ROSY JACOB

JACOB A. CHAKRAMAKKAL April 5, 1973

[A. ALAGIR!SWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.]

Guardians and Wards Act, 1890, Sec. 25-Husbond's application for the custody oj children-Welfare of the children is the dominant consi deration.

On the wife's application, judicial separation was granted under the Indian Divorce Act by the single Judge of the High Court. The custody of the eldest son was maintained with the husband while that of the daughter and the youngest son was given to the wife. In the Letters Patent Appeal preferred by the husband, the Division Bench varied the order directing handing over the custody of the daughter and the youngest son also to the husband.

The principal question before the Court was whe ther the husband's application for the custody of the children u/s 25 of the Guardian and Wards Act, 1890, was maintainable and, if so, what are the considerations which the Court should bear in mind in exercising the discretion regardin11 custody of children.

Allowing the appeal, HELD : (i) On the facts and circumstances of the case, namely, that the Court cannot make any order under the Divorce Act, as the daughter had attained majority, and no guardian could be appointed u/s. 19 of the Guardians and Wards Act, 1890 during the life time of the existing guardian, husband's application was competent.

Welfare of the children is the primary consideration, and hyper-technicalities should not be allowed to deprive the guardian necessary assistance from the Court in effectively discharging his duties and obligations towards his ward. l932D]

(ii) The controlling consideration g0veming the custody of the children is the welfare of the children concerned and not the right of their parents.

The Court while exercising the discretion should consider all relevant facts and circumstances so as to ensure the welfare of the children.

The contention that if the husband is not unfit to be the guardian of his minor children. then the question of their welfare does not at all

arise, is misleading.

If the custody of the father cannot promote the children's welfare, equally or better. than the custody of the mother, then. he cannot claim indefeasible right to their -custody u/s 25 merely because there is no defect in his personal character and he has attachment for his children-which every normal parent has.

As the daughter has just attained puberty and the youngest son was of the tender age, in the interest of their welfare, the mother should have the custody in preference to the father.

.[933DJ • CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1295 & 1296 of 1972.

Appeals by special leave from the judgment and order dated April 26, 1972 of the Madras High Court in O.S.A. Nos. 2 and 3 of 1971. 918

A K. N. Balasubramanian and Lily Thomas, for the appellant.

The respondent appeared in person.

The Judgment of the Court was delivered by

DUA, J.-The real controversy in these two appeals by special leave preferred by the wife against her husband, lies in a narrow compass.

These appeals are directed against the judgment and order of a Division Bench of the Madras High Court allowing the appeals by the husband and dismissing the cross-objections by the wife from the judgment and order of a learned single judge of the same High Court dismissing aout 25 applications seeking diverse kinds of reliefs, presented by one or the other party. According to the learned single Judge (Maharajan J.) "these 25 applications represent but a fraction of the bitterness and frustration of an accomplished Syrian Christian couple who after making a mess of their married life have endeavoured to convert this Court into a machinery for wreaking private vengeance". This observation reflects the feelings of the husband and the wife towards each other in the present litigation. The short question which we are called upon to decide relates to the guardianship of the three children of the parties and the solution of this problem primarily requires consideration of the welfare of the children.

The appellant, Rosy Chakram.akkal (described her~ as wife) was married to respondent Jacob A. Chakramakkal (described herein as husband) sometime in 1952.

Three children were born from this wedlock. Ajit alias Andrews,, son, was born in 1955, Maya alias Mary was born in 1957 and Maheshalias Thomas was born in 1961. Sometime in 1962 thel wife started proceedings for judicial separation (O.M.S. 12 of 1962) on the ground that the husband had inflicted upon her several acts of physical, mental and moral cruelty and obtained a decree on April 15, 19~.

Sadasivam J., while granting the decree directed that Ajit alias Andrews. (son) the eldest child should be kept in the custody of the husband and Mary alias Maya (daughter) and Thomas alias Mahesh (youngest son) should be kept in the custody of

the wife. The husband was directed to pay to the wife Rs. 200/- per mensem towards the expenses and maintenance of the wife and the two children. The wife applied to Sadasivam J., sometime later for a direction that Ajit alias Andrews should also be handed over to her or in the alternative for a direction that the boy should be admitted in a boarding school. In this application (no. 2076 of

1964) it was alleged by the wife that the husband hud beaten Ajit on the ground that he had accepted from his mother (the wife) a fountain pen as a present. This was denied bly the husband but the learned Judge, after elabrote enquiry, held that he had no doubt that the husband had caused injuries to the boy on

account of his sudden out burst of temper on learning that Ajit had received a fountain pen by way of present from his mother on his birth day.

Aj~ was accordingly to be handed over to the mother subjected to certain conditions.

