1. The question that arises for consideration in this appeal is regarding the custody of a minor girl ages about two years at the time of filing of the application. The appellant before us is the mother's mother of the minor and the respondent her father. The respondent was married to the minor's mother in the year 1960. The appellant made a gift of her property to her daughter the minor's mother. The minor was born on 20th July, 1961 and her mother died on 20th may, 1962 in suspicious circimstancaces according to the appellant. On 4th June, 1962 by the mediation of some elders of the village. The respondent executed two deeds of settlement one in regard to half share of the property which he inherited from his wife after her death and the other in respect of 5 acres of land owned by him. By these two deeds, he made a gift of the half share inherited from his wife and 5 acres of his own land to the minor.
In the deed of settlement regarding 5 acres of his land, the respondent agreed to manage the same and give 5 bags of add each year to the appellant so that the minor girl may be looked after and maintain. The respondent was married again in the month of May, 1962. On 5th August, 1964 he filed an application under the Child Marriage Restraint Act against the appellant, her sons and others for an injunction restraining them from marrying the minor. In that he alleged that the respondents to the petition were contemplating the marriage of the minor when she was only about 3 years old. This application was contented by the appellant and others and the Magistrate by his order dated 13th August 1964, (Exhibit A-4) held that the respondents to the petition had contemplated such marriages of the minor and therefore issues an injunction against those respondents.
After the successful termination of the aforesaid petition, the respondents filed O.P. 91/64 out of which the present appeal arises an 8th October, 1964 under Sections 7, 10 and 25 of the Guardians and Wards Act (hereinafter referred to as the Act) for the custody of the minor child and for a declaration that he is the guardian of her person and property. In that petition he alleged that the appellant herein somehow developed ill-will against the respondent and was bent upon keeping away the minor girl from him so that no affection or intimacy developed between the father and the girl. He further alleged that the appellant would not even show the girl to him whenever he wanted. He also alleged that notwithstanding the injunction issued by the District Munsif Magistrate at Bhimavaram restraining the parities from marrying the minor girl the appellant still appears to be making an effort for marrying the girl.
2. The appellant resited the petition alleging inter allia that her daughter was ill-treated by the respondent during her lifetime and she died in unfortunate circumstances. She claimed that the time of the death of her daughter the respondent relinquished his rights of the guardianship of the minor in favour of the appellant. The respondent also agreed to give the appellant the income to the minor's property covered by the settlement deed dated 4-6-62 for the maintenance of the minor. She averred that the minor was being brought up by her with care and affection and that the allegations that she is not the proper guardian or that she has been keeping the girl away from the father though he has been anxious to see her are false. She also stated that she never entertained the idea of performing the marriage of the minor and the earlier application was engineered by her husband and uncle. Her case is that as the respondent is married and has a child, it will not be in the interest of the minor girl to go and live with him as there cannot be any natural affection and love between the stepmother and the minor child.
3. On these pleadings the District Judge, West Godavari framed the necessary points for consideration and held that considering the welfare of the minor, it was necessary that she should continue in the custody of the appellant; but the appellant shall on every Sunday send the child to the father's house and this arrangement will continue till the minor attains the age of 11 years. As regards the property of the minor he appointed the respondent a the guardian.
4. Aggrieved by this order of the learned District Judge, the appellant filed and appeal and the respondent cross-objection. The appellant's appeal was that she was aggrieved by the direction of the learned District Judge asking the girl to be sent to the father every week. Cross-objections of the respondent concerned the continuance of the minor in the custody of the appellant.
5. Our learned brother Venkateswara Rao, J. allowed the cross-objections and dismissed the appeal and ordered that the custody of the girl be handled over to the father who is undoubtedly here natural and legal guardian. It is against this order that this L.P.A. has been preferred by the grandmother.
