P.R. Gokulakrishnan, J.
1. O.S.A. No. 3 of 1971 is against the judgment of Maharajan, J. in O.P. No. 270 of 1970 filed by Jacob A. Chakramakkal against Mrs. Rosy J. Chakramakkal, under the Gurdians and Wards Act VIII of 1890, for custody of his three children.
2. O.S.A. No. 2 of 1971 is against the judgment of the same learned Judge in Applications Nos. 12, 1259, 1260, 2503 of 1968, 337, 759, 840, 968, 1466, 1729, 1730, 1731 of 1969 and 278, 1156, 1372 and 2629 of 1970 filed in O.M.S. No. 12 of 1962 and G.M.P. No. 15737 of 1968 filed in O.S.A. Nos. 63 and 65 of 1964, and Applications Nos. 1383 of 1968, 215, 216, 1014, 1406 of 1969 and 1595, 1969 of 1970 filed in O.M.S. No. 12 of 1962.
3. The various applications, aforementioned, (except O.P. No. 270 of 1970) were filed as an offshoot of O.M.S. No. 12 of 1962. In O.M.S. No. 12 of 1962, Mrs. Rosy Chakramakkal (the respondent in the appeals under consideration) obtained a decree for judicial separation from her husband, Jacob Chakramakkal (the appellant in the appeals under consideration) on the ground that he had inflicted upon her several acts of physical, mental and moral cruelty. The decree (granted by Sadasivam, J.) directed that Ajit alias Andrews, the eldest child of the marriage, should be kept in the custody of the appellant herein, that Mary alias Maya and Thomas alias Mahesh, the second and third children of the marriage, be kept in the custody of the respondent herein and that the appellant herein should pay the respondent herein Rs. 200 per mensem towards the expenses of her maintenance and of her last two children. Subsequent to the decree, the respondent herein filed Application No. 2076 of 1964 before Sadasivam, J. for a direction that Ajit alias Andrews should also be handed over to her, or, in the alternative, for a direction to have him admitted in a Boarding School, alleging 'that because Ajit had accepted from her the present of a fountain pen, the appellant herein beat him and caused him injuries. This allegation was denied by the Appellant herein. Sadasivam, J., after an enquiry, recorded the finding that there was no doubt that the appellant had caused injuries to the boy Ajit alias Andrews on account of his sudden outburst of temper on learning that the boy had received the present of a fountain-pen from his mother on his birth day. Consequently, the learned Judge directed that the eldest boy, Ajit alias Andrews, should also be handed over to his mother subject to certain conditions.
4. The appellant herein filed an appeal against the direction in Application No. 2076 of 1964 as O.S.A. No. 63 of 1964, and another appeal against the decree in O.M.S. No. 12 of 1962 as O.S.A. No. 65 of 1964. These two appeals were head by Veeraswami, J. (as he then was) and Krishnaswamy Reddy, J. It appears that the parties had come to a settlement before the appellate Bench. In consequence of the settlement, the Bench directed:.There should be no slur on the part of either the appellant or the respondent because of the several proceedings in Court or other happenings outside. The decree for judicial separation which is confirmed does not cast any cloud on the reputation or character of the hunband or the wife.
5. As to the custody of the children, the Bench directed:
The second child Mary alias Maya will be put to school in Rosary Matri-culaticta School and as a resident-boarder at San Thome Convent. The tuition fee and the boarding and other charges or expenses relating to this child will be met half and half by the parents, that is to say, they will each meet the monthly expenses every alternate month'. 'The last boy, Thomas alias Mahesh, will be in the custody of the mother and will be educated by her at her expense. The eldest boy, Andrews alias Ajit, will) be ih the custody of his father and will be educated by him at his expenses'.
The Bench gave certain directions as regards access to the children by the respective parties. As regards alimony payable by the appellant to the respondent, the Bench fixed it at Rs. 150 per mensem, which is inclusive of the maintenance payable by the father to Mahesh. This order was made on 2nd August, 1966.
6. Subsequent to the abovesaid order, there were a number of applications before the same Bench, of which one was C.M.P. No. 415 of 1967, filed by the respondent herein against the appellant for an amendment of the order, dated 2nd August, 1966, by permitting the daughter Mary alias Maya to stay with her and by directing the appellant herein to pay the respondent herein Rs. 200 in all. This application was made on the allegation that Maya was in the habit of wetting her bed and that on account of that the Convent would not be prepared to admit her as a boarder. Evidence was adduced by both parties. By order dated 2nd February, 1967, the Bench directed that the custody of the girl Maya should be left exclusively to the mother, the respondent herein. While giving certain incidental directions affording opportunity to the father, appellant, herein, to have Maya and also Mahesh on stated occasions and times, the Bench would up by observing thus:
The evidence, both oral and documentary, produced in this petition, covers matters relating to the character of the petitioner or the respondent. But we express no opinion on that matter and leave the question entirely open.