The husband preferred an appeal against the decree made in O.M.S. 12 of 1962 (O.S.A. 65 of 1964) and another appeal againstthe order made by Sadasivam J., (in application no, 2076 of 1964 in O.M.S. 12 of 1962) directing the custody of the eldest son Ajit to be handed over to the wife (0.S.A. 63 of 1964).

On August 2, 1966 the appellate blench confirmed the decree for judicial separation granted by Sadasivam J., and also issued cer, tain directions based on agreement of the parties with respect to the custody of !he children, as also reduction of the monthly maintenance payable by the husband to the wife from Rs. 200/- to Rs. 150/- p.m., inclusive of maintenance payable for Mahesh.

According to this order the eldest boy Ajit alias Andrews directed to remain in the custody of the father and to be educated by him at his expense : Mahesh alias Thomas was directed to be in the custody of the mother to be educated at her expense: and the second child Maya alias Mary was directed to be put in a boarding school, the expenses of her t1oard and education to be met in equal shares by both the parents. The husband also undertook that 'he will arrange to have the presence of his mother or sister at his residence to attend to the children whenever they are with him and never to leave the chilren alone at his residenee or to the care of his servants or others". Later both the husband and wife presented a series of applications in !he appellate court seeking modifications of its directions.

That court ultimately made an order on February 2. 1967 modifying its earlier directions.

The modified order directed Maya to be left in the exclusive custody of !he wifo who was al liberaty to educate her in the manner she thought best at her own cost. The appellate court also modified the direction regarding maintenance and ordered that the husband should pay to tlie wife maintenance at !he rate of Rs. 200 /- p.m. as awarded by the learned single judge.

Subsequently the directions of the appellate court regarding access of the mother and the fatlter to the children were also sought by !he parties to be modified to the prejudice of each other.

The matters are stated to have been heard by most of the Judges of the Madras High Court at one stage or !he other and according to Maharajan J., the parties even tfied to secure transfer o; f these proceedings by making wild allegations of partiality against some of the Judges.

The husband who is an advocate of the Madras High Court, had, according to the wife, been filin~ cases systematically against her and the wife. who, in the opinion of Maharajan J., has the gift of the gab also argued her own cases.

The children for whose

weliare the parents are supposed to have been fighting as observed

by Maharajan J., are given a secondary consideration and the quarrelling couple have lost all sense of proportion. On account of these considerations the learned single Judge felt that it would be a waste of public time to consider in detail the trivialities of the controversy pressed by both the parties to this litigation. According to the learned single Judge the following four points arose for his judicial determination'.

"(l) Whether by defaulting to pay the maintenance decreed, the husband must be held guilty of contempt and shall not be allowed to prosecute his applications before. he purges himself of contempt?

(2) What is the proper order to pass as regards the custody of the three children of the marriage in the light of the events that have occurred subsequent to the judgement of the appellate court and under the Guardians and Wards Act ?

(3) What is the proper order to pass as to the access of either parent to the children in the custody of the other?

( 4) Whether in the light of the subsequent events, the order regarding maintenance allowance should be reduced, enhanced or altered in any manner and if so, how?' On the first point the learned single Judge came to the conclusion that the husband could not be declined hearing merely because he had not paid the maintimance as directed by the matrimonial court. The amount yi respect of which the husband had defaulted payment could be recovered through execution proceedings. On point no. 2 the learned single Judge proceeded to F consider the question of the cutody ol the three children with the preliminary observation that the controlli.ng factor governing their custody would t!e their welfare and not the riehts of their parell\s. The eldest child Ajit alias Andrews, according to the learned Judge, was doing well at the school and was progressing

satisfactorily both metally and physically. There was accordingly G no reason to transfer his custody from his father to his mother.

As regards the second child Maya alias Mary, as she was about to attain puberty and the wife being anxious that till she got married she must be in the monther's vigila'lt and affectionate custody she was to remain with her mother. Mahesh alias Thomas, who was considered to be of tender years and in the formative H stage ol life requiring sense Of emotional security which a mo'her alone could give, was also kept in the custody of his mother. With resnect to Maya and Mahesh it was further observed that from their educational point of view the wife was a more suitable l 1-L797Sup.CI/73

custodian than the husband because she was running a primary school from nursery to fifth standard with more than a hundred pupils and was also residing in a portion of the school premises enjoying certain facilities in her capacity as the founder and principal of that school.

The husband, who was described as a grass widower without fomale relatives to look after the children, was not preferred to the wife as, while being with her, the children would bl.) living in an academic atmosphere. With respect to the husband's complaint that from the moral point of viw the wife was not fit to have the custody of the children, Maharajan J., observed that earlier Sadasivam J., had dealt with the entire evidence relating to <this charge and had found no sufficient ground for such imputations and that they were likely to cause mental pain to the wife and affect her health.

