P.Senthil Kumar v. R.Sunitha

learned counsel for the petitioner submitted that the abovesaidaverment touching upon the suppression and the conduct of therespondent, is implicitly admitted and therefore, the lower Courtought not to have allowed the custody of the child to be retainedwith such a person and should have considered the paramount welfareof the child, who is now forced to live in such atmosphere. 12.Learned counsel for the petitioner further submitted thatthe paternity of the respondent was never questioned in the GuardianPetition and even assuming that the said issue was consideredearlier, while adjudicating the right of the respondent to seek fordivorce in HMOP on the file of the Family Court, Chennai, any findingrecorded adverse to the petitioner should be confined only to thesaid proceedings and it cannot be considered in a petition filed forguardianship. He further submitted that even assuming that thealleged conduct of questioning the paternity was one of the basis forarriving at the conclusion that there was cruelty, leading to anorder of divorce, the said aspect should not be taken as a materialfactor in deciding the inter se rights of the parties, in anapplication for Guardianship, when the paramount welfare of the childis the sole criterion. 13.On the finding of the lower Court that the appellant hadnot taken sufficient care and attention of the minor child and thathe has not spent any money in buying clothes and incurredexpenditure, learned counsel for the petitioner submitted that thepetitioner is a businessman in Coimbatore, owing an Oil Tanker lorryand normally, when any expenditure is incurred for the maintenance ofthe family, providing education for the children, etc., no husbandwho contributes a portion of the income towards routine expenditure,including education, food, shelter, etc., would maintain anyseparate accounts. He therefore submitted that these aspects cannotbe proved with any materials and in such circumstances, the findingrendered by the lower Court that the petitioner has not paid anyamount for educating his minor son, is factually incorrect.14.Learned counsel for petitioner further submitted thatthough he has attempted to see his child, both at the residence ofthe respondent and in the School, the respondent has deliberatelythwarted his sincere efforts and even the School authorities haverefused to permit him to see the child. Placing reliance on adecision of this Court reported in In Mohan Kumar Rayana v. KomalMohan Rayana reported in 2008 (3) MLJ 536 (SC), he submitted thatthe petitioner should not be denied access to the minor child andtherefore, the deliberate and wilful denial of visiting rights wouldsupport the case of the petitioner, that he has due regard for thewelfare of the minor child and that the respondent has only deprivedof petitioner's legitimate right. https://hcservices.ecourts.gov.in/hcservices/

15.Comparing the financial status of the parties and thedependency of the respondent, even for her own maintenance, learnedcounsel for the appellant submitted that better financial resourcesof either of the parents is certainly an important factor indetermining the custody of the minor child. He also submitted thatbetween a short span of time, the child has been transferred to, notless than six schools and certainly frequent dislocation would causeemotional strain and affect his education and talent. It is also hiscontention that sitting at Coimbatore and bringing up the child inHostel at Ooty, cannot be said to be extending love and affection andit would not inculcate the values of care and guidance required tobe provided to a minor child. In this context, he relied ondecisions of this Court in Sharli Sunitha v. D.Balson reported in2007 (1) MLJ 56 and J.Selvan v. N.Punidha reported in 2007 (4) MLJ967.16.Learned counsel for the petitioner further submitted thatwhen the petitioner is willing to provide the child, all the needsthat are required, to have a better socio and economic support, thelower Court has misdirected itself, in approaching the statutoryprovision under Section 25 of the Guardian and Wards Act and failedto consider the paramount welfare and interest of the child. Hetherefore submitted that when the whole approach to the issue is bothfactually and legally untenable, the impugned order deserves to beset aside and consequently, prayed to declare the petitioner, as theguardian for the minor child.17.Per contra, Mr.R.Shankmugasundaram, Learned SeniorCounsel for the respondent submitted that the marriage between thepetitioner and the respondent was solemnised on 29.04.1994 and thatit was a love marriage, performed without the knowledge of theirparents, but with their blessings. Out of the wedlock, a male childwas born on 06.01.1995 and that within a short span of time, therespondent underwent tremendous mental tension and physical torture.She was beaten black and blue in drunken condition by the petitionerand unable to bear the physical and mental creulty, she evenattempted to strangulate herself. Unfortunately, the respondent wasadmitted in a nearby hospital and in these circumstances, she wasforced to leave the matrimonial home and filed O.P.No.152 of 2001 onthe file of the Family Court, Coimbatore, for divorce on the groundof cruelty.18.Taking this Court through the judgment in H.M.O.P.No.152of 2001, dated 18.12.2003, learned counsel for the respondent furthersubmitted that the appellant had even doubted the paternity of theminor child and alleged adulterous living with another person. Hefurther submitted that when the male child was born, the respondentrefused to accept the child, since the child was little dark incolour. https://hcservices.ecourts.gov.in/hcservices/

19.Inviting the attention of this Court to the specificfinding recorded by the lower Court with regard to mental andphysical cruelty, including suspicion of paternity of the child,Learned Senior Counsel for the respondent submitted that when thepetitioner has not questioned the findings recorded in the judgmentrecorded in the proceedings for divorce, in O.P.No.152 of 2001 by theFamily Court, Chennai, it is not open to the petitioner to project acase, as if, he was very much affectionate and interested in thewelfare of the child.20.Learned Senior Counsel further submitted that ever sincethe child was born on 06.01.1995, the petitioner had never paid anyattention either to the mother or the minor son and when therespondent filed M.C.No.57 of 2003 on the file of the Family Court,Coimbatore, claiming maintenance of Rs.10,000/- each for herself andthe minor son, the petitioner filed a counter affidavit, denying hisliability to pay maintenance and ultimately, by order, dated23.12.2004, the Family Court, Coimbatore, ordered the appellant topay maintenance. 21.Learned Senior Counsel further submitted that when thepetitioner's strong opposition to discharge his moral and legalobligation to provide maintenance was repelled by the Family Court,Coimbatore, by its order, dated 23.12.2004, directing the petitionerto pay maintenance, it is not open to the petitioner to contend thathe was always ready and willing to provide care and attention,extending financial support with love and affection to the minor son.22.Learned Senior Counsel further submitted that when theorder in M.C.No.57 of 2003, dated 23.12.2004, directing the appellantto pay maintenance was sought to be enforced, by claiming the arrearsof maintenance amount of Rs.4,54,833/-, the petitioner filedCrl.R.C.No.908 of 2005 before this Court in July' 2005 to set asidethe abovesaid order. He further submitted that a conditional orderto deposit the arrears of maintenance was made by this Court on06.12.2005 and thereafter, though the matter was referred to LokAdalat for an amicable settlement, the petitioner was not willing forany settlement and consequently, the Criminal Revision Petition wassent back to this Court and upon hearing the parties, this Court, byorder, dated 09.11.2006, dismissed the revision petition, upholdingthe order of maintenance to the minor son and the respondent, tillher remarriage on 17.04.2006. Thereafter, the appellant filed SLP(Crl) No.1131 of 2007 before the Supreme Court, challenging theorder, dated 09.11.2006 and obtained an order of stay of themaintenance decree on frivolous grounds. 23.Inviting the attention of this Court to the sequence ofevents from 1994 till 2008, Learned Senior Counsel further submitted https://hcservices.ecourts.gov.in/hcservices/ that to thwart and defeat the order made in M.C.No.57 of 2003, thepetitioner has now taken out a false claim of guardianship under theGuardian and Wards Act. He further submitted that from 1994 to 2008onwards, the petitioner has not made any attempt to see the childand that no application was also filed for the said purpose. Now,for the first time, in the year 2008, the petitioner has taken out anapplication under Guardian and Wards Act, as if he is interested inthe welfare of the child. According to him, the conduct of thepetitioner would clearly reflect his malafide intention to deny theentitlement of the respondent and her minor son, for maintenance.24.Learned Senior Counsel for the respondent submitted thatwhen no specific averments were made in the guardianship petition andwhen no supporting evidence, was let in both oral and documentary, itis not open to the petitioner to make a false allegation against therespondent that she was already married, before contracting amarriage with him. He further submitted that the arguments of thepetitioner are liable to be rejected in limini.25.On the aspect of providing education, health, moral andsocial support, Learned Senior Counsel further submitted that therespondent has admitted her minor son, in a Convent School with highprofile and better coaching in Ooty. Her parents, who arefinancially sound, have taken up the responsibility of educating herson. All along the petitioner had not spent even a single pie forthe education of his minor son and even during the short period of 10days, where they lived together, as per the directions of this Court,he did not spend any money towards the education or for any otherrequirements of the child and therefore, the attitude and conduct ofthe petitioner is only to snatch away the custody of the child. Hefurther submitted that for the past 15 years, not even once, he hasattempted to see the minor son and though the present appeal, ispending since 2008, he has not filed a petition for visitationrights.26.Learned Senior Counsel for the respondent submitted thatthough her parents insisted her to live them, she is livingseparately in a flat, purchased by her father, which is just oppositeto the School, where, the minor son is studying. He furthersubmitted that when the minor son underwent his education in aConvent School in Ooty, with good and quality education, he had neverfelt isolated, as more than 100 students were staying in the Hostel.It is his further contention that the minor son has been providedwith all his needs and that he has excelled in playing cricket andswimming. He represents the District and the School in variousdisciplines of sports. In order to improvise his sports interest, shehad to accommodate him in different schools and that would not affecthis education. https://hcservices.ecourts.gov.in/hcservices/