7. Subsequently, various applications were moved by either the husband or the wife before the same Bench for reliefs such as for taking contempt action, for having custody of one or other of the children etc. It appears that there was a move before the first Bench for the transfer of the proceedings from the Bench of Veeraswami, J. (as he then was) and Krishnaswami Reddy, J. on the allegation of partiality. But by order., dated 16th January, 1968, Ananthanarayanan, G.J., and Natesan, J. dismissed the petition for transfer. When on 19th January, 1968, matters came up before the Bench of Veeraswami J: (as he then was) and Krishnaswami Reddy, J., they directed that the petitions need only go before the Original side for disposal, as the question involved was one of giving effect to their order made in the appeals.
If was in this way that subsequent applications and petitions either pertaining to O.M.S. No. 12 of 1962 or O.S.A. No. 63 and 65 of 1964 came to be heard by the Original Side single Judge. These two appeals, under consideration, arise out of twenty-five such applications disposed of by Maharajan, J. on 6th January, 1971.
8. It is unnecessary to narrate the allegations contained in the various applications out of which the present two appeals arise. Suffice it to say that those applications contained prayers either for custody of one or other of the children, or for alimony to be paid by the husband to the wife or for taking action for the mistakes committed by either of the parents in not properly bringing up the child or children in their custody, as the case may be. It is really interesting to note that the husband found fault with the wife saying that the wife has neglected the children in her custody by not giving them proper food, not bestowing attention in the matter of their education, not putting the orthopedic correction shoes in black leather on Maya's feet and sending her to school with the correction shoes on. For all these mistakes, the husband filed some of the applications under appeal, for issue of suitable directions. Further, some other applications are for punishment of the opposite party for contempt of Court. Some were filed by the wife either for clarification or for modification of prior orders in relation to custody and access to the children, also for enhancement of alimony and maintenance and for payment of the entire arrears of alimony. In some of the applications, the husband prayed either for reduction of the alimony, or for cancellation of payment of alimony or for refund of the alimony already paid by him to the wife.
9. Maharajan, J. on a broad outlook of the entire matter has formulated four points as only arising for determination:
(i) 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?
(ii) 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 judgment of the appellate Court and under the Guardians and Wards Act?
(iii) What is the proper order to pass as to the access of either parent to children in the custody of the other?
(iv) 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 these points, the findings of the learned judge are:
(i) The husband is entitled to prosecute his applications even though he had defaulted in paying the maintenance decreed.
(ii) Mary alias Maya and Thomas alias Mahesh should continue to be in the custody of their mother, the respondent.
(iii) Access to the children by the respective parent will be as provided for in his judgment.
(iv) The quantum of maintenance payable by them husband to the wife is Rs. 100 per mensem with effect from the 1st January, 1971.
Aggrieved by the said findings, the appellant has preferred the above two appeals.
The respondent has filed a Memorandum of Gross-objections against the reduction of alimony and also against the direction as regards paternal access to Maya, the daughter.
10. The arguments advanced by both the parties mainly rested upon the character of each. The appellant repeatedly accused the respondent with immorality and affairs with one Vakkappan and a man in terelyne shirt. He repeatedly relied on some documents such as diary entries, letters from the father of the respondent and her brother and also Exhibit R-107 in O.M.S. No. 12 of 1962, a letter Written by Vakkappan to the respondent on 26th September, 1957. The appellant also repeatedly requested us to allow him to play the tape-record in Court which would show that the children had mentioned about a man in terelyne shirt and the respondent going out during nights. It is really unfortunate that both these parties are fighting and slinging mud against each other. The truth or otherwise of the character may assume importance only for the purpose of deciding upon the fitness of the person to be the guardian of the children. The respondent, no doubt, has not made any imputation regarding the character of the appellant in any of her affidavits. Nevertheless she would accuse him of having illicit intimacy with one Kathyayaniammal, the servant-maid in his house, and one Louis Pritchley, who was working as a Typist in an Advocate's office, and of going out for night-dancing. These accusations have been made as a counter-blast to those of the appellant and they were not made as independent grounds for judicial separation prayed for by Rosy Chakramakkal.
11. It is significant to note that even subsequent to the alleged detection of illicit intimacy of Rosy Chakramakkal with Vakkappan, the appellant had matrimonial connection with the respondent and through that connection Mahesh alias Thomas, the last son, was born. As regards the character of Rosy Chakramakkal, Sadasivam, J., has made it clear in O.M.S. No. 12 of 1962, that there cannot be any slur on the character of Rosy Chakramakkal. Even the appellate Bench sitting over the said decision of Sadasivam, J., in appeal, recorded the settlement arrived at by both the parties to the effect that there cannot be any slur on the part of either party because of the several proceedings in Court and other happenings outside. But, unfortunately, in a subsequent application before the appellate Bench, in G.M.P. No. 415 of 1067, the Bench observed 'that it expressed no opinion on the character of the respondent or the petitioner and left the question entirely open'. It is this observation of the Bench which gave handle to the respective parties to fling mud against each other and wash dirty linen in Court regarding the character of the other. In the interests of both the parties, we are of the view that it is better not to discuss much about the character of either, and we confine ourselves to the main question regarding the custody of the children and also the payment of alimony. In this connection, we would like to make it sufficiently clear that the character impugned which is the subject-matter of the appeals is only that of Rosy Chakramakkal, and not that of the appellant. However much, the respondent would address her counterarguments attacking the character of the appellant, the same cannot have any force inasmuch as she did not come forward with any such specific allegations before the trial Court; nor has she whimpered in her cross-objections about the absence of any finding by the trial Court on the character of the appellant.
