ORDER
Lakshmanan, J.
1. The petitioner in this petition is the mother of the two minors, viz., 1. Merlin Diana and 2. Maria Roshan and the wife of the respondent, Babu Royan. She filed this petition under Sections 7 to 10 and 25 of the Guardians and Wards Act for appointing herself as guardian of the two minors aged about 5 years and 3 years respectively and direct entrustment of the custody of the two minors to her from the respondent.
2. It is an admitted fact that the petitioner is employed as Administrative Manager, Iggi Resorts International Private Limited, Century Plaza, Mount Road, Madras-18 and the respondent who was employed as Manager in Sakthi Finance, Shastri Nagar, Madras-20 is now working in the said company at their Coimbatore branch on transfer. He is working in the said company for the last few months.
3. The marriage of the petitioner and the respondent took place on 23.1.1984 at Coimbatore and they are governed by the Special Marriage Act, being Christians. The two children abovenamed were born on 17.8.1985 and 18.1.1988 respectively. They were residing ordinarily with their parents till recently at No. 43, K.M.N. Street, Mandavellipakkam, Madras-28. A dispute has arisen between parties and now the present petition is filed as stated above for appointing the petitioner as the guardian and for entrustment of the two children. It is the case of the petitioner that the children are too young, being tender age and the before they should be only in the custody of their mother and that the paramount welfare of the children demand that their custody should only be with the petitioner. The petitioner is getting a monthly income of Rs. 3,000 by way of salary and hence she would be able to maintain the children properly and that she is the fit and proper person to be appointed as guardian of the children.
According to the petitioner, the respondent drove her out of the house forcibly and taken her to Palani and forcibly obtained her signature on a typed stamped paper without disclosing the contents. The petitioner also issued notice to the respondent in the first week of April, 1991 through her counsel. In the said notice, the counsel has stated thus:
My client states that whatever be the differences that you may have with her, you cannot ignore the paramount welfare of the children My client, the before requests you to be gracious enough to allow the children to be with her. My client is fully aware that her children need also the father. You are always at liberty to have the access for the children all through the day. My client states that in due course of time, you will certainly realise that you have done greater harm to your children than to her by your unwanted acts. My client states that you should independently bestow your thoughts, on the welfare of your children, keep their interest as paramount consideration and arrange to sort out your difference with her. My client is ready and willing to meet you at any common place for discussion. My client states that if matters are allowed to drift further, it will only lead to unnecessary litigation which will not be beneficial to any of you. My client should not be driven to the necessity of moving the Court for custody of her children or have access. My client has been informed which she hopes to be false that you intend leaving Madras with the children just to prevent her from having access or custody of the children. It is needless to state that it will be against the interest and welfare of the children. The school in which the first child is studying in Rosary Matriculation School, one of the foremost in the State of Tamil Nadu. My client is of the view that the children should have education at Madras.
According to the petitioner, the respondent had forcibly removed the children from Madras and taken them to Coimbatore, inspite of the notice given by the petitioner. According to the petitioner, the respondent is not the fit and proper person to bring up the children and that the petitioner has got sufficient means to maintain herself as well as to look after the children in good comfort and to given them healthy good life and a good education. It is also stated by the petitioner that she has rented out a house close to Rosary Matriculation School for the advantage of her first daughter Merlyn Diana and that since the minors are in their tender age, they should not be separated from their mother and that no other person would be considered as a substitute for mother. The respondent, as a father can have access to the children at any time. This is the petitioner’s case.
4. This petition was resisted by the respondent. It is stated in the counter statement, dated 19th June, 1991 filed in the main petition that the petitioner had forfeited her right to be the guardian of the children and for their custody and that the petitioner had abandoned her children for the sake of cheap pleasure of living in adultery with one Mr. Ignatius, who is none other than the respondent’s brother-in-law and that the petitioner has been living in adultery since end of March, 1991 and that the before, she is unfit to be given the onerous job of guardianship. The respondent has denied the other averments made in the original petition. According to the respondent, the petitioner alone took a decision to abandon her marital home, husband and children for the sake of her immoral life. In regard to the contention of the petitioner about the signing of the muchalica, the respondent has stated that the petitioner has voluntarily executed a Panchayat Muchalica, admitting her adulterous life with Mr. Ignatius and agreed that the custody of the minor children should be with the respondent. The respondent has also denied that the transfer to Coimbatore from Madras was sought to prevent the petitioner from seeing the children. Both the children have been admitted in School in Coimbatore. It is also denied that the petitioner is attached to the minor children or that she has been looking to the welfare of the children. On the contrary, the petitioner has been harsh and ill-treated them and she rarely looked after them. The petitioner who has abandoned her matrimonial home and leading an immoral life should not be allowed to go anywhere near the children and hence, the petitioner is not entitled to the custody of the children.
