IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 150 of 2006()
1. KANHEERI VENUGOPALAN, AGED 41 YEARS,
... Petitioner
Vs
1. K.V. BEENA,
... Respondent
For Petitioner :SRI.S.V.BALAKRISHNA IYER
For Respondent :SRI.K.RAMACHANDRAN
The Hon'ble MR. Justice M.RAMACHANDRAN
The Hon'ble MR. Justice K.T.SANKARAN
Dated :08/11/2006
O R D E R
M.RAMACHANDRAN & K.T.SANKARAN, JJ
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M.F.A.( G & W) No.150 of 2006
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Dated this the 8th day of November, 2006
JUDGMENT
Ramachandran, J:
K.Venugopalan, appellant herein, had married
respondent K.V.Beena, on 30-12-1993. A daughter,
Raveena, was born to them on 02-07-1996. For the last
about five years, Raveena was residing along with her
father, as the couple had separated a few years back.
The mother craved for the company of her daughter, and
had moved the Family Court for custody of the minor
daughter. Order passed by the Family Court,
Malappuram dated 13.07.2006 in O.P.(G & W).No.45 of
2006 directs that the father of minor Raveena should
handover custody of the child to the mother, respondent
herein. Visitorial right, however, had been reserved in
favour of the father so that he can see the child and
spend time with her for two hours on every alternate
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Sundays. The appeal has been filed by the father feeling
aggrieved about the orders so passed.
2. We had heard Sri.S.V.Balakrishna Iyer, who
appeared on behalf of the appellant and had also occasion
to hear Sri.K.Ramachandran, appearing for the
respondent.
3. The parties are Hindus and they reside in their
respective houses, not far apart, and though not too
closeby. The appellant was running a Driving School
initially. After the marriage, he had secured employment
as an Executive Officer in the Commissionerate of Hindu
Religious and Charitable Endowments. The
respondent/wife had also secured employment as a
teacher. Their family life became tumultuous thereafter.
4. Application had been filed by the wife for
custody of the child, as she contended that situated as she
was it would have been more secure and congenial for the
daughter to grow up under her care than that of the father.
She had a further case that the husband could not have
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been acceptable as a guardian or guide, because of
deficiency in his personality and outlook. The very reason
for their separation, according to her, was that he had
developed affinity with another woman. The husband was
continuing the relations with his new acquaintance and
had also fathered two children, respectively during April,
2002 and August, 2003. She felt that time was therefore
ripe for the daughter to get herself separated from such
debilitating atmosphere. The daughter is about 10 years
old and her continued residence with the father would
adversely affect her welfare. It was claimed that when the
child had her unencumbered mother capable of looking
after her, including her physiological as well as
psychological needs, custody of the child required to be
entrusted with the mother.
5. After a detailed examination of the attendant
facts, the Family Court had held that although the father
was natural guardian and it was also a case where he was
prepared to take all responsibility in respect of the
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daughter, the circumstances pointed out for a positive
preference in favour of the claims put up by the wife. The
Court had held that the mother, who is educated and
anxious about the prospects and future of her girl child,
was preferable to a father as guardian. The extra marital
relationship also was a factor and he had already two small
kids in such relations, which also was relevant, it was
observed.
6. Mr.Balakrishna Iyer refers to the legal
provisions, which govern the subject. According to him,
under the Guardians and wards Act 1890, where the Court
is satisfied that it is for the welfare of a minor, it may
appoint a guardian of his person or property or both. He
refers to Section 17 of the said Act and urges that while
appointing or declaring the guardian of a minor, the Court
is to be guided by what is in consistency with the law to
which the minor is subjected to. If the minor is old
enough to form an intelligent preference, the Court may
consider that preference as well.
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7. He had also invited our attention to the Hindu
Minority and Guardianship Act, 1956. A “guardian” means
an individual having the care of the person of a minor or of
his property or of both his person and property, and
includes a natural guardian. He asserts that in
unambiguous terms, under section 6, it is declared that a
natural guardian of a Hindu minor, in the case of a boy or
an unmarried girl, is the father. The said person should
act as custodian also. The only exception is that the
custody of a minor who has not completed the age of five
years can be with the mother. That is not the case here.
Of course, he also refers to section 13 of the said Act,
where the statute provides that welfare of a minor always
is to be the paramount consideration, in the matter of
appointment or declaration of a person as guardian by a
Court.
8. Discussions of the Family Court, according to
him, before it reached a conclusion that the appellant was
unfit to be recognised as a guardian, are haphazard and
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the Court had omitted to note the correct perspective,
suggested by the statute. He was educated, was residing
along with his mother, and under his care and tutelage the
minor girl was distinguishing herself as one of the topmost
students of the class. She had no complaints about the
present arrangements, which were prevailing for over five
years. Such living conditions gave her adequate time to
reach the school nearby, and there was nothing pointed
out, at the instance of the wife, to upset the situation.