The husband had even been held guilty of mental and moral cruelty to the wife.

The husband's contention that his opinion was reversed by the appellate bench was disposed of by Maharajan J., after quoting the followinl( passage from the appellate judgment dated August 2, 1966 :

"But it is to be clearly understood that there should be no slur on the part of either the appellant or the respondent because of the several proceedings in court and other happenings outside. The decree or judicial separation which is confirmed does not cast any cloud on the reputation or character of the husb!and or the wife. They have reached this settlement keeping in view all the circumstances and particularly the welfare of their minor children." According to Maharajan 3., the appellate bench had felt satisfied that the charge of immorality levelled by the husband against the wife was not established because had it not been so satisfied the bench would not have entrusted two of the three children to the wife.

The husband was in the circumstances held by Maharaian J.. disentitled to reopen the question of the wife's immorality. In any event, Maharajan J., also rejeoted the charge of immorality as unproved, for the same reasons which had weighed with Sadasivam J. With respect to point no. 3 the learned single Judge gave the rollowi.ng directions :

"( 1) On the first Sunday of every month, exceot during the school vacations, the husband shall send Ajit

alias Andrews to the wife bv 8.00 a.m. and the wife shall send back the child by 8. p.m. the same day.

(2) The wife shall send Mava alias Mary and Thomas alias Mahesh to the husband's bv 8 a.m. on the last Sunday of every month, except during the school vacations, and the husband shall send them back by 8 p.m. the same day.

( 3) Each party shall send the children by a conveyance taxi, rickshaw or "f?us, after prepaying the fare thereof. ·

( 4) The wife shall send Mary alias Maya and Thomas alias Mahesh to the husband, so hat they might stay with him and Ajit alias Andrews for thirty days during the summer vacation. The exact time and dates of departure .and arrival will be fixed with reference to the convenience or parties and after change of letters between them at least one months prior to the commencement of the vacation. Likewise, the husband will send Ajit to the wife to enabile him to spend the whole Dasara and Christamas vacations in the company of his mother, sister and brother."

On the fourth point the learned single Judge, fater considering . at length the wife's allegations against the husband with rAp.:ct

to his extravagance and inability, reduced the quantum of maintenance pa¥able by him to the wife to.Rs. 100/- p.m., the reduced amount being payablle with effect from January 1, 1971. The husband was directed to pay the monthly maintenance on or before . the 10th of the succeeding month. This order was made with the observation that the earning. capacity of the wife was superior to that of the husband.

It is unnecessary to refer to the formal orders separately passed in the various applications .. Suffice it to say that the parties were left to bear to their own costs and hope was expressed in the concluding para of the judgment by Maharajan, J. that "the parties will refrain from rushing to this court with applications of the kind that have b!een dismissed and will apply themselves as, iduously to the improvement of their status in <their respective professfons and to alleviation of the pain of material failure, which ha' unfortunately been visited upon the three lovely and sprightly children 1hat they have produced." ·

Contrary to the hope expressed by learned Judge, the matter wa5 taken to the appellate bench of the High Court under cl• 15 ol

the Letters Patent (0.S. Appeal Nos. 2 and 3 ofAi"). The wife also pressented cross-objections against the reduction of alimony and against directions as regards the father's access of Maya.

A large number of applications were presented to the Court parties praying for diverse reliefs including action for contempt of court for disobedience of the court's orders. The hearing of the appeals somewhat surprisingly lasted for more than a year (March 1971 to March 1972). We find no justification for such prolonged hearing on a fairly simple matter like this. According to the Letters Patent Bench the arguments on boh sides. "mainly

rested upon the character of each". The husband is said to have repeatedly accused the wife with immorality. ln the opinion of the Letters Pantent Bep.ch ''the truth or otherwise of the matter may assume importance only for the purpose of deciding upon the fitness of the person to be the guardian of the children". Final orders were passed on April 26, 1972 by means of which the husband was held to be bellter fitted to be the guardian of the three children and to have their custody. This decision was stated to be based on evidence and in view of ss.17, 19 and 25 of the Guardians and Wards Act.

This is what one of the Judges constituting the Letters Patent Bench ( Gokul Krishnan, J ., ) said in this connection :

"In our opinion, the principles to be applied to cases of this kind will be the same both under the Indian Divorce Act and the Guardians and Wards Act, 1890.

But since the father has specifically filed a petition, O.P.

No. 270 of 1970, under section 25 of the Guardians and Wards Act, and that being a special law for the purpose will certainly apply, we shall concentrate on the Guardians and Warc!S Act, 1890".

