1. This is an appeal from an order made against the petitioner in O.P.6 of 1975. The appellant petitioner has filed an application under S. 25 of the directing the respondent, his wife to return to him the custody of his minor son Remamurthi. The application was dismissed with costs.
2. The petitioner was aged about 30 years and his wife was aged about 25 years on the date when the original petition was filed. It is the petitioner's case that he and his wife were married in about the year 1966. On September, 30, 1967 a son named Ramamnurthi was born to the couple. The petitioner averred that his wife withdrew from his society in July, 1974 i. e., about 7 years after the birth of the child. Ramamurthy without any just cause and never returned to live with the petitioner. She had taken away the minor son Ramamurthy along with her. The petitioner had filed on O. P. for restitution of conjugal rights against his wife. As per the law, the latter is entitled to the custody of his minor son who is aged more than 5 years. It was also averred that it would be for the welfare of his minor son that he should be in the custody of his father. Hence the application under S. 25 of the Guardians and Wards Act.
3. The sole respondent, the mother had opposed the application. She admitted that she was the wife of the petitioner and that the minor Ramamurthy was their son. She however denied that she withdrew from the society of the petitioner in July, 1974. The petitioner was ill-treating her on account of the evil advice of his sister. Finally he drove her away from the house when show was in the 8th month of pregnancy. She was therefore compelled to go to her parents' house at Kavit Agraharam, which is a different village from that of her husband. It was stated that it would not be in the interests of the minor to be restored to the custody of the father.
4. the court below on a consideration of the evidence of P. W. 1 and R. W. 1 who are respectively the petitioner and the respondents, as also the evidence given by the minor which the Court recorded, had come to the conclusion that the primary consideration that is to weigh with the Court was the welfare of the minor and the father who was the natural guardian of his minor son was not entitled to the custody of the minor. The petition as therefore dismissed.
5. The short question in this appeal is whether the appellant who is the father of the minor Ramamurthi is entitled to the custody of the minor child from the respondent who is the minor's mother.
6. The minor himself was examined by the Court. At the time of his examination he was about 8 years of age. His appearance was one of being well looked after. He stated before the Court that he was studying to before the Court that he was studying in the 3rd Class. He recited some Telugu 'Neethi Padyamulu'. He was also conversant with arithmetical tables. He also signed the deposition Telugu in neatly formed letters. When the Court asked him with which of the parents he would stay, he expressed a desire to be with his mother only. He also stated that his father never came to see him.
7. So far as the evidence of P. W. 1 the petitioner is concerned, he admitted that he filed a petition for restitution of conjugal rights against his wife 1 1/2 years earlier to the date of the deposition and that it was pending. He also admitted that his wife, the respondent filed m. C. 33/1974 under Cr. P. C., for maintenance. He admitted that maintenance was awarded by the Court though the quantum was modified in revision. The Court below did not accept his evidence and the case in the petition that his wife left his house July, 1964 when the minor son was 7 years of age. The Court below referred to the fact that the petition had not examined any School Teacher or produced any School Certificate to show that he got the child admitted to school in his Village. This is a very important circumstance which would show that his case of the respondent leaving him in July, 1974, is not true. If that were so, in the absence of any evidence that the minor was put to school by his father, it would not have been possible for the child when he was 8 years of age. i. e., just one year after his mother allegedly left his father, to recite Neethi Padyamulu and also to exhibit his knowledge of arithmetical tables and also to sign his name in the deposition in a neat hand, though somewhat unsettled. The lower Court having regard to the evidence of both the petitioner and the respondent had accepted the case of the respondent that she was driven away in her 8th month of pregnancy from the house of her husband and thereafter the minor child was born at his grand-parents' house. The learned Judge also accepted the evidence that after the birth of the minor, he did not come to see him. On the evidence therefore it was found by the lower Court, that there was nothing to show that the petitioner had ever taken any interest in the minor child from the time of his birth.
