{"id":211645,"date":"2006-11-08T00:00:00","date_gmt":"2006-11-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kanheeri-venugopalan-vs-k-v-beena-on-8-november-2006"},"modified":"2015-07-16T12:55:35","modified_gmt":"2015-07-16T07:25:35","slug":"kanheeri-venugopalan-vs-k-v-beena-on-8-november-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kanheeri-venugopalan-vs-k-v-beena-on-8-november-2006","title":{"rendered":"Kanheeri Venugopalan vs K.V. Beena on 8 November, 2006"},"content":{"rendered":"
Kerala High Court<\/div>\n
Kanheeri Venugopalan vs K.V. Beena on 8 November, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMFA No. 150 of 2006()\n\n\n1. KANHEERI VENUGOPALAN, AGED 41 YEARS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. K.V. BEENA,\n                       ...       Respondent\n\n                For Petitioner  :SRI.S.V.BALAKRISHNA IYER\n\n                For Respondent  :SRI.K.RAMACHANDRAN\n\nThe Hon'ble MR. Justice M.RAMACHANDRAN\nThe Hon'ble MR. Justice K.T.SANKARAN\n\n Dated :08\/11\/2006\n\n O R D E R\n             M.RAMACHANDRAN & K.T.SANKARAN, JJ\n        ---------------------------------------------------\n\n\n                        M.F.A.( G & W) No.150  of 2006\n\n        ---------------------------------------------------\n                   Dated this the 8th day of November, 2006\n\n\n                                   JUDGMENT\n<\/pre>\n
Ramachandran, J:\n<\/p>\n
        K.Venugopalan,   appellant   herein,   had   married<\/p>\n
respondent   K.V.Beena,   on   30-12-1993.     A   daughter,<\/p>\n
Raveena, was born to them on 02-07-1996.  For the last<\/p>\n
about five years, Raveena was residing along with her<\/p>\n
father, as the couple had separated a few years back.<\/p>\n
The mother craved for the company of her daughter, and<\/p>\n
had moved the Family Court for   custody of the minor<\/p>\n
daughter.     Order   passed   by   the   Family   Court,<\/p>\n
Malappuram dated 13.07.2006 in O.P.(G & W).No.45 of<\/p>\n
2006   directs   that  the   father  of  minor  Raveena  should<\/p>\n
handover custody of the child to the mother,  respondent<\/p>\n
herein.   Visitorial right, however, had been reserved in<\/p>\n
favour of   the father so that he can see the child and<\/p>\n
spend time with her for two hours  on  every   alternate<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                  -2-<\/span><\/p>\n
Sundays.   The appeal has been filed by the father feeling<\/p>\n
aggrieved about the orders so passed.\n<\/p>\n
      2.     We   had   heard   Sri.S.V.Balakrishna   Iyer,   who<\/p>\n
appeared on behalf of the appellant and had also occasion<\/p>\n
to   hear   Sri.K.Ramachandran,   appearing   for   the<\/p>\n
respondent.\n<\/p>\n
      3.     The parties are Hindus and they reside in their<\/p>\n
respective   houses,   not   far   apart,   and       though   not   too<\/p>\n
closeby.     The   appellant   was   running   a   Driving   School<\/p>\n
initially.   After the marriage, he had secured employment<\/p>\n
as an Executive Officer in the Commissionerate of  Hindu<\/p>\n
Religious   and   Charitable   Endowments.                        The<\/p>\n
respondent\/wife   had   also   secured   employment   as   a<\/p>\n
teacher.  Their family life became tumultuous thereafter.<\/p>\n
      4.     Application   had   been   filed   by   the   wife   for<\/p>\n
custody of the child, as she contended  that situated as she<\/p>\n
was it would have been more secure and congenial for the<\/p>\n
daughter to grow up under her care than that of the father.<\/p>\n
She had a further case that the husband could not have<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                  -3-<\/span><\/p>\n
been   acceptable   as   a   guardian   or   guide,   because   of<\/p>\n
deficiency in his personality and outlook.  The very reason<\/p>\n
for   their   separation,   according   to   her,   was   that   he   had<\/p>\n
developed affinity with another woman.   The husband was<\/p>\n