12. O.P. No. 270 of 1970, was filed by the appellant under the Guardians and Wards Act, 1890. This is a special enactment which deals with appointment of guardian for the person or property or both of a minor, 'Minor' has been denned in this Act a? a person, who under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority. Accordingly, a person is a minor if he is below the age of eighteen. The Indian Divorce Act, 1869, under which the respondent filed O.M.S. No. 12 of 1962 for dissolution of the marriage, also deals with custody of minor children, in Sections 41 and 42. For the purpose of the Indian Divorce Act, 'minor children' means:
In the case of sons of native fathers, boys who have not completed the age of sixteen years, and, in the case of daughters of native fathers, girls who have not completed the age of thirteen years: in other cases it means unmarried children who have not completed the age of eighteen years.
Ajit was born on 24th September, 1955, Maya on 8th December, 1957 and Mahesh on 21st January, 1961. The Divorce Act therefore ceased to apply to Ajit on 24th September, 1971 and to Maya on 8th December, 1970. It will continue to apply to Mahesh till 20th January, 1977. 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, i8go. Section 19 of the Guardians and Wards Act stated:
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 and 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.
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 appointing a guardian for the person of a minor, and cannot be said to be in conflict with the terms of Section 10 of the Guardians and Wards Act which recognize the father as the guardian. Bearing 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 caste.
13. It is unnecessary to deal with the various allegations and counter-allegations as to how the respondent has neglected to look after the children in her custody and as to how the appellant has brought up Ajit who is in his custody. The exaggerated versions put forth by the respective parties regarding the health, the education and the up-bringing of the children can be safely ignored in the light of the present state of affairs of the children concerned. As far as the eldest boy, Ajit, is concerned - who is now in the custody of the appellant - he is studying in a Central School and nothing can be said regarding his educational career. As regards Maya, who is in the custody of the mother, the Respondent, the girl is in the proper class for her age and nothing can be said regarding the upbringing of her. As regards Mahesh, no doubt, he suffered a failure last year and he has been put in the school which is being run by the respondent herself.
14. The principle on which the Court has to decide as to the fitness of the guardian for the person of the minors must mainly depend upon two factors, viz.,
(i) the father's fitness or otherwise to be the guardian; and
(ii) the interests of the minors.
It is clear that Ajit has not suffered in his educational career although he has been in the custody of the appellant who is a practising Advocate and who has no training in the teaching profession. The fact that the mother, the respondent, is running a school of her own and has a Degree in Teaching cannot by itself give her the right to be the guardian of the minors. If that were hot so, serious consequence might flow and the intendment and the spirit with which the Guardians and Wards Act was enacted would become nugatory.
15. Mrs. Rosy Chakraromakal, the respondent, strenuously argued that the order, dated 2nd August, 1966 in O.S.A. Nos. 63 and 65 of 1964 was a consent order and the same, cannot be modified. The said contention can be easily answered by stating that the order was passed in appeals filed against the order passed under the Indian Divorce Act. As far as the present appeals on hand are concerned they arise both under the Indian Divorce Act and under the Guarddians and Wards Act. We do not think there can be any question of estoppel or res judicata for us to discuss and decide as to who is fit to be the guardian of the minors, in these appeals. This apart, the very order in O.S.A. Nos. 63 and 65 of 1954 underwent various changes on the applications taken out by the respondent herself and finally the Bench, in G.M.P. No. 415 of 1967, was forced to leave, the question as regards the character of the parties entirely open. In these circumstances, there is absolutely no merit in the arguments advanced by the respondent as if the order dated 2nd August, 1966 in O.S.A. Nos. 63 and 65 of 1967 is binding on us and the same cannot be re-opened.
16. O.S.A. No. 2 of 1971, as already stated, arises out of the various applications filed by the husband (appellant) such As for having the custody of Maya and Mahesh (Applications Nos. 12 and 1260 of 1968, 968, 1466 of 1969, 278, 1156 and 1372 of 1970), for reducing the quantum of alimony to Rs. 50 (Application No. 1259 of 1968), for directing the respondent to make Maya wear Orthopaedic correction footwear (Application No. 2503 of 1968), for punishing the respondent for contempt of Court (Applications Nos. 333, 759 and 840 of 1969), for cancelling the order for payment of alimony (Application No. 1729 of 1969), for refund of the alimony paid (Application No. 1730 of 1969) and for directing stay of execution of the order of alimony (Applications Nos. 1731 of 1969 and 2629 of 1970). All these applications were, in effect, dismissed by Maharajan, J. O.S.A. No. 3 of 1971 arises out of O.P. No. 270 of 1970 which is a substantive application filed by the appellant praying for the custody of the three minor children. The learned Judge while ordering custody of Ajit to be with the appellant and that of Maya and Mahesh to be with the respondent, issued certain directions regarding parental access to the children.
