N.S. Ramaswami, J.
1. This is a petition under Section 25 of the Guardians and Wards Act filed by the mother of the minor child impleading the father of the child as the respondent. The petitioner and the respondent were married about a few years back and the minor child which was 16 months old on the date of the petition is their only child. Both the petitioner and the respondent are school teachers. They had been originally living with the respondent's parents at N.G.O.'s colony, Adambakkam, Madras-16. After February, 1970 the petitioner and the respondent set up a separate house-hold at No. 14, First Gross Street, Lake Area, Nungambakkam, where they had been living with the minor child till about 1st December, 1970. It is common ground that on or about 1st December, 1970 the petitioner and the respondent parted company though the cause for such parting is differently stated by the parties. According to the petitioner the respondent had been ill-treating her for some time prior to that date because of a mistress by name Jayalakshmi, who is also a school teacher and it is because of that she had to leave the respondent's house in Nungambakkam and go over to her own sister's house. According to the respondent, the allegation of his having intimacy with one Jayalakshmi is absolutely baseless, that he never illtreated the petitioner and that the petitioner had always been desiring to live with her sister due to the evil advice of her sister and brothers who have been always having an eye over the petitioner's salary.
2. No oral evidence was let in, but certain documents were exhibited. Exhibits P-1 to P-5 are the notice, reply notice, rejoinder, etc., which passed between the parties prior to the filing of this petition. Exhibits P-6 and P-7 are the teachers' address books maintained in the Corporation Girls' High School, Saidapet, where Jayalakshmi, the alleged mistress of the respondent is working as a music teacher. These two books have been exhibited for the purpose of showing that Jayalakshmi has given the address of the respondent as hers in the school records, and the contention is that it is because of her illicit relationship with the respondent she has chosen to give that address in the school. The respondent has filed one document and that is marked as Exhibit R-l. It is a letter, dated 4th February, 1970 written by Sundaravaradan., one of the brothers of the petitioner to the respondent. Sundaravaradan is in Bombay and it appears that the respondent had written to the said Sundaravaradan making certain complaints against the petitioner herein and Exhibit R-1 is the reply from Sundaravaradan to the respondent.
3. The question for consideration is, whether the petitioner is entitled to custody of the minor child which is now with the respondent-father.
4. The contention on behalf of the petitioner is that the child being of tender age, the mother is the proper person to be in custody of the child. It is further stated that the circumstances in the case go to show that the respondent was in illicit intimacy with Jayalakshmi the music teacher in the corporation school and that the allegations of illtreatment of the petitioner are well-founded, and that, therefore, the respondent-father is not the fit and proper person to be in custody of the child. It is pointed out by the learned Counsel for the petitioner that under Section 6 (a) of the Hindu Minority and Guardianship Act normally a child below five years of age should be in the custody of the mother in preference to the father. He also referred to the decision in Munnibai v. Dhanush I.L.R. (1959) Bomb. 545 in support of his case. On the contrary the contention of the learned Counsel for the respondent is that there is no truth in the allegation that the respondent was in illicit intimacy with one Jayalakshmi, that there is no truth in the case that the respondent had been illtreating the petitioner and ultimately drove her out and that the letter Exhibit R-1 written by the petitioner's brother to the respondent would itself reveal that the hitch between the parties was due to the conduct of the petitioner and not that of the respondent. The learned Counsel further contended that, there is nothing to show that the respondent-father is unfit to be the guardian of the minor child and as the father is the natural guardian under the personal law of the parties unless there are grounds to remove him from guardianship, there is no question of the petitioner being appointed guardian or getting custody of the minor child. In this connection he referred to the decision in Vasudevan v. Viswalakshmi : AIR1959Ker403 . On a consideration of the materials and in the light of the arguments of the learned Counsel on either side, I am clearly of the view that this petition should be allowed and the petitioner should get custody of the minor child.