continuing   the   relations   with   his   new   acquaintance   and<\/p>\n
had also fathered two children, respectively during April,<\/p>\n
2002 and August, 2003.   She felt that time was therefore<\/p>\n
ripe for the daughter to get herself separated from such<\/p>\n
debilitating atmosphere.   The daughter is about 10 years<\/p>\n
old   and   her   continued   residence   with   the   father   would<\/p>\n
adversely affect her welfare.  It was claimed that when the<\/p>\n
child   had   her   unencumbered   mother   capable   of   looking<\/p>\n
after   her,   including   her   physiological   as   well   as<\/p>\n
psychological needs, custody  of  the child  required to be<\/p>\n
entrusted with the mother.\n<\/p>\n
      5.     After   a   detailed   examination   of   the   attendant<\/p>\n
facts, the Family Court had held that although the father<\/p>\n
was natural guardian and it was also a case where he was<\/p>\n
prepared   to   take   all   responsibility   in   respect   of   the<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                    -4-<\/span><\/p>\n
daughter,   the   circumstances   pointed   out   for   a   positive<\/p>\n
preference in favour of the claims put up by the wife.  The<\/p>\n
Court   had   held   that   the   mother,   who   is   educated   and<\/p>\n
anxious about the prospects and future of her girl child,<\/p>\n
was  preferable  to a father as guardian. The extra marital<\/p>\n
relationship also was a factor and he had already two small<\/p>\n
kids   in   such   relations,   which   also   was   relevant,     it   was<\/p>\n
observed.\n<\/p>\n
      6.     Mr.Balakrishna   Iyer   refers   to   the   legal<\/p>\n
provisions, which govern the subject.   According to him,<\/p>\n
under the Guardians and wards Act 1890, where the Court<\/p>\n
is   satisfied  that  it   is   for  the   welfare   of  a  minor,  it   may<\/p>\n
appoint a guardian of his person or property or both.  He<\/p>\n
refers to Section 17 of the said Act and urges that while<\/p>\n
appointing or declaring the guardian of a minor, the Court<\/p>\n
is to be guided by what is in consistency with the law to<\/p>\n
which   the   minor   is   subjected   to.       If   the   minor   is   old<\/p>\n
enough to form an intelligent preference, the Court may<\/p>\n
consider that preference as well.\n<\/p>\n
\n[MFA (G & W) No.150 of 2006]
\n                                    -5-<\/span><\/p>\n
      7.     He had also invited our attention to the Hindu<\/p>\n
Minority and Guardianship Act, 1956.  A “guardian” means<\/p>\n
an individual having the care of the person of a minor or of<\/p>\n
his   property   or   of   both   his   person   and   property,   and<\/p>\n
includes   a   natural   guardian.     He   asserts   that   in<\/p>\n
unambiguous terms, under section 6, it is declared that a<\/p>\n
natural guardian of a Hindu minor, in the case of a boy or<\/p>\n
an unmarried girl, is the father.     The said person should<\/p>\n
act   as     custodian   also.     The   only   exception   is   that   the<\/p>\n
custody of a minor who has not completed the age of five<\/p>\n
years can  be with the mother.   That is not the case here.<\/p>\n
Of   course,   he   also   refers   to   section   13   of  the   said  Act,<\/p>\n
where the statute provides that welfare of a minor always<\/p>\n
is   to   be   the   paramount   consideration,   in   the   matter   of<\/p>\n
appointment or declaration of a person as guardian by a<\/p>\n
Court.\n<\/p>\n
      8.       Discussions   of   the   Family   Court,   according  to<\/p>\n
him, before it reached a conclusion that the appellant was<\/p>\n
unfit to be recognised as a guardian, are haphazard and<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                    -6-<\/span><\/p>\n
the   Court   had   omitted   to   note   the   correct   perspective,<\/p>\n
suggested by  the statute.   He was educated, was residing<\/p>\n
along with his mother, and under his care and tutelage the<\/p>\n
