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PETITIONER: ROSY JACOB

       Vs.

RESPONDENT: JACOB A. CHAKRAMAKKAL

DATE OF JUDGMENT05/04/1973

BENCH: DUA, I.D. BENCH: DUA, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR 2090            1973 SCR  (3) 918  1973 SCC  (1) 840  CITATOR INFO :  R          1982 SC1276  (14,19)

ACT: Guardians   and   Wards.   Act,  1890,   Sec.   25-Husband’s application  for  the  custody of  children-Welfare  of  the children is the dominant consideration.

HEADNOTE: On  the wife’s application, judicial separation was  granted under the Indian Divorce Act by the single Judge of the High Court.   The custody of the eldest son was  maintained  with the husband while that of the daughter and the youngest  son was  given  to  the  wife.  In  the  Letters  Patent  Appeal preferred  by  the husband, the Division  Bench  varied  the order directing handing over the custody of the daughter and the  youngest  son  also  to  the  husband.   The  principal question   before  the  Court  was  whether  the   husband’s application  for the custody of the children u/s 25  of  the Guardian  and Wards Act, 1890, was maintainable and, if  so, what  are the considerations which the Court should bear  in mind  in  exercising  the discretion  regarding  custody  of children. Allowing the appeal, HELD:     (i)  On the facts and circumstances of  the  case, namely,  that  the  Court cannot make any  order  under  the Divorce  Act, as the daughter had attained majority, and  no guardian  could  be appointed U/S. 19 of the  Guardians  and Wards  Act,  1890  during  the life  time  of  the  existing guardian,  husband’s application was competent.  Welfare  of the  children  is  the  primary  consideration,  and  hyper- technicalities should not be allowed to deprive the guardian necessary   assistance   from  the  Court   in   effectively discharging  his  duties and obligations towards  his  ward. [932D] (ii) The controlling consideration governing the custody  of the  children is the welfare of the children  concerned  and not the right of their parents.  The Court while  exercising the  discretion  should  consider  all  relevant  facts  and circumstances so as to ensure the welfare of the children. The  contention that if the husband is not unfit to  be  the guardian of his minor children,    then   the  question   of

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their  welfare does not at all arise, is misleading. If  the custody  of  the  father  cannot  promote   the   children’s welfare,  equally or better, than the custody of the mother, then,  he cannot claim indefeasible right to  their  custody u/s  25  merely because there is no defect in  his  personal character and he has attachment for his children-which every normal  parent  has.   As the  daughter  has  just  attained puberty  and the youngest son was of the tender age, in  the interest  of  their  welfare, the  mother  should  have  the custody in preference to the father. [933D]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeals Nos.  1295  & 1296 of 1972. Appeals  by special leave from the judgment and order  dated April 26, 1972 of the Madras High.Court in O.S.A. Nos. 2 and 3 of 1971. 919 K. N. Balasubramanian and Lily Thomas, for the appellant. The respondent appeared in person. The Judgment of the Court was delivered by DUA, J.-The real controversy in these two appeals by special leave  preferred by the wife against her husband, lies in  a narrow  compass.   These appeals are  directed  against  the judgment  and order of a Division Bench of the  Madras  High Court allowing the appeals by the husband and dismissing the cross-objections by the wife from the judgment and order  of a  learned  single judge of the same High  Court  dismissing about  25  applications seeking diverse  kinds  of  reliefs, presented  by  one  or the other party.   According  to  the learned  single Judge (Maharajan J.) "these 25  applications represent  but a fraction of the bitterness and  frustration of an accomplished Syrian Christian couple who after  making a  mess  of their married life have endeavoured  to  convert this Court into a machinery for wreaking private vengeance’. This  observation reflects the feelings of the  husband  and the wife towards each other in the present litigation.   The short question which we are called upon to decide relates to the  guardianship of the three children of the  parties  and the   solution   of   this   problem   primarily    requires consideration of the welfare of the children. The appellant, Rosy Chakramakkal (described herein as  wife) was  married to respondent Jacob A. Chakramakkal  (described herein  as husband) sometime in 1952.  Three  children  were born from this wedlock.  Ajit alias Andrews,, son, was  born in  1955, Maya alias Mary was born in 1957 and Mahesh  alias Thomas was born in 1961.  Sometime in 1962 the wife  started proceedings for judicial separation (O.M.S. 12 of 1962).  on the  ground that the husband had inflicted upon her  several acts  of physical, mental and moral cruelty and  obtained  a decree on April 15, 1964.  Sadasivam J., while granting  the decree  directed  that Ajit alias Andrews (son)  the  eldest child should be kept in the custody of the husband and  Mary alias Maya (daughter) and Thomas alias Mahesh (youngest son) should be kept in the custody of the wife.  The husband  was directed  to pay to the wife Rs.200/ per mensem towards  the expenses  and maintenance of the wife and the two  children. The  wife  applied  to Sadasivam J., sometime  later  for  a direction that Ajit alias Andrews should also be handed over to  her or in the alternative for a direction ’that the  boy should   be  admitted  in  a  boarding  school.    In   this application  (no. 2076 of 1964) it was alleged by  the  wife that  the husband had beaten Ajit on the ground that he  had