5. The respondent has filed a petition, I.D.O.P. No. 123 of 1991 on 5.6.1991 before the District Judge, Coimbatore for dissolution of marriage between the petitioner and the respondent and the same is pending.
6. No oral or documentary evidence was let in by both parties. Learned Counsel for both sides argued the matter on the basis of the pleadings raised by them in their respective petition and counter statement.
7. The only point that arises for consideration in this case is whether the petitioner/mother of the children is entitled to be appointed as guardian of the two children and for entrustment of their custody from the respondent. I have heard Mr. R. Sundararajan, learned Counsel appearing for the petitioner and Mr. R. Alagarsamy learned Counsel appearing for the respondent. Before dealing with the main case, it is also to be noticed that the petitioner/mother was permitted to see her children at the residence of the respondent by prior intimation and she was also permitted to spend sometime with them on Saturdays and Sundays, wherever the children are available in the custody of the respondent. This order was passed by this Court on 30.4.1991 in Application No. 2688 of 1991. It is represented by Mr. Sundararajan that though permission was granted by this Court to the petitioner/mother to see the children, the mother was unable to see them since she was not able to get the copy of the order passed by this Court in Application No. 2688 of 1991, dated 30.4.1991. Even before the matter was taken up for final hearing, I have suggested a compromise between parties taking into consideration of the paramount welfare and interest of the two minor children and taking into consideration of the young age of the petitioner, who is aged about 29 years and the respondent, who is aged about 34 years. Though many acceptable suggestions were made by this Court, none of them was acceptable to the respondent, who was very adamant in his attitude. The only allegation made by the respondent against the petitioner is that she is living in adultery with one Mr. Ignatius, the brother-in-law of the respondent. It is not the case of the respondent that the petitioner is unfit to have the custody of the children or to be appointed as guardian of the two minor children, taking into consideration of the welfare of the minor children. In fact, as suggested by this Court the petitioner was even ready and willing to resign her job and live with the respondent and her children at Madras, where she has already secured admission for both children in school. It is an admitted fact that the first child was studying in the same Rosary Matriculation School, Santhome, Madras-4. She has also secured admission for the second boy child in’ the said School, which is not denied by the respondent. In fact, as admitted by the respondent, the respondent shifted his place of residence from Madras only in the early May, 1991 and is now living at Door No. 1634, Tiruchy Road, Coimba-tore-18, consequent upon his transfer to Coimbatore. It is stated by the learned Counsel for the respondent that the children have been admitted in a School at Coimbatore.
8. As stated above, this original petition was presented in this Court on 25.4.1991 and admitted by this Court on 29.4.1991 and an interim order permitting the mother to see children was passed by this Court on 30.4.1991 in Application No. 2688 of 1991. At any rate, the respondent had knowledge about the pendency of these proceedings from the letters sent by the learned Counsel for the petitioner, dated 31.5.1991, informing him to appear before this Court on 10.6.1991. When the respondent had knowledge about the pendency of the proceedings in this Court on 31.5.1991 itself, he ought not to have admitted the ‘ children in the School at Coimbatore, without the permission of this Court. As stated at the outset, the first child was studying in Rosary Matriculation School at Madras and the petitioner has also secured admission for the second boy child in the same school. As stated above, the only contention raised by the learned Counsel for the respondent is that the petitioner is leading an immoral life and hence she is not the fit and proper person to be appointed as guardian of the two minor children. I may straightaway reject the said contention since even according to the respondent, the petition, I.D.O.P. No. l23 of 1991 filed by him on 5.6.1991 before the District Judge, Coimbatore for dissolution of the marriage between the petitioner and the respondent on the basis of the said allegation is still pending. It is settled law that mere allegation is not Proof. The respondent will have to establish his case, as alleged in the counter affidavit before the District Court, Coimbatore. Unless and otherwise the said allegation is proved and a decree for divorce is granted on that basis, it is not open to the respondent to allege that the petitioner is not entitled to have the custody of the two minor children. It is also Seen from the records that the above matrimonial original petition was filed before the District Court after the receipt of the letter on 31.5.1991 from the counsel for the petitioner in regard to the pendency of the Original Petition No. 252 of 1991 in this Court. In my opinion, the matrimonial original petition has been filed in the District Court, Coimbatore only after the filing of the present original petition in this Court and as a ruse to prevent the petitioner from having the custody of the two minor children and also to be the guardian of the children. It is also an admitted fact by the respondent in his counter that the two minor children are of tender age. In the counter affidavit filed by the respondent, in application No. 2688 of 1991 in O.P. No. 252 of 1991, the respondent in paragraph 3 has also categorically admitted that the children are of tender and impressionable age. Since the matrimonial original petition is admittedly pending before the District Court, Coimbatore, both parties were not permitted to argue anything on the question of the petitioner’s living in adultery with some third party. As on date, it is only an allegation, yet to be proved and established by the respondent, which will not in my opinion disable the petitioner from being the guardian of the two minor children.