minor girl was distinguishing herself as one of the topmost<\/p>\n
students of the class.   She had no complaints about the<\/p>\n
present arrangements, which were prevailing  for over five<\/p>\n
years.   Such  living conditions  gave   her  adequate  time  to<\/p>\n
reach the school nearby,  and there  was nothing pointed<\/p>\n
out,   at   the   instance   of   the   wife,   to   upset   the   situation.<\/p>\n
Now the situation is about to be upset.   He has a further<\/p>\n
complaint   that   the   Family   Court   had   adverted   to<\/p>\n
extraneous considerations without factual basis.   He was<\/p>\n
an employee of a statutory authority, financially sound, and<\/p>\n
the allegations were insufficient to establish that he was<\/p>\n
not   to   be   recognised   as   a   guardian   of   his   daughter.<\/p>\n
Mr.Iyer submits that it was not a case where it was held<\/p>\n
that he was unfit.   Therefore, the issue of competing or<\/p>\n
superior   claims   had   no   relevance.     Security   and   safety<\/p>\n
provided  by   the   father  has  no  substitute,   he   points  out.<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                 -7-<\/span><\/p>\n
Court   was   not   justified   in   passing   orders,   whereby   the<\/p>\n
minor   child   was   required   to   be   uprooted   and   there   is<\/p>\n
possibility of her wilting, by removing her from her kins,<\/p>\n
surroundings   and   company   of   friends.       Mr.Iyer   also<\/p>\n
pointed out that by an interlocutory order dated             21-<\/p>\n
08-2006, a sharing arrangement had been prescribed and<\/p>\n
this would have satisfactorily met the situation as it could<\/p>\n
have   avoided   a   change   of   school   and   change   of<\/p>\n
environment.\n<\/p>\n
      9.    Learned counsel also had relied on a decision<\/p>\n
reported as Bakthavatsalam v. Srinivasan [2000 (1) KLT<\/p>\n
SN 52 – Case No.58].   A Hindu father, the Madras High<\/p>\n
Court held, was the natural guardian of the children and<\/p>\n
has prima facie the paramount rights to the custody of the<\/p>\n
minor, and unless he is unfit for the job, the arrangements<\/p>\n
are not to be disturbed.  Court was examining a situation<\/p>\n
where the father had remarried,  but it had been held that<\/p>\n
it never operated as a valid ground for disqualifying him<\/p>\n
from being guardian of a minor child of the first marriage.<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                             -8-<\/span><\/p>\n
     10.    The counsel had also adverted to the decision in<\/p>\n
Chakki  v.  Ayyappan<\/a>  [1988 (1) K.L.T.556].   Reliance was<\/p>\n
placed on paragraph  22 of the  judgment,  which  may be<\/p>\n
extracted herein below:\n<\/p>\n
        “The   two   conflicting   principles   as
\n        we   have   mentioned   above   have
\n        necessarily   to   be   reconciled.     The
\n        legal   right   of   a   natural   guardian
\n        and   the   welfare   of   the   minor   child
\n        have to find equal accommodation in
\n        any order which the Court devices in
\n        applications   under   Ss.6   and   13   of
\n        the Hindu  Minority and  Guardianship
\n        Act.     In   case   of   conflict   between
\n        the   two,   the   Court   has   necessarily
\n        to   choose   the   welfare   of   the   minor
\n        as the paramount consideration as is
\n        enjoined   by   S.13.     One   of   the
\n        relevant           considerations           in
\n        determining the welfare of the minor
\n        is to compare the credentials of the
\n        father and the mother.  Unless there
\n        are   outweighing   considerations,   an
\n        affectionate   father   with   the
\n        necessary   means   to   maintain   his
\n        child   sans   abnormalities   in   his
\n        character   which   will   make   him
\n        otherwise   unfit,   may   have   a   better