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accepted  from  his mother’ (the wife) a fountain pen  as  a present.   This  was denied by the husband but  the  learned Judge,  after elaborate enquiry, held that he had  no  doubt that the husband had caused injuries to the boy on 920 account  of his sudden out burst of temper on learning  that Ajit had received a fountain pen by way of present from  his mother on his birth day.  Ajit was accordingly to be  handed over to the mother subjected to certain conditions. The  husband preferred an appeal against the decree made  in O.A4.S.  12 of 1962 (O.S.A. 65 of 1964) and  another  appeal against the order made by Sadasivam J., (in application  no. 2076 of 1964 in O.M.S. 12 of 1962) directing the custody  of the eldest son Ajit to be handed over to the wife (O.S.A. 63 of  1964).  On August 2, 1966 the appellate bench  confirmed the decree for judicial separation granted by Sadasivam  J., and  also issued certain, directions based on  agreement  of the parties with respect to the custody of the children, as. also  reduction  of the monthly maintenance payable  by  the husband  to  the  wife  from Rs.  200/to  Rs.  15011-  p.m., inclusive  of maintenance payable for Mahesh.  According  to this  order  the eldest boy Ajit alias Andrews  directed  to remain  in the custody of the father and to be educated  ’by him at his expense : Mahesh alias Thomas was directed to  be in the custody of the mother to be educated at her  expense: and the second child Maya alias Mary was directed to be  put in  a  boarding  school,  the  expenses  of  her  board  and education  to  be met in equal shares by both  the  parents. The husband also undertook that ’he will arrange to have the presence of his mother or sister at his residence to  attend to  the  children whenever they are with him  and  never  to leave the children alone at his residence or to the care  of his  servants or others".  Later both the husband  and  wife presented  a series of applications in the  appellate  court seeking   modifications  of  its  directions.   That   court ultimately  made an order on February 2, 1967 modifying  its earlier directions.  The modified order directed Maya to  be left  in  the  exclusive  custody of the  wife  who  was  at liberaty  to educate her in the manner she thought  best  at her  own  cost.   The  appellate  court  also  modified  the direction regarding maintenance and ordered that the husband should pay to the wife maintenance at the rate of Rs.  200/- p.m.  as awarded by the learned single judge.   Subsequently the  directions of the appellate, court regarding access  of the  mother and the father to the children were also  sought by  the  parties  to be modified to the  prejudice  of  each other.  The matters are stated to have been heard by most of the  Judges  of the Madras High Court at one  stage  or  the other and according to Maharajan J., ’,he parties even tried to  secure  transfer  of these proceedings  by  making  wild allegations  of partiality against some of the Judges.   The husband  who is an advocate of the Madras High  Court,  had, according  to  the wife, been  filing  cases  systematically against  her and the wife, who, in the opinion of  Maharajan J., has the gift of the gab also argued her own cases.   The children for whose 921 welfare  the parents are supposed to have been  fighting  as observed   by   Maharajan   J.,  are   given   a   secondary consideration and the quarrelling couple have lost all sense of  proportion.   On  account of  these  considerations  the learned single Judge felt that it would be a waste of public time   to  consider  in  detail  the  trivialities  of   the controversy pressed by both the parties to this  litigation. According  to  the learned single Judge the  following  four

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points arose for his judicial determination’.               "(1)   Whether  by  defaulting  to   pay   the               maintenance decreed, the husband must be  held               guilty of contempt and shall not be allowed to               prosecute  his applications before  he  purges               himself of contempt?               (2)   What  is  the proper order  to  pass  as               regards  the custody of the three children  of               the  marriage in the light of the events  that               have  occurred subsequent to the judgement  of               the  appellate court and under  the  Guardians               and Wards Act ?               (3)   What  is the proper order to pass as  to               the access of either parent to the children in               the custody of the other?               (4)   Whether  in the light of the  subsequent               events,   the  order   regarding   maintenance               allowance  should  be  reduced,  enhanced  or.               altered in any manner and if so, how?’ On the first point the learned single Judge came to the con- clusion  that  the  husband could not  be  declined  hearing merely  because he had not paid the maintenance as  directed by  the matrimonial court.  The amount in respect  of  which the husband had defaulted payment could be recovered through execution  proceedings.  On point no. 2 the  learned  single Judge  proceeded to consider the question of the custody  of the three children with the preliminary observation that the controlling  factor governing their custody would  be  their welfare  and  not the rights of their parents.   The  eldest child  Ajit alias Andrews, according to the  learned  Judge, was   doing   well  at  the  school  and   was   progressing satisfactorily  both  mentally and  physically.   There  was accordingly  no  reason ’to. transfer his custody  from  his father  to  his mother.  As regards the  second  child  Maya alias Mary, as she was about to attain puberty and the  wife being  anxious that till she got married she must be in  the mother’s vigilant and affectionate custody she was to remain with her mother.  Mahesh alias Thomas, who was considered to be  of  tender  years and in the  formative  stage  of  life requiring  sense of emotional security which a mother  alone could  give,  was also kept in the custody  of  his  mother. With respect to Maya and Mahesh it was further observed that from  their educational. point of view the wife was  a  more suitable L797Sup.CT/73 922 custodian than the husband because she was running a primary school  from  nursery  to fifth standard with  more  than  a hundred  pupils  and was also residing in a portion  or  the school premises enjoying certain facilities in her  capacity as  the founder and principal of that school.  The  husband, who  was  described  as  a  grass  widower  without   female relatives  to look after the children, was not preferred  to the  wife  as, while being with her, the children  would  be living  in  an  academic atmosphere.  With  respect  to  the husband’s  complaint that from the moral point of  view  the wife  was  not  fit to have the  custody  of  the  children, Maharajan J., observed that earlier Sadasivam J., had  dealt with  the  entire evidence relating to this charge  and  had found  no  sufficient ground for such amputations  and  that they were likely to cause mental pain to the wife and affect her health.  The husband had even been held guilty of mental and  moral  cruelty to the wife.  The  husband’s  contention that  his  opinion was reversed by the appellate  bench  was disposed  of  by Maharajan J., after quoting  the  following

