JUDGMENT
S. Jagadeesan, J.
1. This appeal has been filed against the Order dated 18.4.1998 of the learned single Judge in O.P.No. 729 of 1997.
2. The said OP. was filed by the respondent herein, who is the son-in-law of the appellants herein for appointing him as the guardian of his minor son Suman Arjun Raj an, aged about 5 years. The case of the respondent is that he married one Durga, the daughter of the appellants herein on 5.2.1993 at Valliyur in Tirunelveli District. After marriage, respondent and his wife lived with his parents in Adyar. Out of the wedlock, the minor was born on 26.10.1993. Later in 1994 the respondent and his wife shifted to a flat owned by the respondents father at Besant Nagar. As there was some difference of opinion between the respondent and his wife, on the advice of the appellants herein, the respondent shifted back to his parents’ residence in February, 1997. In spite of the counselling of his parents, his wife’s behaviour became strange in the second week of April, 1997. On 17.4.1997, his wife was practically abnormal and her speech was incoherent. She demanded to consult a psychiatrist and later she insisted that she should be taken to Valliyur. Even though the arrangement was made, in the afternoon, she suddenly rushed to the bed room and locked the door. When the door was broke open, the respondent and his parents found that his wife had hung herself from the ceiling fan. The respondent tried his best to revive her after untying her from, the fan, but she died. The respondent and his father immediately informed the second appellant. At the request of the second appellant, the body was taken to Valliyur on the early hours of 18.4.1997. The appellants accusing the respondent and his parents of murdering their daughter and assaulted the respondent and his father, who suffered fracture. The respondent also suffered bleeding injuries and was hospitalised. The appellants accused the respondent and his parents of dowry harassment which allegations were rejected by the Sub Collector in the, course of the enquiry. The respondent and his parents left for Madras leaving behind the minor with the appellants,. Thereafter, a criminal case in Crime No. 494 of 1997 was registered at the Adyar Police Station against the respondent and his parents for offences under Sections 302, 201, 202 and 203 of I.P.C. The respondent was arrested and later on released on bail.
3. By letter dated 8.8.1997, the respondent requested the appellants to bring and hand over the minor son. Since, the appellants did not respond to the letter, the petition has been filed for appointing him as the guardian of the minor and for the custody of the minor. The respondent’s parents will take care of the minor’s interest. In the best interest of the minor, the custody should be handed over to, the respondent.
4. The appellants disputed the claim of the respondent by filing counter statement, in which they have stated that the criminal case is pending against the respondent for the offences under Sections 302, 201, 202 and 203 of I.P.C. for causing death of their daughter and as such it may not be proper to hand over the custody of the minor, to the respondent. It is further stated that at the time of marriage, the appellants have given 1.25 kgs. of gold ornaments and diamonds worth Rs. 4 lakhs, apart from silver articles worth Rs. 50,000. They also gave money for the purchase of Maruti Car and for marriage expenses. The respondent made a complaint that his wife is not in a position to look after the minor and whenever the child falls sick, she used to call him, at the office. The appellants daughter told them that the respondent used to come home very late and does not care about her and the minor child’s health. During the first week of April, their daughter contacted the first appellant and told him that her mother-in-Jaw was harassing her for money and that the respondent was also asking for the documents of Sivakasi house, telling that she is having half share. The parents-in-law of their daughter also started to ill-treat her by making her to clean up the place by herself when she vomited. The allegation of the respondent that his wife committed suicide is only an after thought, definitely there is some foul play on the part of the respondent and his parents in the death of his wife, Durga. The way in which the respondent and his parents wanted to screen the alleged suicide of Durga itself clearly proves that they did not want to face the subsequent events. Their daughter was accused of having contact with one Venky and she was prevented from having any contacts with any servant and she was asked to undergo a test for AIDS. Even though the second appellant tried to contact their daughter and the respondent, to resolve the dispute, they could not contact them since the phone was cut off. All their efforts to contact their daughter and the respondent did not materialise. On the fateful day, at 3.00 p.m. the respondent’s father informed the second appellant that her daughter hung herself in the bath room and further informed that they are bringing the body to Valliyur. The appellants never asked the respondent or his parents to bring the body to Valliyur. The appellants were told by their daughter that the parents of the respondent were arranging second marriage to the respondent with one Geetha. Over the phone, she also told the appellants that the respondent wanted her blood to be tested for AIDS and also with regard to the paternity of the child. From the information received from their daughter, the appellants suspect that there is definitely some foul play in the death of their daughter and as such the custody of the minor cannot be entrusted with the respondent especially when he suspected the parentage of the minor. However, the appellants have no objection for the petitioner visiting the minor or at a place conveniently agreed upon by the parties.