\n        claim   for   custody   by   reason   of   the
\n        provisions   contained   in   S.6   of   the
\n        Act.     What   we   suggest   is   that   the
\n        rights of a natural guardian who is
\n        designated   as   the   guardian   may   be
\n        one of the factors to determine the<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                   -9-<\/span><\/p>\n
          welfare   of   the   minor   as   the
\n          paramount   consideration   in   custody
\n          proceedings.”\n<\/p><\/blockquote>\n
Thus   unless   there   were   outweighing   considerations,   an<\/p>\n
affectionate father with necessary means was always to be<\/p>\n
preferred sans abnormalities in his character.<\/p>\n
       11.  To   a   very   large   extent   perception   of   the<\/p>\n
deciding Judge do find a place while the issue of custody of<\/p>\n
a minor child is adjudicated.   Dr.Justice Kochu Thommen,<\/p>\n
in Madhavan Nair v. Viswanathan [1977 KLT 479], held<\/p>\n
that   the   father   of   the   child   was   entitled   to   custody   in<\/p>\n
preference to grand-parents.  The learned Judge had found<\/p>\n
that the father had been remarried after demise of his wife<\/p>\n
and  had begot a son.  He was financially secure and was<\/p>\n
absolutely capable of looking after the child.  It was noted<\/p>\n
that   the   step-mother   had  expressed   her   willingness   and<\/p>\n
ability to look after the minor child of her husband.  These<\/p>\n
were   positive   qualifications   to   confer   on   him   right   of<\/p>\n
custody, as the learned Judge observed that child would be<\/p>\n
happy and comfortable in their home.  On the other hand,<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                   -10-<\/span><\/p>\n
if   the   child   is   left   with   the   maternal   grand-parents,   he<\/p>\n
would  not   have   had  the   same   advantages   educationally,<\/p>\n
socially   or   culturally   as   he   might   enjoy   with   his   father,<\/p>\n
step-mother   and   step-brother.     There   was   no   doubt,<\/p>\n
according  to  the   learned  Judge,   to   the   position  that  the<\/p>\n
child was thus going to a happy home where there was a<\/p>\n
young mother and little baby to play with, and this was the<\/p>\n
kind of congenial atmosphere where a child was to grow<\/p>\n
up.  To deny him this opportunity and leave him with aging<\/p>\n
grand-parents would be not only unfair to the child, but<\/p>\n
also opposed to the legislative intent of Act 32 of 1956.<\/p>\n
Relying on the decision, counsel for the appellant submits<\/p>\n
that the father has a position of pre-eminence, and even a<\/p>\n
remarriage is not usually frowned upon.  According to the<\/p>\n
counsel,   irrelevant   considerations   had   been   adopted   for<\/p>\n
displacing the appellant from the position of guardian, and<\/p>\n
the order required to be set aside.\n<\/p>\n
      12.    However, Sri.Ramachandran appearing for the<\/p>\n
respondent submits that it was a case where the Family<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                 -11-<\/span><\/p>\n
Court had examined all aspects of the case and had come<\/p>\n
to a correct conclusion, that it was in the prime interest of<\/p>\n
the child that a new arrangement required to be brought<\/p>\n
about.  He submits that although the Guardians and Wards<\/p>\n
Act as well as the Hindu Minority and Guardianship Act<\/p>\n
recognise   the   father   as   a   natural   guardian,     sufficient<\/p>\n
safeguards   have   been   there   in   the   statute,   as   could   be<\/p>\n
gatherable   from   Section   17   and   Section   13   of   the   two<\/p>\n
enactments   respectively.     The   Court   was   not   obliged   to<\/p>\n
follow the text of the law as relied on by the appellant, but<\/p>\n
had adequate discretion taking notice of the  peculiarities<\/p>\n
of a case for prescribing the course to be followed.   The<\/p>\n
