Judgment:
Govardhan, J.
1. This appeal arises out of the order passed by the Principal District Judge, Tiruchi, dismissing the petition filed under Section 25 of the Guardian and Wards Act.
2. The petitioner's case is briefly as follows: The petitioner is the father of the minor child Anitha. The mother of the child viz., Suseela died on 9.10.1983 at the B.H.E.L. Hospital, Tiruchi. The respondent is the father of the deceased Suseela. After her death, the child was taken by the respondent under the guise of temporary nursing up of the baby. The respondent who is a retired Sanitary Worker under the Railways is not having any wherewithal or means of livelihood to maintain the child. He is interested in keeping the custody of the child to make a claim on the monetary benefits due to the minor child consequent on the death of her mother. The continuance of the child in the hands of the respondent is not congenial or healthy. The petitioner as the natural guardian of the girl is entitled to have the custody of the child and hence the petition.
3. The respondent resisted the petition contending briefly as follows: The allegation that the respondent has no wherewithal and he is keeping the minor child to make a claim on the monetary benefits due to the minor is not true. He is interested in detaining the custody of the child in the interest and welfare of the child. The petitioner is not entitled to have the custody of the child in the welfare of the child. He is not a man of character and not a fit person to be appointed as guardian of the minor. The petitioner had married one Kamatchi and has got children through her. He had connections with other girls viz., Suguna and Padma. All these facts are suppressed by him. The petitioner is a gambler, chain smoker, a drug addict, having connection with other girls. It will not be in the interest and welfare of the child to entrust the child in his custody. The family of the respondent is a joint family and the sons of the respondent are employees in Syndicate Bank and B.H.E.L. The respondent has got bank deposits to the tune of Rs. 20,000, immovable properties and is interested in the welfare of the child. He even takes the child to school daily and brings her back after the school is over. When the petitioner attempted to withdraw the amount due to the child from B.H.E.L., the respondent had to intimate the authorities to deposit the amount in the name of the minor. The . petitioner is interested in the amount available with the B.H.E.L. authorities and due to the minor. In fact, he has no wherewithal to maintain the child. The petition is not bona fide and is liable to be dismissed.
4. On the above pleadings, after enquiry, the learned District Judge has come to the conclusion that the petition has been filed by the petitioner with an eye on the heavy amount remaining with the B.H.E.L. for the benefit of the minor and that the interest and welfare of the child will be safe in the hands of the respondent and dismissed the petition.
5. Aggrieved over the said order, the petitioner has come forward with this appeal.
6. The learned Counsel appearing for the appellant would argue that the prior conduct of the petitioner cannot be a ground to reject the claim of the petitioner to have the custody of his minor daughter, as he is the legal guardian under the Guardian and Wards Act and that there is no allegation of any immorality on the part of the petitioner at present and therefore the custody of the child should be handed over to the petitioner setting aside the order of the learned District Judge. The learned Counsel appearing for the respondent would on the other hand argue that before passing an order directing the custody of the child with any person, the court has to take into consideration the welfare of the child and simply because the petitioner is the father, he is not entitled to have the custody of the child who is living with the respondent after the death of the mother. It is a recognised principle of law that in deciding the question of custody of the child, the paramount consideration is the welfare of the minor which includes not only material welfare but also spiritual welfare. The welfare is not confined to physically comfort or comfort that money can secure; but it should be such that the minor is brought up and educated in a healthy surrounding in such a way that the minor gets a footing in life later on. Therefore, we have to consider the welfare of the child before passing any order.
7. The petitioner had already an affair with one Kamatchi and Kamatchi was insisting upon marrying him is evidenced by the letter written by her under Ex.B-4. After marrying Kamatchi. Only the petitioner has married the mother of the minor. The conduct of the petitioner would reveal that the petitioner cannot be said to be a man of character, in view of the fact that his first wife Kamatchi had to compel him to marry her after having an affair with him and after marrying her, the petitioner has married the mother of the child. It would show that he has no love or affection to the said woman Kamatchi. That apart, Ex.B-2 is a letter written by one Padma which would also show that the relationship between the said woman and the petitioner cannot be one of any moral relationship. The respondent has also produced a third letter written by one Suguna which would also show that the petitioner was having some affair with the said writer also. From these letters addressed by three different women to the petitioner, it can be inferred that the petitioner was treating women who come across his path as his playmates without giving any regard or respect to their feelings and not a person of morality. Probably it is only because of his inability to get over these letters, the learned Counsel appearing for the appellant has argued that the prior conduct of the petitioner cannot be a ground to deny the custody of the minor to the petitioner who is her natural father. When we consider the character of the petitioner, there is every chance of coming to the conclusion that the petitioner is not interested in the welfare of the child, but he is interested in getting the amount in deposit in the name of the child with the authorities viz., B.H.E.L. Tiruchi, where the mother of the child was employed.
8. The learned Counsel appearing for the petitioner would argue that the respondent is having his third wife at present and he is a Retired Sanitary Worker and therefore it cannot be stated that the welfare of the child will be looked after by him. It is not as if the respondent is having affairs with ladies. He has married a third wife after the demise of his first and second wives one after another and it cannot be stated that on account of his marrying a third wife after the demise of his first and second wives, he also stands in the same footing as that of the petitioner who was having affairs with ladies who are not married. Marrying a third wife after the demise of the first and second wives one after another may be with the object of having somebody to look after him at his old age. It cannot be equated to the conduct of the petitioner who had relationship with women for his immoral purposes alone. Apart from the above fact, the respondent, is living as a member of a joint family with his two sons and their families. One of the sons is employed in the Bank and the other son is employed in the B.H.E.L., at Tiruchi and they are also earning members. They are the maternal uncles of the minor. Therefore, it cannot be stated that the welfare of the child will not be looked after by the respondent since there are members in the family who can question him if he does not show any interest in the welfare of the child. The respondent has let in evidence to show that he even takes the child to school daily and brings it back after the schools is over. It would show that the respondent is interested not only in the education of the child but also in the security of the child since he takes the child to the school. The judgment of the trial court shows that the child has been produced before the learned Principal District Judge and after ascertaining the wishes of the child, the learned District Judge was convinced that the welfare of the child, is looked after satisfactorily by the respondent and the child had expressed comfort in the company of the family of the respondent. This had happened in the year 1986. The child is with the maternal grandfather and maternal uncles thereafter also, it has become accustomed to the family of the respondent. It is not pleaded by the learned Counsel appearing for the appellant that the child should be produced before this Court to ascertain its wish. In the above circumstances, any disturbance to the child by directing it to be produced to the petitioner is likely to affect the mental stability of the minor girl. Therefore, I am of opinion that the claim of the petitioner for custody of the child cannot be ordered in the interest of the welfare of the child. For all these reasons, 1 am of opinion that the appeal is without merits and it is liable to be dismissed and is accordingly dismissed.
9. In the result, the appeal is dismissed. No costs.