17. In 1962 itself the custody of Ajit, the eldest boy, who was then aged about seven years, was given to the appellant. By consent of parties in O.S. A. Nos. 63 and 65 of 1964, Maya was put into the Rosary Matriculation School Santheme Convent, Madras; but the order therein does not give the custody of Maya completely to the respondent. At that time Maya was aged eight years and seven months. This order was dated 16th December, 1966. Subsequent to this order, the respondent filed G.M.P. No. 415 of 1967 alleging urinating habit in bed on the part of Maya and praying that Maya should therefore be in her care and custody. The appellate Bench, believing the allegations made by the respondent, gave the custody of Maya to the respondent. It is significant to note that in all the orders, whereby the custody of Maya and Mahesh was given to the respondent, it is mentioned that they 'are of tender age', explaining that, there was absolutely no adverse allegation against the appellant so as not to have the custody of Maya and Mahesh.
18. Mrs. Rosy Chakramakkal, the respondent, argued that the appellant is a man of moods susceptible to ill-treating the children and beating them, that he requires psychiatric treatment and that in the interests of the children, the minor children should not be left to his care and custody. She also sought to make much of financial imbalance on the part of the appellant and submitted that she is running a school of her own, called 'Auxilium Primary School' and that she has enough income to maintain all the children and she is in a fit and proper condition to have their custody. She would go a step further and state that it will not be too long a time for her even to support the husband with the income that she expects from her institution. All these submissions were controverted by Mr. Jacob Chakramakkal, the appellant. No doubt, he accepts that he is not as very affluent as the respondent is, but nevertheless, would state that he has a house of his own at Adyar, that he is earning enough both as an Advocate and as a Notary Public, as to maintain himself and his children and that all these years he has brought up Ajit with proper care and attention, giving him good education. It is significant to note that during the period of his access to the three children, he had taken them to hill stations, such as Shimla, Darjeeling, and that the children enjoyed their stay with the appellant during those periods. But this does not mean that the children have aversion for the respondent. They equally love her; and even while they were in the custody of their mother, they seemed to enjoy their stay with the mother also. Thus it is clear that except for the bickerings and mud-slinging between husband and wife regarding character and temperament, the children seem to be happy during their stay both with the appellant and with the respondent. There is absolutely no proof as regards disqualification of the appellant to be the guardian of the minor children.
19. Mr. Chakramakkal appellant, cited a number of decisions as supporting him to have custody of the children with him. The decision in Reginald Danieal v. Sarojam (1969) 1 M.L.J. 519 : 81 L.W. 613 : A.I.R. 1969 M.L.J. 365, dealing with Guardians and Wards Act, categorically states that when Section 17 of the Guardians and Wards Act lays down that in appointing or declaring the guardian of the minor, the Court shall be guided by what appears in the circumstances to be for the welfare of the minor, it does not mean that Section 17 over-rides Section 19; only if the father is unfit to be the guardian, can the question of the welfare of the minor come into consideration; in other words, under Section 17 there is no question of a guardian of his person being appointed if the father is alive and is not unfit to be the guardian; the father is entitled to be the guardian even against the mother as long as he is not held to be unfit to be the guardian of the person of his son. It has been further held in that decision:
When an application under Section 25 is filed by a father, the only consideration would be whether he is unfit to be the guardian of his minor child. If he is not unfit, no other question tan arise.
In Ayyadorai Pillai v. E.H.B. David : AIR1960Mad519 , Anantanarayanan, J. (as he then was), dealing with Section 25 of the Guardians and Wards Act, has held:
The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that he has married a second wife after the death of his first wife is no ground for depriving him of his parental right of custody. The father may have shortcomings; but that does not imply that he is not deserving of the solace and custody of his child. Considerable latitude will have to be allowed for the father, who being a young man loses his head momentarily under the stress of a bitter quarrel with the family of his first wife. If the Court forms the impression that the father is a normal and intelligent young man and shows no indication of imbalance of mind in him, then it should not refuse to him the custody of his minor child from his first wife.
To the same effect is the decision in Shanti Devi and Anr. v. Govinchand Har Sukh Rai , where it has been held that the father of a minor boy is his natural guardian under Hindu Law and under the Guardians and Wards Act also he has the right of custody unless the Court comes to the conclusion that the father is unfit to have the custody and that it is not for the welfare of the minor that the father should b7 allowed to exercise this right of his.
In Soora Reddi v. Chella Reddi : AIR1950Mad306 , a Bench of this Court has held:
The father ought to be the guardian of the person and property of his minor son. The fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody of the person of his minor son. That the minor son has developed some love and attachment to the father's relations from whom the father has separated is no sufficient reason for depriving the father of his rights of guardianship.
In Atchayya v. Kosaraju Narahari : AIR1929Mad81 , the father was preferred to the maternal grandfather to be the guardian for a four years old child. It is made clear in that decision that even if the grounds levelled to deprive the father of the custody of the child were true, they would not be sufficient and it lays down, going a step further, that even considering the matter entirely from the point of view of the welfare of the minor, it would not be to the minor's welfare to estrange him from his father at the child's tender age.