27.Learned Senior Counsel for the respondent furthersubmitted that the minor son has grown up and is also matured. On anearlier occasion, he had appeared before this Court and expressed hisclear intention to stay with his mother and in such circumstances,the attempt on the part of the petitioner to get the guardianship andcustody of the minor child, would certainly cause mental strain,affecting his concentration in studies. 28.According to the Learned Senior Counsel for the respondent,the petitioner has gone to the extent of instituting criminal casesagainst the parents of the respondent and even for declaration of themarriage, dated 29.04.1994 between the parties, as null and void. Inthese circumstances, the intention of the petitioner is only to grabthe minor son, from the respondent and thwart the claim ofmaintenance, which is upheld by this Court. According to him, theCourt below has considered all the parameters that are necessary foradjudication the issue, paramount welfare of the child, and rightlydeclined the guardianship, in favour of the petitioner.29.Learned Senior Counsel for the respondent submitted thatre-marriage of the respondent per-se is no ground to disentitle theclaim of the respondent for retention of guardianship. According tohim, she got married on 17.03.2006 and that her re-marriage would inno way affect her love and affection for the minor son nor there isany grievance from her son. In this context, he placed reliance on adecision of the Supreme Court in Lekha v. P.Anil Kumar reported in2007 (2) MLJ 298 (SC).30.Placing reliance on a catena of decisions, Learned SeniorCounsel further submitted that the petitioner, who has refused to paymaintenance to the minor son, has no statutory or legal right to seekfor guardianship and hence, prayed for dismissal of the appeal.Heard the learned counsel for the parties and perused thematerials available on record.31.Before adverting to the facts of this case, it isnecessary to have a cursory look at the provisions dealing with theappointment of guardian to a minor, under the Guardian and Wards Actand Hindu Minority and Guardianship Act. Section 7 of the Guardianand Wards Act deals with the power of the Court to make an order, asto guardianship and it reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "7. Power of the Court to make order as toguardianship.-(1) Where the Court is satisfied that itis for the welfare of a minor that an order should bemade--(a) appointing a guardian of his person or property,or both, or(b) declaring a person to be such a guardian, the Court may make an order accordingly.(2) An order under this section shall imply theremoval of any guardian who has not been appointed bywill or other instrument or appointed or declared bythe Court.(3) Where a guardian has been appointed by will orother instrument or appointed or declared by the Court,an order under this section appointing or declaringanother person to be guardian in his stead shall not bemade until the powers of the guardian appointed ordeclared as aforesaid have ceased under the provisionsof this Act.32.Section 6 of the Hindu Minority and Guardianship Actdeals with natural guardians of a Hindu Minor and it reads asfollows:"6. Natural guardians of a Hindu Minor.-The naturalguardians of a Hindu minor, in respect of the minor'sperson as well as in respect of the minor's property(excluding his or her undivided interest in joint familyproperty), are--(a) in the case of a boy or an unmarried girl--thefather, and after him, the mother; provided that thecustody of a minor who has not completed the age of fiveyears shall ordinarily be with the mother;(b) in the case of an illegitimate boy or anillegitimate unmarried girl-- the mother, and after her,the father.(c) in the case of a married girl-- the husband:Provided that no person shall be entitled to act as thenatural guardian of a minor under the provisions of thissection--(a) if he has ceased to be a Hindu, or(b) if he has completely and finally renounced theworld becoming a hermit (vanaprastha) or an ascetic (yatior sanyasi). https://hcservices.ecourts.gov.in/hcservices/ Explanation.--In this section, the expressions "father"and "mother" do not include a step-father and a step-mother."33.On the pleadings, some of the issues that come up forconsiderations are,(1) Whether the petitioner-father, who has madescurrilous allegations against the respondent-mother ofthe child, if proved, would disentitle the custody andguardianship of the mother and not proved in the mannerknown to law, is unsuited in a claim for custody andguardianship, because of his conduct, in making suchwild allegations, for the sole purpose of obtainingcustody and guardianship of the child?(2) Whether the economic soundness of the inter-separties to provide health, education and otherfacilities, for the betterment of the child is the solefactor in deciding guardianship?(3) Whether re-marriage of the father or mother ofthe child, would disentitle him or her, from claimingcustody and guardianship of the child?(4) Whether the father, being the natural guardianunder law, is entitled to have preference over themother, in the matter of guardianship or the paramountwelfare of the child, is the only factor to beconsidered?(5) Whether the conduct and character of theperson, claiming guardianship have to be considered,while dealing with the question of custody andguardianship and when there is some defect in thepersonal character of the mother or father, as the casemay be or if he or she is otherwise desirable to havethe custody and guardianship?(6) Whether the finding regarding cruelty andsuspicion of parentage of the child, rendered in aproceeding inter se between the parties, can beconsidered, in a latter proceeding instituted forguardianship?(7) Whether the mother, who has instituted amaintenance claim for herself and the child, isdisentitled from claiming custody and guardianship ofthe child, on the ground that she has no means toprovide food, shelter and clothing etc., to the child?(8) Whether in a proceedings for custody andguardianship, the desire of a matured child to live with https://hcservices.ecourts.gov.in/hcservices/ the mother or father, as the case may be, can beconsidered and what is the role of the Court?(9) Whether the conduct of the father of thechild, who has failed to discharge his moral and legalobligations to provide maintenance to his wife and childall along, till he makes his claim for custody andguardianship, is bona fide and disentitled to claim forcustody and guardianship?34.The answer to the queries framed, lies in the decisionsdealt with hereunder.35.In Samuel Stephen Richard v. Stella Richard [AIR 1955 Mad451], the High Court in deciding the question of custody held asfollows:"In deciding the question of custody, the welfareof the minor is the paramount consideration and the factthat the father is the natural guardian would not 'ipsofacto' entitle him to custody. The principalconsiderations or tests which have been laid down underSection 17, in order to secure this welfare are equallyapplicable in considering the welfare of the minor underSection 25.The application of these tests casts an 'arduous'duty on the court. Amongst the many and multifariousduties that a Judge in Chambers performs by far the mostonerous duties are those cast upon him by the Guardiansand Wards Act. He should place himself in the positionof a wise father and be not tired of the worries whichmay be occasioned to him in selecting a guardian bestfitted to assure the welfare of a minor and thereafterguide and control the guardian to ensure the welfare ofthe ward-a no mean task but the highest fulfillment ofthe dharmasastra of his own country. It is only anextreme case where a mother may not have the interest ofher child most dear to her. Since it is the mother whowould have the interest of the minor most at heart, thetender years of a child needing the care, protection andguidance of the most interested person, the mother hascome to be preferred to others."36.In Chanaraj, L. v. T.Rajammai reported in 1997 (II) CTC237, marriage between the parties was solemonized on 1701.1977 andout of the wedlock, a male child was born on 08.11.1977. TheGuardian O.P., came to be filed in the year 1986. Even before thatdate, the wife had filed a petition in O.P.No.4 of 1986, for https://hcservices.ecourts.gov.in/hcservices/ maintenance. There was neither a plea nor evidence before the Courtas to what the father had done to his child for all the years,between 1977 and 1986, i.e., from the year, the child was born andthe year of institution of guardian O.P. This Court, after analysingthe entire records to find out, what steps the father had takentowards the welfare of the ward, held a follows:"As a father, and the natural guardian, he has his ownresponsibilities towards his children and every father isexpected to take care of their child. In this case, thereis absolutely no evidence at all as to what the fatherhas done for his child in the field of education; gettinghim the necessary clothes; providing him with all otherminimum comforts which a child requires and expects fromhis father, from the year 1977 to 1986. There is noevidence at all in this case to show that the father hadspent even a single pie on his child, and the evidence ofthe mothers that the child's welfare in the field ofeducation and personal needs are completely taken care ofby her with the help of her father. Therefore, I am ofthe firm opinion that in this case, the father has notshown to have done anything for his son towards hiswelfare and that being so, he will not be allowed to comeall of a sudden and ask for the custody of the child. Theevidence available in this case establishes beyond doubtthat the mother had completely taken care of the childwithout any help at all from her husband, namely thefather. Therefore, the welfare of the ward, on the factsand circumstances of this case clearly disentitles thefather from asking for the custody of the ward. No doubt,the Lower Court proceeded on the basis that thepetitioner, having come forward with the allegation thatthe wife is leading an immoral life and he having failedto prove the allegation, he is not entitled to thecustody. This will be yet another circumstance to showhow reckless a father could be in making such wildallegations. If really, he was serious about thoseallegations, which would normally disentitles the motherto have the custody he should have proved it. But he hadnot chosen to get into the box and substantiate the same.Under these circumstances, I find no merits in the appealand it is accordingly dismissed." (emphasis supplied)37.In Mohd. Ayub Khan v. Saira Begum reported in I (2002) DMC234, the marriage was solemnised between the parties on 17.05.1990and they were blessed with three sons. Unable to maintain herselfand the children, the wife filed an application under Section 125 ofthe Code of Criminal Procedure in the year 1997. At that time, theminor children were aged 7 years, 5 years and 3 years respectively.On the objection of the husband, interim maintenance was rejected. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, he filed an application under Section 25 of the Guardianand Wards Act for custody of his elder son, who was aged 7 years.During the pendency of the maintenance proceedings, he did even pay apie for the maintenance of his three children. He contended that hiswife was not looking after his children properly and the upkeep andmaintenance of the child was not possible at the maternalgrandfather's place and therefore, the betterment and education ofthe children and therefore, he should be given the custody of hiselder son. On this plea, with reference to the evidence on record,at Paragraphs 5 and 6 of the judgment, the Court has observed asfollows:"5. It is worth noting that the petition wasfiled on 11-11-1998 but the appellant did not show hisbona fides by providing some help, assistance or eventhe alms to his own blood and flesh. On one side he wascontesting the litigation under Section 125 Cr.PC andwas opposing the petition of his own children by sayingthat they are not entitled to any maintenance but atthe same time projecting himself to be a kindly and Godfearing father, he was asserting that he is entitled tothe custody of Adil Khan so that his future is takencare of.6. I am unable to understand that how a personwho is refusing to pay the maintenance to his own childcan come before the Court and say that he is interestedin the betterment of the very same child. On one sidehe refused to pay the maintenance but at the same timehe says that if the custody is given to him then hewould look after the future and career of the saidchild. The bona fides are not to be seen from what issaid but are to be seen what is done. In the presentmatter, the present appellant has hopelessly failed inproving his bona fides. A simple assertion on the partof the appellant that he is interested in the upkeepand betterment and future of the child or the statementof his second wife that she would look after the childproperly as her own son would not suffice but somethingfurther was to be brought on record. The appellant wasrequired to satisfy the judicial conscience of theCourt that in fact he is interested in the bettermentof the child. No law can be woven without a moralfiber. If the moral fiber is missing from the law thenthe law would become ruthless and barbaric. Theprovisions under Section 125 Cr.PC are woven of moralfiber. They require a person - a person who hassufficient means - to maintain his or her dependants.No religion says that a person who is obliged tomaintain his dependants should shirk the liabilitysimply because they are living separately. No religion https://hcservices.ecourts.gov.in/hcservices/ says that the law should not be woven of moral fiber.The morality requires from a father that he would lookafter the child. Even he is duty bound to ensure themaintenance and upkeep of the child. The Shariyat doesnot say that a father would be entitled to the custodyof the child and divorced mother/divorced wife wouldwork as a slave, after the divorce for a period ofseven years, would look after the child, maintain him,keep him alive so that one fine morning the divorcedhusband breaks open the doors and takes the custody ofthat child. It is unfortunate that even afterexhibiting such a conduct the present appellant hascome to the Court and says that he is entitled to thecustody of the minor."38.As regards reckless allegations, in Mary Sumathi v. CharlesAsirvatham reported in 1999 (III) CTC 643, mother filed a petitionfor custody of the minor child. She was a Doctor and the child waswith her for nine years. It was the contention of the mother thateven the paternity of the child was disputed at one point of time andthe marriage between them was also dissolved. Father of the childmade reckless allegation, while objecting to the custody of thechild. In the above background, this Court, while answering aquestion as to whether the appointment of the mother as the guardianwould be in furtherance of the welfare of the minor child and havingregard to the conduct and assertion of the respondent therein that hehad not fathered the child and that it was born to the mother withanother person, at paragraph 6, held that when the husband has madesuch wild allegations, disowning the parentage of the child, suchtype of person, not only wants to impress upon the court withrecently developed love and affection from the child, which obviouslymust be only a pretense. 