{"id":213973,"date":"1973-04-05T00:00:00","date_gmt":"1973-04-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rosy-jacob-vs-jacob-a-chakramakkal-on-5-april-1973"},"modified":"2015-09-07T17:57:09","modified_gmt":"2015-09-07T12:27:09","slug":"rosy-jacob-vs-jacob-a-chakramakkal-on-5-april-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rosy-jacob-vs-jacob-a-chakramakkal-on-5-april-1973","title":{"rendered":"Rosy Jacob vs Jacob A. Chakramakkal on 5 April, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rosy Jacob vs Jacob A. Chakramakkal on 5 April, 1973<\/div>\n
Equivalent citations: 1973 AIR 2090, \t\t 1973 SCR (3) 918<\/div>\n
Author: I Dua<\/div>\n
Bench: Dua, I.D.<\/div>\n
           PETITIONER:\nROSY JACOB\n\n\tVs.\n\nRESPONDENT:\nJACOB A. CHAKRAMAKKAL\n\nDATE OF JUDGMENT05\/04\/1973\n\nBENCH:\nDUA, I.D.\nBENCH:\nDUA, I.D.\nALAGIRISWAMI, A.\nVAIDYIALINGAM, C.A.\n\nCITATION:\n 1973 AIR 2090\t\t  1973 SCR  (3) 918\n 1973 SCC  (1) 840\n CITATOR INFO :\n R\t    1982 SC1276\t (14,19)\n\n\nACT:\nGuardians   and\t  Wards.   Act,\t 1890,\t Sec.\t25-Husband's\napplication  for  the  custody of  children-Welfare  of\t the\nchildren is the dominant consideration.\n\n\n\nHEADNOTE:\nOn  the wife's application, judicial separation was  granted\nunder the Indian Divorce Act by the single Judge of the High\nCourt.\t The custody of the eldest son was  maintained\twith\nthe husband while that of the daughter and the youngest\t son\nwas  given  to\tthe  wife.  In\tthe  Letters  Patent  Appeal\npreferred  by  the husband, the Division  Bench\t varied\t the\norder directing handing over the custody of the daughter and\nthe  youngest  son  also  to  the  husband.   The  principal\nquestion   before  the\tCourt  was  whether  the   husband's\napplication  for the custody of the children u\/s 25  of\t the\nGuardian  and Wards Act, 1890, was maintainable and, if\t so,\nwhat  are the considerations which the Court should bear  in\nmind  in  exercising  the discretion  regarding\t custody  of\nchildren.\nAllowing the appeal,\nHELD:\t  (i)  On the facts and circumstances of  the  case,\nnamely,\t that  the  Court cannot make any  order  under\t the\nDivorce\t Act, as the daughter had attained majority, and  no\nguardian  could\t be appointed U\/S. 19 of the  Guardians\t and\nWards  Act,  1890  during  the life  time  of  the  existing\nguardian,  husband's application was competent.\t Welfare  of\nthe  children  is  the\tprimary\t consideration,\t and  hyper-\ntechnicalities should not be allowed to deprive the guardian\nnecessary   assistance\t from  the  Court   in\t effectively\ndischarging  his  duties and obligations towards  his  ward.\n[932D]\n(ii) The controlling consideration governing the custody  of\nthe  children is the welfare of the children  concerned\t and\nnot the right of their parents.\t The Court while  exercising\nthe  discretion\t should\t consider  all\trelevant  facts\t and\ncircumstances so as to ensure the welfare of the children.\nThe  contention that if the husband is not unfit to  be\t the\nguardian of his minor children,\t   then\t  the  question\t  of\ntheir  welfare does not at all arise, is misleading. If\t the\ncustody\t of  the  father  cannot  promote   the\t  children's\nwelfare,  equally or better, than the custody of the mother,\nthen,  he cannot claim indefeasible right to  their  custody\nu\/s  25\t merely because there is no defect in  his  personal\ncharacter and he has attachment for his children-which every\nnormal\tparent\thas.   As the  daughter\t has  just  attained\npuberty\t and the youngest son was of the tender age, in\t the\ninterest  of  their  welfare, the  mother  should  have\t the\ncustody in preference to the father. [933D]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeals Nos.  1295  &
\n1296 of 1972.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nApril 26, 1972 of the Madras High.Court in O.S.A. Nos. 2 and
\n3 of 1971.\n<\/p>\n
919<\/span><\/p>\n
K. N. Balasubramanian and Lily Thomas, for the appellant.
\nThe respondent appeared in person.\n<\/p>\n
The Judgment of the Court was delivered by
\nDUA, J.-The real controversy in these two appeals by special
\nleave  preferred by the wife against her husband, lies in  a
\nnarrow\tcompass.   These appeals are  directed\tagainst\t the
\njudgment  and order of a Division Bench of the\tMadras\tHigh
\nCourt allowing the appeals by the husband and dismissing the
\ncross-objections by the wife from the judgment and order  of
\na  learned  single judge of the same High  Court  dismissing
\nabout  25  applications seeking diverse\t kinds\tof  reliefs,
\npresented  by  one  or the other party.\t  According  to\t the
\nlearned\t single Judge (Maharajan J.) “these 25\tapplications
\nrepresent  but a fraction of the bitterness and\t frustration
\nof an accomplished Syrian Christian couple who after  making
\na  mess\t of their married life have endeavoured\t to  convert
\nthis Court into a machinery for wreaking private vengeance’.
\nThis  observation reflects the feelings of the\thusband\t and
\nthe wife towards each other in the present litigation.\t The
\nshort question which we are called upon to decide relates to
\nthe  guardianship of the three children of the\tparties\t and
\nthe   solution\t of   this   problem   primarily    requires
\nconsideration of the welfare of the children.
\nThe appellant, Rosy Chakramakkal (described herein as  wife)
\nwas  married to respondent Jacob A. Chakramakkal  (described
\nherein\tas husband) sometime in 1952.  Three  children\twere
\nborn from this wedlock.\t Ajit alias Andrews,, son, was\tborn
\nin  1955, Maya alias Mary was born in 1957 and Mahesh  alias
\nThomas was born in 1961.  Sometime in 1962 the wife  started
\nproceedings for judicial separation (O.M.S. 12 of 1962).  on
\nthe  ground that the husband had inflicted upon her  several
\nacts  of physical, mental and moral cruelty and\t obtained  a
\ndecree on April 15, 1964.  Sadasivam J., while granting\t the
\ndecree\tdirected  that Ajit alias Andrews (son)\t the  eldest
\nchild should be kept in the custody of the husband and\tMary
\nalias Maya (daughter) and Thomas alias Mahesh (youngest son)
\nshould be kept in the custody of the wife.  The husband\t was
\ndirected  to pay to the wife Rs.200\/ per mensem towards\t the
\nexpenses  and maintenance of the wife and the two  children.
\nThe  wife  applied  to Sadasivam J., sometime  later  for  a
\ndirection that Ajit alias Andrews should also be handed over
\nto  her or in the alternative for a direction ‘that the\t boy
\nshould\t be  admitted  in  a  boarding\tschool.\t   In\tthis
\napplication  (no. 2076 of 1964) it was alleged by  the\twife
\nthat  the husband had beaten Ajit on the ground that he\t had
\naccepted  from\this mother’ (the wife) a fountain pen  as  a
\npresent.   This\t was denied by the husband but\tthe  learned
\nJudge,\tafter elaborate enquiry, held that he had  no  doubt
\nthat the husband had caused injuries to the boy on
\n920<\/span>
\naccount\t of his sudden out burst of temper on learning\tthat
\nAjit had received a fountain pen by way of present from\t his
\nmother on his birth day.  Ajit was accordingly to be  handed
\nover to the mother subjected to certain conditions.