5. After careful consideration of the evidence available on record, the learned single Judge has allowed the said O.P. appointing the respondent as the guardian of the minor and permitted him to have the custody of the minor. Aggrieved by the same, the present appeal has been filed.
6. The learned Counsel for the appellants Mr. K. Alagirisamy, Senior Counsel, pointed out several portions in the evidence as well as the pleadings and contended that the case of the appellants is that their daughter had been murdered by the respondent and their daughter had been harassed claiming dowry. The post mortem certificate clearly reveals that it is not a case of suicide and many of the injuries are said to have been caused prior to the death of the deceased. Hence, prima facie, there is a charge of murder against the respondent and the criminal case is pending. While so, it is not in the interest of the minor to remain with the respondent, especially when there is some evidence to establish that the respondent had entertained a doubt with regard to the parentage of the minor. When the minor was in the custody of the appellants from April, 1997 to February, 1998, the custody ought to have been with the appellants. But, however, after handing over the custody of the minor to the respondent, by way of the interim arrangement, the O.P. had been disposed of and now, the respondent is continuing to have the custody of the minor.
7. On the contrary, Mrs. Ramani Natarajan, on behalf of the respondent, contended that the respondent never suspected the parentage of the minor. The respondent wants to have the custody of the minor, his son, which he is entitled to legally. The mere pendency of the criminal proceeding cannot be a ground to refuse the custody of the minor to the respondent. Further, the learned single Judge has permitted the appellants to visit the minor as and when they wish to see him and as such the appellants can visit the place of the respondent and see the minor, if they are really interested.
8. The question for consideration is,
1. Whether the respondent herein is entitled to have the custody of the minor? and
2. Whether it would be in the interest of the minor to be in the custody of the respondent?
9. We carefully considered the contentions of both the counsel. When dealing with the custody of the minor, the prime object for consideration is the interest and welfare of the minor. The minor is nearing completion of five years of age as he was born on 26.10.1993. The main grievance of the appellants herein is that the respondent herein is facing the criminal proceedings for causing the death of his wife, the mother of the minor. While discussing the evidence, the learned single Judge has found that between 1993 to 1997 April, the respondent and his wife have lived under the same roof barely for a period of about two years. Both the parties have not come out frankly and openly with regard to the cause for the misunderstanding between husband and the wife. The learned single Judge further observed that from the evidence adduced and from the facts established he is able to draw the inference that there has been some misunderstanding between the couple with regard to the legitimacy of the minor child, Having found so, the learned single Judge has held that there is no room to suspect foul play in the unfortunate death of Durga and he is of the opinion that there is very title scope for any foul play in the death of Durga, at the hands of her husband and his parents.
10. Mr. K. Alagirisamy, learned Senior Counsel, contended that the learned single Judge has come to the above conclusion with regard to the foul play without reference to the post mortem certificate as well as the report of the R.D.O. Further, the observation of the learned single Judge that there was no foul play on the part of the respondent in the death of Durga would amount to a finding in the criminal proceeding which is still pending, before the lower Court. The learned single Judge, without giving any specific finding with regard to the criminal offences. ought to have given a finding as to whether there is any prima facie case made out by the respondent for the entrustment of the custody of the minor at this stage and also for his appointment as the guardian. We find some force in the contention of the learned senior counsel.
11. The minor was admittedly in the custody of the appellants after the death of their daughter. But, however, pursuant to the order of this Court, in February, 1988, the respondent herein was entrusted with the custody and now pursuant to the order in the main O.P. the custody continues with the respondent herein. Admittedly, the criminal case is pending against the respondent herein for causing the death of his wife. In the evidence of the petitioner he has stated as follows:
On 15.4.1997, when I was discussing with wife whether she was suspecting the parentage of the child, I said I was not suspecting such things. But, she volunteered to say that before marriage, she had an affair with one of her cousin Venky and asked him as to whether she would be still acceptable to him. I replied that it was all before marriage and I had nothing elsewhere and she did not worry herself. I also told her not to tell about these things to my parents.
From the above passage, it is clear that the respondent himself had initiated the discussion with regard to the parentage of the child. He has not given any explanation as to why the discussion started and where is the need for him to question his wife as to whether she suspect the parentage, From the evidence, it is clear that only after he entertained a doubt as if his wife suspected the parentage, his wife made a confession. Admittedly, the marriage took, place on 5.2.1993 and for four years, his wife did not reveal anything about her affair with her cousin. If that be so, there is no need for her to volunteer herself to reveal about her affair. This statement by the respondent, in his evidence, seems to be a make belief story to strengthen his case that his wife has become restless. The learned single Judge also rightly observed that the respondent herein had entertained a doubt with regard to the parentage of the minor.