learned  counsel submits  that consistently  the  Court  was<\/p>\n
following a principle, namely that a natural guardian had<\/p>\n
no right in any absolute terms.\n<\/p>\n
      13.    In   this   context,   the   counsel   had   referred   to<\/p>\n
decisions reported as   Gopalan  v.  Rajan<\/a>  [1994 (2)  KLT<\/p>\n
753;  Peravakutty  v.  Velayudhan<\/a>  [1992  (1)   KLT  474  =<\/p>\n
AIR   1992   Kerala  290];  Merlin  Thomas  v.  C.S.Thomas<\/a><\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                 -12-<\/span><\/p>\n
[AIR   2003   (Kerala)   232]   and  Chandrakala   Menon  v.<\/p>\n
Vipin Menon<\/a>  [1993 (2) SCC 6].   Counsel had also relied<\/p>\n
on  Kurian C.Jose  v.  Meena Jose<\/a>  [1992 (1) KLT 818], to<\/p>\n
which reference could be made at a later stage.<\/p>\n
      14.    Mr.Justice M.M.Pareed Pillay, in Gopalan’s case<\/p>\n
(cited supra), held that merely on the basis that the father<\/p>\n
who   seeks   the   custody   of   his   children   is   their   legal<\/p>\n
guardian, Court cannot jump to any conclusion that their<\/p>\n
welfare would be safe with him.  The Court has necessarily<\/p>\n
to   look   into   the   mental   or   emotional   feelings   of   the<\/p>\n
children, their careful, planned up-bringing and also their<\/p>\n
tender age.   Though father is the natural guardian of the<\/p>\n
minor, on that count alone he cannot have any preferential<\/p>\n
claim.   Again, while dealing with such a situation, where<\/p>\n
custody   of   the   child   was   involved,   Mr.Justice   Guttal,<\/p>\n
speaking on behalf of the Division Bench, in Peravakutty’s<\/p>\n
case   (cited   supra),   prescribed   as   much   as   five   relevant<\/p>\n
parameters, which were to be borne in mind by the Court.<\/p>\n
The question of custody of the child was not to be decided<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                  -13-<\/span><\/p>\n
upon consideration as to which of the two rival claimants is<\/p>\n
more affluent.  The child does not grow merely on food and<\/p>\n
clothing.   A barren life, devoid of emotional attachment,<\/p>\n
love of parents, brothers and sisters and   friends, retards<\/p>\n
as   well   as     impairs   growth   of   a   child.     The   expression<\/p>\n
“welfare”  has   an   extremely   wide   connotation   and   an<\/p>\n
approach after evaluating  on all factors were  to be made.<\/p>\n
      15.    Mr.Justice   K.Thankappan,   in   Merlin   Thomas’s<\/p>\n
case (cited supra), had occasion to hold that the emotions<\/p>\n
of the parents do not have much weight while the issue of<\/p>\n
custody is examined.  Primarily,  it was to be ensured that<\/p>\n
children  were kept away from scratch, since  the children<\/p>\n
were like petals of a flower.  Especially, if it is a girl child,<\/p>\n
the   Bench   observed   that   the   company   of   the   mother   is<\/p>\n
more desirable, which will give protection to the child in<\/p>\n
developing her personality, intelligence and character.  On<\/p>\n
these parameters,  the Court had directed that the custody<\/p>\n
of the child concerned was to be given over to the mother.<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                  -14-<\/span><\/p>\n
      16.    We   have   also   for   our   guidance,   recent<\/p>\n
observations   of   the   Supreme   Court   in   Chandrakala<\/p>\n
Menon’s case (cited supra).  The Supreme Court held that<\/p>\n
though   the   father   is   the   natural   guardian   of   the   minor<\/p>\n
child, the question of custody has to be decided not on the<\/p>\n
basis of legal rights of the parties, but on the sole criterion<\/p>\n
of   interest   and   welfare   of   the   minor.     Consequently,<\/p>\n
overruling the objections of the father, the Court held that<\/p>\n
“after examining every possible angle in this respect, we<\/p>\n
have come to the conclusion that it would be in the interest<\/p>\n
