Sivaraman Nair, J.
1. The mother of a minor child aged about six years now appeals the decision of the District Court, Manjeri in O.P. (Guardians and Wards) No. 21 of 1983. The trial Court found that the father was the natural guardian under Section 6 of the Hindu Minority and Guardianship Act (for short 'the Act'). He also found that by reason of her conversion, the mother had disentitled herself to act as natural guardian under the proviso to that section. The appellant submits that the child was illegitimate and therefore, the mother was the natural guardian. She also contends that in spite of her conversion out of Hinduism, she is entitled to act as the natural guardian for the welfare of the child. These contentions naturally throw up a complex of serious questions. They are :
(a) Whether there was a valid marriage according to Hindu Law modified by custom between the appellant and the respondent?
(b) Whether the minor child was illegitimate? and (c) Whether the welfare of the child requires the continuance of the mother as the guardian?
2. The husband and wife, both were Hindus. They belong to neighbouring villages; the appellant-wife to Cheriyamundam, and the respondent-husband to Thanalur in Tirur Taluk of Malapuram District. The husband, who was the petitioner before the trial Court, urges that they were married according to custom on 3-4-1977, lived together for about four years, and the child was born on 23-3-1981. He urges further that after the childbirth for which she was taken to her parent's house, the appellant refused to go back with him. On the intervention of mediators, there was a customary divorce. The husband had agreed to pay Rs. 25/- to Rs. 35/- towards the maintenance of the child and that is being duly paid. He realised somewhere in 1983 that the appellant-wife had gone to Ponnani and converted herself into Islam at the Mounathul Islam Sabha. He had to wait for five years for custody of the child till the child attained five years of age. Soon thereafter, he filed the application.
3. The appellant-mother resisted the application stating that there was no valid marriage between them, that they had not lived as husband and wife in the first respondent's house as alleged, that they fell in love about four years prior to the date of the child's birth, that there was no need for a divorce since there was no marriage, that the first respondent had married again and has a child in that marriage, and that the welfare of the child justified the continuance of the appellant-mother as the guardian. The parties examined themselves as PW 1 and RW 1. The husband examined two more witnesses. One of them was the brother-in-law of the first respondent. The husband also produced two documents -- Ext. A1 invitation letter dated 2-3-1977 to support his contention of valid marriage and A2 extract of the birth register dated 27-3-1981 to show that he was the father of the minor child.
4. On an appreciation of the pleadings, evidence and the arguments, the trial Court found that there was a valid marriage between the parties, that there was a customary divorce, that the first respondent was the father and natural guardian of the child, that the appellant-mother having converted to Islam, had disentitled herself to continue as guardian, and that even otherwise, the welfare of the child required her separation from her mother. All these findings are assailed in this appeal.
5. Shri K. C. John, counsel for the appellant submitted that the evidence of the first respondent as PW 1 relating to his second marriage shows the customs of a valid marriage in the community to which the parties belong and that some of those rituals to make out a customary marriage were not performed at the alleged marriage between the appellant and the first respondent in 1977.
He therefore submitted that the alleged marriage was not a valid marriage according to custom. He also pointed out contradictions between the evidence of PWs. 2 and 3 and the evidence of PW. 1 about the marriage between the parties to sustain the submission that there was no valid marriage at all.
6. The two important formalities which are alleged to have been absent in the marriage of the parties as emanating from the evidence are (1) absence of 'pooja' of the 'Thali', garland, etc. and (2) absence of exchange of rings. All the witnesses were uniform in their version on most of the other formalities like reception of the bridegroom, the presence of the lamp, tying of 'thali', exchange of garlands, and 'pradhakshinam' around the lighted lamp. The question is whether the discrepancy in the evidence of PW. 1 and those of PWs. 2 and 3 regarding the 'pooja' of 'thali', garlands etc. and exchange of rings is of such a consequence as to invalidate the marriage as set up by the respondent.
7. Mr. John, drew our attention to Section 5 of the Hindu Marriage Act which provides :
'A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled...................'
There is no case for either that the conditions recited thereafter in Section 5 were not fulfilled. However, counsel for the appellant urged emphatically that a Hindu marriage can be considered to be solemnised only if all the formalities necessary to constitute a customary marriage of either party as in this case were shown to have been duly performed.
8. We have examined the evidence of PWs. 1 to 3 and Ext. A1. We do not find such glaring disparity in the evidence as to warrant a conclusion that the respondent-husband had not succeeded in making out that there was a valid marriage between the parties on 3-4-1977. It is true that there is some difference, between the form of the marriage on 3-4-1977 and the second marriage of the first respondent as spoken to by him as PW. 1. It is however, in evidence that 'pooja' of 'thali' garlands, etc. and exchange of rings were recent innovations in marriages in the community.
9. The essential requirements of a Hindu marriage are (i) invocation before the sacred fire, and (ii) Saptapadi, that is taking seven steps by the groom and bride jointly before the sacred fire. The evidence of PWs 1 to 3 indicate that both these requirements were duly complied with. Exchange of rings or pooja of Thali etc. were not pleaded as specific requirements of the customary marriage of the community.