12. Coming to the finding of the learned single Judge with regard to the culpability of the respondent regarding the death of his wife, we are of the opinion that the finding of the learned single Judge cannot be sustained. The learned single Judge could have avoided a specific finding with regard to the culpability of the respondent. Since the learned single Judge has given a specific finding with regard to the culpability of the respondent, it is necessary for us to enter into a discussion on this issue.
13. The final report of the Doctor with regard to the death of the respondent’s wife is as follows:
The deceased would appear to have died of Cumulative effects of the multiple injuries sustained by her. (The possibility of Homicide to be thought of).
The R.D.O., Cherammadevi, who conducted enquiry under Section 174 of the Criminal Procedure Code, in his letter addressed to the Deputy Superintendent of Police, Nanguneri Police Station, Valliyur, has stated in his report as follows:
14. From this report, it is clear that there was injuries on the head, neck and also in the other parts of the body of deceased Durga. When there are prima facie documents to show that the deceased Durga sustained injuries, it may not be proper to conclude that there is no foul play. We are not giving any specific opinion with regard to the culpability of the respondent herein because of the pendency of the criminal case. Since, the learned single Judge has come to the conclusion that there is no foul play, on the part of the respondent, the said finding cannot be sustained on the materials available on record. We make it clear that it is ultimately for the criminal court to decide the same, without any reference to the findings of the learned single Judge or our observations in this regard.
15. From the evidence of the respondent, his only plea is that from January, 1997 the respondent’s wife was behaving in a strange manner and she became forgetful and remained without doing any work. He has not stated in his evidence or even in the petition that he has taken her to hospital either for treatment or at least for a check upon. When a wife has been behaving in a strange manner, as a loving husband, naturally he would try to find out the cause for the illness of his wife in order to give proper treatment. There is no explanation on the part of the respondent as to why he has not taken his wife to any Doctor. Similarly when the blood test was done for minor there is no necessity for his wife to shout at the respondent stating that the blood is being tested AIDS. If the wife of the respondent had asked as to whether the; blood, of the child is being tested for AIDS or to test the parentage then naturally there ought to have been some open discussion between the respondent and his wife in these aspects. As already pointed, the wife had voluntarily confessed about her intimacy with her cousin cannot be believed. Hence, this theory may be an after thought on the part of the respondent or it may be to get over the ill-treatment given to the wife.
16. The mere production of phone bill may not be sufficient to establish the conversation of the parties. The telephone bill has been relied upon by the respondent to establish that he made the calls to his patents^ in-law. It is not clear as to whether he made the calls or the deceased made the calls to her parents. It is more probable that the deceased might have called her parents to inform the treatment she was receiving in the hands of the respondent and his parents. On the fateful day, i.e., 17.4.1997, the deceased has called her mother and complained that the child is being subject to blood test to find out the parentage and this is admitted by the respondent. When the deceased made a complaint to her mother, that the child is being subjected to blood test to find out the parentage, it can only be due to the conduct of the respondent herein who might have clearly expressed his suspicion about the parentage of the minor. The confession is said to have been made on 15.4.1997. When the child was not well and when the child was taken to the Doctor, we are of the opinion that, the deceased might not have discussed with the respondent about her illegal relationship with her cousin. As contended by the Parents/appellants this story has been brought out by the respondent to suit his convenience. On 17.4.1997, also the respondent has stated that he went for the work and returned for lunch since the deceased wanted; to go to her parents house. But, in the cross examination he has categorically stated that he has taken leave as he has to supervise the renovation work. These things makes clear that there is some probability on the plea raised by the appellants herein.
17. From the above facts, it is clear that the respondent herein had entertained a doubt with regard to the parentage of the minor and the learned single Judge also has categoricalily given a finding to that effect. When that being so, we are of the opinion that it may not be proper to leave the minor in the custody of the respondent. Till the criminal case is pending against the respondent, he may necessarily have the custody of the minor without giving any trouble. When once it has been found that he has entertained a doubt with regard to the parentage, the devil may have its boom at any moment.
18. Considering the strained relationship between the parties, it may not be proper to direct them to visit each others place. For the reasons stated above, we are of the opinion that the order of the learned single Judge cannot; be sustained and the same is set aside. The appeal is allowed. The respondent is directed to hand over the custody of the minor to the appellants herein within one week from today. There will be no orders as to costs.
19. It is open to the respondent to visit the minor, his son; toy sending prior intimation to the appellants herein to send the minor to a common place of his choice. Consequently, C.M.P.No. 9409 of 1998 is closed.