5. I think it is unnecessary in this case to decide as to whether the respondent was really in illicit intimacy with one Jayalakshmi as alleged by the petitioner. It is enough to say that the said allegation cannot be brushed aside as absolutely baseless. In Exhibit P-6 the address book maintained by the Corporation School, where the said Jayalakshmi music teacher is working, she had given her address as care of Shantha Natarajan, (Petitioner herein) No. 8, 1 Main Road, N.G.O.'s Colony, Madras-16. That is said to be because the said Jayalakshmi, who had been formerly living with a cousin of hers, had to leave that place due to the fact that that cousin had gone out of the city, though temporarily, and as the said Jayalakshmi was on census duty, she had to give some address for getting her tapals. Again in Exhibit P-7 another address book the said Jayalakshmi has given her address as No. 14, First Cross Street, Lake Area, Nungambakkam, Madras-34, which is the house where the petitioner and the respondent took up separate residence and where-from the petitioner had to part company with the respondent on or about 1st December, 1970. There does not seem to be any acceptable explanation as to why the said Jayalakshmi should give this address as hers in the second address book. It is also significant to note that after giving this address the said Jayalakshmi had scored out the said address in such a way as it would not be decipherable and gave another address instead. Regarding this, the Headmistress of the school had asked the explanation of Jayalakshmi as to why the address given had been so scored out and Jayalakshmi had given the explanation which is also found pasted in the same note book Exhibit P-7. Under these circumstances it is not possible to hold, without further enquiry, that the petitioner's allegation is baseless.
6. The respondent relies upon Exhibit R-1 which as already said is the reply letter written by the petitioner's brother at Bombay to the respondent. I do not find anything useful to the respondent in this letter. The petitioner's brother has generally advised the respondent that he should show, forbearance and try to live an amicable life with the petitioner. No doubt there is reference to the petitioner's sister (whose name is also Jayalakshmi) and her brother Govindaswamy, who was said to have been interfering in the marital life of the petitioner and the respondent. It is because the respondent had alleged in his letter which was being replied under Exhibit R-.l, there is reference to such interference wherein Sundaravaradan the brother of the petitioner says that the petitioner's sister (Jayalakshmi) had done a lot of things for the marriage between the petitioner and the respondent and if she had something to say regarding their marital relationship, the respondent need not take it amiss. The letter further says that as Sundaravaradan came to know from the respondent's letter that he does not like any interference from the petitioner's sister, he assured the respondent that there would not be any such interference in his family matters in future. The respondent seems to have complained that Govindaswami, one of the brothers of the petitioner, had misused some part of the petitioner's salary. In that connection Sundaravaradan says in Exhibit R-1 that if Govindaswami had used or misused any part of the petitioner's salary he would direct him to account for every pie. Whatever that be, the respondent does not suggest any sinister motive to the petitioner for her leaving the house and taking up residence with her sister. The only allegation is that the sister and brothers of the petitioner are giving evil advice to her and making her live with them so that they may have the benefit of her salary. In this background one has to see whether the custody of the child is to be with the petitioner-mother or with the respondent-father.