6. The learned counsel for the appellant contends that even though the father is not unfit to be the guardian the father is not unfit to be the guardian of the minor girl, the paramount consideration for handing over the custody of the minor is the welfare of the minor. The father no doubt has a legal right but that right is always subservient to the welfare of the minor If the Court finds that it will not be in the interest of the minor to the custody of the father, the mere face that the father has a legal right to the guardianship of the minor, is of no consequence. It is contend that admittedly the minor girl has been living with the grandmother ever since the death of her mother in the month of May 1962. At the time when the application was filled i.e. in the year 1964, two years has passed and now when we are considering the matter, more than years have elapsed that the child has been continuously living with the grandmother. The grandmother and the child were both present in the Court throughout the hearing of the appeal and we saw the obvious attachment of the child to her grandmother.
It is quite clear that as the child is with the grandmother right from her infancy, she does not know her father. It is also an admitted affect that the father was married in about any, 1963 and that at the time when the matter was decided by the lower Court in the year 1968 he had two children by his third wife. It is also in evidence that the respondent has a daughter by his first wife who is living all along, with his brother's wife and there was no attempt by the respondent to get the custody of that child . There are no allegations made against the father that he is not fit to be the guardian as be has no means t look after the welfare of the child. The main point that is advanced for consideration is that after the custody of the minor girl is handled over to the father. she has to live with the stepmother and her stepbrother and sister. It is a matter of common knowledge that the child will not get the same care and affection from the stepmother as she would have from her mother's mother, the appellant.
No doubt the mere fact that the father has married again, is no ground to disqualify him from the guardianship of the minor girl; but that is a factor which has to be taken into consideration while ascertaining whether it will be in the interest of the minor that the custody should be handed over to the father. Distinction will also have to be drawn between the custody of a male child and the custody of a female child. Even in tender years, it is a matter of common knowledge that male child spends mot of his time outside the house and comes into contact with the stepmother only for a limited time. That is not the case with a female child. In the case of female child for every want of her is, she has to look to her stepmother and there are certain wants of hers which cannot be administered by the father at all. It was argued that the law has not made any distinction between the custody of male child and the custody of female child. But the law has laid down that the welfare of the child is the paramount consideration and in deterring the welfare of the child, sex of the child will necessarily have to be taken into consideration.
7. The allegation made by the father for the discontinuance of the custody of the child with the appellant is that she tried to marry her off at a tender age of 3 years and that this allegation of his was found proved by the Magistrate and the Magistrate issued an injunction against the appellant and other restraining them from marrying the minor child. No appeal was filed against the order of the Magistrate and the reason given by the learned counsel for the appellant for the failure to file an appeal is tat as the appellant never intended to marry the child she did not think it necessary to go in appeal. That decision was made as far back as 1964 and that there is nothing on record to may the minor girl. It may be that as there was an injunction order. they did not entertain any such idea. If that is so, the injunction order will continuity the minor attains the age of majority and there is no reason to suppose that the appellant will disobey that order and marry the girl before she attains the lawful marriageable age. This ground therefore for taking away the child from the grandmother to the father, does not appeal to us.
8. The other allegation made against the grandmother is that she has developed a sort of enmity against the respondent and does not even allow him to se the child. there is absolutely no allegation that attempts were made by father to meet the child and he was thwarted in his attempts. No such allegation also has been made in the examination on oath of the respondent's father. When the appellant-grandmother was in the witness box, no cross-examination was directed to her which would go to show that attempts were made by the father to meet the child and be did not succeed in those attempts. On the other hand the grandmother had specifically stated in her evidence that she is willing to give all opportunity to the father to come and meet the child.
There is an allegation that the grandmother had no property of her now-she of the mother of the minor child. But that also is of no consequence, for the simple reason that the father having been appointed guardian of the property of the minor child. there would be no difficulty for the grandmother in maintaining the child out of the income of the property stetted on her which is about 9 acres of wet land. It is also alleged that the grandmother has been living separate from her husband and that she had sued him for maintenance. Another factor which has been brought to our notice is that the appellant's son is not living with his wife. But these two factors do not impress us in any manner. From a reading of the evidence it cannot be stated that the grandmother is not in a position to look after the welfare of the child and bring her up properly.