After quoting s. 19 of the Guardians and Wards Act the learned Judge proceeded :

"It is thus clear that the special enactment difinitely states that the father is the guardian of the minor until he is found unfit to be the guardian of the person of the minor.

The welfare of the minor is the paramount consideration in the matter of apointing guardian for the person of minor, and cannot be said to be in conflict with the terms of section 19 of the Guardians and Wards Act which recognize the father as the guardian. Bearing this in mind, we proceed to consider as to who is fit and proper to be the guardian for the person of the minor children in this case." In his view the principle on which the Court should decide the fitness of the guardian mainly depends on two factors : ( i) the father's fitness or otherwise to be the guardian and (ii) the interests of the minors. Considering these 'factors it was felt that both the parties in the present case loved their children . who were happy during their stay with both of their parents.

There was in his view, absolutely no proof as regards disqualificatioo of. the husband to be the guardian of the minor children. It may here be pointed out that both the Judges constituting the Letters Patent Bench wrote separate judgments.

Gokulakrishnan J., commenting on the Judgment of Maharajan J., observed thus :

"Maharajan J. in his judgment under appeal no doubt referred to section 19 of the Guardians and Wards Act, but would observe that if the Court finds that the

welfare of -the minor children could be protected only in the maternal custody, the Court has power to put the children in the care oJ' custody of the mo!her. The learned Judge clearly observed that Ajit, the eldest boy, who is in the custody of the appellant, is quite healthy' and cheerful, doing well at school and that his sojourn with the father has not prejudicially affected him physically or mentally. But at the same breath, the learned Judge says that Maya and Mahesh 'are of tender years and in the formative stage of their life and need a sense of emotional security, which a mother alone can give.' In the case of Maya and Mahesh, the learned Judge has applied a different standard in regard to ilieir custody.

Considering the present age of l:/oth Maya a'ld Mahesh and taking into consideration lhe upbringing of Ajit by the appellant having him in his custody, we are of the view that the same amount of sense of emotional security can be enjoyed by Maya and Mahesh at the hands of 1he appellant also.

The learned Judge's reasoning that the mother is running a school and has also facilities to make 1hese two children live in the academic atmosphere rather than with their father, cannot have any.force in view of the clear and categorical principles laid down in the various decisions noticed

(supra) and also in view of the clear intendment and spirit of the Guardians and Wards Act, which prescribes that father is the guardian of his minor child unless otherwise found unfit.

The academic qualificatioin of the mother, her financial status and the o1her standards cannot at all wiegh in the matter when lhe appellant has not been rejected as a person unfit to be the guardian of the minors. If they should weigh, the poorer and affectionate father with moderate capacity to protect his children will be deprived of the custody of the minor children on the flimsy ground of 'welfare of the minor children'. That is how and why lthe welfare of the minor children' must be read with 'fitness or unfitness of the father to be guardian of ihe minors.

Once it is found that the father is the fit and proper person to be 1he guardian of his minor children, unless it is otherwise found that he is not fit, it must be presumed that the children's interests will be properly protected by the father. As far as the present case is concerned, when the trial court itself has found that Aiit has been properly looked after and brought uo very well in his academic career by the appellant. there cannot bre any difficulty in coming to the conclusion that Maya and

Mahesh will also be looked after and protected and imparted with proper educirtion by the affectionate father, the appellant."

After reproducing certain observations from the judgment> of (i) Sadasivam J., dated April 15, 1964, (ii) Veeraswamy L

(<1s he then was) and Krishnaswami Reddy J., dated Februarv 12. 1967 in C.M.P. 415 in O.S.A. nos. 63 & 65 of 1969, Rarnamurt1 .I., dated April 24, 1968 in application nos. 769 and 770 of 1968 in O.M.S. 12 of 1962 and after referring rto the view of Maharajan J., that Ajit when produced in Court was found quite healthy and cheerful and was doing well at school, Venkataraman J. in his concurring judgment observed thus :-

"Regarding the other children, he gave their custody to the mother, because he thought that they were of tender years and needed emotional security which a mother alone could give.

Here, with respect we must differ from the learned Judge. We find that the .father is quite frt 'to have the custody of the children, and, in law, custody of the minor children cannot be refused to him.

We are also satisfied from what we saw of the appellant arnd heard from him during the several hearings, that he is very deeply attached to his children and is quite competent to have their custody. It will be enough if the mother is allowed a somewhat liberal access to the three children."

With respect to alimony the appellate bench concluded that the wife was mnaging her school verv successfui'y; she had purchased a mini-bus and also possessed we•t lands in her village.

The husband on the other hand was not getting on well in his profession which he attributed to the present litiation : his house at Adyar was stated to be under mortgage and he had practically sold everything in his native village with the exception o.f one or one-and-half acres of land. In view of the financial position of the wife and the husband and in view of the fact that all the !hree children were to be in the custody of the husband the appellate bench considere~ it unnecessary for the husband to pay any maintenance to the wife.