10. The appellant cannot succeed only by a showing that in other marriages of the community there were exchange of rings and pooja and Thali etc. Those can be accepted as requirements of customary marriage only if they are proved to be sufficiently ancient and definite and that members of the community recognise them as obligatory. It should also be shown that those formalities were unalterable. As we indicated earlier, there are no pleadings, much less any proof of an ancient definite and unalterable custom in this regard.
11. The marriage of the appellant with the first respondent, and the second marriage of the first respondent were more than five years apart. The trial Court found that the absence of one of the formalities in the first marriage was not such as would render it invalid as a customary marriage. That is at least a reasonably probable conclusion to be drawn from the evidence on record. That conclusion was fully supported by Ext. A1 invitation letter. The attempt of the appellant to discredit Ext. A1 since the invitation did not contain the name of the press at which it was printed or that the first respondent was not able to produce the receipt of printing charges, was rejected by the lower Court after the consideration on the basis of reasonable probabilities. Even otherwise, where it is proved that a marriage was performed in fact we have to presume that it was valid in law and that necessary ceremonies were performed. It is true that those presumptions are liable to be rebutted. We are of the opinion that the appellant has miserably failed to rebut them by any acceptable evidence.
12. A far more important aspect in scrutinising the evidence was the unqualified assertion made by the appellant as RW 1 that she and the respondent lived as husband and wife for over four years before the child was born, without any formal marriage. She went to the extent of stating that she did not think that such conduct was improper. She asserted that she would continue such conduct if need be, in future as well. The trial Court found this evidence so extraordinarily improbable that it chose to accept the version of the first respondent about the marriage rather than the assertion of the appellant of extramarital intimacy. We are in entire agreement with that appreciation and assessment of probabilities based on the evidence. It may be that unwed mothers proliferate in the west and bastardy is no shame for the offspring. But in the Indian context, neither has gained acceptance. We therefore affirm the finding that the appellant and the first respondent were validly married and that the child is the legitimate offspring of that valid union between spouses.
13. There is not much dispute that the appellant and respondent were living separately since the child-birth. The evidence of PWs. 1 to 3 regarding the customary divorce was not effectively controverted. This is, of course, understandable, because the appellant was maintaining that there was no valid marriage at all between them.
14. Ext. A2 makes out that the first respondent was the father of the minor child. It is beyond dispute that the child was over five years old at the time of institution of the guardianship proceedings. The appellant had admittedly embraced Islam. Therefore Clause (a) of the proviso to Section 6 of the Hindu Minority and Guardianship Act disentitle the appellant; and the first respondent is the natural guardian of the minor girl aged over five years under Clause (a) of that Section. We need not consider the claim of the appellant under Clause (b) in view of our finding that there was a valid marriage between the parties and the child was the legitimate offspring.
15. Mr. John, counsel for the appellant placed considerable reliance on the decision of a single Judge of the Bombay High Court in Shila v. Phirozshaw, AIR 1981 Bom 175, to the effect that conversion cannot be regarded as a disqualification for custody of the minor child so long as the guardian is capable of providing a congenial, comfortable and a happy home for the minor. The seeming applicability of that decision dissolves into thin air when we find that the provisions of Clause (a) of Section 6 of the Hindu Minority and Guardianship Act did not fall for consideration in that decision. Both father and mother of the minor child who were concerned in that decision were Zorostrians by religion. After the death of the husband, the widow married a Hindu and she embraced Hindu religion. A provision like Section 6 proviso (a) of the Hindu Minority and Guardianship Act did not arise for consideration in that case. We are therefore not inclined to hold that that decision is an authority for the proposition that conversion out of Hinduism is not a matter to be taken into account in the matter of appointment of guardian of minor children.
16. The proposition on which there can be no serious dispute at all is that the interest and welfare of the minor child is of paramount importance in proceedings for his or her custody and guardianship. Mr. John raised a very ingenious contention that we are concerned only with the question of custody of the minor, and therefore the legal provisions relating to guardianship should not stand in the way of the mother continuing to be in the custody of the minor girl. He also submitted that the first respondent had not shown any interest in the child for over five years till he filed the application before the trial Court, and that the child was all along being maintained by the appellant.
17. The dichotomy between custody and guardianship on which considerable emphasis was placed by counsel pales into insignificance when we examine the provisions of Section 6 of the Hindu Minority and Guardianship Act. That section deals with the 'natural guardians of a Hindu minor, in respect of the minor's person as well as the minor's property'. Naturally therefore, custody of the person of the minor is also comprehended by Section 6 of the Act.
18. A number of decisions were referred to us in the context of conflicting claims between mother and father for custody and guardianship of minor children. Two strains of thought are discernible from those decisions; one which emphasises the right of the natural guardian to have custody of the minor, unless he or she is disqualified or it is found that the welfare of the child requires recognition of the other; the other point of view emphasises, that the legal rights of the natural guardian may only be a secondary consideration, the principal factor being the interest and welfare of the child. In Madhavan Nair v. Viswanathan, 1977 Ker LT 479, a Division Bench held that :
'......Unless there is evidence to suggest that the natural guardian is not a fit person to be the guardian of his child, or that for other reasons it will not be in the interests of the child's welfare to entrust his custody to the natural guardian, the Court would ordinarily be inclined to accept his claim in preference to the claim of any other person'.