39.Further, in the above reported judgment, at Paragraphs 10and 11, while declaring the law that insofar as the appointment ofguardian is concerned, the Court further held that the rights of theparties are only secondary to the paramount consideration and welfareof the minor and held as follows:"10. Now it is well settled proposition in law thatso far as appointment of guardian is concerned therights of the parties are only secondary and it is not aquestion of vindication of right of the husband or wifebut the paramount consideration must be only theinterest and welfare of the minor, on the basis of whichalone the court can chose the guardian whether it ismother or father. It cannot be also stated father hasgot a preferential claim than the mother. After all bothare equal partners and therefore it cannot be statedthat father has got a better claim to be the guardian or https://hcservices.ecourts.gov.in/hcservices/ given custody of the minor child than the mother.Interest and welfare of the minor child consists inproviding necessities and comforts which would ensurethat the child grows up in proper atmosphere so that incourse of time the child will stand on her own leg andwill be an useful addition to the society and thefamily. Provision of basis necessities and comforts areonly one of the aspects that has to be taken intoconsideration while choosing the guardian to beappointed.............. 11. Besides, meeting the basic needs, the childmust be brought up in proper atmosphere and theconditions in the house must be conducive to her evergrowing personality. Nothing can be said in thiscapacity. The averments made by the respondent againstthe petitioner are made in a reckless manner. Noimportance can be attached to the allegations made bythe respondent against the petitioner. Since it has beenproved that the respondent is in the habit of makingreckless allegations against the petitioner...........Under such circumstances, it will be cruel to snatch thechild from the mother, namely the petitioner with whomthe girl has been very much attached and with whom shehas been living for the past nine years. The girl hasbeen brought to the court and even though she is a smallgirl to be asked to give her option or to chooseintelligently it is apparent that she is deeply attachedto her mother and she is very comfortable in the companyof her mother and grand parents.40.In the above reported judgment, on the question as towhether visitation rights should be given to such a person, who didnot show any interest towards the welfare of the child and testingthe claim that at each and every stage, to wreck vengeance on her andwith a view to snatch away the child, the father had made recklessallegations, the Court even declined visitation rights to him,holding that a person, who has not even taken any interest for thewelfare of the minor, further observed that if he is grantedvisitation rights, the child also would be made a victim in the fightbetween the mother and father. The Court, on facts of the case,recorded that the respondent therein would likely to poison the mindof the minor and would not hesitate to turn her, against her ownmother.41.In Om Prakash Bharuka v. Shakuntala Modi reported in AIR1993 Gauhati 38, father filed an application for custody andguardianship. During the pendency of the dispute, the court directedthe Registrar (Judicial) to submit a report, as to how the children https://hcservices.ecourts.gov.in/hcservices/ had been looked after by their mother. Two reports were submitted,stating that the children loved their maternal aunts and they had notbeen ill-treated by them at any time and the allegation of tortureetc, were not true. Earlier, children were produced and interviewedby the Trial Judge. Prayer for custody of the child was rejected.Being aggrieved by the same, father preferred an appeal before theHigh Court. During pendency of the appeal, the father filed yetanother application seeking custody of the children, alleging thatmother was leading a immoral life and it would not be in the interestof the children to live with her. Plea of immoral life by therespondent was not specifically taken by the husband in the petition,(like in the instant case before this Court). While considering theparamount interest of the child and the inter se rights of theparents, the Gauhati High Court, at Paragraphs 15 to 17, held asfollows:"15. In considering the question of the welfare ofthe minors due regard has of course to be paid to theright of the father to be the guardian and also to allother relevant factors having a bearing on the minor'swelfare. The presumption is that a minor's parentswould do their very best to promote their children'swelfare and, if necessary, would not grudge anysacrifice of their own personal interest and pleasure.This presumption arises because of the natural,selfless affection normally expected from the parentsfor their children.16. Where there is no dichotomy between the fitnessof the father to be entrusted, with the custody of hisminor children and considerations of their welfare, thefather's fitness has to be considered, determined andweighed predominantly in terms of the welfare of hisminor children in the context of all the relevantcircumstances. If the custody of the father cannotpromote their welfare equally or better than thecustody of the mother, then, he cannot claimindefeasible right to their custody under Section 25merely because there is no defect in his personalcharacter and he has attachment for his children, whichevery normal parent has.17. Merely because the father loves his children andis not shown to be otherwise undesirable cannotnecessarily lead to the conclusion that the welfare ofthe children would be better promoted by granting theircustody to him as against the wife who may also beequally affectionate towards her children and otherwiseequally free from blemish, and, who, in additionbecause of her profession and financial resources, maybe in a position to guarantee better health, educationand maintenance for them. Thus therefore, the Court in https://hcservices.ecourts.gov.in/hcservices/ case of a dispute between the father and mother isexpected to strike a just and proper balance betweenthe requirements of welfare of the minor children andthe rights of their respective parents over them. Inshort, while giving custody of the children, thewelfare of the children should be regarded as aparamount consideration."42.From the above judgment, it could be seen if there is nodefect in the personal character or if he is not shown to beotherwise, undesirable, he may have an edge over the mother, inclaiming custody and guardianship of the minor children, in view ofthe stationary provision. But ultimately, it is the paramountwelfare of the minor child, which has to be considered by the Court,taking into consideration, various factors.43.In the reported judgment, regarding the views expressed bythe children, the High Court observed that the children without anyhesitation have flatly refused to go and stay with the father.Having regard to the paramount interest of the children and the viewsexpressed by them that they were comfortable and happy with themother, the Court declined to grant interim custody to the father.44.As regards ill-treatment and cruelty, in Mohd. Yunus v.Smt.Shamshad Bano reported in AIR 1985 All. 217, the spouses wereseparated and a decree of divorce was also granted. Father of twochildren sought for custody on the ground that the children were notgetting proper education and it was necessary, in their interest,that custody be given to him. The application was contested by themother, inter alia that she was ill-treated, beaten up and turned outof her husband's home. She further contended that the two childrenwere receiving the best education and being very well looked after byher. The Court below dismissed the petition on the ground that forthe welfare of the children, it is necessary that they be left withthe mother. While doing so, the Court below also ascertained thewishes of the appellant's son, who stated that he would prefer toremain with the mother. Aggrieved by the same, father filed anappeal. One of the grounds raised in the appeal was that, "the Courtwhile deciding the question of guardianship of a minor must, as faras possible, do so consistently with the personal law to which theminor is subject". On the facts of the case, yet another issue,which came to be considered, was whether the conduct of theappellant-husband, in ill-treating his wife, can be considered by theCourt, to arrive at a conclusion regarding the custody andguardianship. The conclusion of the facts, regarding ill-treatment,physical cruelty, reached by the Court below was not challenged. Inthis factual background, the Allahabad High Court, at Paragraphs 9 to11, held as follows:"The plea of the respondent that she was ill- https://hcservices.ecourts.gov.in/hcservices/ treated by the appellant, beaten up and turned out fromher husband's home by the appellant is fullysubstantiated by the evidence on record which has beendiscussed by the court below at length. I entirelyagree with the conclusion reached by the trial court onthis controversy. The allegation of the appellant thathis wife had left on her own on the pretext ofattending some marriage in her family seems entirelyunworthy of reliance and has rightly been rejected bythe court below. This conduct of the appellant leads meto the conclusion that he would not be the right personto whom the custody of the children might beappropriately entrusted. Secondly, from the evidence onrecord it is apparent that while in the family of therespondent there are two female members who could lookafter the children both of whom are of tender age, inthe appellant's family there is only one female member,i.e. the aged mother of the appellant who, havingregard to her advancing years, would be hardly able totake proper care of the children. The court below,therefore, has rightly taken into consideration thiscircumstance in rejecting the appellant's petition andallowing the children to remain with the mother.Lastly, I find that the appellant's son himself hasexpressed a desire before the court below when he wasproduced after the conclusion of the arguments that hewould prefer to stay with his mother and that he wouldnot like to live with the father. The appellant's sonat the time of making of the said statement before thecourt below was more than 11 years old and was hence,in my opinion, old enough to form an intelligentpreference.10. .........It may be mentioned here that thelearned counsel for the appellant did not challenge thecorrectness of the various conclusions of fact reachedby the court below. The only contention raised by himwas that the court below having found that theappellant has the requisite means to