7. The main point of the learned Counsel for the respondent is that as the respondent is the natural guardian of the child and unless there are grounds to remove him from the guardianship, there is no question of the petitioner getting the custody of the child. Whatever be the position prior to the passing of Hindu Minority and Guardianship Act, after the passing of that Act, the statutory provision is that ordinarily the custody of a minor child below the age of 5 years should be with the mother in preference to the father. Section 6 (a) is as follows:
6. 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 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 ;
After the passing of this Act the question as to who the natural guardian is has to be determined as per the provisions of this Act and not according to the Hindu law before it was codified. Before codification the father was then natural guardian of a minor child. Even after this enactment no doubt the father is the natural guardian as seen from Section 6 (a) of the Act quoted above. But the right to be the natural guardian of the minor child is subject to a proviso. It is significant to note that in the very section which speaks about the natural guardianship of a minor Hindu, it is stated that the custody of a minor who had not completed the age of five years shall ordinarily be with the mother. Therefore, it is clear that unless there is something against the mother she should be in custody of the minor child, if the child is below five years of age. In Vasudevan v. Viswalakshmi : AIR1959Ker403 the facts were that the mother had left a child of two and a half years with its father for about 10 months before applying for its custody and during that period she never cared for the child and had not even made enquiries after that. The child was being well looked after by his father and grandmother. Under those circumstances the Kerala High Court held that in spite of Section 6 (a) of the Hindu Minority and Guardianship Act, the mother was not entitled to be appointed as the guardian of the child and get custody of the same. As the proviso under Section 6 (a) of the Act referred to above only says that ordinarily the custody of a child below the age of five years shall be with the mother, if the Court finds certain circumstances which disentitle the mother to such custody, it would be perfectly justified in allowing the child to be in the custody of the father. In the case before the Kerala High Court, there were certain circumstances which disentitled the mother to the custody of the child. Therefore, on the facts of that case the refusal to appoint the mother as the guardian of the minor child in spite of the child being 2| years old might be justified. However, there are certain observations in that judgment which seem to say that unless the mother proves that the father is not fit to be the guardian of the minor child, the mother would not be entitled to the custody of the child albeit the provisions contained under Section 6 (a) of the Hindu Minority and Guardianship Act. After quoting Section 6 (a) of the said Act, the learned Judges observed at page 404 in column 2 as follows:
The other sub-clauses are not relevant for the purpose of this appeal. Therefore, the right of the father to be the natural guardian of a Hindu minor is well recognised in the said section. No doubt, the proviso states that the custody of a minor who has not completed the age of five years, shall ordinarily be with the mother. Neither in the petition, nor in the evidence, is there any allegation that the husband has done anything which would give in law a jurisdiction to the Court to remove him from the position of a natural guardian conferred on him by statute.
If these observations mean that unless the mother establishes grounds for removing the father from the position of a natural guardian, she would not be entitled to the custody of the minor child even if the child is below the age of five years. With respect, I am unable to share that view. As I already pointed out Section 6 (a) of the Act which defines who the natural guardian of a minor is, itself contains the proviso which says that in the case of a minor child which is below five years, ordinarily the custody of the child must be with the mother. To this extent the natural guardianship of the father is curtailed. Therefore, the position is that unless there are circumstances to show that the mother is not entitled to the custody of the child below the age of five years, she should be given custody of the child.
8. The learned Counsel for the petitioner referred to the case in Munnibai v, Dhanush : AIR1959Bom243 , where it is pointed out that although under Hindu law the father is the natural guardian of the child, in deciding an application for the appointment of a guardian under the Guardians and Wards Act, 1890, the paramount consideration is the interest of the child rather than the rights of the parties ; in the case of a minor child of tender years normally the mother should be preferred to the father. That was a case where the father had remarried. It is significant to note in that case Section 6 (a) of the Act did not come into play. Even without that the Bombay High Court held that in respect of a child of tender age the custody should be with the mother because the paramount consideration is the interest of the child rather than the rights of the parties. Undoubtedly, in these matters the welfare of the child is important. Just because under Section 6 (a) of the Hindu Minority and Guardianship Act the mother is ordinarily entitled to have the custody of the child below five years, it does not mean that if in the interests of the child such custody is not beneficial, the mother would be entitled to custody. But in the present case as already seen there is really nothing against the mother. It is also to be noted that immediately after the petitioner and the respondent parted company the petitioner gave notice to the respondent and ultimately followed it up with the present petition for custody of the child. There is not even an allegation that the petitioner-mother had not cared for the child. There is nothing to show that the petitioner would not look after the child properly. It is true that the petitioner is a school teacher who would be obliged to leave the residence for her work. But that does not mean that she would not be in a position to look after the child properly. Under these circumstances, the petition is allowed and the respondent is ordered to give the custody of the child to the petitioner. Parties to bear their respective costs, in this petition. The respondent to produce the child in Court on 8th April, 1971 for being handed over to the petitioner.