Judgment:
ORDER
Govardhan, J.
1. This appeal is against the order passed in Guardian O.P.No.194/1988 on the file of the District Judge, Dharmapuri at Krishnagiri.
2. The petitioner's case is as follows: The petitioner was working as a School Assistant in Pagalur in Hosur taluk. The first respondent is his mother-in-law. Second respondent is the son of the first respondent. The petitioner has married the daughter of the first respondent and three children were born to them. The wife of the petitioner died on 13.7.1988. The respondents who came to the condolence, took the children of the petitioner saying that they will keep them with them and bring them for the 11th day ceremony. They took them to their village and brought them back on 23.7.1988 to the petitioner. Thereafter, they have assured the petitioner that they will bring the children for the 30th day ceremony. Neither the respondents nor his children came to the 30th day ceremony. The first respondent is aged 85 years. She is a widow. She is showing interest in the properties of the children of the petitioner than the children. The respondents have filed the suit against the petitioner for partition using the name of the son of the petitioner as plaintiff. It will be in the interest of the children that they should live with the petitioner. Hence the petition.
3. The first respondent in her counter contends as follows: The death of the daughter of the first respondent was caused in suspicious circumstances. The body was handed over only after post-mortem. The first respondent has given a petition to the Tahsildar suspecting foul-play in the death of her daughter against the petitioner and his sisters. But that petition was closed without a proper enquiry. The third child of the petitioner died on 6.6.1989. Only two children are with the first respondent. It is not in the interest of the children to be with the petitioner. The petitioner has married a second wife. If the custody of the children are given to him, the children would undergo ill-treatment in the hands of the step-mother. The petition is liable to be dismissed.
4. On the above pleadings, an enquiry was held and the learned District Judge has held that the petitioner is entitled to the custody of the children and has passed the impugned order.
5. Aggrieved over the same, the 1st respondent has come forward with this appeal.
6. The appellant herein is the grandmother of the two surviving children of her daughter who is the wife of the petitioner and who died on 13.7.1988. The petitioner has filed the petition under the Guardian and Wards Act seeking a direction to the appellant herein to hand over the custody of the minor children who are his daughter and son contending that when the respondents in O.P. came to the condolence of his wife, they took the children with them stating that they will bring them for the 11th day ceremony and actually they have brought the children for the 11th day ceremony and that the respondents in the O.P., who took the children with them with an assurance that they will bring the children for the 30th day ceremony of the death of his wife, have failed to fulfil their assurance and are keeping the children with them and refuse to send them to him and therefore he has filed the O.P. The respondent resist the claim of the petitioner by contending that they suspected a foul-play in the death of the wife of the petitioner and had even given a petition to the Tahsildar and there were proposals for the petitioner marrying a second wife and it is only in the welfare and interest of the children, they are Having the custody of the children. The learned Judge who held an enquiry has passed the impugned order holding that the petitioner is entitled to have the custody of the minor children since he was not disqualified from having their custody and since he was the natural guardian father of the minor children.