The payment of the arrears of alimony was also suspended as the apnellate bench c0nsidered itself empowered to do so under the proviso to s. 37 of the Indian Divorce Act.

In so far as access of the wife to the children is concerned a detailed order was passed bv the ench about the right of the wife to take the daughter with her dming the summer and Christmas vacations and also during several days every month, particularly during the periods. We do not consider it necessary to state in full the details of that order. With respect to A.iit and

Mahesh also a detailed order was made fix\ng the precise. days and even time when the wife could bring the children from the father .to stay with her.

In the event of any difficulty in ge,, mg custody of the children from the wife, it was ordered at the instance of the husband that he could take the police help on the strength of the High Court judgment.

We find it extremeldillicult. to appreciate this direction.

Orders from the Court execution would have been more appropriate. Police intervention in su7h

personal domestic differences in tlle present case where prties belong to educated respectable families should have been avoided.

In this Court a preliminary objectiQll to die hearing of the wife's appeal was raised by the husband, who, being an advocate, personally addressed us in opposing these appeals.

Indeed in June, 1972 he had presented Civil Miscellaneous Petitions Nos. 4188 and 4189 of 1972 for revolting special leave and it was these applications which he pressed before us at ihe outset. These lengthy applications covering nearly 50 pages mainly contain arguments on the merits and there is hardly any cogent ground made out justifying revocation of the special Je.ev~ T• ; no doubt open to this Court to revoke special leave when : ; '"' . .; that special leave had been secured by the appellant on deliberate misrepresentation on a mterial point having a bearing on the

question of granting such leave. The extraordinary discretionary power vested in this Court by the Constitution under Act, 136 js

in the nature of a special residuary power exercisable in its judicial discretion outside the purview of ordinary law in cases where the needs of justice demand interference.

Being discre tionary power intended only to promote the cause of justice when there is no other adequate remedy, this Court expects those seeking resort to this reserve of constitutional power for securing justice to be absolutely fair and frank with this Court in correctly stating the relevant facts and circumstances of the case.

In the event of a party making a misrepresentation on a point having a bearing on the question of the exercise of judicial discretion and thereby trving to over-reach this Court the party forfeits the claim to the discretiooary relief : the same is the case when such misrepresentation is discovered by this Court and brought to i'ts notice after the grant of snecial Jeave and this Court is comnetent and indeed it considers it proper to revoke the special leave thm obtained. But the misrepresentation must be deliberate and on a point havinl( such relevance to the question of special leave that if true facts were known thi< Court would hove in all probabilitv declined special leave.· Applying this test to the pre; ent case we ai:e

unable to find anv such deliberate misrenresentation bv the appellant indicating intention to mislead or over-reach this Court.

The points to which our attention was drawn seem to relate to the merits of the controversies between the parties which would fall for

determination on the hearing of the appeal after considering the arguments pro and con. The preliminary objection thus fails and must be disallowed.

Turning to the merits of these appeals, it may be pointed out :hat with the exception of O.P. No. 270 of 1970 filed by the husband under s. 25 of the Guardians and Wards Act all the other applications presented by the parties and disposed of by Maharajan J., were off-shoots of O.M.S. 12 of 1962 in which the wife had obtained a decree for judicial separation. The first contention raised on behalf of the appellant was that O.P. No. 270 of 1970 did not lie. It was strenuously pressed by Shri Balasubaramania Iyer the

counsel for the appellant wife that the husband's application under s. 25, Guardians and Wards Act was not competent because none of the children had been illegally removed from the lawful custody of their father, the custody of the two children having been lawfully entrusted to the wife in proceedings to which the husl:iand was a party. It was emphasised in this connection that the custody o.f the girl Maya and of the boy Mahesh had been lawfully entrusted to the wife by a competent Court and unless there is actual physical removal of the children from the custody of the father, s. 25 would not be a(tracted.

Now the first .thing to be notified is that this objection as to the competence of the application under s. 25 is in the nature of a preliminary obuectian. But it was nCJI! raised either before the learned single Judge or before the Letters Patent Bench in the manner in whlch it is pressed before us. In this Court also in the special leave appeal the objection seems to be based on the argument that the Guardians and Wards Act would be inapplicable to cases where orders have been made in matrimonial proceedings, and s. 19 of the Guardians and Wards Act cannot control the custody of chlldren given by a consent decree under the Indian Divorce Act.

However, as the objection was stated to pertain to jurisdiction we allowed the parties to address us on this point.