\nThe  husband preferred an appeal against the decree made  in
\nO.A4.S.\t 12 of 1962 (O.S.A. 65 of 1964) and  another  appeal
\nagainst the order made by Sadasivam J., (in application\t no.
\n2076 of 1964 in O.M.S. 12 of 1962) directing the custody  of
\nthe eldest son Ajit to be handed over to the wife (O.S.A. 63
\nof  1964).  On August 2, 1966 the appellate bench  confirmed
\nthe decree for judicial separation granted by Sadasivam\t J.,
\nand  also issued certain, directions based on  agreement  of
\nthe parties with respect to the custody of the children, as.
\nalso  reduction\t of the monthly maintenance payable  by\t the
\nhusband\t to  the  wife\tfrom Rs.  200\/to  Rs.  15011-  p.m.,
\ninclusive  of maintenance payable for Mahesh.  According  to
\nthis  order  the eldest boy Ajit alias Andrews\tdirected  to
\nremain\tin the custody of the father and to be educated\t ‘by
\nhim at his expense : Mahesh alias Thomas was directed to  be
\nin the custody of the mother to be educated at her  expense:
\nand the second child Maya alias Mary was directed to be\t put
\nin  a  boarding\t school,  the  expenses\t of  her  board\t and
\neducation  to  be met in equal shares by both  the  parents.
\nThe husband also undertook that ‘he will arrange to have the
\npresence of his mother or sister at his residence to  attend
\nto  the\t children whenever they are with him  and  never  to
\nleave the children alone at his residence or to the care  of
\nhis  servants or others”.  Later both the husband  and\twife
\npresented  a series of applications in the  appellate  court
\nseeking\t  modifications\t of  its  directions.\tThat   court
\nultimately  made an order on February 2, 1967 modifying\t its
\nearlier directions.  The modified order directed Maya to  be
\nleft  in  the  exclusive  custody of the  wife\twho  was  at
\nliberaty  to educate her in the manner she thought  best  at
\nher  own  cost.\t  The  appellate  court\t also  modified\t the
\ndirection regarding maintenance and ordered that the husband
\nshould pay to the wife maintenance at the rate of Rs.  200\/-
\np.m.  as awarded by the learned single judge.\tSubsequently
\nthe  directions of the appellate, court regarding access  of
\nthe  mother and the father to the children were also  sought
\nby  the\t parties  to be modified to the\t prejudice  of\teach
\nother.\tThe matters are stated to have been heard by most of
\nthe  Judges  of the Madras High Court at one  stage  or\t the
\nother and according to Maharajan J., ‘,he parties even tried
\nto  secure  transfer  of these proceedings  by\tmaking\twild
\nallegations  of partiality against some of the Judges.\t The
\nhusband\t who is an advocate of the Madras High\tCourt,\thad,
\naccording  to  the wife, been  filing  cases  systematically
\nagainst\t her and the wife, who, in the opinion of  Maharajan
\nJ., has the gift of the gab also argued her own cases.\t The
\nchildren for whose
\n921<\/span>
\nwelfare\t the parents are supposed to have been\tfighting  as
\nobserved   by\tMaharajan   J.,\t are   given   a   secondary
\nconsideration and the quarrelling couple have lost all sense
\nof  proportion.\t  On  account of  these\t considerations\t the
\nlearned single Judge felt that it would be a waste of public
\ntime   to  consider  in\t detail\t the  trivialities  of\t the
\ncontroversy pressed by both the parties to this\t litigation.
\nAccording  to  the learned single Judge the  following\tfour
\npoints arose for his judicial determination’.\n<\/p>\n
\t      “(1)   Whether  by  defaulting  to   pay\t the
\n\t      maintenance decreed, the husband must be\theld
\n\t      guilty of contempt and shall not be allowed to
\n\t      prosecute\t his applications before  he  purges
\n\t      himself of contempt?\n<\/p><\/blockquote>\n
\t      (2)   What  is  the proper order\tto  pass  as
\n\t      regards  the custody of the three children  of
\n\t      the  marriage in the light of the events\tthat
\n\t      have  occurred subsequent to the judgement  of
\n\t      the  appellate court and under  the  Guardians
\n\t      and Wards Act ?\n<\/p><\/blockquote>\n
\t      (3)   What  is the proper order to pass as  to
\n\t      the access of either parent to the children in
\n\t      the custody of the other?\n<\/p><\/blockquote>\n
\t      (4)   Whether  in the light of the  subsequent
\n\t      events,\tthe  order   regarding\t maintenance
\n\t      allowance\t should\t be  reduced,  enhanced\t or.<\/p><\/blockquote>\n
\t      altered in any manner and if so, how?’
\nOn the first point the learned single Judge came to the con-
\nclusion\t that  the  husband could not  be  declined  hearing
\nmerely\tbecause he had not paid the maintenance as  directed
\nby  the matrimonial court.  The amount in respect  of  which
\nthe husband had defaulted payment could be recovered through
\nexecution  proceedings.\t On point no. 2 the  learned  single
\nJudge  proceeded to consider the question of the custody  of
\nthe three children with the preliminary observation that the
\ncontrolling  factor governing their custody would  be  their
\nwelfare\t and  not the rights of their parents.\t The  eldest
\nchild  Ajit alias Andrews, according to the  learned  Judge,
\nwas   doing   well  at\tthe  school  and   was\t progressing
\nsatisfactorily\tboth  mentally and  physically.\t  There\t was
\naccordingly  no\t reason ‘to. transfer his custody  from\t his
\nfather\tto  his mother.\t As regards the\t second\t child\tMaya
\nalias Mary, as she was about to attain puberty and the\twife
\nbeing  anxious that till she got married she must be in\t the
\nmother’s vigilant and affectionate custody she was to remain
\nwith her mother.  Mahesh alias Thomas, who was considered to
\nbe  of\ttender\tyears and in the  formative  stage  of\tlife
\nrequiring  sense of emotional security which a mother  alone
\ncould  give,  was also kept in the custody  of\this  mother.