Now the situation is about to be upset. He has a further
complaint that the Family Court had adverted to
extraneous considerations without factual basis. He was
an employee of a statutory authority, financially sound, and
the allegations were insufficient to establish that he was
not to be recognised as a guardian of his daughter.
Mr.Iyer submits that it was not a case where it was held
that he was unfit. Therefore, the issue of competing or
superior claims had no relevance. Security and safety
provided by the father has no substitute, he points out.
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Court was not justified in passing orders, whereby the
minor child was required to be uprooted and there is
possibility of her wilting, by removing her from her kins,
surroundings and company of friends. Mr.Iyer also
pointed out that by an interlocutory order dated 21-
08-2006, a sharing arrangement had been prescribed and
this would have satisfactorily met the situation as it could
have avoided a change of school and change of
environment.
9. Learned counsel also had relied on a decision
reported as Bakthavatsalam v. Srinivasan [2000 (1) KLT
SN 52 – Case No.58]. A Hindu father, the Madras High
Court held, was the natural guardian of the children and
has prima facie the paramount rights to the custody of the
minor, and unless he is unfit for the job, the arrangements
are not to be disturbed. Court was examining a situation
where the father had remarried, but it had been held that
it never operated as a valid ground for disqualifying him
from being guardian of a minor child of the first marriage.
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10. The counsel had also adverted to the decision in
Chakki v. Ayyappan [1988 (1) K.L.T.556]. Reliance was
placed on paragraph 22 of the judgment, which may be
extracted herein below:
“The two conflicting principles as
we have mentioned above have
necessarily to be reconciled. The
legal right of a natural guardian
and the welfare of the minor child
have to find equal accommodation in
any order which the Court devices in
applications under Ss.6 and 13 of
the Hindu Minority and Guardianship
Act. In case of conflict between
the two, the Court has necessarily
to choose the welfare of the minor
as the paramount consideration as is
enjoined by S.13. One of the
relevant considerations in
determining the welfare of the minor
is to compare the credentials of the
father and the mother. Unless there
are outweighing considerations, an
affectionate father with the
necessary means to maintain his
child sans abnormalities in his
character which will make him
otherwise unfit, may have a better
claim for custody by reason of the
provisions contained in S.6 of the
Act. What we suggest is that the
rights of a natural guardian who is
designated as the guardian may be
one of the factors to determine the[MFA (G & W) No.150 of 2006]
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paramount consideration in custody
proceedings.”
Thus unless there were outweighing considerations, an
affectionate father with necessary means was always to be
preferred sans abnormalities in his character.
11. To a very large extent perception of the
deciding Judge do find a place while the issue of custody of
a minor child is adjudicated. Dr.Justice Kochu Thommen,
in Madhavan Nair v. Viswanathan [1977 KLT 479], held
that the father of the child was entitled to custody in
preference to grand-parents. The learned Judge had found
that the father had been remarried after demise of his wife
and had begot a son. He was financially secure and was
absolutely capable of looking after the child. It was noted
that the step-mother had expressed her willingness and
ability to look after the minor child of her husband. These
were positive qualifications to confer on him right of
custody, as the learned Judge observed that child would be
happy and comfortable in their home. On the other hand,
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if the child is left with the maternal grand-parents, he
would not have had the same advantages educationally,
socially or culturally as he might enjoy with his father,
step-mother and step-brother. There was no doubt,
according to the learned Judge, to the position that the
child was thus going to a happy home where there was a
young mother and little baby to play with, and this was the
kind of congenial atmosphere where a child was to grow
up. To deny him this opportunity and leave him with aging
grand-parents would be not only unfair to the child, but
also opposed to the legislative intent of Act 32 of 1956.
Relying on the decision, counsel for the appellant submits
that the father has a position of pre-eminence, and even a
remarriage is not usually frowned upon. According to the
counsel, irrelevant considerations had been adopted for
displacing the appellant from the position of guardian, and
the order required to be set aside.
12. However, Sri.Ramachandran appearing for the
respondent submits that it was a case where the Family
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Court had examined all aspects of the case and had come
to a correct conclusion, that it was in the prime interest of
the child that a new arrangement required to be brought
about. He submits that although the Guardians and Wards
Act as well as the Hindu Minority and Guardianship Act
recognise the father as a natural guardian, sufficient
safeguards have been there in the statute, as could be
gatherable from Section 17 and Section 13 of the two
enactments respectively. The Court was not obliged to
follow the text of the law as relied on by the appellant, but
had adequate discretion taking notice of the peculiarities
of a case for prescribing the course to be followed. The
learned counsel submits that consistently the Court was
following a principle, namely that a natural guardian had
no right in any absolute terms.