and welfare of minor Soumya that she should be permitted<\/p>\n
to be in the custody of her mother Chandrakala”.<\/p>\n
      17.    We   find  that  the   authorities   are   unambiguous<\/p>\n
when   they   declare   that   reliefs   have   to   be   modulated,<\/p>\n
conforming   to   factual   situations   in   individual   cases.<\/p>\n
Mr.Balakrishna   Iyer,   although   refers   to   section   13(2)   of<\/p>\n
Act 32 of 1956,  points out that there has been no adverse<\/p>\n
observations   against   the   father   so   as   to   apply   the   sub-<\/p>\n
section in the case at hand.  Any how,  we would examine<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                  -15-<\/span><\/p>\n
the issue more closely.\n<\/p>\n
      18.    The  Guardian and Wards Act,   1890  has in its<\/p>\n
bosom the principle of the State being the ‘parens patriae’<\/p>\n
in   respect   of   the   class   of   persons,   who   might   not   be<\/p>\n
competent   to   take   care   of   themselves   because   of   their<\/p>\n
tender age.   Section 7 of the Act deals with the power of<\/p>\n
the Court to make an order as to guardianship.  There can<\/p>\n
be a guardian of his person, or property or both.  Section<\/p>\n
17 lays down the parameters to be considered by the Court<\/p>\n
in   appointing  guardian.    The   law  to   which   the   minor  is<\/p>\n
subject is relevant, and welfare of the child is to be given<\/p>\n
paramount importance.  The content of the term ‘welfare’<\/p>\n
has   to   be   assessed,   having   regard   to   the   age,   sex   and<\/p>\n
religion   of   the   minor,   character   and   capacity   of   the<\/p>\n
proposed   guardian,   his   nearness   of   kin   and   the   like.<\/p>\n
Section 19 cautions that the Court may not have discretion<\/p>\n
to appoint a guardian to a minor, when he has his father<\/p>\n
alive, if in the opinion of the Court is not unfit to be the<\/p>\n
guardian.\n<\/p>\n
\n[MFA (G & W) No.150 of 2006]
\n                                  -16-<\/span><\/p>\n
      19.    But the position does not stop at this, as far as a<\/p>\n
person who is Hindu.  Act 32 of 1956 had been introduced<\/p>\n
by  the  Parliament,  supplemental  to Act  8  of 1890.   The<\/p>\n
term  ‘Hindu’  is   to   include   Buddhist,   Jain   or   Sikh,<\/p>\n
Virashaiva,   Lingayat   etc.     Muslims,   Christians   and<\/p>\n
members of Scheduled Tribes are expressly excluded from<\/p>\n
its purview.   Section 5 of the Act gives  it an overriding<\/p>\n
effect, and any other law in force immediately before the<\/p>\n
commencement of the said Act was to have no effect, in so<\/p>\n
far   as   it   is   inconsistent   with   the   provisions   thereof.<\/p>\n
Natural guardian for a Hindu minor is his father, and after<\/p>\n
him   the   mother.     But   custody   of   a   minor,   who   has   not<\/p>\n
completed   the   age   of   five,   can   ordinarily   be   with   the<\/p>\n
mother.  Section 8 authorises a natural guardian to do all<\/p>\n
acts which are necessary or reasonable and proper for the<\/p>\n
benefit of the minor.\n<\/p>\n
      20.    In respect of    such proceedings, monitoring by<\/p>\n
the Court is as provided by Section 13.  For the welfare of<\/p>\n
the minor, wide powers are given to the Courts.   In fact,<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                 -17-<\/span><\/p>\n
Section 13 reads as following:\n<\/p>\n
              “13.  Welfare   of   minor   to   be
\n       paramount consideration  (1)  In the
\n       appointment   or   declaration   of   any
\n       person as guardian of a Hindu minor by
\n       a   Court,   the   welfare   of   the   minor
\n       shall be the paramount consideration.\n<\/p><\/blockquote>\n
              (2)     No person  shall  be entitled
\n       to   the   guardianship   by   virtue   of   the
\n       provisions  of this  Act  or of  any  law
\n       relating   to   guardianship   in   marriage