9. Mr. R. Sundararajan, learned Counsel appearing for the petitioner, in support of his contentions cited the following decisions:
Rosy Jacob v. Jacob (1974) 2 M.L.J. ( S.C.) 31 : (1974) 2 S.C.J. 129 : (1973) 1 S.C.C. 840 : A.I.R. 1973 S.C. 2090;
2. Kauser Begam v. M. Asrajj Ati Khan (1991) T.N.L.J 63;
3. Suresh Babu v. Madhu ;
4. Thirty Hoshine Dolikuka v. Hoshiam Shavaksha Dolikuka ;
5. V.V. Narasaiah v. C.P. Raju ;
6. Manju Tiwari v. Rajendra Tiwari ; and
7. Pushpa Singh v. Inderjit Singh 1990 S.C.C. (Supp.) 53.
Per contra, Mr. Alagarsamy, learned Counsel appearing for the respondent has cited the following decisions in support of his contentions:
1. Velan v. Muthu ;
2. Amrik Rai v. Sat Pal ;
3. Snehlata v. Mahendra ;
4. a passage in Halsbury’s Laws or England 4th Edition (para 534 in page 299) and
5. Chakki v. Ayyappan (1988) 2 D.M.C. 140.
10. It is seen from the various judgments referred to above that in the matter of ordering custody of the minor children, the paramount consideration to be borne in mind is the interest and welfare of the minor children. The before, there is no need for me to refer the decisions cited by both parties in detail. Having regard to the settled legal principles as could be gleaned it is necessary for me to consider whether the interest of the minors would be served better by entrusting the custody to the petitioner or to the respondent and that how to protect and take care of the interest and welfare of the minor children. With these principles in mind, it is necessary for me to refer to the respective case of the parties.
11. It is an admitted case by both parties that both the minors are offender age. The mother’s position is regarded as of much more importance in modern times than it was in former days, when a wife was regarded as little more than the chattel of her husband. The view of society in India as to the position of women may not have advanced so far or so fast as in England, but at the same time, the right of the mother to the custody of her young children is undoubtedly recognised in this country. However, the paramount consideration is the interest of the child rather than the rights of the parents. Human nature is much the same all the world over, and in my opinion, if the mother is a suitable person to take charge of the child, it is quite impossible to find any adequate substitute for her for the custody of a child of tender years. Mr. Sundararajan, next cited a decision reported in Thirty Hoshine Dolikuka ‘s case , wherein the Supreme Court held as follows:
The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor’s interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.
12. Applying the above test on the facts and circumstances of the present case, the best way to serve the welfare and interest of the minors, who are aged about 5 years and 3 years respectively would be to remove the child from the custody of the father the mother had a steady income, out of which she was in a position to meet all the expenses of her children. I am able to see that it is her desire and wanted her daughter and son to lead a healthy normal life essential for their better growth and development. The girl now dged about 5 years was reaching an age when she would need the guidance of her mother. The before the custody of the girl and the boy should be given to the mother. In my opinion, it will be erroneous to refuse the custody of the daughter and son to the mother mainly on the ground that the mother was employed in a company, which post she is read) and witting to quit in the interest of the minors The decision reported in V.V. Narasaiah v. C.P. Raju , was next cited by Mr. Sundararajan, wherein it was held that the father no doubt has a legal right but that right is always subservient to the welfare of the minor. The Division Bench of Andhra Pradesh High Court further held that ‘If the Court finds that it will not be in the interest of the minor of conducive to its welfare to entrust it to the custody of the father. The mere fact that the father has a legal right to the guardianship of the minor, is of no consequence. In the said decision, the Division Bench of Andhra Pradesh High Court further held that:
there are cases which show that inspite of the provisions of Section 19(h) of the Act, welfare of the minor is prime consideration and the paramount right of the father is subordinate to it. Ii has been so held by the madras High Court in Soora Reddi v. Chenna Reddi , the learned Judges after considering A.I.R 1935 Mad. 363, have stated:
It is a proposition so well known and established that it cannot be questioned at all that the welfare of the minor is the prime consideration in such matters and even the para mount right of the father as the natural guardian should be subordinate to the welfare of the minor.