\nWith respect to Maya and Mahesh it was further observed that
\nfrom  their educational. point of view the wife was  a\tmore
\nsuitable
\nL797Sup.CT\/73
\n922<\/span>
\ncustodian than the husband because she was running a primary
\nschool\tfrom  nursery  to fifth standard with  more  than  a
\nhundred\t pupils\t and was also residing in a portion  or\t the
\nschool premises enjoying certain facilities in her  capacity
\nas  the founder and principal of that school.  The  husband,
\nwho  was  described  as\t a  grass  widower  without   female
\nrelatives  to look after the children, was not preferred  to
\nthe  wife  as, while being with her, the children  would  be
\nliving\tin  an\tacademic atmosphere.  With  respect  to\t the
\nhusband’s  complaint that from the moral point of  view\t the
\nwife  was  not\tfit to have the\t custody  of  the  children,
\nMaharajan J., observed that earlier Sadasivam J., had  dealt
\nwith  the  entire evidence relating to this charge  and\t had
\nfound  no  sufficient ground for such amputations  and\tthat
\nthey were likely to cause mental pain to the wife and affect
\nher health.  The husband had even been held guilty of mental
\nand  moral  cruelty to the wife.  The  husband’s  contention
\nthat  his  opinion was reversed by the appellate  bench\t was
\ndisposed  of  by Maharajan J., after quoting  the  following
\npassage from the appellate judgment dated August 2, 1966
\n\t      “But it is to be clearly understood that there
\n\t      should  be no slur on the part of\t either\t the
\n\t      appellant\t or  the respondent because  of\t the
\n\t      several\tproceedings  in\t court\t and   other
\n\t      happenings  outside.  The decree for  judicial
\n\t      separation  which is confirmed does  not\tcast
\n\t      any  cloud on the reputation or  character  of
\n\t      the  husband or the wife.\t They  have  reached
\n\t      this  settlement\tkeeping\t in  view  all\t the
\n\t      circumstances and particularly the welfare  of
\n\t      their minor children.”\n<\/p>\n
According to Maharajan 3., the appellate bench had felt sat-
\nisfied that the charge of immorality levelled by the husband
\nagainst the wife was not established because had it not been
\nso  satisfied the bench would not have entrusted two of\t the
\nthree  children\t to  the  wife.\t  The  husband\twas  in\t the
\ncircumstances  held by Maharajan J., disentitled  to  reopen
\nthe  question  of  the wife’s  immorality.   In\t any  event,
\nMaharajan  J.,\talso rejected the charge  of  immorality  as
\nunproved,  for\tthe  same reasons  which  had  weighed\twith
\nSadasivam J. With respect to point no. 3 the learned  single
\nJudge gave the following directions :\n<\/p>\n
\t      “(1)  On\tthe  first Sunday  of  every  month,
\n\t      except   during  the  school  vacations,\t the
\n\t      husband  shall send Ajit alias Andrews to\t the
\n\t      wife by 8.00 a.m. and the wife shall send back
\n\t      the child by 8. p.m. the same day.\n<\/p><\/blockquote>\n
\t      (2)   The wife shall send Maya alias Mary\t and
\n\t      Thomas alias Mahesh to the husband’s by 8 a.m.
\n\t      on  the  last Sunday of  every  month,  except
\n\t      during  the school vacations, and the  husband
\n\t      shall send them back by 8 p.m. the same day.\n<\/p><\/blockquote>\n
\t      923<\/span><\/p>\n
\t      (3)   Each party shall send the children by  a
\n\t      conveyance   taxi,  rickshaw  or\tbus,   after
\n\t      prepaying the fare thereof.\n<\/p><\/blockquote>\n
\t      (4)   The wife shall send Mary alias Maya\t and
\n\t      Thomas  alias  Mahesh to the husband,  so\t hat
\n\t      they  might  stay\t with  him  and\t Ajit  alias
\n\t      Andrews  for  thirty days\t during\t the  summer
\n\t      vacation.\t   The\texact  time  and  dates\t  of
\n\t      departure\t and  arrival  will  be\t fixed\twith
\n\t      reference\t to the convenience of\tparties\t and
\n\t      after change, of letters between them at least
\n\t      one  months prior to the commencement  of\t the
\n\t      vacation’ Likewise, the husband will send Ajit
\n\t      to  the wife to enable him to spend the  whole
\n\t      Dasara and Christamas vacations in the company
\n\t      of his mother, sister and brother.”\n<\/p><\/blockquote>\n
On  the\t fourth\t point\tthe  learned  single  Judge,   fater
\nconsidering  at\t length the wife’s allegations\tagainst\t the
\nhusband\t with  respect to his  extravagance  and  inability,
\nreduced\t the  quantum of maintenance payable by him  to\t the
\nwife  to  Rs. 100\/- p.m., the reduced amount  being  payable
\nwith effect from January 1, 1971.  The husband was  directed
\nto pay the monthly maintenance on or before the 10th of\t the
\nsucceeding month.  This order was made with the\t observation
\nthat  the earning capacity of the wife was superior to\tthat
\nof the husband.\n<\/p>\n
It is un necessary to refer to the formal orders  separately
\npassed in the various applications.  Suffice it to say\tthat
\nthe  parties were left to bear to their own costs  and\thope
\nwas  expressed\tin the coneluding para of  the\tjudgment  by
\nMaharajan, J. that “the parties will refrain from rushing to
\nthis  court  with applications of the kind  that  have\tbeen
\ndismissed  and\twill  apply themselves\tassiduously  to\t the
\nimprovement of their status in their respective\t professions
\nand  to alleviation of the pain of material  failure,  which
\nhas  unfortunately  been visited upon the three\t lovely\t and
\nsprightly children that they have produced.”
\nContrary to the hope expressed by learned Judge, the  matter
\nwas taken to the appellate bench of the High Court under cl.
\n15 of the Letters Patent (O S. Appeal Nos. 2 and 3 of 1971).
\nThe  wife  also\t pressented  cross-objections  against\t the
\nreduction  of alimony and against directions as regards\t the
\nfather’s  access  of Maya.  A large number  of\tapplications
\nwere  presented\t to the Court parties  praying\tfor  diverse
\nreliefs\t  including  action  for  contempt  of\t court\t for
\ndisobedience  of  the court’s orders.  The  hearing  of\t the
\nappeals\t somewhat surprisingly lasted for more than  a\tyear
\n(March\t1971 to March 1972).  We find no  justification\t for
\nsuch prolonged hearing on a fairly simple matter like  this.
\nAccording to the Letters Patent Bench the arguments on\tboth
\nsides “mainly
\n924<\/span>
\nrested upon the character of each”.  The husband is said  to
\nhave  repeatedly accused the wife with immorality.   In\t the
\nopinion of the Letters Pantent Bench “the truth or otherwise
\nof the matter may assume importance only for the purpose  of
\ndeciding upon the fitness of the person to ‘be the  guardian
\nof  the\t children”.  Final orders were passed on  April\t 26,
\n1972  by  means of which the husband was held to  be  better
\nfitted to be the guardian of the three children and to\thave
\ntheir  custody.\t  This decision was stated to  be  based  on
\nevidence  and in view of ss. 17, 19 and 25 of the  Guardians
\nand Wards Act.\tThis is what one of the Judges\tconstituting
\nthe Letters Patent Bench (Gokul Krishnan, J.,) said in\tthis
\nconnection
\n\t      “In our opinion, the principles to be  applied
\n\t      to  cases of this kind will be the  same\tboth
\n\t      under the Indian Divorce Act and the Guardians
\n\t      and Wards Act, 1890. But since the father\t has
\n\t      specifically filed a petition, O.P. No. 270 of
\n\t      1970,  under section 25 of the  Guardians\t and
\n\t      Wards  Act, and that being a special  law\t for
\n\t      the  purpose  will certainly apply,  we  shall
\n\t      concentrate  on the Guardians and\t Wards\tAct,
\n\t      1890”.\n<\/p>\n
After  quoting\tS.  19\tof  the\t Guardians  and\t Wards\t Act
\nthe learned Judge proceeded :\n<\/p>\n
\t      “It  is thus clear that the special  enactment
\n\t      definitely  states  that\tthe  father  is\t the
\n\t      guardian of the minor until he is found  unfit
\n\t      to be the guardian of the person of the minor.
\n\t      The  welfare  of the minor  is  the  paramount
\n\t      consideration  in\t the  matter  of   apointing
\n\t      guardian\tfor the person of minor, and  cannot
\n\t      be  said to be in conflict with the  terms  of
\n\t      section  19  of the Guardians  and  Wards\t Act
\n\t      which  recognize the father as  the  guardian.