7. The learned counsel appearing for the appellant would argue that the father's right for the custody of the minor child is not absolute and it is circumscribed by considerations of the welfare of the minor and if the minors' welfare requires that custody should not be given to the father, he cannot get it merely because he happened to be the father and that, regarding the custody of a minor, the Courts have to take into consideration the welfare of the minor as the decisive factor. According to the learned counsel, the welfare of the minor being the prime consideration in an application for custody of minor children, one has to look into the circumstances which would justify or deny the right to have the custody of the minor child by the person who claims the custody. According to the learned counsel, the appellant suspected foul-play in the death of her daughter and had even given a petition to the Tahsildar since the death of the mother of the children was not natural and that the petitioner in that O.P. aged 61 years has married second wife, half of his age and that the appellant has properties and income which would enable her to bring her grand children in a congenial atmosphere and if the welfare of the minor children is to be taken into consideration, the order passed by the learned District Judge should be set aside. The learned counsel appearing for the respondent would on the other hand argue that the claim of the appellant that there was foul-play in the death of the wife of the petitioner is baseless and the petition given by her has been closed without any action against the respondent and this fact would itself show that the allegation is a baseless one. According to the learned counsel appearing for the respondent, the youngest of the three children who were taken by the appellant along with her, died in the village for want of medical facilities and the appellant is a widow aged more than 80 years who is interested in the property of the minors rather than the minors will be seen from the fact that the appellant has filed a suit for partition in the name of the son of the petitioner and if the custody of the minor is allowed to be continued with the appellant, there is every possibility of the minor children getting an aversion towards their father and they may begin to hate him in future and it is not desirable. It is also argued by the learned counsel that the second wife of the petitioner has no children and it cannot be stated that all step mothers would illiterate the children in their custody and that the petitioner being a resident of Tamil Nadu, would like to have the children getting acquaintance in the mother-tongue Tamil rather than have their education and proficiency in Kannada, since the appellant is residing in Karnataka State where she cannot give education to the children with their mother-tongue as one of subjects. It is further argued by the learned counsel appearing for the petitionerappellant (sic) that the custody of the children can be denied to the natural father only if it is established that he suffers some disqualification to have the custody of the children and in the case on hand, no such disqualification is proved by the appellant against the petitioner and the order passed by the learned District Judge therefore cannot be interfered with at all. None of the averments made by the respondent viz., the petition filed by the appellant against her son-in-law, who is the petitioner in the O.P., suspecting foul- play has been closed without any action against the petitioner, that the youngest child died in the village where the appellant resides, that the children have no scope for learning Tamil as one of their languages in spite of their mother-tongue being Tamil, that the second wife of the petitioner has no children, are disputed at all. It is needless for me to point out that in applications regarding guardianship and custody of a minor, the question for consideration is the welfare of the minor. In the decision reported in Soora Reddi v. Chinna Reddi : AIR1950Mad306 it has been held that the father ought to be the guardian for the person and property of the minor under ordinary circumstances and the fact that Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.
8. The learned counsel appearing for the appellant would argue that the the past nine years, the children are with the appellant and it is not desirable to separate them from their maternal grandmother. A similar contingency was answered in the decision reported in Ayyathurai Pillai v. W.H.E. David : AIR1960Mad519 wherein the learned Judge has laid down that the minor might have developed love and affection and attachment to the other relations with whom he has to be negatived. There is considerable force in the argument of the learned counsel appearing for the respondent that the children might have been brain-washed and they may have an aversion and hate against him if the custody is not handed over to him since it has been laid down in the decision reported in Velan v. Muthu, 1991 1 L.W 643 as follows: It is also natural on the part of the petitioner-father to feel that if the minor child continues to live with his maternal grandparents and her mother's sisters, it may be brought up to hate the father or to have adverse impression about him at a later stage and this certainly is not desirable.' In the present case, a suit has been filed by the appellant herein in the name of the son of the petitioner as his guardian against the first respondent for partition of the joint family property, is not disputed. When the son of the petitioner was made to file a suit against his father, certainly there is every chance of the minor son developing an aversion and hatred against his father later in point of time. Therefore, the reason canvassed by the learned counsel appearing for the appellant that the minors are with the appellant for the past 8 or 9 years and therefore their custody should not be disturbed cannot be considered as a tenable one.
9. The learned counsel appearing for the appellant has finally argued that the minors are capable of taking a decision of their own and it is desirable that they are summoned to the court and their desire is also as certained. The minors are with the grandmother for the past more than 8 years. Therefore, I am of opinion that even if they are summoned to Court and their desire is also ascertained, it may not give a correct solution to decide whether the first respondent is entitled to the custody of his children or not. From the materials placed before the Court, I am of opinion that the appellant has not established any disqualification for the first respondent in order to have the custody of his two minor children and therefore the order passed by the learned District Judge cannot be interfered with. In that view, the appeal is liable to be dismissed.
10. In the result, the appeal is dismissed confirming the order passed by the learned District Judge in Guardian O.P. No. 194/1988. No costs.