Thus, in my view the father’s right to the custody of his minor child was not absolute; nor is in indefeasible in law; it is circumscribed by the consideration of the beneficial welfare of the minor. Pushpa Singh’s case 1990 S.C.C. (Supp.) 53 and Manju Tiwari’s Case , have also been relied on by the learned Counsel for the petitioner, Mr. Sundararajan. In the former case, the Supreme Court held thus:
We are firmly of the view that the paramount interest of the child lies in giving his custody to the mother. The age of the child is admittedly less than five years. The child absolutely needs affection of his mother for which there is no adequate substitute.
In the latter case, the Supreme Court held as follows:
We are, however, satisfied having regard to the circumstances of the case and the past history that the custody of the child should be immediately given to the mother as the child is less than five years old. the mother will, the before, have the custody of the child. It will, however, be open to the father, that is, respondent No. 1 to apply for the custody of the child in appropriate guardianship proceedings. The respondent No. 1, however, will be entitled to visit the residence of the petitioner and be with the child during week-ends (on Saturdays and Sundays)
13. As stated in the above paragraphs, there are mutual allegations which have to be gone into and decided by a Court of law in appropriate proceedings. The case filed by the husband for divorce is also pending and the husband has to establish his case in the said proceedings and that Court will have also to go into the said allegations and decide the same on merits.
14. Strong reliance was placed by Mr. Alagarsamy on my decision reported in Velan v. Muthu . The petitioner in that case was the father, who is the natural guardian of his minor child. The custody of the child was given to the father after taking into consideration of all the relevant factors and also the interest of the infant. In the said case, the child was left in the custody of the petitioner’s wife’s relatives. The contest for custody was between the father of the child on the one side and the chili’s mother’s sister and maternal grand parents on the other side, considering the facts and circumstances of that case this Court has held that The mere fact that the maternal grandparents are much attached to the minor, is not a ground to negative the claim of the petitioner viz., the father of the child and in any event, such custody cannot have any preference to the legitimate claim of the natural father. Citing the above case, Mr. Alagarsamy, learned Counsel for the respondent contended that the respondent and his parents are well placed in life and that they would look after the child in a better and more affluent circumstances. Rejecting the similar contentions, this Court held that more affluent circumstances of the grandparents is not a relevant factor that should weigh with the Court to deny the legitimate parental right of the father to the guardianship and custody over his minor child. But, in the present case the fight is between the father and mother of the minor children and it is for me to consider whether the welfare of the children will be protected, if they are entrusted to the custody of the father or them other. Hence, in my view, the decision reported in Velan’s case , can be distinguished on facts and the same is not applicable to the facts of the present case. Amrik Rai v. Sat Pal , relied on by Mr. Alagarsamy can also be distinguished on facts. In the said case, the mother of the two minor children died of severe burn injuries. The father of the children the reafter was prosecuted for murder of his wife and the n acquitted. Immediately after his acquittal, the father, who was well placed socially and financially filed an application for the custody of the children. Learned Judge of Punjab and Haryana High Court held that the maternal uncle and his family members being illiterate, the minors would be more happy and comfortable in the custody of the father, who had the capacity, means and resources to help them in carving out a nice future for themselves.
15. While considering the question of ‘welfare of the minors’ the right of the father as recognised by law has to be kept in mind and given its due weight, but the primary and paramount consideration undoubtedly remains to be, the welfare of the minors. The expression ‘welfare of the minors’ I though has not been defined, yet undoubtedly has to be given a very wide meaning. It ought not to be measured in money only or by physical comfort alone. It has many facets, such as financial, educational, physical, moral and religious welfare. In the instant case, the mother/petitioner is getting a decent income of Rs. 3, 000 per month by way of salary, She is well educated and she is physically and mentally all right to bring up the minor children. Further, she is also affectionate towards her children. Though some allegations have been made about her character, as stated earlier they have to be proved by the other side, before the appropriate forum. At any rate, that cannot be a ground at this stage for denying the custody of the two minor children to the mother/petitioner. The decision cited by the respondent in Snehlata’s case A.I.R. 1979 Raj. 29, it is said that 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. The other decision reported in Chakki’s case (1988) 2 D.M.C. 140, is also to the same effect. As mentioned above, a number of decisions were referred to me in this context of conflicting claims between mother and father for custody and guardianship of minor children. The right of the natural guardian to have custody of the minor, unless he or she is disqualified or it is found that the welfare of the child requires recognition of the other; the other point of view emphasises, that the legal rights of the natural guardian may only be secondary consideration, the principal factor being the interest and welfare of the child. A passage in Halsbury’s Laws of England (IV Edition) (Paras 533, 534-228) was also relied on by Mr. Alagarsamy, which is reproduced herein below:
there is no rule of law that a child of tender years should remain with his mother and the question of whether it is better for a child to be with his mother or his father must depend upon the particular circumstances of the case and upon the view which the Court takes of the characters and qualities of the respective parents.