\n\t      Bear ing this in mind, we proceed to  consider
\n\t      as to who is fit and proper to be the guardian
\n\t      for  the person of the minor children in\tthis
\n\t      case.”\n<\/p><\/blockquote>\n
In  his view the principle on which the Court should  decide
\nthe fitness of the guardian mainly depends on two factors  :\n<\/p>\n
(i) the father’s fitness or otherwise to be the guardian and\n<\/p>\n
(ii) the interests of the minors.  Considering these factors
\nit was felt that both the parties in the present case  loved
\ntheir children who were happy during their stay with both of
\ntheir  parents.\t There was in his view, absolutely no  proof
\nas  regards  disqualification  of  the\thusband\t to  be\t the
\nguardian of the minor children.\t It may here be pointed\t out
\nthat  both the Judges constituting the Letters Patent  Bench
\nwrote separate judgments.  Gokulakrishnan J., commenting  on
\nthe Judgment of Maharajan J., observed thus :\n<\/p>\n
\t      “Maharajan J. in his judgment under appeal  no
\n\t      doubt referred to section 19 of the  Guardians
\n\t      and  Wards Act, but would observe that if\t the
\n\t      Court finds that the
\n\t      welfare\tof  the\t minor\tchildren  could\t  be
\n\t      protected\t only in the maternal  custody,\t the
\n\t      Court  has  power to put the children  in\t the
\n\t      care  of custody of the mother.\tThe  learned
\n\t      Judge  clearly observed that Ajit, the  eldest
\n\t      boy,  who is in the custody of the  appellant,
\n\t      is  quite healthy and cheerful, doing well  at
\n\t      school and that his sojourn    with the father
\n\t      has not prejudicially affected him  physically
\n\t      or  mentally.  But  at the  same\tbreath,\t the
\n\t      learned  Judge says that Maya and Mahesh\t‘are
\n\t      of tender years and in the formative stage  of
\n\t      their  life  and\tneed a\tsense  of  emotional
\n\t      security,\t which a mother alone  can  give.’In
\n\t      the case of Maya and Mahesh, the learned Judge
\n\t      has applied a different standard in regard  to
\n\t      their custody. Considering the present age  of
\n\t      both   Maya   and\t Mahesh\t and   taking\tinto
\n\t      consideration  the upbringing of Ajit  by\t the
\n\t      appellant having him in his custody, we are of
\n\t      the  view\t that the same amount  of  sense  of
\n\t      emotional security can be enjoyed by Maya\t and
\n\t      Mahesh at the hands of the appellant also. The
\n\t      learned  Judge’s reasoning that the mother  is
\n\t      running  a school and has also  facilities  to
\n\t      make  these two children live in the  academic
\n\t      atmosphere  rather than  with\t       their
\n\t      father,\t cannot have any force, in. view  of
\n\t      the clear and categorical principles laid down
\n\t      in the various decisions noticed\t  (supra)
\n\t      and  also in view of the clear intendment\t and
\n\t      spirit  of the Guardians and Wards Act,  which
\n\t      prescribes that\t   father is the guardian of
\n\t      his minor child unless other   wise      found
\n\t      unfit.  The  academic  qualification  of\t the
\n\t      mother,  her  financial status and  the  other
\n\t      standards\t cannot\t at all weigh in the  matter
\n\t      when the appellant has not been rejected as  a
\n\t      person unfit to be the guardian\t  of\t the
\n\t      minors.  If they should weigh, the poorer\t and
\n\t      affectionate father with moderate capacity  to
\n\t      protect  his children will be deprived of\t the
\n\t      custody  of the minor children on\t the  flimsy
\n\t      ground of ‘welfare of the minor
\n\t      children’.  That is how and why ‘,the  welfare
\n\t      of  the  minor  children’ must  be  read\twith
\n\t      ‘fitness\tor  unfitness of the  father  to  be
\n\t      guardian of the minors. Once it is found\tthat
\n\t      the father is the fit and proper person to  be
\n\t      the guardian of his minor children, unless  it
\n\t      is otherwise found that he is not fit, it must
\n\t      be presumed that the children’s interests will
\n\t      be properly protected by the father. As far as
\n\t      the present case is concerned, when      the
\n\t      trial  court  itself has found that  Ajit\t has
\n\t      been properly looked after and brought up very
\n\t      well in his academic career by the  appellant,
\n\t      there  cannot be any difficulty in  coming  to
\n\t      the conclusion that Maya and
\n\t      9 26
\n\t      Mahesh will also be looked after and protected
\n\t      and  imparted  with proper  education  by\t the
\n\t      affectionate father, the appellants
\nAfter  reproducing certain observations from the  judgment’,
\nof  (i) Sadasivam J., dated April 15, 1964, (ii)  Veeraswamy\n<\/p><\/blockquote>\n
1..  (as  he  then was) and  Krishnaswami  Reddy  J.,  dated
\nFebruary 1967 in C.M.P. 415 in O.S.A. nos. 63 & 65 of  1969,
\nRamamurthy J., dated April 24, 1968 in application nos.\t 769
\nand 770 of 1968 in O.M.S. 12 of 1962 and after referring  to
\nthe  view of Maharajan J., that Ajit when produced in  Court
\nwas  found quite healthy and cheerful and was doing well  at
\nschool, Venkataraman  J. in his concurring judgment observed
\nthus :-\n<\/p>\n
\t      “Regarding  the other children, he gave  their
\n\t      custody to the mother, because he thought that
\n\t      they were of tender years and needed emotional
\n\t      security\twhich  a mother\t alone\tcould  give.
\n\t      Here,  with  respect we must differ  from\t the
\n\t      learned  Judge.\tWe find that the  father  is
\n\t      quite fit to have the custody of the children,
\n\t      and.  in\tlaw, custody of the  minor  children
\n\t      cannot  be  refused  to  him.   We  are\talso
\n\t      satisfied\t from what we saw of  the  appellant
\n\t      and,   heard  from  him  during  the   several
\n\t      hearings,\t that he is very deeply attached  to
\n\t      his  children and is quite competent  to\thave
\n\t      their  custody.\tIt  wilt be  enough  if\t the
\n\t      mother is allowed a somewhat liberal access to
\n\t      the three children.”\n<\/p><\/blockquote>\n
With  respect to alimony the appellate bench concluded\tthat
\nthe wife was managing her school very successfully; she\t had
\npurchased  a  mini-bus and also possessed wet lands  in\t her
\nvillage\t The  husband on the other hand was not\t getting  on
\nwell  in his profession which he attributed to\tthe  present
\nlitigation  :  his  house at Adyar was stated  to  be  under
\nmortgage  and  he  had practically sold\t everything  in\t his
\nnative\tvillage with the exception of one,  or\tone-and-half
\nacres  of  land.  In view of the financial position  of\t the
\nwife  and the husband and in view of the fact that  all\t the
\nthree children were to be in the custody of the husband\t the
\nappellate  bench considered it unnecessary for the’  husband
\nto  pay\t any maintenance to the wife.  The  payment  of\t the
\narrears\t of  alimony  was also suspended  as  the  appellate bench
\n  considered  itself  empowered to  do\tso  under  the
\nproviso\t to s. 37 of the Indian Divorce Act.  In so  far  as
\naccess of the wife to’ the children is concerned a  detailed
\norder was passed by the bench about the right of the wife to
\ntake  the daughter with her during the summer and  Christmas
\nvacations   and\t also  during  several\tdays  every   month,
\nparticularly  during  the periods.  We do  not\tconsider  it
\nnecessary to state in full the details of that order.\tWith
\nrespect to Ajit and
\n927<\/span>
\nMahesh\talso  a detailed order was made fixing\tthe  precise
\ndays  and even time when the wife could bring  the  children
\nfrom  the  father  to stay with her.  In the  event  of\t any
\ndifficulty in getting custody of the children from the wife,
\nit was ordered at the instance of the husband, that he could
\ntake  the  police  help on the strength of  the\t High  Court
\njudgment.  We find it extremely difficult to appreciate this
\ndirection.   Orders from the Court in execution\t would\thave
\n‘been\tmore  appropriate.   Police  intervention  in\tsuch
\npersonal  domestic  differences in the present\tcase,  where
\nparties belong to educated respectable families should\thave
\nbeen avoided.\n<\/p>\n
In this Court a preliminary objection to the hearing of\t the
\nwife’s\tappeal\twas  raised by the husband,  who,  being  an
\nadvocate, personally addressed us in opposing these appeals.