9. We have already stated that there is nothing to show that the father is unfit to be the guardian of the minor child. The only question for our consideration therefore is whether the child must be uprooted from the surroundings in which she has been brought up especially when where is nothing to show that those surroundings are not proper and handed over to the custody of the father where she has to live with her stepmother and her stepmother and sister. It was argued by the learned counsel for the respondent that in view of the provisions of Section 19 of the Act that where the Court finds that the father is not unfit to be the guardian of the minor child to has no alternative than to hand over the child to the custody of the father. He plead strong reliance on the provisions of clause (b) of Section 19 of the Act. According to the provisions of this section the Court is not authorised to appoint or declare guardian of the person of a minor whose father is living and is not, in the opinion of the Court, unfit to be the guardian of the person of the minor.
In support of his contention he relied upon a few decisions to which we will make a reference presently. the first decision relied upon by him is Audiappa Pillai v. Nallendran Pillai, 29 Ind Cas 4 =(AIR 1916 Mad 605), where the petition was by the relations other than the father for the custody of the minor child - minor child being with the father. the question there was whether the minor child should be removed from the legal custody of the father and handled over to the custody of the other relations. In this context the provisions of Section 19 of the Act were relied upon by the learned Judges and they held that as long as it is not proved that the father is unfit to be the guardian of the minor child, the other relations cannot claim custody of the child, Atchayya, v. Kosaraju Narhari, AIR 1929 Mad 81, is another case relied upon by the learned counsel in this context. In this case it was held that when the ledge guardian of the person of the ward applies for the custody of the ward. to discharge the duty cast on him by law with reference to his ward.
'It is for those who oppose such an application to make out that 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 custody of the person against whom the application is made. This conies, according to the authorities is especially heavy, when the guardian is the father of the child.' The learned Judges then went on to consider the various objections raised for the handing over the custody of the minor child. They observed that marrying again does not render the father unfit to have the custody of the child. A reading of the judgment shows that the learned Judges confined their attention only to the provisions of Section 19(b) of the Act and did not take into consideration how the welfare of the child will be better served.
Evidently the observations quoted by us earlier show that if it is proved that the welfare of the child will be better served by keeping the child away from the father, the custody of the child should not be handed over to the father. This case came up for consideration before Bench of the Madras High Court in Ponniah Asari v. Suppiah Asari, AIR 1935 Mad 363, and the Madras High Court's observations at page 364, while referring to the aforesaid case that 'there is one very important matter which has to be considered and that is the welfare of the minor' clearly show that that aspect of the matter was not considered in AIR 1929 Mad 81.
10. There are cases which show that in spite of the provisions of Sec. 19 (b) of the Act, welfare of the minor is prime consideration and the paramount right of the father is subordinate to it. It has been so held by the Madras High Court in Soora Reddi v. Cheena Reddi, : AIR1950Mad306 . The learned Judges after considering AIR 1935 Mad 363, have stated:
'It is proposition so well known and established that it cannot be questioned at all that the welfare of the minor is the prime consideration in such matters and even the paramount right of the father as the natural guardian should be subordinate to the welfare of the minor.'
11. The position has become cleaner by the provisions of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the Hindu Minority Act). Section 2 of this Act states that the provisions of the Hindu Minority Act shall be in addition to and not save as expressly provided interrogation of the Guardians and Wards Act, 1890. Sections of the Hindu Minority Act will have to be read as in addition to the provisions of the Guardians and Wards Act, 1890. Section 13 of the Hindu Minority Act reads:
'(1) In the appointment or declaration of any person as guardian of Hindu Minor by a Court, the welfare of the minor should be the paramount consideration'
This provision clearly shows that even in spite of the Section 19 of the Act, while appointing or declaring a guardian the Court, in case of Hindus will have to take into consideration the provisions of Section 13 of the Hindu Minority Act. The paramount consideration for appointment or declaration of guardian is the welfare of the minor The paramount consideration for appointment or declaration of guardian is the welfare of the minor. The position of law even prior to the enactment of Section 13 of the Hindu Minority Act was that the father's right to the custody of his minor child was not absolute and was subservient to the paramount consideration of the welfare of the minor. That position has been made very clear by the provisions of Section 13 of the Hindu Minority Act. we are supported in this observation of ours by a decision of the Punjab High Court in Rattan Amol Singh v. Kamaljit Kaur, . The learned Judges held:
'Reading the relevant sections of these statutes (Hindu Minority Act and Guardians and Wards Act) together the benefit of the minor is the dominate and paramount consideration and if the circumstances so warrant the father's prayer under Section 25 of the Guardians and Wards Act can legitimately be disallowed in the better interest of the minor's welfare.