8. The learned Counsel for the appellant-petitioner has contended that the father of a minor child has a inalienable right top the custody of his child and that in the instant case there being no finding that the father was an unfit person to the custody of his child, the mere fact that the child since the birth has become attached to the mother or the grand-parents would not have the effect of depriving the father of his right to guardianship of his minor child. To support his contention the learned Counsel referred to a report of the madras High Court in Reginald v. Sarojam, : AIR1969Mad365 . Alagiriswami, J. (as he then was) had in that decision observed that in the case of a minor whose father was living and was not in the opinion of the court unfit to be a guardian. The learned Judge also stated that another guardian could be appointed only if the father is unfit to be the guardian and in such a case only the question of the welfare of the minor would come into consideration. These observations were made by the learned Judge in considering a case arising under Section 17 of the Guardians and Wards Act. He, however, expressed also the opinion that the father is entitled to be the guardian even as against the mother as long as he is not held to be unfit to be the guardian of the person of his son or whose application under S. 25 is not to forestall any action by the wife. The learned Judge did not make any difference between an application under S. 17 and an application under Sec. 25. He observed in that case that the welfare of the minor would be the overriding consideration for the appointment of guardian. Only when the father is held unfit to be a guardian under S. 19 (6) of the Act, the right of the father to the guardianship of his minor child was supreme. Such guardianship of the father is for the welfare of the minor except when he is unfit. The learned Judge on the facts before him expressed the opinion that even though the child was happier and more comfortable with the other relations, that was not sufficient to deprive the father of his right and duty. The mere fact that the father ill-treated the mother of the minor is neither a sufficient nor a relevant consideration in deciding whether he is a proper person to have custody of his child.
9. While no serious exception can be taken to the above dicta of the learned Judge, and in fact, what the learned judge had stated is the essence of the several pronouncements of the Privy Council and the High Courts, it has got to be seen in this case whether it is in the interest and welfare of the minor to recognise the father's right to custody of his minor son and give effect to it by an order under Section 25 of the Act. On the facts as found, the petitioner had driven away the respondent when she was pregnant and carrying the minor ion the 8th month. It was also found that he had never seen the child during the long period after his birth. His case that he put his child to school in Jagannadhapuram which is one furlong away from his village cannot be accepted for the reason which I already have mentioned. That the child is being well looked after is observed by the learned judge who saw the minor in Court. That the child is being well looked after is observed by the learned Judge who saw the minor in Court. That the child was put to school and was studying in the 3rd Class was proved. In the circumstances, I should think that it is hardly for the welfare of the minor son to be transplanted as it were by making an order for the custody of the minor child in favour of the father. The child (when examined in the Court) was found to be an intelligent child and had expressed his preference to remain with the mother and stated that his father never cared to see him. The lower Court had observed referring to the minor's statement that the minor's preference to stay with his mother is quite natural and entitled to weight. I agree I am not persuaded to think otherwise.
10. The lower Court had expressed the opinion that the application under S. 25 of the Guardians and Wards Act was incompetent for the reason that evidence in the case had established that the ward namely the minor was never in the custody of the petitioner and also was never removed from his custody. Section 25(1) states that if a ward leaves of is removed from the custody of his guardian of his persons, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return etc. In the instant case having regard to the finding of the lower Court that the ward's mother was driven out of the house and that the minor son was born in the parental home of the mother and that thereafter the father never saw his son, the view was expressed by the lower Court that it was not a case of the ward either leaving or being removed from the custody of guardian of his person i.e., the petitioner in this case. Section 25 was therefore not attracted.
11. I am of the view that the lower Court is not correct in stating that S. 25 of the Act is not applicable in the instant case. A child en ventra samere in law, is a child in esse. That being so, if the mother either leaves the husband or is removed from the matrimonial home, it follows that the child in the womb also must be considered to have been removed from the custody of the guardian of his person. The words ' is removed' may apply to the custody either actual or constructive or in other words which the law would recognise as custody. Custody need not be actual physical custody. It may even be constructive custody of the guardian.
12. In considering the word 'removed' occurring in Section 25, a single Judge of the Punjab High Court in Samitran Devi, v. Sura Ram , held that the remedy of the guardian who has been denied the custody of his child from its very birth must be found within the four corners of the Guardians and Wards Act. It was also held that custody means both actual and constructive custody. The word 'removed' in Section 25 of the Act is not limited to physical removal and constructive removal clearly falls within the ambit of this word. In that particular case a person having constructive custody of the child refused to hand over the custody to the father. It was held to amount to 'removal' from the custody of the father.
13. In the light of the foregoing discussion, I have no hesitation in affirming the order appealed from and dismiss this appeal with costs. However, the father, if desires to see the minor child, may be permitted to do so by the respondent-mother on the first Sunday once in every two months for a duration of two hours on being intimated by the father to that effect by registered post addressed to the mother so as to reach her at least two days before the day.
14. Appeal dismissed.