\nIndeed\tin June, 1972 he had presented\tCivil  Miscellaneous
\nPetitions  Nos. 4188 and 4189 of 1972 for  revoking  special
\nleave, and it was these applications which he pressed before
\nus  at\tthe  outset.  These  lengthy  applications  covering
\nnearly\t50 pages mainly contain arguments on the merits\t and
\nthere  is  hardly  any cogent  ground  made  out  justifying
\nrevocation  of the special leave.  It is no, doubt  open  to
\nthis  Court to revoke special leave when it transpires\tthat
\nspecial\t  leave\t had  been  secured  by\t the  appellant\t  on
\ndeliberate  misrepresentation on a material point  having  a
\nbearing\t on  the  question  of\tgranting  such\tleave.\t The
\nextraordinary  discretionary power vested in this  Court  by
\nthe  Constitution  under  Act, 136 is in  the  nature  of  a
\nspecial\t  residuary  power  exercisable\t in   its   judicial
\ndiscretion  outside  the purview of ordinary  law  in  cases
\nwhere  the  needs  of justice  demand  interference.   Being
\ndiscretionary  power intended only to Promote the  cause  of
\njustice\t when there is no other adequate remedy, this  Court
\nexpects\t  those\t  seeking  resort  to\tthis   reserve.\t  of
\nconstitutional\tpower for securing justice to be  absolutely
\nfair  and  frank with this Court in  correctly\tstating\t the
\nrelevant facts and circumstances of the case.  In the  event
\nof  a party making a misrepresentation on a point  having  a
\nbearing\t on  the  question  of\tthe  exercise  of   judicial
\ndiscretion  and thereby-trying to over-reach this Court\t the
\nparty  forfeits the claim to the discretionary relief :\t the
\nsame  is the case when such misrepresentation is  discovered
\nby  this Court and brought to its notice after the grant  of
\nspecial\t leave\tand this Court is competent  and  indeed  it
\nconsiders  it  proper  to  revoke  the\tspecial-leave\tthus
\nObtained.  But the misrepresentation must be deliberate\t and
\non a point having such relevance to the question of  special
\nleave  that if true facts were known this Court would  leave
\nin  all Probability declined special leave.   Applying\tthis
\ntest  to  the, present case we arc unable to find  any\tsuch
\ndeliberate  misrepresentation by the,  appellant  indicating
\nintention  to mislead or over-reach this Court.\t The  points
\nto  which  our\tattention was drawn seem to  relate  to\t the
\nmerits of the controversies between the parties which  would
\nfall for
\n928<\/span>
\ndetermination on the hearing of the appeal after considering
\nthe  arguments pro and con.  The preliminary objection\tthus
\nfails and must be disallowed.\n<\/p>\n
Turning\t to the merits of these appeals, it may\t be  pointed
\nout that with the exception of O.P. No. 270 of 1970 filed by
\nthe  husband under S. 25 of the Guardians and Wards Act\t all
\nthe other applications presented by the parties and disposed
\nof by Maharajan J., were off-shoots of O.M.S. 12 of 1962  in
\nwhich\tthe  wife  had\tobtained  a  decree   for   judicial
\nseparation.   The first contention raised on behalf  of\t the
\nappellant was that O.P. No. 270 of 1970 did not lie.  It was
\nstrenuously pressed by Shri Balasubaramania lyer the counsel
\nfor the appellant wife that the husband’s application  under
\ns.   25,  Guardians and Wards Act was not competent  because
\nnone of\t  the  children had been illegally removed from\t the
\nlawful custody of   their  father,  the custody of  the\t two
\nchildren  having  been\tlawfully entrusted to  the  wife  in
\nproceedings  to\t which\tthe husband was\t a  party.   It\t was
\nemphasised  in this connection that the custody of the\tgirl
\nMaya  and of the boy Mahesh had been lawfully  entrusted  to
\n,the  wife by a competent Court and unless there  is  actual
\nphysical  removal  of the children from the custody  of\t the
\nfather, S. 25 would. not be attracted.\n<\/p>\n
Now the first thing to be notified is that this objection as
\nto  the competence of the application under S. 25 is in\t the
\nnature\tof a preliminary objection.  But it was\t not  raised
\neither before the learned single Judge or before the Letters
\nPatent Bench in the manner in which it is pressed before us.
\nIn this Court also in the special leave appeal the objection
\nseems  to  be based on the argument that the  Guardians\t and
\nWards  Act would be inapplicable to cases where orders\thave
\nbeen  made  in. matrimonial proceedings, and s. 19  of\tthe
\nGuardians  and\tWards  Act cannot  control  the\t custody  or
\nchildren given by a consent decree under the Indian  Divorce
\nAct.   However,\t as the objection was stated to\t pertain  to
\njurisdiction  we allowed the parties to address us  on\tthis
\npoint.\n<\/p>\n
For determining the question of competence of the  husband’s
\napplication  under s. 25 of the Guardians and Wards Act\t (18
\nof  1890) it is necessary to examine the scheme of that\t Act
\nas  also the relevant provisions of the Indian Divorce\tAct.
\nThe  Guardians\tand  Wards  Act\t was  enacted  in  order  to
\nconsolidate and amend the law relating to Guardian and Ward.