From the above-cited decisions, it will be clear that the appellant is the proper and fit person to be the guardian for the minor children unless it is found that he is unfit to be their guardian. The evidence on record mostly consists of the appellant's accusation of the character of the respondent the up-bringing of the children by her and the training the children received at her hands. The respondent, except for defending herself against the charge of unchastity levelled by the husband, and pleading capacity to maintain the children, was not able to make any headway to disqualify the appellant from having the custody of the minor children. All the previous judgments and orders, referred to above, including that in C.M.P. No. 415 of 1967, gave the custody of Maya and Mahesh to the respondent referring to them as of 'tender age'. The date of birth of Maya is 8th December, 1957 and that of Mahesh, 21st January, 1961. As it is, Maya is fourteen years of age and Mahesh, eleven years. Taking into consideration the fact of the up-bringing of Ajit from 1962 onwards by the appellant, and also the present age of Maya and Mahesh, it cannot be said that Maya and Mahesh are of 'tender age'.
20. 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 and custody of the mother. The learned Judge clearly observes 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 in 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 all 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 the father is the guardian of his minor child unless otherwise found unfit. The academic qualification of the mother, her financial status and other standards cannot at all weigh in the matter when the appellant has not been rejected as a person unfit to bt 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 the 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 trial Court itself has found that Ajit has been properly looked after and brought up very well in the academic career by the appellant, there cannot be any difficulty in coming to the conclusion that Maya and Mahesh will also be looked after and protected and imparted with proper education by the affectionate father, the appellant.
21. In these circumstances, both upon evidence and in view of Sections 17, 19 and 25 of the Guardians and Wards Act, we hold that the appellant in the proper and fit person to be the guardian of Ajit, Maya and Mahesh and to have their custody.
22. The next question remaining to be considered relates to alimony. Kailasam, J., in Applications Nos. 2317 to 2319 of 1962 in O.M.S. No. 12 of 1962 made an order on 31st December, 1962, directing the appellant to pay a sum of Rs. 200 every month as and for alimony pending disposal of that suit. Sadasivam, J., in his judgment in that suit dated 15th April, 1964, fixed a consolidated sum of Rs. 200 per mensem to be paid by the appellant to the respondent as and by way of alimony. In O.S.A. Nos. 63 and 65 of 1964, filed respectively against the decision in O.M.S. No 12 of 1962 and Application No. 2076 of 1964, the appellate Bench, by its judgment dated 2nd August, 1966, fixed the alimony and expenses for the children at Rs. 150 per mensem. Thus, the sum of Rs. 200 fixed in O.M.S. No. 12 of 1962 was reduced to Rs. 150 on appeal. The appellate Bench, by its further order made in G.M.P. No. 12710 of 1966, dated 16th December, 1966, reduced the monthly alimony payable to a sum of Rs. 94 from Rs. 150. This was because of the fact that Mahesh was the only child left in the custody of the respondent and Maya was directed to be put in the Rosary Matriculation School, with boarding and lodging there itself, the expenses thereof to be met by the appellant. Subsequent to this appellate order, the respondent filed G.M.P. No. 415 of 1967 for the purpose of getting the custody of Maya on the ground of bed-wetting by Maya. The Bench accepted the case of the respondent and allowed Maya to be in the custody of the respondent. Further, it varied its prior order by making the alimony payable by the appellant to the respondent as Rs. 200. This was on 2nd February, 1967.
23. Subsequent to this order dated 2nd February, 1967, the appellant filed many applications for the purpose of reducing the alimony to a bare minimum of Rs. 50. Maharajan, J., in his judgment, under appeal, has observed that he was satisfied that the earning capacity of the wife (respondent) is undoubtedly superior to that of her husband (appellant) and fixed the quantum of maintenance payable by the husband to the wife at a reduced sum of Rs. 100, payable with effect from 1st January, 1971, taking into consideration all the relevant facts and having regard to the fact that the wife has to meet the maintenance and education expenses of the two children, whereas the husband has to maintain and educate the eldest child, Ajit.
24. Now the appellant pleads that considering the status and the financial position of the respondent, the appellant should not be directed to pay any alimony to the respondent. It is unnecessary to deal with all the minor details brought forth by the appellant to substantiate the 'affluent circumstances' of the respondent. Suffice it to say that the respondent has a school of her own to run, 'Auxilium Nursery School' and is able to get on with it successfully. It is in the words of the respondent herself that within a short span of time she will be in a position to build up a school building of her own and even protect her husband out of the income she would be getting from the school. She has now extended the school by putting up new constructions. She is paying a huge rent for the school building that she is now running. She has purchased one 'mini-bus' at a cost of over Rs. 32,000 and she is in possession of wetlands in her village. On the other hand, it is in evidence that the appellant is not getting on well in his profession which he attributes to the pending litigation. But for this, according to him, he would have definitely built up his practice and profession; he is confident that he will be in a position to build up his profession after the litigation is over. He has a house at Adyar but which is still under mortgage with the Go-operative Society, and he has sold almost everything in his native village except for 1 or 1 1/2 acres of lands.