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passage from the appellate judgment dated August 2, 1966               "But it is to be clearly understood that there               should  be no slur on the part of  either  the               appellant  or  the respondent because  of  the               several   proceedings  in  court   and   other               happenings  outside.  The decree for  judicial               separation  which is confirmed does  not  cast               any  cloud on the reputation or  character  of               the  husband or the wife.  They  have  reached               this  settlement  keeping  in  view  all   the               circumstances and particularly the welfare  of               their minor children." According to Maharajan 3., the appellate bench had felt sat- isfied that the charge of immorality levelled by the husband against the wife was not established because had it not been so  satisfied the bench would not have entrusted two of  the three  children  to  the  wife.   The  husband  was  in  the circumstances  held by Maharajan J., disentitled  to  reopen the  question  of  the wife’s  immorality.   In  any  event, Maharajan  J.,  also rejected the charge  of  immorality  as unproved,  for  the  same reasons  which  had  weighed  with Sadasivam J. With respect to point no. 3 the learned  single Judge gave the following directions :               "(1)  On  the  first Sunday  of  every  month,               except   during  the  school  vacations,   the               husband  shall send Ajit alias Andrews to  the               wife by 8.00 a.m. and the wife shall send back               the child by 8. p.m. the same day.               (2)   The wife shall send Maya alias Mary  and               Thomas alias Mahesh to the husband’s by 8 a.m.               on  the  last Sunday of  every  month,  except               during  the school vacations, and the  husband               shall send them back by 8 p.m. the same day.               923               (3)   Each party shall send the children by  a               conveyance   taxi,  rickshaw  or  bus,   after               prepaying the fare thereof.               (4)   The wife shall send Mary alias Maya  and               Thomas  alias  Mahesh to the husband,  so  hat               they  might  stay  with  him  and  Ajit  alias               Andrews  for  thirty days  during  the  summer               vacation.    The  exact  time  and  dates   of               departure  and  arrival  will  be  fixed  with               reference  to the convenience of  parties  and               after change, of letters between them at least               one  months prior to the commencement  of  the               vacation’ Likewise, the husband will send Ajit               to  the wife to enable him to spend the  whole               Dasara and Christamas vacations in the company               of his mother, sister and brother." On  the  fourth  point  the  learned  single  Judge,   fater considering  at  length the wife’s allegations  against  the husband  with  respect to his  extravagance  and  inability, reduced  the  quantum of maintenance payable by him  to  the wife  to  Rs. 100/- p.m., the reduced amount  being  payable with effect from January 1, 1971.  The husband was  directed to pay the monthly maintenance on or before the 10th of  the succeeding month.  This order was made with the  observation that  the earning capacity of the wife was superior to  that of the husband. It is un necessary to refer to the formal orders  separately passed in the various applications.  Suffice it to say  that the  parties were left to bear to their own costs  and  hope was  expressed  in the coneluding para of  the  judgment  by Maharajan, J. that "the parties will refrain from rushing to

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this  court  with applications of the kind  that  have  been dismissed  and  will  apply themselves  assiduously  to  the improvement of their status in their respective  professions and  to alleviation of the pain of material  failure,  which has  unfortunately  been visited upon the three  lovely  and sprightly children that they have produced." Contrary to the hope expressed by learned Judge, the  matter was taken to the appellate bench of the High Court under cl. 15 of the Letters Patent (O S. Appeal Nos. 2 and 3 of 1971). The  wife  also  pressented  cross-objections  against   the reduction  of alimony and against directions as regards  the father’s  access  of Maya.  A large number  of  applications were  presented  to the Court parties  praying  for  diverse reliefs   including  action  for  contempt  of   court   for disobedience  of  the court’s orders.  The  hearing  of  the appeals  somewhat surprisingly lasted for more than  a  year (March  1971 to March 1972).  We find no  justification  for such prolonged hearing on a fairly simple matter like  this. According to the Letters Patent Bench the arguments on  both sides "mainly 924 rested upon the character of each".  The husband is said  to have  repeatedly accused the wife with immorality.   In  the opinion of the Letters Pantent Bench "the truth or otherwise of the matter may assume importance only for the purpose  of deciding upon the fitness of the person to ’be the  guardian of  the  children".  Final orders were passed on  April  26, 1972  by  means of which the husband was held to  be  better fitted to be the guardian of the three children and to  have their  custody.   This decision was stated to  be  based  on evidence  and in view of ss. 17, 19 and 25 of the  Guardians and Wards Act.  This is what one of the Judges  constituting the Letters Patent Bench (Gokul Krishnan, J.,) said in  this connection               "In our opinion, the principles to be  applied               to  cases of this kind will be the  same  both               under the Indian Divorce Act and the Guardians               and Wards Act, 1890. But since the father  has               specifically filed a petition, O.P. No. 270 of               1970,  under section 25 of the  Guardians  and               Wards  Act, and that being a special  law  for               the  purpose  will certainly apply,  we  shall               concentrate  on the Guardians and  Wards  Act,               1890". After  quoting  S.  19  of  the  Guardians  and  Wards   Act the learned Judge proceeded :               "It  is thus clear that the special  enactment               definitely  states  that  the  father  is  the               guardian of the minor until he is found  unfit               to be the guardian of the person of the minor.               The  welfare  of the minor  is  the  paramount               consideration  in  the  matter  of   apointing               guardian  for the person of minor, and  cannot               be  said to be in conflict with the  terms  of               section  19  of the Guardians  and  Wards  Act               which  recognize the father as  the  guardian.               Bear ing this in mind, we proceed to  consider               as to who is fit and proper to be the guardian               for  the person of the minor children in  this               case." In  his view the principle on which the Court should  decide the fitness of the guardian mainly depends on two factors  : (i) the father’s fitness or otherwise to be the guardian and (ii) the interests of the minors.  Considering these factors it was felt that both the parties in the present case  loved