\nBut  as\t provided by s.3, this Act is not to  be  construed,
\ninter  alia  ,to take away any Power possessed by  any\tHigh
\nCourt.\tAccording to s.4, which is the definition section, a
\n“minor’ is a Person who, under the provisions of the  Indian
\nMajority Act, 1875 is to be deemed not to have attained\t his
\nmajority.   Under S. 3 of that Act this age is fixed  at  18
\nyears,\texcept\tfor those, for whose person or\tproperty  or
\nboth
\n929<\/span>
\na guardian has already been appointed by a court of  justice
\n(other\tthan  a\t guardian for a\t suit  under  Chapter  XXXI,
\nC.P.C.)\t and  for whose property, superintendence  has\tbeen
\nassumed\t by  a Court of Wards, for whom it is  fixed  at  21
\nyears.\t A  “ward” under this Act means a  minor  for  whose
\nperson\tor  property  or  both\tthere  is  a  guardian\t and
\n“guardian”  is a person having the care of the person  of  a
\nminor  or of his property or both.  Chapter 11 of  this\t Act
\n(18  of 1890), consisting of ss.5 to 19 (s. 5 applicable  to
\nEuropean  British  subjects has since been  repealed,  deals
\nwith the Appointment and Declaration of Guardians.   Section
\n7 empowers the Court to make orders as to guardianship where
\nit is satisfied that it is for the welfare of the minor that
\nan order should be made appointing his guardian or declaring
\na  person to be such guardian.\tSection 7(3) places  certain
\nrestrictions with respect to cases where guardians have been
\nappointed  by  will  or other  instrument  or  appointed  or
\ndeclared by court.  Section 8 provides for persons  entitled
\nto  apply under s. 7 : they include Collectors as  specified
\nin  cls.  (c)  and  (d).   Sections  9\tto  11\tprovide\t for
\njurisdiction of. courts, form of applications and  procedure
\non  admission  of  applications.  Section  12  provides\t for
\ninterlocutory orders subject to certain restrictions.\tNext
\nimportant  sections  are ss. 17 and 19.\t  Section  17  which
\nprovides  for the matters to be considered by the  court  in
\nappointing or declaring guardian reads :\n<\/p>\n
\t      “17.  Matters to be considered by the Court in
\n\t      appointing guardian.\n<\/p><\/blockquote>\n
\t      (1)In appointing or declaring the, guardian of
\n\t      a\t minor,\t the  Court shall,  subject  to\t the
\n\t      provisions of this section, be guided by\twhat
\n\t      consistently  with the law to which the  minor
\n\t      is subject, appears in the circumstances to be
\n\t      for the welfare of the minor.\n<\/p><\/blockquote>\n
\t      (2)In considering what will be the welfare  of
\n\t      the minor, the Court shall have regard to\t the
\n\t      age, sex and religion of the minor,  character
\n\t      and capacity of the proposed guardian and\t his
\n\t      nearness\tof kin to the minor, the wishes,  if
\n\t      any, of the deceased parent, and any  existing
\n\t      or previous relations of the proposed guardian
\n\t      with the minor or his property.\n<\/p><\/blockquote>\n
\t      (3)If  the  minor\t is old enough\tto  form  an
\n\t      intelligent preference, the Court may consider
\n\t      that preference.”\n<\/p><\/blockquote>\n
\t      Section  19,  which prohibit  the\t Court\tfrom
\n\t      appointing guardians in certain cases, reads :
\n\t      “19.   Guardians\tnot to be appointed  by\t the
\n\t      Court
\n\t      in certain cases
\n\t       930<\/span>
\n\t      Nothing  in this Chapter shall  authorise\t the
\n\t      Court to appoint or declare a guardian of\t the
\n\t      property\tof a minor whose property  is  under
\n\t      the superintendence of a Court of Wards, or to
\n\t      appoint or declare a guardian of the  property
\n\t      of a minor whose property is under the  super-
\n\t      intendence of a Court of Wards, or to  appoint
\n\t      or declare a guardian of the person.\n<\/p><\/blockquote>\n
\t      (a)of  a\tminor who is a\tmarried\t female\t and
\n\t      whose  husband is not, in the opinion  of\t the
\n\t      Court, unfit to be guardian of her person, or\n<\/p><\/blockquote>\n
\t      (b)of  a minor whose father is living  and  is
\n\t      not, in the opinion of the Court. unfit to  be
\n\t      guardian of the person of the minor, or\n<\/p><\/blockquote>\n
\t      (c)of  a\tminor whose property  is  under\t the
\n\t      superintendence of a Court of Wards  competent
\n\t      to  appoint  a guardian of the person  of\t the
\n\t      minor.”\n<\/p><\/blockquote>\n
Chapter\t III  (ss. 2O to 42) prescribes duties,\t rights\t and
\nliabilities   of,   guardians.\t Sections   20-23   (General
\nprovisions)  do not concern us. Section 20 provides for\t the
\nfiduciary relationship of guardian towards his wards and  S.
\n22  provides  for  remuneration of  guardians  appointed  or
\ndeclared  by  the  Court.   Sections 24\t to  256  deal\twith
\n“‘Guardian  of\tthe person”.  Under s. 24  the\tguardian  is
\nbound, inter alia, to look to his ward’s support, health and
\neducation.   Section  25  which is  of\timportance  for\t our
\npurpose provides for “Title of Guardian to custody of  Ward”
\nand reads
\n\t      “25.  Title of guardian to custody of ward :\n<\/p>\n
\t      (1)If  a\tward leaves or is removed  from\t the
\n\t      custody  of  a  guardian of  his\tperson,\t the
\n\t      Court,  if it is of opinion ,that it  will  be
\n\t      for  the welfare of the ward to return to\t the
\n\t      custody of his guardian, may make an order for
\n\t      his  return, and for the purpose of  enforcing
\n\t      the  order may cause the ward to\tbe  arrested
\n\t      and  to be delivered into the custody  of\t the
\n\t      guardian.\n<\/p>\n
\t       (2)  For\t the purpose of arresting the  ward,
\n\t      the Court may   exercise\tthe power  conferred
\n\t      on a Magistrate of the\tfirst\t class\t  by
\n\t      section 100 of the Code of Criminal Procedure,
\n\t      1882.\n<\/p>\n
\t      (3)   The residence of a ward against the will
\n\t      of  his guardian with a person who is not\t his
\n\t      guardian\tdoes  not of  itself  terminate\t the
\n\t      guardianship.”\n<\/p>\n
Sections  27  to  37 deal  with\t “Guardian’s  Property”\t and
\nSections  38 to 48 deal with”‘Termination of  Guardianship”.
\nChapter\t IV (ss. 43 to 51) is the last chapter dealing\twith
\nsupplementary provisions.\n<\/p>\n
931<\/span><\/p>\n
Now  it\t is  clear from the language of S.  25\tthat  it  is
\nattracted  only\t if  a ward leaves or is  removed  from\t the
\ncustody\t of  a\tguardian  of his person\t and  the  Count  is
\nempowered to make an order for,the return of the ward to his
\nguardian  if  it  is of opinion that it\t will  be  for\tthe,
\nwelfare\t of  the,  ward\t to return to  the  custody  of\t his
\nguardian.  The Court is entrusted with a judicial discretion
\nto order return of the Ward to the custody of his  guardian,
\nif  it forms an opinion that such return is for\t the  ward’s
\nwelfare.   The use of the words “ward” and “guardian”  leave
\nlittle doubt that it is the guardian who, having the care of
\nthe  person of his ward, has be-In deprived of the same\t and
\nis  in the capacity of guardian entitled to the\t custody  of
\nsuch ward, that can seek the assistance of the Court for the
\nreturn\t of   his  ward\t to  his  custody.    The   guardian
\ncontemplated by this section includes every kind of guardian
\nknown to law.  It is not disputed that, as already  noticed,
\nthe   Court  dealing  with  the\t proceedings  for   judicial
\nseparation  under  the Indian Divorce Act, (4 of  1869)\t had
\nmade certain orders with respect to the custody, maintenance
\nand education of the three children of the parties.  Section
\n41  of\tthe Divorce Act empowers the Court to  make  interim
\norders\twith respect to the minor children and also to\tmake
\nproper\tprovision  to  that effect in the  decree  :  s.  42
\nempowers  the Court to make similar orders upon\t application
\n(by petition) even after the decree.  This section expressly
\nembodies  the  legislative recognition of  the\t,fundamental
\nrule that the Court as representing the State is vested with
\nthe  power  as also the duty and  responsibility  of  making
\nsuitable  orders for the custody, maintenance and  education
\nof  the\t minor children to suit the changed  conditions\t and
\ncircumstances.\tIt is, however, noteworthy that under Indian
\nDivorce\t Act the sons of Indian fathers cease to be;  minors
\non  attaining the age of 16 years and their daughters  cease
\nto  be\tminors on attaining the age of 13 years :  s.  3(5).
\nThe  Court under the Divorce Act would thus  be\t incompetent
\nnow  to make any order under ss. 41 and 42 with\t respect  to
\nthe  elder  son\t and  the  daughter  in\t the  present  case.