25. Thus, it is clear that the respondent need not be given any money for her maintenance by the appellant. Further, in view of our finding that all the three children have to be under the care and custody of the appellant, there is absolutely no necessity for the appellant to pay any maintenance to the wife who is definitely in affluent circumstances.
26. During the pendency of these appeals, the husband has paid a sum of Rs. 2,100 in C.M.P. No. 662 of 1971 to the respondent by way of alimony. Section 37 of the Indian Divorce Act deals with payment of alimony and maintenance to the wife. The proviso thereto says-
Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part, as to the Court deems fit.
It is explicit that we have the power to suspend payment of the arrears of alimony and future payments towards maintenance to the respondent.
27. In view of the above, we are of the view that no more amount need be paid to the respondent, wife, by the appellant, husband, by way of maintenance.
28. In view of our finding that all three children have to be left to the care and custody of the appellant, the appeal (O.S. A. No. 2 of 1971) against Applications Nos. 12, 1259 and 1260 of 1968; 968 and i466of 1969; and 278, 1156 and 1372 of 1970 will stand allowed, in terms of our above findings and conclusions. Similarly the appeal (O.S.A. No. 2 of 1971) against Applications Nos. 1259 of 1968, 1729 of 1969, 1731 of 1969 and 2629 of 1970 in respect of alimony and maintenance will stand allowed to the extent indicated. O.S.A. No. 2 of 1971, in so far as it is against other applications/will stand dismissed. O.S.A. No. 3 of 1971, which is filed against the decision in O.P. No. 270 of 1970, is allowed. The cross-objections of the respondent arc dismissed. The parties will bear their costs.
29. The last and final point remaining to be considered is as regards access of the respondent to the children. It cannot be denied that both the mother and the father are very affectionate towards their children. Maya, who is aged 14 years, and who is likely to attain puberty any time, definitely requires maternal care during her expected attainment of age and also during her monthly periods. As regards Ajit and Mahesh, the respondent must have access to them on specified occasions. Taking these circumstances into consideration, we have made provision for the respondent for access to the three children in the judgment of my learned brother with which I respectfully agree in all respects.
Venkataraman, J.
I respectfully agree. But, in view of the elaborate arguments advanced, I wish to add something further on some of the aspects. Thiru K.N. Balasubramaniam appearing for the respondents, Mrs. Rosy Chakramakkal, went to the extent of urging that the order dated 2nd August, 1966 in O.S.A. Nos. 63 and 65 of 1964 was passed on the consent of the parties, that therein the appellant (husband) consented to the wife having custody of the younger children, Maya and Mahesh and that without the wife's consent the Court had no jurisdiction to vary the order. We have no doubt that this contention is untenable. No doubt, the order was based on the consent of the parties, but it was not the consent which gave jurisdiction to the Court; the Court's jurisdiction is always there in respect of minor children. The true position is that the order became valid in law because the Court gave its approval to the consent between the husband and wife and that the Court can always change its order in suitable circumstances, irrespective of the wishes of the husband and wife. In this respect, an order in matters regarding the custody and guardianship of minors, though based on consent, is different from an ordinary decree based on a compromise between the parties in an ordinary suit, such as a suit concerning property rights. As pointed out by my learned brother, the respondent herself applied for change of custody in respect of Maya and succeeded in getting Maya to her custody in C.M.P. No. 415 of 1967.
Section 42 of the Indian Divorce Act (IV of 1869) enacts:
The Court, after a decree of judicial separation may upon application (by petition) for this purpose make, from time to time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree by interim orders in case the proceedings for obtaining such divorce were still pending.
This statutory provision and similar provisions under the Guardians and Wards Act (VIII of 1890), for instance, Section 25, give ample jurisdiction to the Court to make orders from time to time regarding the custody of minor children.
Secondly, as pointed out by my learned brother, the husband has taken out a substantive application O.P. No. 270 of 1970 under Section 25 of the Guardians and Wards Act (1890) in respect of the three minor children. Section 19 of the Guardians and Wards Act, says:
Nothing in this Chapter shall authorise the Court...to appoint and declare a guardian of the person-
(b) of a minor whose father is living and is not, m the opinion of the Court, unfit to be guardian of the person of the minor.
31. This makes it clear that, unless the father is found to be unfit, he would continue to be the guardian and further he would be entitled to have custody of the minor children. Really no authority is required, because the section is plain; but, in addition to the authorities referred to by my learned brother, I would refer to the following Bench decisions: Audiappa Pillai v. Nallendran Pillai : AIR1916Mad605 , Subramanya Pillai v. Ammayee Ammal (1915) 2 L.W. 531 : 29 I.C. 740, Ibrahim Achi v. Ibrahim Sahib I.L.R. (1916) Mad. 608 : 30 M.L.J. 21 and Satyanarayana v. Narasayamma (1923) 18 L.W. : A.I.R. 1924 M. 45.
For instance, in Audiappa Pillai v. Nallendran Pillai : AIR1916Mad605 , it was observed:.It ought not to be forgotten that the Legislature advisedly draws a distinction between the legal rights of husband and parents on the one side, and those of the other near relations on the other side. In the first class of cases, it must be established that any act or conduct of the husband or father renders him unfit for guardianship; the fact that the child may be happier and more comfortable with other relations is not sufficient to deprive the two relations referred to of their right and duty.