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their children who were happy during their stay with both of their  parents.  There was in his view, absolutely no  proof as  regards  disqualification  of  the  husband  to  be  the guardian of the minor children.  It may here be pointed  out that  both the Judges constituting the Letters Patent  Bench wrote separate judgments.  Gokulakrishnan J., commenting  on the Judgment of Maharajan J., observed thus :               "Maharajan J. in his judgment under appeal  no               doubt referred to section 19 of the  Guardians               and  Wards Act, but would observe that if  the               Court finds that the               welfare   of  the  minor  children  could   be               protected  only in the maternal  custody,  the               Court  has  power to put the children  in  the               care  of custody of the mother.   The  learned               Judge  clearly observed that Ajit, the  eldest               boy,  who is in the custody of the  appellant,               is  quite healthy and cheerful, doing well  at               school and that his sojourn    with the father               has not prejudicially affected him  physically               or  mentally.  But  at the  same  breath,  the               learned  Judge says that Maya and Mahesh  ’are               of tender years and in the formative stage  of               their  life  and  need a  sense  of  emotional               security,  which a mother alone  can  give.’In               the case of Maya and Mahesh, the learned Judge               has applied a different standard in regard  to               their custody. Considering the present age  of               both   Maya   and  Mahesh  and   taking   into               consideration  the upbringing of Ajit  by  the               appellant having him in his custody, we are of               the  view  that the same amount  of  sense  of               emotional security can be enjoyed by Maya  and               Mahesh at the hands of the appellant also. The               learned  Judge’s reasoning that the mother  is               running  a school and has also  facilities  to               make  these two children live in the  academic               atmosphere  rather than  with            their               father,    cannot have any force, in. view  of               the clear and categorical principles laid down               in the various decisions noticed    (supra)               and  also in view of the clear intendment  and               spirit  of the Guardians and Wards Act,  which               prescribes that      father is the guardian of               his minor child unless other   wise      found               unfit.  The  academic  qualification  of   the               mother,  her  financial status and  the  other               standards  cannot  at all weigh in the  matter               when the appellant has not been rejected as  a               person unfit to be the guardian     of     the               minors.  If they should weigh, the poorer  and               affectionate father with moderate capacity  to               protect  his children will be deprived of  the               custody  of the minor children on  the  flimsy               ground of ’welfare of the minor               children’.  That is how and why ’,the  welfare               of  the  minor  children’ must  be  read  with               ’fitness  or  unfitness of the  father  to  be               guardian of the minors. Once it is found  that               the father is the fit and proper person to  be               the guardian of his minor children, unless  it               is otherwise found that he is not fit, it must               be presumed that the children’s interests will               be properly protected by the father. As far as               the present case is concerned, when      the

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             trial  court  itself has found that  Ajit  has               been properly looked after and brought up very               well in his academic career by the  appellant,               there  cannot be any difficulty in  coming  to               the conclusion that Maya and               9 26               Mahesh will also be looked after and protected               and  imparted  with proper  education  by  the               affectionate father, the appellants After  reproducing certain observations from the  judgment’, of  (i) Sadasivam J., dated April 15, 1964, (ii)  Veeraswamy 1..  (as  he  then was) and  Krishnaswami  Reddy  J.,  dated February 1967 in C.M.P. 415 in O.S.A. nos. 63 & 65 of  1969, Ramamurthy J., dated April 24, 1968 in application nos.  769 and 770 of 1968 in O.M.S. 12 of 1962 and after referring  to the  view of Maharajan J., that Ajit when produced in  Court was  found quite healthy and cheerful and was doing well  at school, Venkataraman  J. in his concurring judgment observed thus :-               "Regarding  the other children, he gave  their               custody to the mother, because he thought that               they were of tender years and needed emotional               security  which  a mother  alone  could  give.               Here,  with  respect we must differ  from  the               learned  Judge.   We find that the  father  is               quite fit to have the custody of the children,               and.  in  law, custody of the  minor  children               cannot  be  refused  to  him.   We  are   also               satisfied  from what we saw of  the  appellant               and,   heard  from  him  during  the   several               hearings,  that he is very deeply attached  to               his  children and is quite competent  to  have               their  custody.   It  wilt be  enough  if  the               mother is allowed a somewhat liberal access to               the three children." With  respect to alimony the appellate bench concluded  that the wife was managing her school very successfully; she  had purchased  a  mini-bus and also possessed wet lands  in  her village  The  husband on the other hand was not  getting  on well  in his profession which he attributed to  the  present litigation  :  his  house at Adyar was stated  to  be  under mortgage  and  he  had practically sold  everything  in  his native  village with the exception of one,  or  one-and-half acres  of  land.  In view of the financial position  of  the wife  and the husband and in view of the fact that  all  the three children were to be in the custody of the husband  the appellate  bench considered it unnecessary for the’  husband to  pay  any maintenance to the wife.  The  payment  of  the arrears  of  alimony  was also suspended  as  the  appellate bench   considered  itself  empowered to  do  so  under  the proviso  to s. 37 of the Indian Divorce Act.  In so  far  as access of the wife to’ the children is concerned a  detailed order was passed by the bench about the right of the wife to take  the daughter with her during the summer and  Christmas vacations   and  also  during  several  days  every   month, particularly  during  the periods.  We do  not  consider  it necessary to state in full the details of that order.   With respect to Ajit and 927 Mahesh  also  a detailed order was made fixing  the  precise days  and even time when the wife could bring  the  children from  the  father  to stay with her.  In the  event  of  any difficulty in getting custody of the children from the wife, it was ordered at the instance of the husband, that he could take  the  police  help on the strength of  the  High  Court