educate hischildren, it should have directed the return of thecustody of the children to the appellant......11. .......The mere fact that the appellant is ina financial position to undertake the education of hisson, is not decisive of the issue whether it would bein the best interest of the son to leave him in thecustody of the appellant. In my opinion, having regardto the circumstances in which the appellant's wife wasturned out by the appellant and to the fact that theson had himself expressed preference in favour of themother and has expressed a positive reluctance to go tothe father and to the other facts and circumstances https://hcservices.ecourts.gov.in/hcservices/ referred to in the judgment under appeal the courtbelow has rightly rejected the petition of theappellant."45.In Keshav R.Thakur and Anr. v. Suchhibai [2005 9 S.C.C.424], at paragraph 5, it is observed as follows:5. ...As the grandparents have by reasonof interim order or otherwise remained in careand control of the minor Appellant 2 for hisentire life, it will not be appropriate togrant custody of the child to the mother atthis stage. Appellant 1, however, will allowthe mother to meet the child whenever therespondent approaches them for the purpose.46.In Sheila B.Das v. P.R. Sugasree reported in 2006 (3) SCC62, it is held as follows:"There is no reason to consider the respondentineligible to look after the minor. In fact, after havingobtained custody of the minor child the respondent doesnot appear to have neglected the minor or to look afterall her needs. The child appears to be happy in therespondent's company and has also been doing consistentlywell in school. The respondent appears to be financiallystable and is also not disqualified in any way from beingthe guardian of the minor child. No allegation, other thanhis purported apathy towards the minor, has been levelledagainst the respondent by the appellant. Such anallegation is not borne out from the materials and is notsufficient to make the respondent ineligible to act as theguardian of the minor. In the cases cited by theappellant, the father on account of specificconsiderations was not considered to be suitable to act asthe guardian of the minor. The said decisions wererendered by the courts keeping in view the fact that theparamount consideration in such cases was the interest andwell being of the minor. The interest of the minor in thiscase will be best served if she remains with therespondent father but with sufficient access to theappellant to visit the minor at frequent intervals but soas not to disturb and disrupt her normal studies and otheractivities. Accordingly, the appeal is dismissed of byretaining the order passed by the Family Court withcertain modifications."47.In Sharli Sunitha v. D.Balson reported in 2007 (1) MLJ 56,this Court, held that, https://hcservices.ecourts.gov.in/hcservices/ "While economic condition of a claimant to the custodyis an important factor, no less important a factor is:which of the rival claimants to the custody show greaterconcern for the welfare of the child? Neither economicaffluence nor a deep mental or emotional concern for thewell-being of the child, by itself, is determinative of,where the welfare of the child lies. When the mother isnot interested in the welfare of the minor child, she isnot entitled to have custody of the minor child, who willbe better placed in the custody of the father."48.As regards remarriage, in Vellaichamy Nadar v. Jayashreereported in 1998 (3) LW 236, father-in-law and mother-in-law of therespondent filed a petition, seeking appointment, as guardian of twochildren and for a direction to the respondents to hand over thecustody. One of the reasons, seeking guardianship was that mother ofthe children got re-married and therefore, she cannot be the legalguardian for the minors. Dealing with the above aspect, as towhether, re-marriage would disentitle guardianship to the children,this Court, at Paragraphs 4 and 5 held as follows:"In the absence of any material before the Court,to come to the conclusion that the respondent had notbestowed any interest in the welfare of the minors, shewill continue to be the legal guardian of the minors.Perhaps the only grievance of the appellants againstthe respondent is her second marriage. The respondentwill be aged about 20to 27 years, since the minors areaged about 7 and 4 years old. When she lost herhusband in the prime youth of her life, it may be verydifficult for her to pull on her life all alone havingtwo minor children. (Para 4)Merely by remarriage, it cannot be said that themother would lose the love and affection for herchildren through the first husband. The evidence ofP.Ws.1 and 2 do not disclose any incidents to show thatthe respondent is not bestowing any interest in thewelfare of the minor children."49.In Kumar V.Jahgirdar v. Chethana Ramatheertha reported in2004 (2) SCC 688, while considering a plea whether re-marriage of themother was detrimental to the welfare of the child, at Paragraph 11,the Supreme Court observed that, "The High Court has taken into consideration allother relevant facts and circumstances to come to theconclusion that a female child of growing age needscompany more of her mother compared to the father andremarriage of the mother is not a disqualification forit." https://hcservices.ecourts.gov.in/hcservices/

50.In T.Kochappi v. R.Sadasivam Pillai reported in 2006 (5)CTC 337, grand father of the minor child filed an application underthe Guardian and Wards Act, claiming guardianship, on the groundinter alia that the father of the child, after the death of his wife,got re-married. While considering the question as to whether merere-marriage would dis-entitle a person from guardianship, atParagraph 8, this Court held as follows:"The fact that the respondent had married forthe second time, will not absolve the right to ask forthe custody of the children or for appointing him asthe guardian of the children. The learned AdditionalDistrict Judge in his order has categorically statedthat except the averment that the respondent hadmarried for the second time, there is nothing in theaffidavit to draw an inference of the respondent thathe had acted against the interest of the minorswarranting removal of the respondent hisguardianship."51.In Lekha v. P.Anil Kumar reported in 2007(2) MLJ 298 (SC),the marriage between the parties was solemnized on 31.01.1994, as perHindu religious rites and customs. Out of the said wedlock, a son wasborn. After marriage, they lived together for 2 months andthereafter, they lived separately, because of misunderstandingbetween them. Wife filed a petition for divorce on the ground ofharassment and cruelty. The husband filed a petition for restitutionof conjugal rights. Thereafter, he filed an Original Petition underthe Guardians and Wards Act, for the custody of the 11 year old minorchild, contending inter alia that he was financially better than themother and that he would give better education to the minor child. In the meantime, the learned Subordinate Judge passed an ex-partedecree for divorce, in favour of the mother and that the petition forrestitution of conjugal rights filed by the husband was dismissed fordefault. After considering the oral evidence adduced by the partiesand examining the child, the trial Court came to the conclusion thatfor the welfare of the child, the custody should be given to themother and dismissed the Original Petition of the father filed underGuardians and Wards Act. The correctness of the said order waschallenged by way of an appeal before the High Court. The contentionof the husband was that contrary to the deposition made by the motherbefore the trial Court that she would not re-marry, immediately afterthe judgment of the petition filed under the Guardians and Wards Act,she got remarried and therefore, the continued custody of the childwith the mother would be detrimental to the interest, progress andwelfare of the child. The High Court, without giving an opportunityto the child to express his willingness, allowed the appeal solely onthe ground of remarriage of the mother. On her appeal, the Supreme https://hcservices.ecourts.gov.in/hcservices/ Court held that,"13. We are of the opinion that the remarriage ofthe mother cannot be taken as a ground for not grantingthe custody of the child to the mother. The paramountconsideration should be given to the welfare of thechild. As already noticed, at the interview, the boy hasexpressed his willingness and desire to live only withhis mother and was admitted by him that the mother willprovide him good education. The mother is also drawingpension of Rs. 6,000/- p.m. and also having land andproperties in her name. When the boy says he prefers tolive with his mother, we are of the view that it will bebeneficial for the boy and his education for a betterfuture. The High Court, in our opinion, erred inallowing the appeal on the ground of remarriage of theappellant without considering the other aspects of thematter. It is a matter of custody of the child and theparamount consideration should be the welfare of thechild. It is not in dispute the boy is living with hismother for the last several years and the separation atthis stage will affect the mental condition and theeducation of the child and considering that the childhimself attaches importance to his education if thecustody is to be given to the father will now affect hisacademic brilliance and future. 14. The High Court, in our opinion, ought to haveseen that the re-marriage cannot be taken as a groundfor giving custody of the child. There is also nofinding by the High Court that the remarriage hasadversely affected the mental condition of the minorchild. 18. The law permits a person to have the custody ofhis minor child. The father ought to be the guardian ofthe person and property of the minor under ordinarycircumstances. The fact that the mother has marriedagain after the divorce of her first husband is noground for depriving the mother of her parental right ofcustody. In cases like the present one, the mother mayhave shortcomings but that does not imply that she isnot deserving of the solace and custody of her child. Ifthe Court forms the impression that the mother is anormal and independent young woman and shows noindication of imbalance of mind in her, then in the endthe custody of the minor child should not be refused toher or else we would be really assenting to theproposition that a second marriage involving a motherper se will operate adversely to a claim of a mother forthe custody of her minor child. We are fortified in thisview by the authority of the Madras High Court in Sura https://hcservices.ecourts.gov.in/hcservices/ Reddy v. Chenna Reddy, AIR 1950 Mad 306 : (1950) 1 MLJ33, where Govinda Menon and Basheer Ahmed Syed, JJ. haveclearly laid down that the father ought to be a guardianof the person and property of the minor under ordinarycircumstances and that fact a Hindu father has married asecond wife is no ground whatever for depriving him ofhis parental right of custody.19. A man in his social capacity may be reckless oreccentric in certain respects and other may even developa considerable distaste for his company with somejustification but all that is a far cry from unfitnessto have the natural solace of the company of ones ownchildren or for the duty of bringing them up in propermanner. Needless to say the respondent- husband, in thiscase, seems to be anxious to have the minor child withhim as early as possible in order to look after himproperly and to provide for his future education. Thefeelings being what they are between the respondent andthe appellant we think it is also natural on the part ofthe husband to feel that if the minor child continues tolive with his former wife, it may be brought up to hatethe father or to have a very adverse impression abouthim. This certainly is not desirable. Needless to say,this Court is not called upon to find that therespondent-husband has been entirely blameless in hisconduct and few occasions referred to in this case andby the boy at the time of interview, it is not the dutyof this Court even to ascertain whether the respondentis of responsible and good citizen and a preferredindividual. Many people have shortcomings but that doesnot imply that they are not deserving of the solace andcustody of their children."52.In J.Selvan v. N.Punidha reported in 2007 (4) MLJ 967,this Court has held that,"It is by now well Settled that in all suchmatters, the interest and welfare of the minor childrenare of paramount importance, rather