The above decision was followed in Sabraminya Pillai v. Ammayee Ammal (1915) 2 L.W. 531 : 29 I.C. 740, where it was observed:
The learned District Judge has dealt with the petition only with regard to the welfare of the minor although under Section 19, Guardians and Wards Act, when the minor's father is living no other guardian can be appointed unless he is, in the Court's opinion unfit for appointment.
In Satyanarayana v. Namsayamma (1923) 18 L.W. 173 : A.I.R. 1924 Mad. 45, it was observed:
There is lastly the definite and admissible ground mentioned in the lower Court's order that the age of the minor is about four and the fact that he may properly be looked after by his mother for the present. We do not, however, think that this is sufficient to justify the District Judge in refusing to give the child to the custody of its father. Each case must, of course, stand or fall with reference to its particular circumstances. But, when there is nothing established against the father, the petitioner except that he and the respondent (wife) have during the past been on bad terms and have been engaged in litigation, that is cot in our opinion sufficient.
See also Ragavaiya v. Lakskmiah : (1925)48MLJ179 , where it was observed:
Under Section 17, in making an appointment or declaration, the Court must first and foremost have regard to the welfare of the minor. But Section 19 says by way of a rider that it shall be presumed, until the contrary is shown, that the welfare of the minor requires that the father shall be the guardian of the person.
32. As pointed out by my learned brother, it has not been established at all that the appellant (father), is unfit to be the guardian or to have the custody of the three children. Indeed, it has been found positively by the learned Judges of this Court, who had dealt with this matter at the prior stages, that he is an affectionate father, deeply attached to the three children and that he is quite competent to have their custody. The only reason why the custody of the younger children, Maya and Mahesh, was given to the mother was their tender age. But it will be noted that Ajit himself who was born on 24th September, 1955, was not even eight years old, when Kailasam, J., gave interim custody of Ajit to the father in Applications Nos. 2317 to 2319 of 1962 in O.M.S. No. 12 of 1962 (Vide Book 1, pages 7 and 8). When Sadasivam, J., in his judgment dated 15th April, 1964 in O.M.S. No. 12 of 1962, gave to the father custody of Ajit, Ajit had not yet completed nine years. Judged by that standard, Maya and Mahesh, who were born respectively on 8th December, 1957 and 21st January, 1961, could not be said to have been of tender age, when Maharajan,J., passed the order under appeal, on 6th January, 1971 and certainly they cannot be said to be of tender age now (April, 1972).
33. I shall now quote some of the observations of the learned Judges at the prior stages, about the fitness of the father and the tender of the younger children. Sadasivam, J. in his judgment dated 15th April, 1964 observes (Book 4, page 52):
The evidence in this case clearly shows that the respondent is a loving father, who is very much interested in the children.
Veeraswami, J. (as he then was, arid Krishnaswamy Reddy, J.) in their order dated 2nd February, 1967 in C.M.P. No. 415 of 1967 in O.S. Nos. 63 and 65 of 1964, observed (Book 1, page 90):
The girl is only nine years of age. The mother is a teacher in a local Christian High School. It will be in the interests of the girl herself that she is with the mother. This is not to say that Mr. Jacob Chakramakkal is not competent to have custody.... Having regard to her tender age and the surrounding circumstances, we have come to the conclusion that Maya should be left in the exclusive custody of her mother, the petitioner.
34. It will be relevant to note that in the consent order dated 2nd August, 1966 only custody of the last child, Mahesh, was given to the mother, and the custody of Maya was not given to either parent, but she was to be put in the Rosary Matriculation School, Santhome (Book 1, page 45), though, at that time, Maya had not even completed nine. That order was varied in C.M.P. No. 415 of 1967 in favour of the mother and the custody of Maya was given to the mother, because Maya was found to be wetting her bed and also because of her tender age.
35. Again Ramamurti, J., in his order dated 24th April, 1968, in Applications Nos. 769 and 770 of 19.68, in O.M.S. No. 12 of 1962 observed (Book 1, page 162):
Now coming to the directions which have to be given to the custody of the children, I see no ground whatsoever for changing the present atmosphere and environment of the eldest boy who is being educated and brought up by the father. I find the father is deeply attached to the boy.
Lower down he says:
As regards the custody of the other two children, Mary alias Maya and Mahesh, here again I see absolutely no justification whatsoever to make any change. The father is deeply attached to the children.
In that view, he gave access to the father during every month and during the holidays.
Regarding Ajit, Maharajan, J., himself observes (Book 2, page 642):
He was produced in Court and I found him to be quite healthy and cheerful. He is doing well at school and his sojourn with his father during the past four years has not prejudicially affected him physically or mentally.
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 will be. enough if the mother is allowed a somewhat liberal access to the three children.