In Rajaiah v. Dhanapal, (1985) 1 Mad LJ 97 : (AIR 1986 Mad 99), this principle was reiterated by the Madras High Court.
19. In Rosy Jacob v. Jacob, AIR 1973 SC 2090, the Supreme Court held that :
'......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 Section 25 merely because there is no defect in his personal character and he has attachment for his children -- which every normal parent has.'
A Full Bench of this Court in Marggarate v. Chacko, AIR 1970 Ker 1 (FB), held that the interests of the minors are paramount in entrusting their custody to the care of one of the parents even if that person is resident out of India.
20. The decisions reported in C.S. Reddy v. Yamuna, AIR 1975 Ka(sic)_ 134, Mohini v. Virender Kumar, (1977) 3 SCC 513 : (AIR 1977 SC 1359), Jijabai v. Pathankhan, (1971) 2 SCR 1 : (AIR 1971 SC 313), Baddi Reddi v. K. Surya Rao, AIR 1959 Andh Pra 670 and Gandikota Subramanyam v. Pydimarri Santa, AIR 1967 Andh Pra 294, do not seem to us to apply to the facts of the present case except to the extent that they lay down the principal that the welfare of the minor is the dominant factor in dealing with applications under Sections 6 and 13 of the Hindu Minority, and Guardianship Act for custody of minor children.
21. The decision in Mohini v. Virender Kumar, (1977) 3 SCC 513 : (AIR 1977 SC 1359) recorded 'a happy solution to this unhappy episode'. The decision in Jijabai's case, (1971) 2 SCR 1 : (AIR 1971 SC 315), dealt with a minor daughter of tender age living with her mother. That case rested on its peculiar facts. The Court did, as a matter of fact, recognise the principle that 'normally when the father is alive, he is the natural guardian and it is only after him that the mother becomes the natural guardian'. The decision in Gandikota Subramanyam v. Pydimarri Santa, AIR 1967 Andh Pra 294, dealt with an application for a writ of habeas corpus filed by the husband for custody of the minor wife from her alleged detention by parents. The Court refused to grant the writ for the reason that the interest of the minor required her to be retained with her parents. Baddi Reddi v. K. Surya Rao, AIR 1959 Andh Pra 670, dealt with a case where the father did not take any interest in the child or her mother; he married a second wife and had three children, and did not spend any amount for the maintenance of the child nor did he apply for its custody on the death of its mother. It was only after maintenance proceedings were started under Section 488 of the Criminal Procedure Code, that he applied for return of the child. The facts of that case are very unique and do not lay down any general proposition as is advanced by counsel for the appellant.
22. The two conflicting principles as we have mentioned above have necessarily to be reconciled. The legal right of a natural guardian and the welfare of the minor child have to find equal accommodation in any order which the Court devices in applications under Sections 6 and 13 of the Hindu Minority and Guardianship Act. In case of conflict between the two, the Court has necessarily to choose the welfare of the minor as the paramount consideration as is enjoined by Section 13. One of the relevant considerations in determining the welfare of the minor is to compare the credentials of the father and the mother. Unless there are outweighing considerations, an affectionate father with the necessary means to maintain his child sans abnormalities; in his character which will make him otherwise unfit may have a better claim for custody by reason of the provisions contained in Section 6 of the Act. What we suggest is that the rights of a natural guardian who is designated as the guardian may be one of the factors to determine the welfare of the minor as the paramount consideration in custody proceedings.
23. The only fact which the appellant urges as disentitling the first respondent from exercising his natural right as the guardian of the minor is that he has not sought for custody of the child for over five years and he had not been maintaining the child. The explanation of the father that he could not have moved the Court for custody before the child was five years old and that he had been paying maintenance for the child according to the terms of the understanding at the time of the customary divorce do serve as a sufficient answer. The very extraordinary stand of the appellant that she lived with a stranger for over four years and begot a child without entering into marital relationship and that she would do it again if need be, is a matter which shall dissuade any Court -- till we reach that degree of sophistication -- from giving the custody of a minor girl to his mother. We are therefore satisfied that the trial Court was right in its conclusion that the welfare of the minor, which shall be the paramount consideration in custody proceedings fully justifies the entrustment of the child to the custody of the first respondent.
24. Counsel for the appellant made an emphatic plea that unless there are extraordinary circumstances, the child shall not be taken away from the mother who has been looking after her for more than five years and there was no justification to entrust the minor with the first respondent who has already married and has a child. We are fully satisfied on a perusal of the evidence of the appellant as RW 1, that there were extraordinary circumstances which justified the order of the trial Court. We however make it clear that if the custody of the child with the father is proved to be against the interests of the minor, any person interestedin the welfare of the minor is free to move the appropriate Court for necessary relief. The appeal is therefore dismissed; but in the circumstances of the case, there will be no order as to costs. '