than the conflictingclaims and interests of the parents. The right of theparents is not what is to be decided in theseapplications, but the right of the children to have ahealthy environment and a physical, emotional andfinancial support for the development of theirintegrated personality, that is to be decided in theseapplications. [Para 12]The American Academy of Child and AdolescentPsychiatry has published a summary of the PracticeParameters for Child Custody Evaluation. The summary was https://hcservices.ecourts.gov.in/hcservices/ developed by the Work Group on quality issues. It isseen from the abstract to the summary, that it waspresented as a guide for clinicians evaluating theissues surrounding a child custody dispute. The studyidentified the issues that are common to all childcustody disputes as "continuity and quality ofattachments, preference, parental alienation, specialneeds of children, education, gender issues, siblingrelationships, parents' physical and mental health,parents' work schedules, parents' finances, styles ofparenting and discipline, conflict resolution, socialsupport systems, cultural and ethnic issues, ethics andvalues and religion. [Para 13]Though the prevailing legal test is that of the"best interests of the child" test, the Courts have alsopostulated the least detrimental alternative" as analternative judicial presumption. [Para 14] The issuesthat have arisen for consideration in this petition,have to be decided on the basis of the ability andwillingness on the part of either of the parties toprovide to the minor children, a healthy environment,good parental care and guidance and a physical,emotional and financial support for the development oftheir integrated personality. [Para 15]"53.In Nil Rantan Kundu v. Abhijit Kundu reported in 2008 (4)CTC 425, while explaining the scope and power to make orders as toguardianship and the factors to be considered by the Courts in thematter of appointment of mother as guardian, this Court, atParagraphs 56, 59, 61, 62, 72 and 74, held as follows:"56. In our judgment, the law relating to custody ofa child is fairly well-settled and it is this. In decidinga difficult and complex question as to custody of minor, aCourt of law should keep in mind relevant statutes and therights flowing therefrom. But such cases cannot be decidedsolely by interpreting legal provisions. It is a humaneproblem and is required to be solved with human touch. ACourt while dealing with custody cases, is neither boundby statutes nor by strict rules of evidence or procedurenor by precedents. In selecting proper guardian of aminor, the paramount consideration should be the welfareand well-being of the child. In selecting a guardian, theCourt is exercising parens patriae jurisdiction and isexpected, nay bound, to give due weight to a child'sordinary comfort, contentment, health, education,intellectual development and favourable surroundings. Butover and above physical comforts, moral and ethical valuescannot be ignored. They are equally, or we may say, even https://hcservices.ecourts.gov.in/hcservices/ more important, essential and indispensableconsiderations. If the minor is old enough to form anintelligent preference or judgment, the Court mustconsider such preference as well, though the finaldecision should rest with the Court as to what isconducive to the welfare of the minor.59. We are unable to appreciate the approach of theCourts below. This Court in catena of decisions has heldthat the controlling consideration governing the custodyof children is the welfare of children and not the rightof their parents.61. It was also observed that the father's fitnesshas to be considered, determined and weighed predominantlyin terms of the welfare of his minor children in thecontext of all the relevant circumstances. The father'sfitness cannot override considerations of the welfare ofthe minor children.62. In our opinion, in such cases, it is not the`negative test' that the father is not `unfit' ordisqualified to have custody of his son/daughter isrelevant but the `positive test' that such custody wouldbe in the welfare of the minor which is material and it ison that basis that the Court should exercise the power togrant or refuse custody of minor in favour of father,mother or any other guardian.72. In our considered opinion, on the facts and inthe circumstances of the case, both the Courts were dutybound to consider the allegations against the respondentherein and pendency of criminal case for an offencepunishable under Section 498A, IPC. One of the matterswhich is required to be considered by a Court of law isthe `character' of the proposed guardian. In Kirit Kumar,this Court, almost in similar circumstances where thefather was facing the charge under Section 498A IPC, didnot grant custody of two minor children to the father andallowed them to remain with maternal uncle. Thus, acomplaint against father alleging and attributing death ofmother and a case under Section 498A, IPC is indeed arelevant factor and a Court of law must address to thesaid circumstance while deciding the custody of the minorin favour of such person. To us, it is no answer to statethat in case the father is convicted, it is open tomaternal grand parents to make an appropriate applicationfor change of custody. Even at this stage, the said factought to have been considered and appropriate order oughtto have been passed.73. As already noted, Antariksh was aged six yearswhen the trial Court decided the matter. He was, however, https://hcservices.ecourts.gov.in/hcservices/ not called by the Court with a view to ascertain hiswishes as to with whom he wanted to stay. The reason givenby the trial Court was that none of the parties asked forsuch examination by the Court.74. In our considered opinion, the Court was notright. Apart from statutory provision in the form of Sub-section (3) of Section 17 of 1890 Act, such examinationalso helps the Court in performing onerous duty, inexercising discretionary jurisdiction and in decidingdelicate issue of custody of a tender-aged child.Moreover, the final decision rests with the Court which isbound to consider all questions and to make an appropriateorder keeping in view the welfare of the child. Normally,therefore, in custody cases, wishes of the minor should beascertained by the Court before deciding as to whomcustody should be given."54.In Mausami Moitra Ganguli v. Jayant Ganguli reported in2008 (7) SCC 673, the appellant mother was living separately onaccount of cruelty of the respondent father and got an ex partedecree of divorce which attained finality. Though the Family Courtgave the custody to the appellant-mother, the High Court in appeal,by the impugned order set aside the order of the Family Court andgranted permanent custody of the child to the respondent father andonly visitation rights were given to the mother. On appeal, atParagraphs 19 to 23 and 26, the Apex Court held as follows:"19. The principles of law in relation to thecustody of a minor child are well settled. It is tritethat while determining the question as to which parent thecare and control of a child should be committed, the firstand the paramount consideration is the welfare andinterest of the child and not the rights of the parentsunder a statute. Indubitably the provisions of lawpertaining to the custody of a child contained in eitherthe Guardians and Wards Act, 1890 (Section 17) or theHindu Minority and Guardianship Act, 1956 (Section 13)also hold out the welfare of the child as a predominantconsideration. In fact, no statute, on the subject, canignore, eschew or obliterate the vital factor of thewelfare of the minor. 20. The question of welfare of the minor child hasagain to be considered in the background of the relevantfacts and circumstances. Each case has to be decided onits own facts and other decided cases can hardly serve asbinding precedents insofar as the factual aspects of thecase are concerned. It is, no doubt, true that father ispresumed by the statutes to be better suited to look afterthe welfare of the child, being normally the workingmember and head of the family, yet in each case the Court https://hcservices.ecourts.gov.in/hcservices/ has to see primarily to the welfare of the child indetermining the question of his or her custody. Betterfinancial resources of either of the parents or their lovefor the child may be one of the relevant considerationsbut cannot be the sole determining factor for the custodyof the child. It is here that a heavy duty is cast on theCourt to exercise its judicial discretion judiciously inthe background of all the relevant facts andcircumstances, bearing in mind the welfare of the child asthe paramount consideration.21. In Rosy Jacob v. Jacob A. Chakramakkall reportedin (1973) 1 SCC 840, a three- Judge Bench of this Court ina rather curt language had observed that the children arenot mere chattels; nor are they mere play-things for theirparents. Absolute right of parents over the destinies andthe lives of their children has, in the modern changedsocial conditions, yielded to the considerations of theirwelfare as human beings so that they may grow up in anormal balanced manner to be useful members of the societyand the guardian court in case of a dispute between themother and the father, is expected to strike a just andproper balance between the requirements of welfare of theminor children and the rights of their respective parentsover them.22. In Halsbury's Laws of England (Fourth Edition,Vol.13), the law pertaining to the custody and maintenanceof children has been succinctly stated in the followingterms:809. Principles as to custody andupbringing of minors. Where in any proceedingsbefore any court, the custody or upbringing ofa minor is in question, the court, in decidingthat question, must regard the welfare of theminor as the first and paramount consideration,and must not take into consideration whetherfrom any other point of view the claim of thefather in respect of such custody or upbringingis superior to that of the mother, or the claimof the mother is superior to that of thefather. In relation to the custody orupbringing of a minor, a mother has the samerights and authority as the law allows to afather, and the rights and authority of motherand father are equal and are exercisable byeither without the other.23. Having bestowed our anxious consideration to thematerial on record and the observations made by the courtsbelow, we are of the view that in the present case there https://hcservices.ecourts.gov.in/hcservices/ is no ground to upset the judgment and order of the HighCourt. There is nothing on record to suggest that thewelfare of the child is in any way in peril in the handsof the father. In our opinion, the stability and securityof the child is also an essential ingredient for a fulldevelopment of child's talent and personality. As notedabove, the appellant is a teacher, now employed in aschool at Panipat, where she had shifted from Chandigarhsome time back. Earlier she was teaching in some school atCalcutta. Admittedly, she is living all alone. Except fora very short duration when he was with the appellant,Master Satyajeet has been living and studying in Allahabadin a good school and stated to have his small group offriends there. At Panipat, it would be an entirely newenvironment for him as compared to Allahabad. 26. Under these circumstances and bearing in mindthe paramount consideration of the welfare of the child,we are convinced that child's interest and welfare will bebest served if he continues to be in the custody of thefather. In our opinion, for the present, it is notdesirable to disturb the custody of Master Satyajeet and,therefore, the order of the High Court giving hisexclusive custody to the father with visitation rights tothe mother deserves to be maintained. We feel that thevisitation rights given to the appellant by the HighCourt, as noted above, also do not require anymodification. We, therefore, affirm the order and theafore-extracted directions given by the High Court. Itwill, however, be open to the parties to move this Courtfor modification of this order or for seeking anydirection regarding the custody and well-being of thechild, if there is any change in the circumstances.55.In Gaurav Nagpal v. Sumedha Nagpal reported in 2009 (1) SCC42, wife filed an application under Section 6 of the Hindu Minorityand Guardianship Act, 1956 along with Section 25 of the Guardian andWards Act, 1890. The said application was allowed by the DistrictJudge. The appeal before the High Court was dismissed. The stand ofthe appellant before the High Court was that there was no finding bythe Court below that he had suffered from any disability in his roleas a father and, therefore, there was no comprehensive reason for theCourt to direct custody of the child to be entrusted to therespondent therein. It was also contended that the mere fact that therespondent therein was the mother, cannot be the sole basis forallowing the petition. With reference to Section 6 of the Act, it waspleaded that the father was the legal guardian and the welfare of theminor child lies with the appellant therein. He also pleaded that hewas financially sound with good income and reside in a joint family,where the interest of the child can be taken care of in all https://hcservices.ecourts.gov.in/hcservices/ respects. On the aspect of financial support, it was contended thatwith the meagre income, she would not be in a position to providegood education to the child. 