K. Madhava Reddy, Actg. C.J.
1. This appeal is directed against the judgment of the II Additional Judge, City Civil Court, Hyderabad, allowing a petition, O. P. No. 63 of 1979, filed under Sec. 13 of the Hindu Marriage Act, 1955 for granting a decree for divorce and directing the custody of the minor child to be with the mother, the respondent herein.
2. The husband, who was the petitioner in the lower Court, is the appellant in this appeal. It would appear from the order under appeal that the husband had alleged that the male child was born to the respondent on 14-1-1978 'out of the wedlock', evidently what he means is as a result of the wedlock or matrimonial relationship and not an illegitimate child. It was his case that after the birth of the child, the relationship between the husband and the wife became strained and the wife began indulging in immoral activities and started living in adultery. The respondent used to come home during nights in a drunken condition and sometimes absent herself totally. She used to live outside Hyderabad with some persons for days together leaving the child in the house. All efforts for reconciliation proved futile. Ultimately, the respondent without the knowledge of the appellant left the house on 29-10-1978 leaving the child in the house and never returned to the matrimonial home or joined the appellant.
3. The respondent, in her counter-affidavit, denied that their married life was very happy. She alleges that it was unsuccessful and miserable. She alleges that the appellant was impotent and he forced her to extra-marital relationship with one Narasimha Reddy and have a child through him so that the appellant can claim to be the father of the child. He induced the respondent to this life and even made attempts to kill the respondent in order to cover up his impotency. She admits that she was forced to leave the house with the child anticipating danger to their lives at the hands of the appellant, But the appellant came to the house of the respondent when she was away and carried away the child. She was, therefore, forced to file a petition for the custody of the minor child under the Guardians and Wards Act. However, that petition was dismissed and the appellant continued to have the custody of the child. The respondent even while denying the allegations made against her, when the matter came up for trial, both the parties agreed to a divorce by consent, but contested the matter on the question of custody of the child, which the Court was bound to decide under S. 26 of the Hindu Marriage Act. In this behalf, the learned Additional Judge directed the custody of the child to be with the mother at least till the child crosses the age of five years.
4. The controversy between the parties as to the custody of the child has to be resolved having regard to two very important facts, firstly, what is the effect of the order of the Chief Judge, City Civil Court, dated 28-9-79, made in O. P. No. 300 of 1979 filed under the Guardians and Wards Act and secondly, whether the child is legitimate or illegitimate.
5. So far as the first point is concerned, it would be seen that while the child was in fact in the custody of the father, the mother filed for a declaration and to appoint her as the guardian of the person and property of the minor under S. 10 of the Hindu Minority and Guardianship Act read with Ss. 7 and 11 of the Guardians and Wards Act. The question that was posed for consideration by the learned Chief Judge, City Civil Court, was whether the petitioner-respondent is entitled to be appointed as guardian of her minor child and whether it is in the interests of the minor to give her the custody of the minor child. Having regard to the evidence brought on record that the wife was living with her paramour, G. Narasimha Reddy, who is himself having a wife and children, the court did not think it proper and in the interests of the child to take it away from the custody of the father and entrust it to the mother. In the result the Court dismissed her petition, even though the child was one and half years old. That was at a time when the marriage was subsisting. The contention of Mr. M. R. K. Choudary, the learned counsel for the appellant, in this regard is that once an order under S. 10 of the Hindu Minority and Guardianship Act read with Ss. 7 and 11 of the Guardians and Wards Act is made, that order operates as res judicata and in any event it must prevail and no order contrary to that could be made in a petition for divorce under S. 13 read with S. 26 of the Hindu Marriage Act. So far as the earlier petition for appointment of the mother as guardian of the minor child is concerned, that petition was made while the marriage was subsisting and the question before the court then was while the marriage is subsisting and the wife, i.e., the mother of the child is living in adultery, whether it is advisable to remove the child then from the custody of the father and give it over to the mother. The question whether the child was legitimate or illegitimate or whether it was born outside the wedlock or within was not gone into. The marriage itself was subsisting though not successful. Moreover the Court was not called upon to decide, who among the two, namely, the father and mother, should be appointed as guardian. Only the petition of the mother for having the custody of the child was dismissed. The father was not appointed as guardian by the Court. That order made in the circumstances then existing and based on a different cause of action, in our opinion cannot operate as res judicata so as to bar the Court from exercising jurisdiction under the Hindu Marriage Act and make an order under S. 26 as to the custody of the minor child while granting a decree for divorce. The cause of action for now making an order as to the custody of the child is the dissolution of the marriage. The Hindu Minority and Guardianship Act, (Act 32 of 1956 which is an Act supplemental to the Guardians and Wards Act) with the receipt of the assent of the President came into force on 25th Aug. 1956. S. 5 gives an overriding effect to the Act over any other law in force immediately before the commencement of the Act and that Act will cease to have effect in so far as it is inconsistent with any of the provisions contained in the Hindu Minority and Guardianship Act. The Hindu Marriage Act (Act 25 of 1955) came into force even earlier on 18th May, 1955. S. 4 thereof also gives an overriding effect to the provisions of this Act in the same terms as the Hindu Minority and Guardianship Act. The Hindu Minority and Guardianship Act makes no express provision as to what order should be made while directing the dissolution of the marriage. It makes provision for the appointment of a guardian of a Hindu minor. The provision contained in the Hindu Marriage Act under S. 26 is a special provision empowering the Court to Order the custody of the child while making a decree in any proceeding under the Act. When there is no specific order appointing the father as guardian, in our view, it is this provision that has to prevail. It is unnecessary for our present purpose whether, even after such an order is made, an application under S. 10 of the Hindu Minority and Guardianship Act read with Ss. 7 and 11 of the Guardians and Wards Act could be made by the father for the custody of the child. In Galloway v. Galloway, (1955) 3 All ER 429 the House of Lords in a case arising under the Matrimonial Causes Act, 1950, where the language used in S. 26(1) of the said Act is almost similar to the language used in S. 26 of the Hindu Marriage Act, held that an order for custody of an illegitimate child of the parties born two years prior to their marriage could properly be made under that Section. The expression 'child' occurring in S. 26 of the Hindu Marriage Act would cover both a legitimate and an illegitimate child and therefore the Court has jurisdiction (vide WEBB v. WEBB, (1952) 1 All ER 527). We are, therefore, clearly of the view that the order of the learned Chief Judge in O. P. No. 300 of 1979 does not operate as res judicata so as to bar the Court from exercising jurisdiction under S. 13 read with S. 26 of the Hindu Marriage Act for making a suitable order as to the custody of the child. The cause of action and the basis for this order and the circumstances which had to be taken into consideration are totally different from those that form the basis for the order of the learned Chief Judge, City Civil Court in O. P. No. 300/1979.