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judgment.  We find it extremely difficult to appreciate this direction.   Orders from the Court in execution  would  have ’been   more  appropriate.   Police  intervention  in   such personal  domestic  differences in the present  case,  where parties belong to educated respectable families should  have been avoided. In this Court a preliminary objection to the hearing of  the wife’s  appeal  was  raised by the husband,  who,  being  an advocate, personally addressed us in opposing these appeals. Indeed  in June, 1972 he had presented  Civil  Miscellaneous Petitions  Nos. 4188 and 4189 of 1972 for  revoking  special leave, and it was these applications which he pressed before us  at  the  outset.  These  lengthy  applications  covering nearly  50 pages mainly contain arguments on the merits  and there  is  hardly  any cogent  ground  made  out  justifying revocation  of the special leave.  It is no, doubt  open  to this  Court to revoke special leave when it transpires  that special   leave  had  been  secured  by  the  appellant   on deliberate  misrepresentation on a material point  having  a bearing  on  the  question  of  granting  such  leave.   The extraordinary  discretionary power vested in this  Court  by the  Constitution  under  Act, 136 is in  the  nature  of  a special   residuary  power  exercisable  in   its   judicial discretion  outside  the purview of ordinary  law  in  cases where  the  needs  of justice  demand  interference.   Being discretionary  power intended only to Promote the  cause  of justice  when there is no other adequate remedy, this  Court expects   those   seeking  resort  to   this   reserve.   of constitutional  power for securing justice to be  absolutely fair  and  frank with this Court in  correctly  stating  the relevant facts and circumstances of the case.  In the  event of  a party making a misrepresentation on a point  having  a bearing  on  the  question  of  the  exercise  of   judicial discretion  and thereby-trying to over-reach this Court  the party  forfeits the claim to the discretionary relief :  the same  is the case when such misrepresentation is  discovered by  this Court and brought to its notice after the grant  of special  leave  and this Court is competent  and  indeed  it considers  it  proper  to  revoke  the  special-leave   thus Obtained.  But the misrepresentation must be deliberate  and on a point having such relevance to the question of  special leave  that if true facts were known this Court would  leave in  all Probability declined special leave.   Applying  this test  to  the, present case we arc unable to find  any  such deliberate  misrepresentation by the,  appellant  indicating intention  to mislead or over-reach this Court.  The  points to  which  our  attention was drawn seem to  relate  to  the merits of the controversies between the parties which  would fall for 928 determination on the hearing of the appeal after considering the  arguments pro and con.  The preliminary objection  thus fails and must be disallowed. Turning  to the merits of these appeals, it may  be  pointed out that with the exception of O.P. No. 270 of 1970 filed by the  husband under S. 25 of the Guardians and Wards Act  all the other applications presented by the parties and disposed of by Maharajan J., were off-shoots of O.M.S. 12 of 1962  in which   the  wife  had  obtained  a  decree   for   judicial separation.   The first contention raised on behalf  of  the appellant was that O.P. No. 270 of 1970 did not lie.  It was strenuously pressed by Shri Balasubaramania lyer the counsel for the appellant wife that the husband’s application  under s.   25,  Guardians and Wards Act was not competent  because none of   the  children had been illegally removed from  the

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lawful custody of   their  father,  the custody of  the  two children  having  been  lawfully entrusted to  the  wife  in proceedings  to  which  the husband was  a  party.   It  was emphasised  in this connection that the custody of the  girl Maya  and of the boy Mahesh had been lawfully  entrusted  to ,the  wife by a competent Court and unless there  is  actual physical  removal  of the children from the custody  of  the father, S. 25 would. not be attracted. Now the first thing to be notified is that this objection as to  the competence of the application under S. 25 is in  the nature  of a preliminary objection.  But it was  not  raised either before the learned single Judge or before the Letters Patent Bench in the manner in which it is pressed before us. In this Court also in the special leave appeal the objection seems  to  be based on the argument that the  Guardians  and Wards  Act would be inapplicable to cases where orders  have been  made  in. matrimonial proceedings, and s. 19  of  the Guardians  and  Wards  Act cannot  control  the  custody  or children given by a consent decree under the Indian  Divorce Act.   However,  as the objection was stated to  pertain  to jurisdiction  we allowed the parties to address us  on  this point. For determining the question of competence of the  husband’s application  under s. 25 of the Guardians and Wards Act  (18 of  1890) it is necessary to examine the scheme of that  Act as  also the relevant provisions of the Indian Divorce  Act. The  Guardians  and  Wards  Act  was  enacted  in  order  to consolidate and amend the law relating to Guardian and Ward. But  as  provided by s.3, this Act is not to  be  construed, inter  alia  ,to take away any Power possessed by  any  High Court.  According to s.4, which is the definition section, a "minor’ is a Person who, under the provisions of the  Indian Majority Act, 1875 is to be deemed not to have attained  his majority.   Under S. 3 of that Act this age is fixed  at  18 years,  except  for those, for whose person or  property  or both 929 a guardian has already been appointed by a court of  justice (other  than  a  guardian for a  suit  under  Chapter  XXXI, C.P.C.)  and  for whose property, superintendence  has  been assumed  by  a Court of Wards, for whom it is  fixed  at  21 years.   A  "ward" under this Act means a  minor  for  whose person  or  property  or  both  there  is  a  guardian   and "guardian"  is a person having the care of the person  of  a minor  or of his property or both.  Chapter 11 of  this  Act (18  of 1890), consisting of ss.5 to 19 (s. 5 applicable  to European  British  subjects has since been  repealed,  deals with the Appointment and Declaration of Guardians.   Section 7 empowers the Court to make orders as to guardianship where it is satisfied that it is for the welfare of the minor that an order should be made appointing his guardian or declaring a  person to be such guardian.  Section 7(3) places  certain restrictions with respect to cases where guardians have been appointed  by  will  or other  instrument  or  appointed  or declared by court.  Section 8 provides for persons  entitled to  apply under s. 7 : they include Collectors as  specified in  cls.  (c)  and  (d).   Sections  9  to  11  provide  for jurisdiction of. courts, form of applications and  procedure on  admission  of  applications.  Section  12  provides  for interlocutory orders subject to certain restrictions.   Next important  sections  are ss. 17 and 19.   Section  17  which provides  for the matters to be considered by the  court  in appointing or declaring guardian reads :               "17.  Matters to be considered by the Court in               appointing guardian.

