstances we find no compelling reasons that would justify our cutting off this bond of emotional attachment and security that has been forged and has been allowed to grow by the father himself between the child and its maternal grand-mother. We, therefore, consider that in the peculiar circumstances of this case, it would not be just to direct the child to be handed over at this stage to the petitioner.
21. The petitioner's allegation that the first respondent is not financially in a sound position to bring up the child cannot be accepted. The first respondent's sons are well appointed in life. Two of them earn each around Rs. 2,000 per month. The third one is expecting appointment within a couple of months. In addition to that, the first respondent has house property fetching about Rs. 300 per month. We cannot, in these circumstances, say that the interests of the minor child would in any way suffer for reasons of financial stringency by keeping her in the custody of the first respondent.
22. Finally, it is said that one day or the other the minor has to live with the petitioner-father and therefore the sooner it is the better for her. Today we cannot cast the horoscope of the coming events of the child. The father is a young man. The paternal grand-parents are retired teachers who have shown no interest in this Court to rear the child. The maternal grand-mother is alive and fond of this young child. In the present circumstances, we would not be justified in directing the child to be handed over to the father on the basis of an uncertain future. In our view, the sense of security which the child needs, the warmth and affection she can hope to get today would be undoubtedly greater from the company of the maternal grand-mother than that of the lone father. Taking into account the safety, security and well-being of the minor child, we have no regrets in refusing this application at this stage.
23. It is needless to say that all orders made relating to the custody of minors are merely tentative. For reasons of the ever-changing conditions and circumstances and passage of time, this court is ever entitled to vary such orders when such variations are considered to be in the interests of the child. What should happen tomorrow, time alone can tell. We will only say that it should be open to the parties to apply to this Court for further directions or orders as and when the circumstances warrant such a course.
24. However, we today direct that as and when the petitioner visits the house of the first respondent for the purpose of playing the father to this child, the first respondent must provide him all facilities and access to his minor child.
25. The writ petition is accordingly dismissed, but in the circumstances without costs.