13. In this context, the counsel had referred to
decisions reported as Gopalan v. Rajan [1994 (2) KLT
753; Peravakutty v. Velayudhan [1992 (1) KLT 474 =
AIR 1992 Kerala 290]; Merlin Thomas v. C.S.Thomas
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[AIR 2003 (Kerala) 232] and Chandrakala Menon v.
Vipin Menon [1993 (2) SCC 6]. Counsel had also relied
on Kurian C.Jose v. Meena Jose [1992 (1) KLT 818], to
which reference could be made at a later stage.
14. Mr.Justice M.M.Pareed Pillay, in Gopalan’s case
(cited supra), held that merely on the basis that the father
who seeks the custody of his children is their legal
guardian, Court cannot jump to any conclusion that their
welfare would be safe with him. The Court has necessarily
to look into the mental or emotional feelings of the
children, their careful, planned up-bringing and also their
tender age. Though father is the natural guardian of the
minor, on that count alone he cannot have any preferential
claim. Again, while dealing with such a situation, where
custody of the child was involved, Mr.Justice Guttal,
speaking on behalf of the Division Bench, in Peravakutty’s
case (cited supra), prescribed as much as five relevant
parameters, which were to be borne in mind by the Court.
The question of custody of the child was not to be decided
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upon consideration as to which of the two rival claimants is
more affluent. The child does not grow merely on food and
clothing. A barren life, devoid of emotional attachment,
love of parents, brothers and sisters and friends, retards
as well as impairs growth of a child. The expression
“welfare” has an extremely wide connotation and an
approach after evaluating on all factors were to be made.
15. Mr.Justice K.Thankappan, in Merlin Thomas’s
case (cited supra), had occasion to hold that the emotions
of the parents do not have much weight while the issue of
custody is examined. Primarily, it was to be ensured that
children were kept away from scratch, since the children
were like petals of a flower. Especially, if it is a girl child,
the Bench observed that the company of the mother is
more desirable, which will give protection to the child in
developing her personality, intelligence and character. On
these parameters, the Court had directed that the custody
of the child concerned was to be given over to the mother.
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16. We have also for our guidance, recent
observations of the Supreme Court in Chandrakala
Menon’s case (cited supra). The Supreme Court held that
though the father is the natural guardian of the minor
child, the question of custody has to be decided not on the
basis of legal rights of the parties, but on the sole criterion
of interest and welfare of the minor. Consequently,
overruling the objections of the father, the Court held that
“after examining every possible angle in this respect, we
have come to the conclusion that it would be in the interest
and welfare of minor Soumya that she should be permitted
to be in the custody of her mother Chandrakala”.
17. We find that the authorities are unambiguous
when they declare that reliefs have to be modulated,
conforming to factual situations in individual cases.
Mr.Balakrishna Iyer, although refers to section 13(2) of
Act 32 of 1956, points out that there has been no adverse
observations against the father so as to apply the sub-
section in the case at hand. Any how, we would examine
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the issue more closely.
18. The Guardian and Wards Act, 1890 has in its
bosom the principle of the State being the ‘parens patriae’
in respect of the class of persons, who might not be
competent to take care of themselves because of their
tender age. Section 7 of the Act deals with the power of
the Court to make an order as to guardianship. There can
be a guardian of his person, or property or both. Section
17 lays down the parameters to be considered by the Court
in appointing guardian. The law to which the minor is
subject is relevant, and welfare of the child is to be given
paramount importance. The content of the term ‘welfare’
has to be assessed, having regard to the age, sex and
religion of the minor, character and capacity of the
proposed guardian, his nearness of kin and the like.
Section 19 cautions that the Court may not have discretion
to appoint a guardian to a minor, when he has his father
alive, if in the opinion of the Court is not unfit to be the
guardian.
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19. But the position does not stop at this, as far as a
person who is Hindu. Act 32 of 1956 had been introduced
by the Parliament, supplemental to Act 8 of 1890. The
term ‘Hindu’ is to include Buddhist, Jain or Sikh,
Virashaiva, Lingayat etc. Muslims, Christians and
members of Scheduled Tribes are expressly excluded from
its purview. Section 5 of the Act gives it an overriding
effect, and any other law in force immediately before the
commencement of the said Act was to have no effect, in so
far as it is inconsistent with the provisions thereof.
Natural guardian for a Hindu minor is his father, and after
him the mother. But custody of a minor, who has not
completed the age of five, can ordinarily be with the
mother. Section 8 authorises a natural guardian to do all
acts which are necessary or reasonable and proper for the
benefit of the minor.