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             (1)In appointing or declaring the, guardian of               a  minor,  the  Court shall,  subject  to  the               provisions of this section, be guided by  what               consistently  with the law to which the  minor               is subject, appears in the circumstances to be               for the welfare of the minor.               (2)In considering what will be the welfare  of               the minor, the Court shall have regard to  the               age, sex and religion of the minor,  character               and capacity of the proposed guardian and  his               nearness  of kin to the minor, the wishes,  if               any, of the deceased parent, and any  existing               or previous relations of the proposed guardian               with the minor or his property.               (3)If  the  minor  is old enough  to  form  an               intelligent preference, the Court may consider               that preference."               Section  19,  which prohibit  the  Court  from               appointing guardians in certain cases, reads :               "19.   Guardians  not to be appointed  by  the               Court               in certain cases                930               Nothing  in this Chapter shall  authorise  the               Court to appoint or declare a guardian of  the               property  of a minor whose property  is  under               the superintendence of a Court of Wards, or to               appoint or declare a guardian of the  property               of a minor whose property is under the  super-               intendence of a Court of Wards, or to  appoint               or declare a guardian of the person.               (a)of  a  minor who is a  married  female  and               whose  husband is not, in the opinion  of  the               Court, unfit to be guardian of her person, or               (b)of  a minor whose father is living  and  is               not, in the opinion of the Court. unfit to  be               guardian of the person of the minor, or               (c)of  a  minor whose property  is  under  the               superintendence of a Court of Wards  competent               to  appoint  a guardian of the person  of  the               minor." Chapter  III  (ss. 2O to 42) prescribes duties,  rights  and liabilities   of,   guardians.   Sections   20-23   (General provisions)  do not concern us. Section 20 provides for  the fiduciary relationship of guardian towards his wards and  S. 22  provides  for  remuneration of  guardians  appointed  or declared  by  the  Court.   Sections 24  to  256  deal  with "’Guardian  of  the person".  Under s. 24  the  guardian  is bound, inter alia, to look to his ward’s support, health and education.   Section  25  which is  of  importance  for  our purpose provides for "Title of Guardian to custody of  Ward" and reads               "25.  Title of guardian to custody of ward :               (1)If  a  ward leaves or is removed  from  the               custody  of  a  guardian of  his  person,  the               Court,  if it is of opinion ,that it  will  be               for  the welfare of the ward to return to  the               custody of his guardian, may make an order for               his  return, and for the purpose of  enforcing               the  order may cause the ward to  be  arrested               and  to be delivered into the custody  of  the               guardian.                (2)  For  the purpose of arresting the  ward,               the Court may   exercise  the power  conferred               on a Magistrate of the    first    class    by

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             section 100 of the Code of Criminal Procedure,               1882.               (3)   The residence of a ward against the will               of  his guardian with a person who is not  his               guardian  does  not of  itself  terminate  the               guardianship." Sections  27  to  37 deal  with  "Guardian’s  Property"  and Sections  38 to 48 deal with"’Termination of  Guardianship". Chapter  IV (ss. 43 to 51) is the last chapter dealing  with supplementary provisions. 931 Now  it  is  clear from the language of S.  25  that  it  is attracted  only  if  a ward leaves or is  removed  from  the custody  of  a  guardian  of his person  and  the  Count  is empowered to make an order for,the return of the ward to his guardian  if  it  is of opinion that it  will  be  for  the, welfare  of  the,  ward  to return to  the  custody  of  his guardian.  The Court is entrusted with a judicial discretion to order return of the Ward to the custody of his  guardian, if  it forms an opinion that such return is for  the  ward’s welfare.   The use of the words "ward" and "guardian"  leave little doubt that it is the guardian who, having the care of the  person of his ward, has be-In deprived of the same  and is  in the capacity of guardian entitled to the  custody  of such ward, that can seek the assistance of the Court for the return   of   his  ward  to  his  custody.    The   guardian contemplated by this section includes every kind of guardian known to law.  It is not disputed that, as already  noticed, the   Court  dealing  with  the  proceedings  for   judicial separation  under  the Indian Divorce Act, (4 of  1869)  had made certain orders with respect to the custody, maintenance and education of the three children of the parties.  Section 41  of  the Divorce Act empowers the Court to  make  interim orders  with respect to the minor children and also to  make proper  provision  to  that effect in the  decree  :  s.  42 empowers  the Court to make similar orders upon  application (by petition) even after the decree.  This section expressly embodies  the  legislative recognition of  the  ,fundamental rule that the Court as representing the State is vested with the  power  as also the duty and  responsibility  of  making suitable  orders for the custody, maintenance and  education of  the  minor children to suit the changed  conditions  and circumstances.  It is, however, noteworthy that under Indian Divorce  Act the sons of Indian fathers cease to be;  minors on  attaining the age of 16 years and their daughters  cease to  be  minors on attaining the age of 13 years :  s.  3(5). The  Court under the Divorce Act would thus  be  incompetent now  to make any order under ss. 41 and 42 with  respect  to the  elder  son  and  the  daughter  in  the  present  case. According   to   the   respondent   husband   under    these circumstances  he  cannot  approach  the  Court  under   the Divorce, Act for relief with respect to the custody of these children  and  now  that those children have  ceased  to  be minors  under that Act, the orders made by that  Court  have also.  lost  their vitality On this  reasoning  the  husband claimed the right to invoke S. 25 of the Guardians and Wards Act  :  in  case this section is not  applicable,  then  the husband  contended, that his application (O.P. 270 of  1970) should  be, treated to be an application under S. 19 of  the Guardians and Wards Act or under any other competent section of  that  Act  so  that he could  Let  the  custody  of  his children,  denied  to  him by the wife.  The  label  on  the application, he argued, should be treated as 932 a  matter  of  mere form and,  therefore,  immaterial.   The