\nAccording   to\t the   respondent   husband   under    these
\ncircumstances  he  cannot  approach  the  Court\t under\t the
\nDivorce, Act for relief with respect to the custody of these
\nchildren  and  now  that those children have  ceased  to  be
\nminors\tunder that Act, the orders made by that\t Court\thave
\nalso.  lost  their vitality On this  reasoning\tthe  husband
\nclaimed the right to invoke S. 25 of the Guardians and Wards
\nAct  :\tin  case this section is not  applicable,  then\t the
\nhusband\t contended, that his application (O.P. 270 of  1970)
\nshould\tbe, treated to be an application under S. 19 of\t the
\nGuardians and Wards Act or under any other competent section
\nof  that  Act  so  that he could  Let  the  custody  of\t his
\nchildren,  denied  to  him by the wife.\t The  label  on\t the
\napplication, he argued, should be treated as
\n932<\/span>
\na  matter  of  mere form and,  therefore,  immaterial.\t The
\nappellant’s  counsel  on the other hand contended  that\t the
\nproper procedure for the husband to adopt was to apply under
\ns.7 of the Guardians and Wards Act.  Such an application, if
\nmade,\twould  have  been  tried  in  accordance  with\t the
\nprovisions of that Act.\t The counsel added that ss. 7 and 17
\nof  that  Act also postulate welfare of ,the  minor  in\t the
\ncircumstances  of  the\tcase,  as  the\tbasic  and   primary
\nconsideration for the Court to keep in view when  appointing
\nor  declaring a guardian.  The welfare of the minors in\t the
\npresent case, according to the wife, would be best served it
\nthey remain in her custody.\n<\/p>\n
In  our\t opinion,  S.  25 of the  Guardians  and  Wards\t Act
\ncontemplates not only actual physical custody but also cons-
\ntructive  custody  of the guardian which term  includes\t all
\ncategories  of\tguardians.  The object and purpose  of\tthis
\nprovision being ex facie to ensure the welfare of the  minor
\nward, which necessarily involves due protection of the right
\nof  his guardian ,to properly look after the ward’s  health,
\nmaintenance and ,education, this section demands  reasonably
\nliberal\t interpretation\t so as to  effectuate  that  object.
\nHyper-technicalities  should not be allowed to\tdeprive\t the
\nguardian   the\tnecessary  assistance  from  the  Court\t  in
\neffectively  discharging his duties and obligations  towards
\nhis  ward  so as to promote the latter’s  welfare.   If\t the
\n,Court\tunder  the Divorce Act cannot make  any\t order\twith
\nrespect\t to the custody of Ajit alias Andrew and Maya  alias
\nMary and it is not open to the Court under the Guardians and
\nWards  Act to appoint or declare guardian of the  person  of
\nhis children under s. 19 during his life-time, if the  Court
\ndoes  not  consider him unfit, then, the only  provision  to
\nwhich the father can have resort for his children’s  custody
\nis S. 25.  Without, therefore, laying down exhaustively\t the
\ncircumstances  in  which  s.  25 can  be  invoked,  ‘in\t our
\nopinion,  on  the facts and circumstances of this  case\t the
\nhusband’s application under S. 25 was competent with respect
\nto  the two elder children.  The Court entitled to  consider
\nall  the disputed questions of fact or law  properly  raised
\nbefore\tit relating to these two children.  With respect  to
\nMahesh\talias Thomas. however, the Court under\tthe  Divorce
\nAct is at present empowered to make suitable orders relating
\nto   his  custody,  maintenance\t and  education.    It\t is,
\ntherefore,  somewhat difficult to impute to the\t legislature
\nan intention to set up, another parallel Court to deal\twith
\nthe  question of the custody of a minor which is within\t the
\npower  of a competent Court under the Divorce Act.   We\t are
\nunable\tto  accede to the respondent’s suggestion  that\t his
\napplication should be considered to have been preferred\t for
\nappointing or declaring him as a guardian.  But whether\t the
\nrespondent’s  prayer for custody of the minor  children\t be,
\nconsidered  under the Guardians and Wards Act or  under\t the
\nIndian Divorce Act, as observed
\n933<\/span>
\nby  Maharajan J., with which observation we entirely  agree,
\n“the controlling consideration governing the custody of\t the
\nchildren  is the welfare of the children concerned  and\t not
\nthe right of their parents”   It was not disputed that under
\nthe   Indian   Divorce\t Act   this   is   the\t controlling
\nconsideration.\t  The  Court’s\tpower  under  s.25  of\t the
\nGuardians  and\tWards  Act is also, in our  opinion,  to  be
\ngoverned  primarily by the consideration of the\t welfare  of
\nthe  minors concerned.\tThe discretion vested in  the  Court
\nis,  as\t is  the case with all judicial\t discretions  to  be
\nexercised judiciously in the background of all the  relevant
\nfacts and circumstances.  Each case has to be decided on its
\nown  facts  and\t other cases can  hardly  serve\t as  binding
\nprecedents,  the  facts of two cases in this  respect  being
\nseldom-if  ever-identical.   The  contention  that  if\t the
\nhusband\t is  not  unfit\t to be the  guardian  of  his  minor
\nchildren,  then, the question of their welfare does  not  at
\nall arise is to state the proposition a bit too broadly\t may
\nat  times  be somewhat misleading.  It does  not  take\tfull
\nnotice\tof the real core of the statutory purpose.   In\t our
\nopinion,  the dominant consideration in making orders  under
\ns.25 is the welfare of the minor children and in considering
\nthis  question\tdue regard has of course to be paid  to\t the
\nright of the father to be the guardian and also to all other
\nrelevant  factors having a bearing on the  minor’s  welfare.
\nThere is a presumption that a minor’s parents would do their
\nvery  best  to\tpromote their  children’s  welfare  and,  if
\nnecessary,  would  not\tgrudge any sacrifice  of  their\t own
\npersonal  interest  and pleasure.  This\t presumption  arises
\nbecause of the natural, selfless affection normally expected
\nfrom  the  parents for their children.\tFrom this  point  of
\nview, in case of conflict or dispute between the mother\t and
\nthe  father  about  the\t custody  of  (their  children,\t the
\napproach  has to be somewhat different from that adopted  by
\nthe  Letters  Patent Bench of the High Court in\t this  case.
\nThere  is no dichotomy between the fitness of the father  to
\nbe  entrusted  with the custody of his\tminor  children\t and
\nconsiderations\tof their welfare.  The father’s fitness\t has
\nto  be considered, determined and weighed  predominantly  in
\nterms of the welfare of his minor children in the context of
\nall  the  relevant  circumstances.  If the  custody  of\t the
\nfather\tcannot promote their welfare equally or better\tthan
\nthe   custody\tof  the\t mother,  then,\t he   cannot   claim
\nindefeasible  right  to\t their\tcustody\t under\ts.25  merely
\nbecause there is no defect in his personal character and  he
\nhas  attachment for his children which every  normal  parent
\nhas.   These  are the only two aspects\tpressed\t before\t us,
\napart from the stress laid by the husband on the allegations
\nof  immorality against the wife which, in our firm  opinion,
\nhe   was   not\tat  all\t justified  in\t contending.\tSuch
\nallegations,  in  view\tof  earlier  decisions,\t had  to  be
\ncompletely ignored in considering the question of custody of
\nthe children in the present case.  The father’s fitness from
\nthe point of view just mentioned
\n934<\/span>
\ncannot over-ride considerations of the welfare of the  minor
\nchildren.   No\tdoubt, the father has been presumed  by\t the
\nstatute\t ,generally  to be better fitted to look  after\t the
\nchildren-being\tnormally the earning member and head of\t the
\nfamily-but  the Court has in each-case to see  primarily  to
\nthe  welfare of the children in determining the question  of
\ntheir custody, in the background of .all the relevant  facts
\nhaving a bearing on their health, maintenance and education.
\nThe  family is normally the heart of our society and  for  a
\nbalanced  and  healthy\tgrowth of  children  it\t is  .highly
\ndesirable  that\t they got their due share of  affection\t and
\ncare  from both the parents in their normal  parental  home.