\n       among   Hindus,   if   the   Court   is   of
\n       opinion   that   his   or   her   guardianship
\n       will   not   be   for   the   welfare   of   the
\n       minor”\n<\/p><\/blockquote>\n
        21.   As   pointed   out   in  Madhava   Panicker  v.\n<\/p><\/blockquote>\n
Santhamma [1977 KLT 816), the age of the child is one of<\/p>\n
the most important aspect to be looked into.   The Court<\/p>\n
held that:\n<\/p>\n
              “Shobhana   is   now   11   years   old.<\/p>\n
       At   this   age   it   will   be   cruel   to
\n       separate   a  child  from  her   mother  and
\n       this is especially so in the case of a
\n       daughter.     The   daughter   needs   the
\n       constant   company   of   her   mother   who
\n       alone can advise her and guide her on
\n       matters of utmost personal importance
\n       to her.”<\/p><\/blockquote>\n
      22.     Raveena here is aged about 10 and is situated<\/p>\n
like   Shobhana,   referred   to   in   the   decision   cited   above.<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                  -18-<\/span><\/p>\n
Very   shortly   she   might   be   in   need   of   a   close,   personal<\/p>\n
guidance,   including   monitoring   of   her   physiological<\/p>\n
changes.      A   mother’s   constant  presence   can  instil   in  a<\/p>\n
minor’s mind qualities of fidelity in life, and faith in the<\/p>\n
institution   of   marriage   as   well   as   solemn   relations,<\/p>\n
essential for community life.    In areas where lessons are<\/p>\n
to   be   imparted,   for   example   in   hygiene,   grooming,<\/p>\n
selection of   companions and the like, a father will be a<\/p>\n
poor   substitute.       An   educated   mother,   who   has   made<\/p>\n
express   offer,   as   could   be   seen   from   the   order   of   the<\/p>\n
Family   Court,   for   attending   to   her   educational   needs,<\/p>\n
according to us, is a more suitable person to be entrusted<\/p>\n
with custody, if not guardianship.  In view of Section 13 of<\/p>\n
the   Hindu   Minority   and   Guardianship   Act,   it   is   not<\/p>\n
necessary for us to cast aspersions on the father at all.<\/p>\n
      23.    Although   Sri.Ramachandran   very   forcibly<\/p>\n
invited   our   attention   to   a   Division   Bench   judgment   in<\/p>\n
Kurian C.Jose v. Meena Jose<\/a> [1992 (1) KLT 818], we feel<\/p>\n
it will be more appropriate to bypass the judgment, as far<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                -19-<\/span><\/p>\n
as   this   case   is   concerned.     The   decision   predominantly<\/p>\n
relied on a circumstance that paramount consideration is<\/p>\n
the welfare of the minor and when the father there was<\/p>\n
living with his concubine, and that too  the younger sister<\/p>\n
of the mother, Court held that this was a conduct which<\/p>\n
disentitles the father to act as  guardian of the minor child.<\/p>\n
We   feel   that   even   without   disqualifying   the   father   or<\/p>\n
making  aspersions  against   him  in   the     discretion  of  the<\/p>\n
Court, of course after evaluating the relevant factors, an<\/p>\n
adjudicator   may be entitled to nominate a person as the<\/p>\n
guardian or provide for an arrangement, where the minor<\/p>\n
is put in the custody of a guardian, after naming a person,<\/p>\n
who according to the Court, would be an ideal person to be<\/p>\n
reposed with such responsibility.\n<\/p>\n
      24.    As referred to earlier, Act 8 of 1890 gives an<\/p>\n
indication as to what is meant by the expression ‘welfare’.<\/p>\n
Age is a factor.  Definitely the age and gender of Raveena,<\/p>\n
who has attained  adolescence is a factor which requires<\/p>\n
the Court to opt her   mother, contextually for acting as a<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                 -20-<\/span><\/p>\n
governess.       A   Nair   girl   is   presumed   to   be   observing<\/p>\n