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appellant’s  counsel  on the other hand contended  that  the proper procedure for the husband to adopt was to apply under s.7 of the Guardians and Wards Act.  Such an application, if made,   would  have  been  tried  in  accordance  with   the provisions of that Act.  The counsel added that ss. 7 and 17 of  that  Act also postulate welfare of ,the  minor  in  the circumstances  of  the  case,  as  the  basic  and   primary consideration for the Court to keep in view when  appointing or  declaring a guardian.  The welfare of the minors in  the present case, according to the wife, would be best served it they remain in her custody. In  our  opinion,  S.  25 of the  Guardians  and  Wards  Act contemplates not only actual physical custody but also cons- tructive  custody  of the guardian which term  includes  all categories  of  guardians.  The object and purpose  of  this provision being ex facie to ensure the welfare of the  minor ward, which necessarily involves due protection of the right of  his guardian ,to properly look after the ward’s  health, maintenance and ,education, this section demands  reasonably liberal  interpretation  so as to  effectuate  that  object. Hyper-technicalities  should not be allowed to  deprive  the guardian   the  necessary  assistance  from  the  Court   in effectively  discharging his duties and obligations  towards his  ward  so as to promote the latter’s  welfare.   If  the ,Court  under  the Divorce Act cannot make  any  order  with respect  to the custody of Ajit alias Andrew and Maya  alias Mary and it is not open to the Court under the Guardians and Wards  Act to appoint or declare guardian of the  person  of his children under s. 19 during his life-time, if the  Court does  not  consider him unfit, then, the only  provision  to which the father can have resort for his children’s  custody is S. 25.  Without, therefore, laying down exhaustively  the circumstances  in  which  s.  25 can  be  invoked,  ’in  our opinion,  on  the facts and circumstances of this  case  the husband’s application under S. 25 was competent with respect to  the two elder children.  The Court entitled to  consider all  the disputed questions of fact or law  properly  raised before  it relating to these two children.  With respect  to Mahesh  alias Thomas. however, the Court under  the  Divorce Act is at present empowered to make suitable orders relating to   his  custody,  maintenance  and  education.    It   is, therefore,  somewhat difficult to impute to the  legislature an intention to set up, another parallel Court to deal  with the  question of the custody of a minor which is within  the power  of a competent Court under the Divorce Act.   We  are unable  to  accede to the respondent’s suggestion  that  his application should be considered to have been preferred  for appointing or declaring him as a guardian.  But whether  the respondent’s  prayer for custody of the minor  children  be, considered  under the Guardians and Wards Act or  under  the Indian Divorce Act, as observed 933 by  Maharajan J., with which observation we entirely  agree, "the controlling consideration governing the custody of  the children  is the welfare of the children concerned  and  not the right of their parents"   It was not disputed that under the   Indian   Divorce   Act   this   is   the   controlling consideration.    The  Court’s  power  under  s.25  of   the Guardians  and  Wards  Act is also, in our  opinion,  to  be governed  primarily by the consideration of the  welfare  of the  minors concerned.  The discretion vested in  the  Court is,  as  is  the case with all judicial  discretions  to  be exercised judiciously in the background of all the  relevant facts and circumstances.  Each case has to be decided on its own  facts  and  other cases can  hardly  serve  as  binding

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precedents,  the  facts of two cases in this  respect  being seldom-if  ever-identical.   The  contention  that  if   the husband  is  not  unfit  to be the  guardian  of  his  minor children,  then, the question of their welfare does  not  at all arise is to state the proposition a bit too broadly  may at  times  be somewhat misleading.  It does  not  take  full notice  of the real core of the statutory purpose.   In  our opinion,  the dominant consideration in making orders  under s.25 is the welfare of the minor children and in considering this  question  due regard has of course to be paid  to  the right of the father to be the guardian and also to all other relevant  factors having a bearing on the  minor’s  welfare. There is a presumption that a minor’s parents would do their very  best  to  promote their  children’s  welfare  and,  if necessary,  would  not  grudge any sacrifice  of  their  own personal  interest  and pleasure.  This  presumption  arises because of the natural, selfless affection normally expected from  the  parents for their children.  From this  point  of view, in case of conflict or dispute between the mother  and the  father  about  the  custody  of  (their  children,  the approach  has to be somewhat different from that adopted  by the  Letters  Patent Bench of the High Court in  this  case. There  is no dichotomy between the fitness of the father  to be  entrusted  with the custody of his  minor  children  and considerations  of their welfare.  The father’s fitness  has to  be considered, determined and weighed  predominantly  in terms of the welfare of his minor children in the context of all  the  relevant  circumstances.  If the  custody  of  the father  cannot promote their welfare equally or better  than the   custody   of  the  mother,  then,  he   cannot   claim indefeasible  right  to  their  custody  under  s.25  merely because there is no defect in his personal character and  he has  attachment for his children which every  normal  parent has.   These  are the only two aspects  pressed  before  us, apart from the stress laid by the husband on the allegations of  immorality against the wife which, in our firm  opinion, he   was   not  at  all  justified  in   contending.    Such allegations,  in  view  of  earlier  decisions,  had  to  be completely ignored in considering the question of custody of the children in the present case.  The father’s fitness from the point of view just mentioned 934 cannot over-ride considerations of the welfare of the  minor children.   No  doubt, the father has been presumed  by  the statute  ,generally  to be better fitted to look  after  the children-being  normally the earning member and head of  the family-but  the Court has in each-case to see  primarily  to the  welfare of the children in determining the question  of their custody, in the background of .all the relevant  facts having a bearing on their health, maintenance and education. The  family is normally the heart of our society and  for  a balanced  and  healthy  growth of  children  it  is  .highly desirable  that  they got their due share of  affection  and care  from both the parents in their normal  parental  home. Where,  however, family dissolution due to some  unavoidable circumstances  becomes necessary the Court has to come to  a judicial  decision  on the question of the  welfare  of  the children  on  a  full consideration  of  all  ;the  relevant circumstances.  Merely because the father loves his children and  is  not  shown  to  be  otherwise  undesirable   cannot necessarily  lead to the conclusion that the welfare of  the children would be better promoted by granting their  custody to  him  as  against  the  wife  who  may  also  be  equally affectionate towards her children and otherwise equally free from blemish, and who in addition because of her  profession