\nWhere,\thowever, family dissolution due to some\t unavoidable
\ncircumstances  becomes necessary the Court has to come to  a
\njudicial  decision  on the question of the  welfare  of\t the
\nchildren  on  a\t full consideration  of\t all  ;the  relevant
\ncircumstances.\tMerely because the father loves his children
\nand  is\t not  shown  to\t be  otherwise\tundesirable   cannot
\nnecessarily  lead to the conclusion that the welfare of\t the
\nchildren would be better promoted by granting their  custody
\nto  him\t as  against  the  wife\t who  may  also\t be  equally
\naffectionate towards her children and otherwise equally free
\nfrom blemish, and who in addition because of her  profession
\nand financial resources, may be in a posit-ion to  guarantee
\nbetter\thealth,\t education and maintenance  for\t them.\t The
\nchildren  are  not mere chattels; nor are  they\t mere  play-
\nthings\tfor their parents.  Absolute right of  parents\tover
\nthe  destinies and the lives.of their children, has, in\t the
\nmodern\t changed   social   conditions,\t  yielded   to\t the
\nconsiderations of their welfare as human beings so that they
\nmay grow up in a normal balanced manner to be useful members
\nof  the society and the guardian court in case of a  dispute
\n‘between the mother and the father, is expected to strike  a
\njust and proper balance between the requirements of  welfare
\nof  the\t minor children and the rights of  their  respective
\nparents\t over  them.   The approach of\tthe  learned  single
\nJudge, in our view, was correct and we agree with him.\t The
\nLetters\t Patent\t Bench on appeal seems to us have  erred  in
\nreversing him on grounds which we are unable to appreciate.
\nAt  the bar reference was made to a number of decided  cases
\non ‘the question of the right of, father to No appointed  or
\ndeclared as guardian and to be granted custody of his  minor
\nchildren  under s. 25 read with S. 19 of the  Guardians\t and
\nWards Act.  Those decisions were mostly decided on their own
\npeculiar  facts.   We  have,  therefore\t not  considered  it
\nnecessary  to deal with them.  To the extent, however,\tthey
\ngo against the view we have taken of s. 25 ,of the Guardians
\nand Wards Act, they must be held to be wrongly ,decided.
\nThe respondent’s contention that the Court under the Divorce
\nAct had granted custody of the two younger children to the
\n935<\/span>
\nwife  on the ground of their being of tender age, no  longer
\nholds good and that, therefore, their custody must be handed
\nover  to him appears to us to be misconceived.\tThe  age  of
\nthe  daughter  at  present is such that she  must  need\t the
\nconstant  company  of  ,I  grown-up  female  in\t the   house
\ngenuinely  interested in her welfare.  Her mother is in\t the
\ncircumstances the best company for her.\t The daughter  would
\nneed her mother’s advice and guidance on several matters  of
\nimportance.   It has not been suggested at the bar that\t any
\ngrown-up  woman closely related to Maya alias Mary would  be
\navailable  in the husband’s house for such  motherly  advice
\nand  guidance.\tBut this apart, even from the point of\tview
\nof her education, in our opinion, her custody with the\twife
\nwould  be  far\tmore beneficial than her  custody  with\t the
\nhusband.   The youngest son would also’ in our\topinion,  be
\nmuch  better looked after by his mother than by\t his  father
\nwho will have to work hard to take a mark in his profession.
\nHe has quite clearly neglected his profession and we have no
\ndoubt that if he devotes himself’ wholeheartedly to it he is
\nsure  to  find\this  place fairly  high\t tip  in  the  legal
\nprofession.\n<\/p>\n
The appellant’s argument based on estoppel and on the orders
\nmade by the court under the Indian Divorce Act with  respect
\nto  the custody of the children did not appeal to  us.\t All
\norders relating to the custody of the minor wards from their
\nvery  nature must be considered to be temporary orders\tmade
\nin the existing circumstances.\tWith the changed  conditions
\nand Circumstances, including the passage of time, the  Court
\nis  entitled  to  vary\tsuch orders  if\t such  variation  is
\nconsidered  to\tbe  in the interest of the  welfare  of\t the
\nwards.\t It is unnecessary to refer to some of\tthe  decided
\ncases relating to estoppel based, on consent decrees.  cited
\nat  the bar.  Orders relating to custody of wards even\twhen
\nbased  on consent are liable to be varied by the  Court,  if
\nthe welfare of the wards demands variation.
\nWe accordingly allow the appeal with respect to the  custody
\nof  the two younger children and setting aside the  judgment
\nof the Letters Patnet Bench in this respect, restore that of
\nthe  learned  single Judge who, in our view,  had  correctly
\nexercised  his discretion under s. 25 of the  Guardians\t and
\nWards  Act,  The  directions given by him  with\t respect  to
\naccess of the parties to their children are also restored.
\nAs regards alimony, no doubt. the Letters Patent Bench\twas,
\nin  our opinion, not quite right in withholding\t payment  of
\nthe alimony already fallen due and in arrears.\tBut in\tview
\nof  the fact that the financial position of the wife is\t far
\nsuperior  to  that of the husband who according to  his\t own
\nsubmission. has yet to establish himself in his\t profession,
\nwe do not consider it just and proper to
\n936<\/span>
\ninterfere   with   that\t order\tunder  Art.   136   of\t the
\nConstitution.\tWith respect to the alimony, therefore,\t the
\nappeal\tfails  and is dismissed.  We also  direct  that\t the
\nparties should bear their own costs throughout. ,
\nBefore concluding we must also express our earnest hope,  as
\nwas  done by the learned single Judge, that the two  spouses
\nwould  at least for the sake of happiness of their own\toff-
\nspring\tif for no other reason, forget the past and  turn  a
\nnew  leaf in their family life, so that they can provide  to
\ntheir  children\t a  happy, domestic  home,  to\twhich  their
\nchildren  must\tbe considered to be  justly  entitled.\t The
\nrequirement   of   indispensable   tolerance   and    mental
\nunderstanding  in matrimonial life is its basic\t foundation.
\nThe two spouses before us who are both educated and cultured
\nand  who come from highly respectable families must  realise
\nthat reasonable wear and tear and normal jars and shocks  of
\nordinary  married life has to be put up with in\t the  larger
\ninterests of their own happiness and of the healthy,  normal
\ngrowth and development of their offspring, whom destiny\t has
\nentrusted to their joint parental care.\t Incompatibility  of
\ntamprament  has\t to  be endeavored to  be  disciplined\tinto
\ncompatibility  and not to be magnified by abnormal  impluses
\nor  impulsive  desires\tand passions.  The  husband  is\t not
\ndisentitled to a house and a housewife, even though the wife
\nhas  achieved  the  status of  an  economically\t emancipated
\nwoman;\tsimilarly  the wife is not a domestic slave,  but  a
\nresponsible  partner  in discharging their  joint,  parental
\nobligation in promoting the welfare of their children and in
\nsharing\t the  pleasure of their children’s  company.   ‘Both
\nparents have, therefore, to cooperate and work\tharmoniously
\nfor  their children who should feel proud of  their  parents
\nand of their home, bearing in mind that their children\thave
\na right to expect from their parents such a home.\n<\/p>\n
S.B.W.\t\t\t     Appeal allowed in part.\n937<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rosy Jacob vs Jacob A. Chakramakkal on 5 April, 1973 Equivalent citations: 1973 AIR 2090, 1973 SCR (3) 918 Author: I Dua Bench: Dua, I.D. PETITIONER: ROSY JACOB Vs. RESPONDENT: JACOB A. CHAKRAMAKKAL DATE OF JUDGMENT05\/04\/1973 BENCH: DUA, I.D. BENCH: DUA, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A. CITATION: 1973 AIR 2090 1973 […]<\/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":[30],"tags":[],"class_list":["post-213973","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRosy Jacob vs Jacob A. 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