For determining the question of coinpetence of the husband's application under s. 25 of the Guardians and Wards Act (18 of

1890) it is necessary to examine the scheme of that Act as also the relevant provisions of the Indian Divorce Act. The Guardians and Wards Act was enacted in order to consolidate and amend the law relating to Guar<lian and Ward. But as provided by s.3, this Act is not to be construed, inter alia, •to take away any power possessed by any Rich Coutt.

According to s.4, which is the definition section, a "minor" is a person who, under the provisions

of the Indian Maiority Act, 1875 is to be deemed not to have attained his majority.

Under s. 3 of that Act this age is fixed at 18 years, except for those, for whose person or property or both

a guardian has already been appointed by a court of justice (other than a guardian for a suit under Chapter XXXI, C.P .C.) and for whose property, superintendence has been assumed by a Court of Wards, for whom it is fixed at 21 years. A "ward" under this Act means a minor for whose person or property or both there is a guardian and "guardian" is a person having the care of the person of a minor or of his property or both. Chapter II of !his Act ( 18 of 1890), consisting of ss.5 to 19 ( s. 5 applicable to, European British subjects has since been repealed), deals with the Appointment and Declaration of Guardians. Section 7 empowers !he Court to make orders as 10 guardianship where it is satisfied that it is for the welfare of the minor that an order should be made appointing his guardian or declaring a person to be such guardian. Section 7 ( 3) places certain restrictions with respect to cases where guardians have been appointed by will or other instrument or appointed or declared by court.

Section 8 provides for persons entitled to apply under s. 7 : they include

Collectors as specified in els. ( c) and ( d).

Sections 9 to 11 provide for jurisdictioo of courts, form of applications and proce

dure on admission ol" applications.

Section 12 provides for interlocutory orders subject to -certain restrictions. Next importam sections are ss. 17 and 19.

Section 17 which provide& for the matters to be ccinsidered biY the court in appointing or declaring guardioo reads :

"17. Matters to be considered by the Court in appointing guardian.

(1 ) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what consistently with the law to which the minor. is subject, .appears in the circumstances to be for the welfare of the minor.

( 2) In considering what will be the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of the deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

( 3) If the minor is old enough to form an intelligent preference, the Court may consider that preference."

Section 19, which prohibt the Court from appointing guardians in certain cases, reads :

"19. Guardians not to be appointed by the Court in certain cases :

Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or delcare a guardian of the person.

(a) of a minor who is '\ married female and whose husband is not, in the opinion of the Court, unfit to tie

guardian of her person, or

(b) of a minor whose father is living and is not, in the opinion of the Court, 1mfit to be guardian of the person of the minor, or ( c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor."

Chapter III ( ss. 20 to 42) prescribes duties, rights and liabilities of guardians. Sections 20-23 (General provisions) do not concern us. Section 20 provides for the fiduciary relationship of guardian towards his wards and s. 22 provides for remuneration of guardians appointed or declared by the Court.

Sections 24 to 26 deal with "Guardian of the person". Under s. 24 the guardian is bound, inter alia, to look to his ward's support, health and education.

Section 25 which is of importance for our purpose provides for "Title of Guardian to custody of Ward" and reads :

"25. Title of guardian to custody of ward :

(1) 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 his 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.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882. ( 3) The residence o.f a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."

Sections 27 to 37 deal with "Guardian's Property" and Sections 38 to 48 deal with "Termination of Guardianship". Chapter IV ( ss. 43 to 51) is the last chapter dealing with supplementary provisions.

Now it is clear from the language of g, 25 that it is attracted only if a ward leaves or is removed from the custody of a guardian of his person and the Count is empowered to make an order for the return of the ward to his guardian if it is of opinion that it will be for the welfare of the war<l to return to the custody of his guardian.

The Court is entrusted with a .iudicial discretion IO order re-turn of the Ward to the custody of his guardiain, if it forms an opinion that such return is for the ward's welfare. The use of the words "ward" and "guardian" leave little doubt that it is the guardian who, having the care of the person of his ward, has been deprived of the same and is in the capacity of guardian entitled to the custody of such ward, that can seek the assistance of the Court for the return of his ward to his custody. The guardian contemplated by this section includes every kind of guardian known to law.

It is not diuted that, as already noticed, the Court dealing with the proceedings for judicial separation under the Indian Divorce Act, (4 of 1869) had made certain orders with respect to the custody, mai•ntenancc and education of the 'three children of the parties.

Section 41 of the Divorce Act empowers the Court to make interim orders with respect to the minor children and also to make proper provision to that effect in the decree : s. 42 empowers the Court to make similar orders upon application (by petition) even after the decree.

This section expressly embodies the legislative recognition of the , fundamentol rule that !he Court as representing the State is vested with the power as also the duty and responsibility of making

>uitable orders for the custody, maintenance and education of the minor children to suit the changed conditions and circumstances.