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and financial resources, may be in a posit-ion to  guarantee better  health,  education and maintenance  for  them.   The children  are  not mere chattels; nor are  they  mere  play- things  for their parents.  Absolute right of  parents  over the  destinies and the lives.of their children, has, in  the modern   changed   social   conditions,   yielded   to   the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of  the society and the guardian court in case of a  dispute ’between the mother and the father, is expected to strike  a just and proper balance between the requirements of  welfare of  the  minor children and the rights of  their  respective parents  over  them.   The approach of  the  learned  single Judge, in our view, was correct and we agree with him.   The Letters  Patent  Bench on appeal seems to us have  erred  in reversing him on grounds which we are unable to appreciate. At  the bar reference was made to a number of decided  cases on ’the question of the right of, father to No appointed  or declared as guardian and to be granted custody of his  minor children  under s. 25 read with S. 19 of the  Guardians  and Wards Act.  Those decisions were mostly decided on their own peculiar  facts.   We  have,  therefore  not  considered  it necessary  to deal with them.  To the extent, however,  they go against the view we have taken of s. 25 ,of the Guardians and Wards Act, they must be held to be wrongly ,decided. The respondent’s contention that the Court under the Divorce Act had granted custody of the two younger children to the 935 wife  on the ground of their being of tender age, no  longer holds good and that, therefore, their custody must be handed over  to him appears to us to be misconceived.  The  age  of the  daughter  at  present is such that she  must  need  the constant  company  of  ,I  grown-up  female  in  the   house genuinely  interested in her welfare.  Her mother is in  the circumstances the best company for her.  The daughter  would need her mother’s advice and guidance on several matters  of importance.   It has not been suggested at the bar that  any grown-up  woman closely related to Maya alias Mary would  be available  in the husband’s house for such  motherly  advice and  guidance.  But this apart, even from the point of  view of her education, in our opinion, her custody with the  wife would  be  far  more beneficial than her  custody  with  the husband.   The youngest son would also’ in our  opinion,  be much  better looked after by his mother than by  his  father who will have to work hard to take a mark in his profession. He has quite clearly neglected his profession and we have no doubt that if he devotes himself’ wholeheartedly to it he is sure  to  find  his  place fairly  high  tip  in  the  legal profession. The appellant’s argument based on estoppel and on the orders made by the court under the Indian Divorce Act with  respect to  the custody of the children did not appeal to  us.   All orders relating to the custody of the minor wards from their very  nature must be considered to be temporary orders  made in the existing circumstances.  With the changed  conditions and Circumstances, including the passage of time, the  Court is  entitled  to  vary  such orders  if  such  variation  is considered  to  be  in the interest of the  welfare  of  the wards.   It is unnecessary to refer to some of  the  decided cases relating to estoppel based, on consent decrees.  cited at  the bar.  Orders relating to custody of wards even  when based  on consent are liable to be varied by the  Court,  if the welfare of the wards demands variation. We accordingly allow the appeal with respect to the  custody of  the two younger children and setting aside the  judgment

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of the Letters Patnet Bench in this respect, restore that of the  learned  single Judge who, in our view,  had  correctly exercised  his discretion under s. 25 of the  Guardians  and Wards  Act,  The  directions given by him  with  respect  to access of the parties to their children are also restored. As regards alimony, no doubt. the Letters Patent Bench  was, in  our opinion, not quite right in withholding  payment  of the alimony already fallen due and in arrears.  But in  view of  the fact that the financial position of the wife is  far superior  to  that of the husband who according to  his  own submission. has yet to establish himself in his  profession, we do not consider it just and proper to 936 interfere   with   that  order  under  Art.   136   of   the Constitution.   With respect to the alimony, therefore,  the appeal  fails  and is dismissed.  We also  direct  that  the parties should bear their own costs throughout. , Before concluding we must also express our earnest hope,  as was  done by the learned single Judge, that the two  spouses would  at least for the sake of happiness of their own  off- spring  if for no other reason, forget the past and  turn  a new  leaf in their family life, so that they can provide  to their  children  a  happy, domestic  home,  to  which  their children  must  be considered to be  justly  entitled.   The requirement   of   indispensable   tolerance   and    mental understanding  in matrimonial life is its basic  foundation. The two spouses before us who are both educated and cultured and  who come from highly respectable families must  realise that reasonable wear and tear and normal jars and shocks  of ordinary  married life has to be put up with in  the  larger interests of their own happiness and of the healthy,  normal growth and development of their offspring, whom destiny  has entrusted to their joint parental care.  Incompatibility  of tamprament  has  to  be endeavored to  be  disciplined  into compatibility  and not to be magnified by abnormal  impluses or  impulsive  desires  and passions.  The  husband  is  not disentitled to a house and a housewife, even though the wife has  achieved  the  status of  an  economically  emancipated woman;  similarly  the wife is not a domestic slave,  but  a responsible  partner  in discharging their  joint,  parental obligation in promoting the welfare of their children and in sharing  the  pleasure of their children’s  company.   ’Both parents have, therefore, to cooperate and work  harmoniously for  their children who should feel proud of  their  parents and of their home, bearing in mind that their children  have a right to expect from their parents such a home. S.B.W.                       Appeal allowed in part. 937