20. In respect of such proceedings, monitoring by
the Court is as provided by Section 13. For the welfare of
the minor, wide powers are given to the Courts. In fact,
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Section 13 reads as following:
“13. Welfare of minor to be
paramount consideration (1) In the
appointment or declaration of any
person as guardian of a Hindu minor by
a Court, the welfare of the minor
shall be the paramount consideration.
(2) No person shall be entitled
to the guardianship by virtue of the
provisions of this Act or of any law
relating to guardianship in marriage
among Hindus, if the Court is of
opinion that his or her guardianship
will not be for the welfare of the
minor”
21. As pointed out in Madhava Panicker v.
Santhamma [1977 KLT 816), the age of the child is one of
the most important aspect to be looked into. The Court
held that:
“Shobhana is now 11 years old.
At this age it will be cruel to
separate a child from her mother and
this is especially so in the case of a
daughter. The daughter needs the
constant company of her mother who
alone can advise her and guide her on
matters of utmost personal importance
to her.”
22. Raveena here is aged about 10 and is situated
like Shobhana, referred to in the decision cited above.
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Very shortly she might be in need of a close, personal
guidance, including monitoring of her physiological
changes. A mother’s constant presence can instil in a
minor’s mind qualities of fidelity in life, and faith in the
institution of marriage as well as solemn relations,
essential for community life. In areas where lessons are
to be imparted, for example in hygiene, grooming,
selection of companions and the like, a father will be a
poor substitute. An educated mother, who has made
express offer, as could be seen from the order of the
Family Court, for attending to her educational needs,
according to us, is a more suitable person to be entrusted
with custody, if not guardianship. In view of Section 13 of
the Hindu Minority and Guardianship Act, it is not
necessary for us to cast aspersions on the father at all.
23. Although Sri.Ramachandran very forcibly
invited our attention to a Division Bench judgment in
Kurian C.Jose v. Meena Jose [1992 (1) KLT 818], we feel
it will be more appropriate to bypass the judgment, as far
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as this case is concerned. The decision predominantly
relied on a circumstance that paramount consideration is
the welfare of the minor and when the father there was
living with his concubine, and that too the younger sister
of the mother, Court held that this was a conduct which
disentitles the father to act as guardian of the minor child.
We feel that even without disqualifying the father or
making aspersions against him in the discretion of the
Court, of course after evaluating the relevant factors, an
adjudicator may be entitled to nominate a person as the
guardian or provide for an arrangement, where the minor
is put in the custody of a guardian, after naming a person,
who according to the Court, would be an ideal person to be
reposed with such responsibility.
24. As referred to earlier, Act 8 of 1890 gives an
indication as to what is meant by the expression ‘welfare’.
Age is a factor. Definitely the age and gender of Raveena,
who has attained adolescence is a factor which requires
the Court to opt her mother, contextually for acting as a
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governess. A Nair girl is presumed to be observing
Marumakkathayam, and the reference to religion as a
guiding factor also favours such a decision. There is no
aspersions as of now at least, as against the mother.
Viewed from these angles, custody of father here, will not
be conducive for the welfare of the minor, and we feel he
has to reconcile to the position, till such time Raveena is
capable of taking a decision by herself.
25. Proximity or otherwise of a school and the like,
we feel are not to be unduly emphasised, as we are
expected to have a more holistic vision. As referred to
earlier, the two enactments cover the entire population of
India, and Act 32 of 1956 might be applicable to more than
75% of the people of this country. They have different life
style, dialects, customs and ceremonies, and always the
anxiety of the parents could be that children should be
protected from exploitation and possible ill-treatment.
While interpreting the provisions, we have to caution
ourselves to be doubly careful to ensure that the legislative
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intent is not watered down. We have to note that the law
governs the rich as well as the poor, a city dweller or a
villager, a caste Hindu, and a person who is not so
fortunate. The guiding principles of course cannot be
strait-jacketted, but should be tailor-made so that the child
is to be brought within a protective shield. On these
premises, if the welfare of the minor Raveena is to be the
paramount objective, we are sure, that custody of the child
has to be given in favour of the mother.
26. Resultantly, we find nothing improper in the
orders passed by the Family Court. The appeal is
therefore dismissed. The interim orders will stand
vacated. We notice that the petition before the Family
Court confined to a prayer for custody of the child. The
relief was granted. The acceptable position is that father
continues to be the legal guardian of the child. But, in
order to avoid further complications or embitterments, we
declare that exercising the right of custody, the mother
will have the privilege of submitting applications before
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concerned authorities in the matter of admission, or
release of her ward, as may be appropriate, especially in
the matter of education of the child. She will also be
entitled to exercise her discretion in any ancillary or
subsidiary matters, without seeking consent or ratification
of the appellant herein, but the details are to be furnished
to him to keep him informed of the developments. We
make no order as to costs.
(M.RAMACHANDRAN)
JUDGE
(K.T.SANKARAN)
JUDGE
mks/