It is, however, noteworthy that under Indian Divorce Act the sons of Indian fathers cease to be minors on attaining the age of 16 years and !heir daughters cease to be minors on attaining the age of 13 years: s. 3(5). The Court under the Divorce Act would thus be incompetent now to make any order under ss. 41 and 42 with respect to the elder son and the

dauhter in the present case.

According to the respondenthusband under these circumstances he cannot approach the Court under the Divorce Act for relief with respect to the custody of these children and now that those children have ceased to be minors under that Act, the orders made by that Court have also lost their vitality On this reasoning the husband claimed the right to invoke s. 25 of the Guardians and Wards Act : in case this section is not applicable, then the huslland contended that his application (0.P. 270 of 1970) hould be treated to be an application under s. 19 of the Guardians and Wards Act or under auy other competent section of that Act so that he could get the custody of his children, denied to him by the wife.

The label on the application, he argued, should be treated as

a matter of mere form and, therefore, immaterial. The appellant's counsel on the other hand contended that the proper procedure for the husband to adopt was to apply under s. 7 of the Guardians and Wards Act. Such an application, if made, would have been tried in accordance with the provisions of that Act. The counsel added that ss. 7 and I 7 of that Act also postulate welfare of the minor in the circumstainces of the case, as the basic and primary consideration for the Court to keep in view when appointing or declaring a guardian.

The welfare of the minors in the present case, according to the wile, would be best served if they remain in her custody.

In our opinion, s; 25 of the Guardians and Wards Act corrtemplates not only actual physical custody but also constructive custody of the guardian which term includes all categories or guardians. The ob/iect and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward's health, maintenance and education, this section demands reasonably liberal i!fterpretation so as to effectuate that object.

Hyper-technicalities should not be allowed to deprive the guardian lhe necessari assistance from the Court in effectivtily discharging his duties and obligations towards his ward so as to promote the latter's welfare. If the Court under the Divorce Act ca, nnot make any order with respect

to the custody of Ajit'alias Andrew and Maya alias Mary and it 'is not open to the Court under tlle Guardians and Wards Act to appoint or declare guardian of the person of his children under s. 19 during his life-time, if the Court does not consider him unfit, then, the only provision to which the father can have resort for his children's custody is s. 25.

Without, therefore, laying down exhaustively the circumstances in which s. 25 can be invoked. in our opinion, on the facts and circumstances of this case the

husband's application under s. 25 was competent with respect to the two elder children.

The Court entitled to consider all the disputed questions of fact or law properly raised before it relating to these two children. With resoect to Mahesh alias Thomas. however, the Court under the Divorce Act is at pre.sent empowered to make suitable orders relating to his custody, maintenance and education.

It is, therefore, somewhat difficult to impute to the legislature an intention to set up another parallel Court to deal with the question of the custody of a minor which is within the power of a competent Court under the Divorce Act.

We are unable to accede to the respondent's suggestion that his application should be considered to have been nreferred for appointing or declaring him as a guardian. But whether the respondent's prayer for custody of the minor children be considered under the Guardians and Wards Act or under the Indian Divorce Act, as observed

by Maharaj an J., with which observation we entirely agree, "the controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents". h was not disputed that under the Indian Divorce Act this is the controlling consideration.

The Court's power under s.25 of the Guardians and Wards Act is also, in our opinion, to be governed primarily by the consideration of the welfare of the minors concerned.

The discretion vested in the Court is, as is the case with all judicial discretions to he exercised judiciously in the background of all the relevant facts and circumstances.

Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldomif ever-identical. The contention that if the husband is not u.nfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too b\roadly may at times be somewhat misleading. It does not take full notice of the real core of the statutory purpose. In our opinion, the dominant consideration in making orders under s.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. There is a presumption that a minor's parents would do their very best to promote their children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children.

From this point of view, in case of conflict or dispute between the mother and the father about the custody of 1heir children, the approach has to be somewhat different from that adopted by the Letters Patent Bench of the High Court in this case.

There is . no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare.

The father's fitne" h•1 to be co~<idered. determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstance;, If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right ¢o. their custody under s.25 merely bau1e there is !llO defect in his personal character and he has attachment for his childrenwhich every normal parent has. These are the only two asoects pressed before us, apart from the stress laid by the husband on the allegations of immorality againsit the wife which, in our firm opinion, he was not at all justified iin contending. Such allegations, it; t view ol' earlier decisions, had to be comnletely ignored in considering the question. of custody of the children in the present case. The father's fitness from the point of view just mentioned

<:annot over-ride considerations of the welfare or the minor children.