6. The next question to be considered is whether the child should be in the custody of the father or the mother, the respondent herein. The learned Additional Judge has directed the custody of the child to be with the mother.
7. Section 6 of the Hindu Minority and Guardianship Act, lays down as under :- 'The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property, (excluding his or her undivided interest in joint family property) are :-
(a) in the case of a boy or an unmarried girl - the father , and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
(b) in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father;
(c) in the case of a married girl - the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation:- In this section, the expression 'father' and 'mother' do not include a step-father and a step-mother.'
8. Under S. 6(a) of the above Act which declares that the father and only after him, the mother, are the natural guardians of a Hindu minor in the case of a boy or an unmarried girl, expressly provides that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Under S. 6(b) of the above Act, the natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), in the case of an illegitimate boy or an illegitimate unmarried girl, it is the mother and only after her, the father. Under S. 26 of the Hindu Marriage Act, while granting a decree for divorce, the concern of the Court would be to make a provision for the custody, maintenance and education of minor children and not so much for the custody, maintenance and education of minor children and not so much for the appointment of a guardian as contemplated by the provisions of the Hindu Minority and Guardianship. Act, 1956. This appeal being one directed against an order made under S. 26 of the Hindu Marriage Act regarding the custody of their child admittedly born to the respondent (wife), but doubtful whether the appellant herein was the father of the child, it is but appropriate that the mother should be the custodian of the child. In any case, until the child completes the age of five years, it must necessarily be in the custody of the mother. More so, on the particular facts of the case, we are convinced that the child should be with the mother. Whatever may be the imputations against the wife as regards her living in an unchaste life, now that divorce is granted, she would not be living with the appellant. The appellant himself is employed and would have to depend upon someone else for looking after the child. The respondent (mother) is employed in the Telephones' Department and is a Gazetted Officer, drawing a substantial amount and would be able to maintain the child. There is no reason to doubt that she will not take care of her own child and look after its maintenance, education and upbringing. It is doubtful whether the father who has imputed unchastity to his own wife and has sought divorce on the ground that she is living with one Narasimha Reddy openly; especially after divorce is granted, would ever look after the welfare of the child born in such circumstances. It is pertinent to notice that when his wife was taken to the hospital and when the appellant was asked to declare who was the father of the child, he made himself scarce and the other person Narasimha Reddy who is alleged to be having illicit intimacy with the respondent, declared himself to be the father of this child. No doubt, as contended by the learned counsel, when a child is born during wedlock and it is not established that the husband had no access to his wife, the offspring would be presumed to be legitimate and born to the particular couple. But that is only a presumption, in the absence of any other evidence to the contrary. The mother who is expected to know, openly claims that the child is illegitimate, born to her on account of her illicit intimacy with Narasimha Reddy which was induced by her own husband because he was impotent. This assertion is sought to be contradicted by producing Exs. A1 to A3 which are applications made by the respondent (wife) requesting for grant of maternity leave. It is argued that even according to the respondent, the husband induced her to be intimate with Narasimha Reddy only within about four or five months before the child's birth and therefore the earlier conceptions and abortions could be only the result of the marital relationship between the appellant and the respondent and that demolishes the allegation that the husband was impotent. It is unnecessary to enter into this controversy and determine the legitimacy or illegitimacy of this child in these proceedings. For the purpose of S. 26 of the Hindu Marriage Act, it is enough while granting divorce to consider whether the custody of the child should be with the mother or with the father. The Court is not competent to appoint a guardian of the minor child while granting a decree for dissolution of a marriage. Any order made under S. 26 of the Hindu Marriage Act directing the custody of the child to remain with the mother, does not amount to appointing a guardian for the child. Hence the question of legitimacy or illegitimacy of the child need not be gone into in this appeal. The above facts are referred to and taken note of only to determine whether in the circumstances of the case, the mother is the proper person to be the custodian of the child or the father and not with a view to determine the legitimacy or illegitimacy of the child. That may be considered in an appropriate proceeding under the Hindu Minority and Guardianship Act or in a civil suit where the question of the legitimacy of the child may be the point in issue. We, therefore, do not think it necessary to pronounce one way or the other on this aspect of the matter, and hold that the learned Additional Judge, City Civil Court, was right in ordering the custody of the child to be with the mother.
9. In the result, the appeal is dismissed, but in the circumstances of the case, without costs.
10. Appeal dismissed.