Marumakkathayam,   and   the   reference   to   religion   as   a<\/p>\n
guiding factor also favours such a decision.   There is no<\/p>\n
aspersions   as   of   now   at   least,   as   against   the   mother.<\/p>\n
Viewed from these angles, custody  of father here, will not<\/p>\n
be conducive  for the welfare of the minor, and we feel he<\/p>\n
has to reconcile to the position, till such time Raveena is<\/p>\n
capable of taking a decision by herself.<\/p>\n
      25.    Proximity or otherwise of a school and the like,<\/p>\n
we   feel   are   not   to   be   unduly   emphasised,   as   we   are<\/p>\n
expected  to  have  a  more  holistic  vision.    As   referred  to<\/p>\n
earlier, the two enactments cover the entire population of<\/p>\n
India, and Act 32 of 1956 might be applicable to more than<\/p>\n
75% of the people of this country.  They have different life<\/p>\n
style, dialects, customs and ceremonies, and always   the<\/p>\n
anxiety   of   the   parents   could  be   that   children   should   be<\/p>\n
protected   from   exploitation   and   possible   ill-treatment.<\/p>\n
While   interpreting   the   provisions,   we   have   to   caution<\/p>\n
ourselves to be doubly careful to ensure that the legislative<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                  -21-<\/span><\/p>\n
intent is not watered down.   We have to note that the law<\/p>\n
governs the rich as well as the poor, a city dweller or a<\/p>\n
villager,   a   caste   Hindu,   and   a   person   who   is   not   so<\/p>\n
fortunate.     The   guiding   principles   of   course   cannot   be<\/p>\n
strait-jacketted, but should be tailor-made so that the child<\/p>\n
is   to   be   brought   within   a   protective   shield.     On   these<\/p>\n
premises,  if the welfare of the minor Raveena is to be the<\/p>\n
paramount objective, we are sure, that custody of the child<\/p>\n
has to be given in favour of the mother.\n<\/p>\n
      26.    Resultantly,   we   find   nothing   improper   in   the<\/p>\n
orders   passed   by   the   Family   Court.     The   appeal   is<\/p>\n
therefore   dismissed.     The   interim   orders   will   stand<\/p>\n
vacated.    We   notice   that  the   petition   before   the   Family<\/p>\n
Court confined to a prayer for custody of the child.   The<\/p>\n
relief was granted.   The acceptable position is that father<\/p>\n
continues to be the legal  guardian  of the child.   But,  in<\/p>\n
order to avoid further complications or embitterments, we<\/p>\n
declare   that exercising the right of custody, the mother<\/p>\n
will   have   the   privilege   of   submitting   applications   before<\/p>\n
[MFA (G & W) No.150 of 2006]
\n                                                        -22-<\/span><\/p>\n
concerned   authorities   in   the   matter   of   admission,   or<\/p>\n
release of her ward, as may be appropriate, especially in<\/p>\n
the   matter   of   education   of   the   child.     She   will   also   be<\/p>\n
entitled   to   exercise   her   discretion   in   any   ancillary   or<\/p>\n
subsidiary matters, without seeking consent or ratification<\/p>\n
of the appellant herein, but the details are to be furnished<\/p>\n
to him to keep him informed of the developments.     We<\/p>\n
make no order as to costs.\n<\/p>\n<\/p>\n
                                                                            (M.RAMACHANDRAN)
\n                                                                                          JUDGE<\/p>\n
                                                                                  (K.T.SANKARAN)
\n                                                                                        JUDGE<\/p>\n
mks\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Kanheeri Venugopalan vs K.V. Beena on 8 November, 2006 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-211645","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKanheeri Venugopalan vs K.V. 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