The father's right to the custody of this minor child is not absolute; nor is it indefeasible in law' it is circumscribed by the consideration of the beneficial welfare of the minor. This was the position even before the enactment of the Hindu Minority and Guardianship Act; but by enacting this provision the Parliament has language, by provision the Parliament has unambiguously indicated in the clearest language. by providing in the statute that even in the appointment and declaration of the guardian of a minor the paramount consideration is the welfare of the minor concerned.'
That being the position in law, what we have to consider is whether it will be for the welfare of the minor that she is removed from the custody of the grandmother and handed over to the custody of the father where she will have to live with her stepmother. Certain decisions were relied upon by the learned counsel for the appellant to show that the very fact that there is a stepmother is a sufficient ground to deny the father the custody of the child. Those decisions are: Muthuverrappa Chetti v. Ponnuswamyu Chetti, (1912) 13 Ind Cas 16 (Mad) and the question for consideration was the welfare of a minor girl. The learned counsel for the respondent trilled upon Gummalapudi kalidas v. Attaluri Submit. (1884) LIR 7 Mad 29; 29 Ind Cas 4 = (AIR 1916 Mad 605) and AIR 1929 Mad 81, where it was held that the mere existence of stepmother is not sufficient to hold that it will not be for the welfare of the minor that the custody of the child should be handed over to the father It has to be noted that all the cases cited by the learned counsel for the respondent create to the custody of the male childp
12. In the case before us the child is being brought up by the grandmother since she was about either months old and is very much attached to her. The very idea of being separated from the grandmother has been so painful to the child that she immediately starts crying the moment the same is mentioned. The evidence led by the respondent does not show that during all this period of two years the child was with the grandmother he made any attempt to see her and establish contact with her. The child neither knows her father, nor stepmother not stepbrother and sister. If she is handed over to the custody of the father she will be entirely uprooted from the surroundings in which she has been brought up for the last 7 or 8 years and will be thrown into a surrounding which on the face of it, is not congenial to her. No doubt it is argued by the learned counsel for the respondent on the basis of an affidavit filed by the third wife of the respondent in C.M.P. 4120/69 that she will show her material feelings of live and affection t the minor child in the same manner as she is showing to the two children born of her. This affidavit starts with saying that the interests and the welfare of the minor girl Venkata Laxmi are very prominent in the mind of her husband she then goes on to say;
'As a dutiful wife my ideas are not in any way different from those of my husband in this respect.'
All the statements made thereafter seem to be only as a dutiful wife of her husband. The assurance given by her that she will show the same love to the minor child. cannot be taken any serious notice. We have already stated that in the case of a minor girl, she has to look to another female for practically every one of her needs and it is not expected of the stepmother to give her the same love and affection. Considering the circumstances of the case we think that the welfare of the minor will be best served if she is not removed from the custody for all time to come and some arrangement will have to be made by which she will come to know her father and stepmother better and will have an opportunity to look to them with affection. The trial court gave such opportunity by asking the child to be left with the father every Sunday. The learned counsel for the appellant expressed apprehension of his client that if the child is allowed to remain alone with the father she might come to grief.
There is no evidence to support this apprehension of the grandmother But at the same time the child if left alone in the father's house might not for some time find it comfortable. We therefore direct that the child will be taken into the father every Sunday in the morning (9 a.m) by the grandmother and the grandmother will remain with the child till the evening (6 p.m.) This will continue till the child becomes well acquainted with her father. stepmother and stepmother and sister. This arrangement will continue till the child attains the age of 12 years when she will be in a position to form an intelligent preference. The father at that state will be at liberty to make the necessary application to the Court for the custody of the minor child and the court will after taking into consideration her preferences and the welfare of the child, may make suitable orders.
13. In the result, the appeal is allowed and the order of the trial court is restored with the directions given above. In the circumstances of the case, there will be order as to costs.
14. Appeal allowed.