56.Per contra, it was contended that the child's welfarecannot be weighed in terms of money, facilities, area of the house orthe financial might of either, the father or the mother. It wasfurther contended that merely because she was residing with theparents, that would not disqualify her from looking after her child.It was also contended that though she may not be as financially soundlike that of the appellant and mere economic status alone would notdisentitle her from claiming custody of the child.57.In the background of above pleadings, after considering thestatutory provisions and the inter-se rights of the parties and mostimportant parameter, the paramount welfare of the child, the SupremeCourt, held that on the facts of the case, the High Court was rightin confirming the decision, entrusting the custody of the child tothe mother. While doing so, the Supreme Court considered the lawrelating to the custody in various countries, which are worthreproduction."English Law29. In Halsbury's Laws of England, Fourth Edition,Vol. 24, para 511 at page 217 it has been stated:"Where in any proceedings before any courtthe custody or upbringing of a minor is inquestion, then, in deciding that question, thecourt must regard the minor's welfare as thefirst and paramount consideration, and may nottake into consideration whether from any otherpoint of view the father's claim in respect ofthat custody or upbringing is superior to that ofthe mother, or the mother's claim is superior tothat of the father. (emphasis supplied)It has also been stated that if the minor is of any age toexercise a choice, the court will take his wishes intoconsideration. (para 534; page 229).30. Sometimes, a writ of habeas corpus is sought forcustody of a minor child. In such cases also, theparamount consideration which is required to be kept inview by a writ-Court is `welfare of the child'.31. In Habeas Corpus, Vol. I, page 581, Baileystates:The reputation of the father may be asstainless as crystal; he may not be afflictedwith the slightest mental, moral or physicaldisqualifications from superintending the generalwelfare of the infant; the mother may have beenseparated from him without the shadow of a https://hcservices.ecourts.gov.in/hcservices/ pretence of justification; and yet the interestsof the child may imperatively demand the denialof the father's right and its continuance withthe mother. The tender age and precarious stateof its health make the vigilance of the motherindispensable to its proper care; for, notdoubting that paternal anxiety would seek for andobtain the best substitute which could beprocured yet every instinct of humanityunerringly proclaims that no substitute cansupply the place of her whose watchfulness overthe sleeping cradle, or waking moments of heroffspring, is prompted by deeper and holierfeeling than the most liberal allowance ofnurses' wages could possibly stimulate."It is further observed that an incidental aspect, whichhas a bearing on the question, may also be adverted to. Indetermining whether it will be for the best interests of achild to grant its custody to the father or mother, theCourt may properly consult the child, if it has sufficientjudgment.32. In Mc Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208,Lindley, L.J. Observed:The dominant matter for the considerationof the Court is the welfare of the child. But thewelfare of the child is not to be measured bymoney only nor merely physical comfort. The word`welfare' must be taken in its widest sense. Themoral or religious welfare of the child must beconsidered as well as its physical well-being.Nor can the tie of affection be disregarded. (emphasis supplied)American Law33. Law in the United States is also not different.In American Jurisprudence, Second Edition, Vol. 39; para31; page 34, it is stated:As a rule, in the selection of a guardian of aminor, the best interest of the child is theparamount consideration, to which even the rightsof parents must sometimes yield. (emphasis supplied)In para 148; pp.280-81; it is stated:Generally, where the writ of habeas corpusis prosecuted for the purpose of determining theright to custody of a child, the controversy doesnot involve the question of personal freedom,because an infant is presumed to be in thecustody of someone until it attains its majority.The Court, in passing on the writ in a childcustody case, deals with a matter of an equitable https://hcservices.ecourts.gov.in/hcservices/ nature, it is not bound by any mere legal rightof parent or guardian, but is to give his or herclaim to the custody of the child due weight as aclaim founded on human nature and generallyequitable and just. Therefore, these cases aredecided, not on the legal right of the petitionerto be relieved from unlawful imprisonment ordetention, as in the case of an adult, but on theCourt's view of the best interests of those whosewelfare requires that they be in custody of oneperson or another; and hence, a court is notbound to deliver a child into the custody of anyclaimant or of any person, but should, in theexercise of a sound discretion, after carefulconsideration of the facts, leave it in suchcustody as its welfare at the time appears torequire. In short, the child's welfare is thesupreme consideration, irrespective of the rightsand wrongs of its contending parents, althoughthe natural rights of the parents are entitled toconsideration.An application by a parent, through themedium of a habeas corpus proceeding, for custodyof a child is addressed to the discretion of thecourt, and custody may be withheld from theparent where it is made clearly to appear that byreason of unfitness for the trust or of othersufficient causes the permanent interests of thechild would be sacrificed by a change of custody.In determining whether it will be for the bestinterest of a child to award its custody to thefather or mother, the Court may properly consultthe child, if it has sufficient judgment. (emphasis supplied)34. In Howarth v. Northcott 152 Conn 460 : 208 A 2nd540 : 17 ALR 3rd 758; it was stated:In habeas corpus proceedings to determinechild custody, the jurisdiction exercised by theCourt rests in such cases on its inherentequitable powers and exerts the force of theState, as parens patriae, for the protection ofits infant ward, and the very nature and scope ofthe inquiry and the result sought to beaccomplished call for the exercise of thejurisdiction of a court of equity.It was further observed:The employment of the forms of habeascorpus in a child custody case is not for thepurpose of testing the legality of a confinementor restraint as contemplated by the ancient https://hcservices.ecourts.gov.in/hcservices/ common law writ, or by statute, but the primarypurpose is to furnish a means by which the court,in the exercise of its judicial discretion, maydetermine what is best for the welfare of thechild, and the decision is reached by aconsideration of the equities involved in thewelfare of the child, against which the legalrights of no one, including the parents, areallowed to militate. (emphasissupplied)It was also indicated that ordinarily, the basis forissuance of a writ of habeas corpus is an illegaldetention; but in the case of such a writ sued out for thedetention of a child, the law is concerned not so muchwith the illegality of the detention as with the welfareof the child.45. In Saraswathibai Shripad v. Shripad Vasanji ILR 1941Bom 455 : AIR 1941 Bom 103; the High Court of Bombaystated:It is not the welfare of the father, nor thewelfare of the mother that is the paramountconsideration for the Court. It is the welfare ofthe minor and the minor alone which is theparamount consideration. (emphasis supplied)46. In Rosy Jacob v. Jacob A. Chakramakkal, [1973]3SCR918, this Court held that object and purpose of 1890Act is not merely physical custody of the minor but dueprotection of the rights of ward's health, maintenance andeducation. The power and duty of the Court under the Actis the welfare of minor. In considering the question ofwelfare of minor, due regard has of course to be given tothe right of the father as natural guardian but if thecustody of the father cannot promote the welfare of thechildren, he may be refused such guardianship.47. Again, in Thrity Hoshie Dolikuka v. HoshiamShavaksha Dolikuka, [1983]1SCR49, this Court reiteratedthat the only consideration of the Court in deciding thequestion of custody of minor should be the welfare andinterest of the minor. And it is the special duty andresponsibility of the Court. Mature thinking is indeednecessary in such situation to decide what will enure tothe benefit and welfare of the child.41. In Surinder Kaur Sandhu (Smt.) v. Harbax SinghSandhu: [1984]3SCR422 , this Court held that Section 6 ofthe Act constitutes father as a natural guardian of aminor son. But that provision cannot supersede theparamount consideration as to what is conducive to thewelfare of the minor. [See also Elizabeth Dinshaw (Mrs.)v. Arvand M. Dinshaw (1987) 1 SCC 42; Chandrakala Menon(Mrs.) v. Vipin Menan (Capt): (1993)2SCC6 ." https://hcservices.ecourts.gov.in/hcservices/

58.After considering the principles followed in the matter ofadjudication of custody or guardianship, the Supreme Court, atParagraph 48, held as follows:"48. Merely because there is no defect in his personalcare and his attachment for his children--which everynormal parent has, he would not be granted custody. Simplybecause the father loves his children and is not shown tobe otherwise undesirable does not necessarily lead to theconclusion that the welfare of the children would be betterpromoted by granting their custody to him. Children are notmere chattels nor are they toys for their parents. Absoluteright of parents over the destinies and the lives of theirchildren, in the modern changed social conditions mustyield to the considerations of their welfare as humanbeings so that they may grow up in a normal balanced mannerto be useful members of the society and the guardian courtin case of a dispute between the mother and the father, isexpected to strike a just and proper balance between therequirements of welfare of the minor children and therights of their respective parents over them."59.On the duties and responsibilities of the Courts indeciding custody and guardianship, the Apex Court, at Paragraphs 50and 51, further held that,50. When the court is confronted with conflictingdemands made by the parents, each time it has to justifythe demands. The Court has not only to look at the issue onlegalistic basis, in such matters human angles are relevantfor deciding those issues. The court then does not giveemphasis on what the parties say, it has to exercise ajurisdiction which is aimed at the welfare of the minor. Asobserved recently in Mousami Moitra Ganguli's case (supra),the Court has to due weightage to the child's ordinarycontentment, health, education, intellectual developmentand favourable surroundings but over and above physicalcomforts, the moral and ethical values have also to benoted. They are equal if not more important than theothers.51. The word `welfare' used in Section 13 of the Acthas to be construed literally and must be taken in itswidest sense. The moral and ethical welfare of the childmust also weigh with the Court as well as its physical wellbeing. Though the provisions of the special statutes whichgovern the rights of the parents or guardians may be takeninto consideration, there is nothing which can stand in theway of the Court exercising its parens patriae jurisdictionarising in such cases." https://hcservices.ecourts.gov.in/hcservices/