36. Regarding alimony and maintenance to the children, in addition to Section 37 of the Indian Divorce Act, which permits the Court to discharge an order for payment of alimony to the wife, there is Section 42 which enables the Court to cancel or vary an order of maintenance for the child from time to time in the light of changed circumstances. As pointed out by my learned brother, the wife has become quite affluent and, in our opinion, does not require any alimony from the husband. As for the children, the payments already made are, in our opinion, sufficient, having regard to the relative circumstances of the parties. It need hardly be pointed out that the husband has taken out application for the cancellation of alimony to the wife and for cancellation or reduction of the maintenance payable to the children, and those applications are also under appeal-Application No. 1259 of 1968 (Book 1, page 123), Applications Nos. 1729 to 1731 of 1969 (Book 2, page 425) and Application No. 840 of ig6g (Bock 2, page 337).
37. Access to Maya: For the summer vacation the respondent (Mother) can take Maya from 8 A. M. on 18th May to 8 P.M. on 3rd June, both days inclusive. During the Christmas vacation, she can take Maya from 3 P/M. on 25th December, to 8 P.M. on 31st December. On the birth day of Maya, which falls on 8th December, the respondent can take her from 2 P.M. to 8 P.M. The father will be entitled to the custody of the child till 2 P.M.
38. Besides the above, the respondent can take Maya and keep her on every Saturday and also on the first, second and third Sundays ih every English calendar month, except for the month of May. This will enable her to keep Maya with her for seven days ih a month. It will be open to the Respondent to ask the husband to replace any three of the above days, other than in the month of May, by some other days, which the respondent may choose on account of the attaining of puberty or monthly periods of Maya. If Maya happens to attain age between the 1st of May and 17th of May, when normally she would be with her mother, it will be open to the mother of the girl to ask her husband to take the child with her for three days during the puberty. Except for the initial attaining of puberty, the wife will not be entitled to take the child from the custody of the father between the 1st of May and the 17th of May. That is to say, if the monthly periods subsequent to the attaining of puberty happen to fall during the period between 1st May, and 17th May, the father will be entitled to keep the child.
39. To give effect to the above directions, normally the mother should arrange to take the child at 8 A.M. on every Saturday and return the child to the father at 8 p.m. the same day or at 8 P.M. on the succeeding day, Sunday, as the case may be. Since it is our intention that the father should have the child Maya with him dh the Christmas day invariably, it is necessary to provide that, if it happens to fall on a Saturday, the mother will be entitled to take Maya with her only at 3 P.M. and not at 8 A.M. as usual. Of course, she must restore the child to the father at 8 P.M. if need be, that day. Similarly, if the birthday of Maya, that is, 8th December, happens to fall on a Saturday or oh a Sunday, during which normally the mother will be entitled to keep her, the father will be entitled to keep her till 2 p.m. and, for this purpose, the mother should hand over the child to the father at 8 P.M. the previous day, if necessary, and take the child from the father only at 2 P.M. oh the 8th December. It is always the responsibility of the Respondent to take the girl from the custody of the father and restore her back to the custody of the father at the father's house.
40. Access to Ajit and Mahesh:
The mother can take Ajit and Mahesh for the first Saturday and Sunday and again for the third Saturday and Sunday of each English calendar month, except for the month of May.
In addition, the mother can take these children from 8 A.M. on 18th May to 8 P.M. on 3rd June, during the summer vacation and again from 3 P.M. on 28th December to 8 P.M. on 31st December.
In addition, she can have Ajit from 2 P.M. to 8 P.M. on his birthday, that is, the 24th of September, each year.
She can similarly have Mahesh from 2 P.M. to 8 P.M. on his birthday, the 21st of January, each year.
According to this arrangement, the father will have custody of the children on the Christmas eve and on the Christmas day till 2 P.M. He will also have the custody of Ajit till 2 P.M. on his birthday, 24th September, and of Mahesh tili 2 P.M. on 21st January, his birthday, even if the 21st January happens to be a third Saturday or Sunday. The mother must make arrangements subject to that right of the father. For instance if the 21st January is a third Sunday of the month, she must restore Mahesh to the father at 8 P.M. the previous day and take him at 2 P.M. on 21st January. Similarly, if the 21st January happens to be a third Saturday, she can take Mahesh only at 2 p.m. from the father. Here again it will be the responsibility of the respondent to take the children, Ajit and Mahesh, from the custody of the father and restore them back to the custody of the father at the father's house.
Venkataraman, J.
41. The appellant represents, after the above judgments were pronounced, that in case the respondent should not obey our directions regarding the custody of the children he should be enabled to have custody, in particular of Maya and Mahesh by taking police help. We do not expect the respondent to disobey the orders of this Court. However, if there should be any difficulty in getting custody of the children, it will be open to the appellant to take police help on the strength of our judgments. The respondent represents that the examinations of Mahesh will be over only on the 28th, though the examinations of Maya are over. She wants to retain those two children till Sunday evening. We permit her to retain the children till 8 P.M. on Saturday, the 29th instant and give the children to the husband on Saturday, the 29th of April, 1972 at 8 p.m. We must add that though we had to pronounce judgment because of the contest between the parties, it is still our hope that the parties will come together and live amicably, which alone will be a permanently good solution of the problem.