Thus, it is seen from the various judgments referred to above that in the matter of ordering custody of the minor children, the paramount consideration that is to be borne in mind is the welfare and interest of the minor children. It is stated by the respondent that the petitioner had abandoned her matrimonial home and voluntarily executed a Panchayat Muchalica, admitting her adulterous life with one Mr. Ignatius and agreed that the custody of the minor children with the respondent herein. Except The mere statement made in the counter statement of the respondent nothing was placed before this court to substantiate the said allegation. Of course, the petitioner has-specifically denied the execution of such a Muchalica and that it was only the respondent, who had driven her out of the house and forcibly taken her to Palani and obtained her signatures on a typed stamped paper, without disclosing the contents and that the petitioner was made to sign the paper at knife point. In the absence of any material placed before this Court, I am not in a position to believe the said version of the respondent.
16. In Allen v. Allen (1948) 2 All E.R 413, the trial Court gave custody of a child of eight years to the father as against the mother, who was found guilty of adultery. In the Court of Appeal, it was held that it would not be right to snatch this female child of eight from her mother and force to make a new start with her father and step mother. The Court also gave care and control to the mother. In my view so long as child is young enough to need the day to day care of his or her mother, it is better to leave the child with the mother unless mother is entirely unsuitable person. It seems to me that the court from the beginning has no difficulty in propounding this principle and it has been accorded statutory recognition by the Hindu Minority and Guardianship Act, 1956. Proviso to Section 6(a) provides ‘the custody of a minor who has completed the age of five years shall ordinarily be with the mother.’ Muslim law has always recognised this principle as a rule of law. Under the Hanafi law, custody of a boy upto the age of seven and of girl up to the age of puberty rests with the mother. The Punjab Chief Court in 1917 said that a child of tender years should be committed in the custody of the mother even if she had remarried. The Bombay High Court in Tara Bai v. Mohan Lal A.I.R. 1922 Bom. 405, said that a boy of seven years would be much better of living with his mother than with his father. Beaumont, C.J., in Saraswatibai v. Sripad A.I.R 1941 Bom. 103, said:
…If mother is a suitable person to take charge of the child it is quite impossible to find an adequate substitute for her for the custody of a child of tender years.
Das, J. of Calcutta High Court in In re. Kamal Rudra I.L.R. (1949) 2 Cal. 374, said:
I have no doubt in my mind that the mother’s lap is God’s own cradle for a child of this age, and that as between father and mother, other thing equal, a child of such tender age should remain with mother.
Our High Court in Kandiappa v. Valliammal A.I.R 1949 Mad. 608, held that ‘it is impossible to find out an adequate substitute for the custody of a child of tender years, whose interest should be the paramount consideration. In Samual v. Stella our High Court had again reaffirmed its view by saying that since it is the mother who would have the interest of the minor most at heart, the tender years of the child needing the care, protection and guidance of the most interested persons viz., the mother, who has come to be preferred to others. The Court gave custody of a female child of thirteen who was delicate in health to the mother. Likewise, in Bhola Nath v. Sharda Devi A.I.R. 1954 Pat. 489, the Patna High court held that ‘the affection, love and sympathy which the children require cannot be given by the father in the same measure as can be given by the mother, especially when the child is aged only about two years or little more.
17. Thus on an anxious consideration of the entire facts and circumstances of the present case, I am of the view that the mother alone should be given the custody of the two minor children, taking into account the welfare of the minor children, which is the only paramount consideration in matters like this. As stated in the earlier paragraph of this order, the mother/petitioner has already secured admission in Rosary Matriculation School for the girl and in. Dominic Savio for the boy and hence, the respondent is directed to entrust the custody of the two minor children to the mother/petitioner on or before 26th July, 1991 to enable her to admit the children in the said School. However, it is made very clear that the father (respondent herein) as a natural guardian of the children is always at liberty to see the children in the School by intimating the school authorities well in advance or at the residence of the petitioner at any time.
18. This original petition is ordered as prayed for. No costs.