60.In M.J.Janarthanan v. K.A.Nagayasamy reported in 2009 (8) MLJ1112, a petition for guardianship was filed for the minor children.The respondents were father-in-law and brother-in-law. There wasdifference of opinion between the spouses and when the wife was atthe advanced stage of pregnancy, she went to her parent's house andthereafter, did not return to the matrimonial home. Husband filed apetition for conjugal rights and they lived together and a 2nd femalechild was born. Subsequently, she died. After the funeral rightswere performed, father of the children demanded the custody of thechildren, which was not given to him and the children were taken awayby the respondents therein. In the application for guardianship, itwas averred that the father-in-law was a retired government servantand was getting only a meagre amount by way of pension, wherein, thefather of the children was earning a good salary. It was furtheraverred that as per Section 6 of the Hindu Minority and GuardianshipAct, the petitioner therein (father) and natural guardian of thechildren, was entitled to have the custody of the minor children. 61.The abovesaid averments were disputed and it was contendedon behalf of the in-laws, with whom, the children were living, thatprior to death of his wife, petitioner therein (father) treated hiswife cruelly and it would not be conducive for the children to gowith the father. On evaluation of evidence, the Lower Court foundthat the wife was ill-treated by the petitioner therein and by theirin-laws, prior to her death and the welfare of the children was takencare of by the grand father and accordingly, the lower Courtdismissed the application for guardianship. When the correctness ofthe decision was tested before this Court, the Hon'ble Mr. JusticeK.Chandru, after considering a catena of decisions, held that, "16. ..........it is not necessary todisturb the present arrangement where the childrenare being educated by their grandfather and thereis also no complaint from the children.Therefore, the petition for custody of the twochildren cannot be allowed to be given to thepetitioner."62.As regards the desire of a child to live with the father ormother, as the case may be, in N. Nirmala v. Nelson Jeyakumar [1998(3) M.L.J. 619], in paragraphs 28 and 31, it is laid down as follows:"28. It is settled in law that normallydue to immaturity, in the sense, not able toform an independent decision or opinion, thepreference of the minor should not control theCourt as a decisive fact in deciding thecustody of a minor. But, where the child whohas been away from the mother for a longperiod, should not be forced to go back, https://hcservices.ecourts.gov.in/hcservices/ against the inclination of the minor, as it mayhave an adverse effect on the mind of theminor. Therefore, under what circumstance thepreference of the minor to be taken intoconsideration always depends upon the facts andcircumstances of each case.31. So far as the intelligent preferenceof a minor is concerned, it is always better tobear in mind the age and also the capability ofthe minor forming an intelligent preference.That is why, the selection of guardian by suchan infant is according to the statutoryprovisions, subject to the rule of the Court.The Court may disapprove the selection made bythe minor when, in its judgement, the personselected is not the proper person to be theguardian. But, ordinarily, it is the duty ofthe Court to appoint the person so selected, ifhe is competent and suitable although the Courtmay be of the opinion that some other personwould fill the position better. Unless thecourt is satisfied that the choice of the minoris detrimental to her interest or contrary tolaw, she should be permitted to exercise herright. 63.In Bhupinder Singh v. Kanchan Rant reported in AIR 2001 HP16, wife filed a petition under Sections 11 and 13(1) (ia) of theHindu Marriage Act for declaration that her marriage with the husbandas null and void or in the alternative, to grant a decree of divorce,on the ground of cruelty. The learned District Judge held that nolegal marriage was solemnised between the parties. Thereafter, wifemoved a petition under Section 25 of the Act, for restoration of theminor daughter to her. The husband resisted the claim petition,controverting the allegations. The petition was allowed and thecustody of the child was given to the mother. 64.Being aggrieved by the same, husband preferred an appeal.During the pendency of the proceedings, the desire of the minor childwas ascertained. According to the minor, she was living with herfather for last 10 years, along with her grand mother, father'ssister and other members of the family. She expressed her desire tocontinue to life with her father. Mother, inspite of the noticebeing served on her, did not appear before the High Court norinstructed the amicus curiae appointed by the Court. Taking intoconsideration the totality of the case and the fact that the minorwas living happily with the father and grandmother, getting propereducation, the Division Bench of Himachal Pradesh High Court allowedthe appeal. https://hcservices.ecourts.gov.in/hcservices/

65. In R. Kasthuri v. R. Raveendran [A.I.R. 2003 Mad 302], inparagraphs 10 and 11, it is observed as follows:"10. It is axiomatic that the welfare of the childis of paramount consideration. The way in which theboy answered the questions shows that he is anintelligent boy and he knows his preference. He hasbeen living with his mother for the past 12 years andhis educational needs have been taken care of by hismother. There is absolutely no evidence of ill-treatment by her, but on the other hand, the boy'sstatement shows that his care has been taken very wellby his mother and her relatives. His statement alsoshows that he is doing well in the class and if theboy is uprooted now and placed in the custody of thefather, we are of the view that that will unsettle hiseducational career and his future prospects also.11. Though both the parents are affectionate tothe child, it is clear that the child has been broughtup by the mother all along from the childhood. We areof the view that if the child is taken away from thecustody of the mother, it would affect his personaland educational career and we therefore hold that thecustody of the child should continue to be with themother.66.In V.Maria Puspha Janet Rajam v. Anatha Jeyakumar reportedin 2003 (3) CTC 677, after considering the views of the wishes of thechildren, who were summoned to the chambers and a catena of judgmentsand having regard to the state of mind of the children, permitted thematernal grand father to keep the custody of the children and on thefacts of this case, permitted the father of the children to have thevisitation rights.67.In R.G.Bhuwanesh v. G.Usha Rani reported in 2004 (5) CTC179, the Lower Court which adjudged the question of guardianship,enquired the children, in his chambers and ascertained their wishes,who had emphatically stated that they wanted to live with theirmother and they also expressed their willingness and confirmation inthe company of the mother. The Lower Court, after ascertaining thestatus, progress of the children, etc., arrived at the conclusionthat the children were looked after by the mother very well. Whenthe abovesaid decision was challenged, a Division Bench of this Courtheld that the desire of the minor children can be taken into account,while deciding the guardianship and custody. Facts of the reportedcase is squarely applicable to the present case, for the reason thatwhen the minor child, for whom, the guardianship was sought for, wasexamined by this Court, he has categorically expressed hiswillingness and confirmation in the company of his mother, viz., therespondent herein. https://hcservices.ecourts.gov.in/hcservices/

68.In an unreported judgment made in C.M.A.No.2224 of 2002,dated 30.08.2006, [D.Vilvanathan v. G.Rajendran and another], alearned Single Judge of this Court, while considering the prayer forappointment of Guardianship, with reference to the statutoryprovisions under Sections 17 and 25 of the Guardians and Wards Act,at Paragraph 11, this Court, held as follows:"11. A reading of Sections 17 and 25 of theGuardians and Wards Act 1890 (hereinafter referred to as"the Act") clearly shows that while appointing ordeclaring the guardian of a minor, the Court has toconsider the welfare of the minor. While considering thequestion of welfare of the minor, the Court has to takenote of the age, sex and religion of the minor, thecharacter and capacity of the proposed guardian and hisrelationship to the minor, the wishes, if any, of adeceased parent. Further if the minor is old enough toform an intelligent preference to understand what ishappening in and around him/her that may also beconsidered in preference to other conditions. Whileappointing a guardian, the paramount consideration isthat his/her appointment shall not be against the willof the minor. In the light of the above said principles,the rival contentions have to be considered."69.Reverting back to the case on hand, when the respondentsought for maintenance for herself and minor son, the petitioner hasseriously opposed the petition on the ground that they were notentitled to the same and thereby, failed to discharge his moral andlegal obligation to provide maintenance, which includes, food,shelter, clothing etc. In such circumstances, M.C.No.57 of 2003, hasbeen allowed on 23.12.2004, directing him to pay maintenance. 70.Pleadings disclose that when the order was sought to beenforced, the petitioner has filed Crl.R.C.No.908 of 2005 and inspiteof a conditional order made on 06.12.2005, he was not willing to makeany payment, depsite the matter being referred to Lok Adalat forsettlement and consequently, on merits, this Court, by order, dated09.11.200.., has dismissed the Civil Revision Petition, upholding theorder of maintenance given to the minor son. Being aggrieved by thedismissal, the petitioner has preferred a SLP before the SupremeCourt. 71.Thus, as rightly contended by Mr.R.Shanmugasundaram,Learned Senior Counsel for the respondent, it is evident that rightfrom 1994 onwards, the petitioner has not made any payment towardsmaintenance of his wife and minor child and failed to discharge hismoral and legal obligations, in providing even the basic needs, like,food, shelter, education, etc., to the minor son and all of a sudden, https://hcservices.ecourts.gov.in/hcservices/ after nearly fourteen years, has come out with an application underthe Guardian and Wards Act, in the year 2008, for custody andguardianship of the minor son. If the averments of the petitionerthat he was affectionate and always willing to provide the basicrequirements to the minor child, were to be true, he should havereadily accepted to pay, atleast the maintenance awarded to thechild, to show his bona fides, that he has considered the paramountwelfare of the child. Pleadings and material on record disclosethat when the petitioner has failed to provide maintenance to thewife and son for so many years, during the pendency of maintenancepetition, divorce proceedings and even after the disposal, now all ofa sudden, after so many years, in the petition for guardianship, hascontended that he would be the best person to provide education,health and other basic needs to the child. The conduct of thepetitioner does not reflect his bona fides.72.Father, who fails to discharge his moral and legalobligations under law to provide even the basic needs to the child,inspite of demand, whatever be the difference between the spouses andwho has vehemently opposed the maintenance grant, tooth and nail,upto Apex Court, has no moral conscience to contend that he wasalways ready and willing to provide all the best that the childrequired. In the opinion of this Court, such a person is dis-entitled to seek for custody and guardianship of the child, for thesimple reason that the moral fibre is totally absent in his conduct.73.Whether the petitioner was really interested in the welfareof the child from 1994 till 2008, till he filed the GuardianshipO.P., it is also relevant to consider the conduct of the petitioner.Though he has inter alia contended that he has made several attemptsto see the child in the respondent's house and also in the School andthat his efforts were thwarted, as rightly contended by the LearnedSenior Counsel for the respondent that if the petitioner-father wasreally interested in seeing the child, nothing prevented him fromfiling an application seeking for guardianship, even during thependency of the maintenance claim petition or taking out anapplication for interim custody, pending litigation inter-se betweenparties. There is absolutely no reason, as to why he has not chosento do, so all along, eventhough remedy was available. He has noteven taken out any application, claiming visitation rights, duringthe pendency of divorce proceedings or Guardianship Petition andtherefore, the contention that he has due regard for the welfare ofthe child, is far from truth, not supported by any iota of evidenceand cannot be accepted.74.Though the proceedings for maintenance was instituted, wayback in 2001 and that there was litigation, pending between theparties, for nearly seven years, he has not shown any interesttowards the welfare of the child and after confirmation of the orders https://hcservices.ecourts.gov.in/hcservices/ in the revision petition, directing maintenance to the minor son, andmother, the petitioner in order to defeat their legitimate claim, haschosen to file this petition for guardianship. 