No doubt, the father has been presumed by the statute generally to be better fitted to look after the children-being normally the earning member and head of the family-but the Cour, has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a taring on their heahh, maintenance and education. The family is normally !he heart of our society and for a balanced and healthy growth of children it h highly desirable that they get their due share of affection and care from both the parents in their normal parental home. "'Where. however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances.

Merely because the father loves his children and is not shown to be otherwise undersirable cannot necessarily lead to the conclusion that the welfare of the -children would be better promoted by granting their custody to him

as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who in addition because of her profession and financial resources. may be in a position to guarantee better health, education and maintenance for them.

The children arc not mere chattels; nor are they mere play-things for their parents.

Absolute right of parents .over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights

- of their respective parents over them. The approach of the learned single Judge, in our view, was correct and we agree with hin1.

The Letters Patent Bench on appeal seems to us have erred in reversing him on grounds which we are unable to appreciate.

At the bar reference was made to ti number of decided cases on the question of the right ot' father to tie appointed or declared as guardian and to be granted custody of his minor children under s. 25 read with s.19 of the Guardians and Wards Act.

Those decisions were mostly decided on their own peculiar facts. We have, therefore not considered it necessary to deal with them.

To the extent, however, thev go against the view we have taken of s. 25 of the Guardians and Wards Act, they must be held to be wrongly decided.

The respondent's contention that the Court under the Div- -orce Act had granted custody of the two younger children to the

wifo on the ground of their being of tender age, no tonger hold> good and that, therefore, •their custody must be handed over to him appears to us to be misconceived.

The age of the daughter at present is such that she must need the constant company of " grown-up temale in !he house genuinely interested in her welfare.

Her mother is in the circumstnces the best company for her.

The daughter would need her mother's advice and guidance on several matters of importance."' It has not been suggested at the bar that any grown-up woman closely related to Maya alias Mary would be available in the husband's house for such motherly advice and guidance. But this apart, even from the po>nt Di view of her education, in our opinion, her custody mth the wife would be for more beneficial than her custody with rthe husband.

The youngest son would also, in our opinion, be much better looked after by his mother than by his father who will have to work hard to take a mark in his profession.

He has quite clearly neglected !tis profession and we )lave no doubt that if he devotes himself whole-heartedly to it he is sure to find his place fairly high up in the legal profession.

The appellant's argument based on cstoppel and on the orders made by the court under the Indian Divorce Act with respect to the custody of the children did not appeal to us.

All orders relating to the custody of the minor wards from their very nature must be considered to. be temporary orders made in the existing circumstances.

With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the walfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel based on consent decrees; cited at the bar. Orders relating to custody oi. wards even when

based on consent are liable to be varied by the Court, if the welfare of the wards demands variation.

We accordingly allow the appeal with respect to the custody of the two younger children and setting aside the judgment of the Letters Patnet Bench in this respect, restore that of the learned single Judge who, in our view, had correctly exercised his discretion under s. 25 of the Guardians and Wards Act The directions given by him with respect to access of the parties to their children are also restored.

As regards alimony, no doubt, the Letters Patent Bench was. in. our opinion, not quite right in withholding payment of the alimony already fallen due and in arrears. But in view of the fact that the financial position of the wife is far superior to that of the husband who according to his own submission. has yet to establish himself in his profession, we do not consider it just and proper to

interfere with that order under Art. 136 of the Constitution.

With respect to the alimony, t!J&refore, the appeal falls and is dismissed. We also direct that the parties should bear their own costs throughout.

Befure concluding we must also express our earnest hope, as was done by the learned single Judge, that the two spouses would at least for the sake of happiness of their own off-spring if for no other reason, forget the past and tum a new leaf in their family life, so that they can provide to their children a happy, domestic home, to which their children must be considere'd io be justly entilted.

The requirement of"indispensable tolerance and mental understanding in matrimonial life is its basic foundation.

The two spouses before us who are both educated and cultured and who come from highly respectable families must realise that reasonable wear and tear and nomal jars and shocks of ordinary married life has to be put up with in the larger interests of their own hapiness and of the healthy, normal growth and development of their offspring, .whom destiny has entrusted to their joint parental care.

Incompatibility of tamprament has to be endeavoured to be disciplined into compatibility and not to be magnified by abnormal impluses or impulsive desires and passions. The husband is not disentitled to a house and a housewife, even though the wife has achieved the status of an economically emancipated woman; similarly the wife is not a domestic slave, but a responsible partner in discharging their jointparental obliira•ion in promoting the welfare of their children and in sharing the pleasure of their children's company. :Soth parents have, therefore, to cooperate and work harmoniously for their children who should feel proud of their parents and of their home, bearing in mind that their children have a right to expect from their parents such a home.

S.B.W.

Appeal allowed in part.