75.In Mohd. Ayub Khan's case, the Court has considered thebona fide of the husband that on the one hand, he was contesting theproceedings under Section 125 Cr.P.C., opposing that the wife andchildren, were not entitled to maintenance and on the other hand, inthe Guardian O.P., he had contended that if custody was given to him,he would look after the career of the child. Inasmuch as there issimilarity of facts, the judgment in Mohd. Ayub Khan's case, issquarely applicable to the case on hand.76.Merely because the father is the natural guardian, he isnot entitled to have priority over the mother of the child in thematter of custody and guardianship. Paramount welfare of the childalone is the consideration and the Court has to consider all thefactors, including, the economic status, character of the person,claiming custody and guardianship, love and affection shown by theparties towards the betterment of the child, the age of the child,etc.77.At this juncture, it is to be noted that one of the groundsfor granting divorce in O.P.No.152 of 2002, on the file of the FamilyCourt is mental cruelty, doubting the paternity of the child. Thesaid finding has not been challenged by the petitioner. The findingrendered by the lower Court in an earlier proceeding, makingfrivolous allegations against the respondent-wife, cannot simply bebrushed aside by this Court, as the conduct and character of therival contenders would certainly affect the mental frame of the childand they play a vital role, as good parental care depends uponphysical, emotional and financial support, for the development ofintegrated personality of the child.78.Going through the materials on record, this Court is of theview that the averments made in the petition for custody andguardianship, certainly are not from the bottom of his heart, butfrom his lips. One who has shunned the child, owing to his colourand even doubted the parentage and failed to provide maintenance forso many years, has come forward to plead that the injury which he hascaused to the wife should simply be ignored by this Court. It isreally hard to digest his submissions. Love and affection, care andcomfort for the minor child, pleaded after so many years are notnatural. 79.On the facts of the case, this Court is of the consideredview that the conduct of the petitioner in treating the respondentcruelly, by even doubting the parentage of the child, at the time ofadjudicating the divorce proceedings, inter-se, is absolutely arelevant factor, to be considered, for the purpose of assessing the https://hcservices.ecourts.gov.in/hcservices/ character of the person, who seeks custody and guardianship of thechild. If the petitioner has doubted even the parentage of thechild, how can he expected to extend true love and affection to thechild? In Mary Sumathi's case, on similar facts, this Court hasobserved that the father of the child, who made reckless allegations,disowning the parentage of the child, had only wanted to impress uponthe Court with recently developed love and affection for the childand that the Court has observed that it was only a pretence. Thejudgment squarely applies to the facts of this case.80.Therefore, this Court is of the view that the findingsrendered in earlier proceedings, inter-se between the parties, on theaspect of love and affection, failure to provide maintenance, careand comfort to the minor and the wild allegations, regarding theparentage of the child and the wife leading an immoral life, are allrelevant and to be taken into consideration, in a proceeding forcustody and guardianship of the child, as conduct and character ofthe person, claiming guardianship are relevant factors to be takeninto consideration.81.Though the petitioner has made a grievance over theobservation of the lower Court that the petitioner, who had doubtedthe chastity of this wife and paternity of the child, as not entitledto custody and guardianship and based on a xerox copy of a document,not marked before the Lower Court, made allegations that therespondent has suppressed an earlier marriage and therefore,contended that she is not entitled to guardianship and custody of theminor child, this Court is not inclined to accept the saidsubmission, based on the abovesaid document, which is not admissiblein evidence.82.The further contention of the petitioner that in theabsence of any specific denial in the counter affidavit filed by therespondent, touching upon the aspect of suppression of earliermarriage and therefore, it amounts to implicit admission of herconduct, cannot be countenanced. It is also well settled that mereaverment does not stand the test of proof. In District BasicEducation Officer v. Dhananjai Kumar Shukla reported in 2008 (3) SCC481, the respondent was appointed as Headmaster in a recognisedSchool, but it was contrary to the rules, governing appointment ofthe said post. As he was not paid salary, he filed a Writ Petitionbefore the Allahabad High Court. An interim order was passed,directing the education department to continue him in the said postand to pay salary. On appeal, the interim order was vacated.However, since no counter affidavit was filed in the Writ Petition,the same was allowed. Application for re-calling the said order wasalso dismissed. On appeal, the Division Bench confirmed the same,stating that the principles of Order 8 Rule 5 of CPC., would applyand that the averments made in the Writ Petition, would be deemed tohave been admitted. The correctness of the views expressed by the https://hcservices.ecourts.gov.in/hcservices/ Division Bench, was challenged on appeal before the Supreme Court.At Paragraph 12 to 14, the Supreme Court held that,"12. We would proceed on the basis that the HighCourt might have been justified in proceeding ex-partebut then it should have kept in mind the principlesunderlying Order 8 Rule 5 of the CPC, (assuming thatthe provisions of the CPC are applicable in terms ofthe High Court rules framed by the High Court ofAllahabad despite Section 141 of the CPC), that notonly despite non-filing of the written statement aCourt of law may call upon the plaintiff to prove hiscase but also there cannot be any doubt whatsoever,that no relief can be granted by the High Court inexercise of its jurisdiction under Article 226 of theConstitution of India which would be contrary to law.13. As basic foundational fact stands admittedbefore us, we are of the opinion that the judgment ofthe High Court cannot be sustained. The appointment ofRespondent No.1 being contrary to the mandatoryprovisions as contained in Rule 6 of the Rules, thesame was a nullity. An appointment which was per seillegal could not have been directed to be leglizedonly because the appellant did not file its counteraffidavit. It did not admit the respondent's claim. Thequestion involved in the writ petition was a legalquestion. As indicated hereinbefore, the foundationalfacts are undisputed.14. Rules of pleading contained in the Code ofCivil Procedure do not cover questions of law. If afact stands admitted the same in terms of Section 56 ofthe Indian Evidence Act need not be proved. Onlybecause such a question was not allegedly raised beforethe High Court, this Court could not shut its eyes tothe legal position."In the light of the decision stated supra, the contention of thepetitioner that there was an implicit admission by the respondentregarding previous marriage is rejected.83.Paramount welfare of the child depends on many factors,such as, means to bring up the child, socio economic condition and italso includes the conduct and character of the person, claimingguardianship, who has to raise the child, till he or she attainsmajority. The Court has to take into consideration all relevantfactors that are required for deciding the custody and guardianship.Just because, one of the contenders is affluent than the other, butdoes not possess moral standards, which is expected of, custody andguardianship of the child cannot simply be entrusted ignoring theparamount welfare of the child. To illustrate, a person, who is adrunkard or leads an immoral life, but is affluent and can provide https://hcservices.ecourts.gov.in/hcservices/ all that the child requires, cannot, as a matter of right, under theprovisions of Guardian and Wards Act, be entrusted with the custodyof the child on the ground that he is financially sound or claim anypreferential right, just because, he is the father and naturalguardian..84.As regards the contention that when the respondent is evendependent on her parents and claimed even maintenance from him andtherefore, not entitled for custody and guardianship of the child, asshe would not be in a position to provide the best education to thechild and other needs, this Court is of the considered view thatmerely because, the wife makes a claim for maintenance, that wouldnot disentitle a mother to make a claim for custody andguardianship, considering the paramount welfare of the child.Certainly, financial resource is one of the factors to be considered,in the interest of the child, but it is not the only criteria indetermining the custody and guardianship of the child. If that isthe only criteria, then every husband, who abandons his wife andchild and fails to discharge his moral and legal obligations, wouldcome forward and stake his claim for custody and guardianship, on thesole ground that his wife and mother of the child is dependent on himfor maintenance, and therefore, should be entrusted with the custodyand guardianship.85.Material on record shows that the respondent has admittedher child in a convent at Ooty. Though it is contended by thelearned counsel for the petitioner that the child is a hostler andtherefore, the respondent has not extended her love and affection, itis not uncommon that many students are studying in hostels andBoarding Schools and that cannot be a reason to contend that themother has no love and affection towards the child. 86.Pleadings disclose that in order to improve the performanceof the child in sports activities, the respondent has shifted himfrom one school to another and that itself would show the love andaffection of the mother, in developing the child's interest in thefield, in which, he has shown excellence. It is now well settledthat the Court can consider the views of the minors also in decidingthe custody and guardianship. Record of proceedings shows that inthe instant case, the child has been enquired and that he hasexpressed happiness and desire to be with the respondent-mother.Though the respondent got remarried in the year 2006, there isabsolutely no complaint from the child that re-marriage has affectedhis mental condition or education. The child has been living withthe respondent for so many years and uprooting the custody andseparating the child from the mother at this length of time, wouldcertainly affect the education and mental condition of the child.87.In view of the above discussion, this Court considered isof the view that the lower Court has considered the paramount https://hcservices.ecourts.gov.in/hcservices/ welfare of the child, in all respects and accordingly, found that thecustody and guardianship should be retained with the mother of thechild. There is no manifest illegality. The Civil MiscellaneousAppeal is dismissed. No costs. Consequently, connected MiscellaneousPetitions are also closed.skmSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarToThe Family Court, Coimbatore.+ 1 cc to Mr. G. Rajan, Advocate SR No.85702+ 1 cc to M/s. A. Saravanan, Advocate SR No.85514SAI(CO)SR/3.2.2011C.M.A.No.650 of 2007