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TMI Blog1973 (4) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... on reflects the feelings of the husband and the wife towards each other in the present litigation. The short question which we are called upon to decide relates to the guardianship of the three children of the parties and the solution of this problem primarily requires consideration of the welfare of the children. The appellant, Rosy Chakramakkal (described herein as wife) was married to respondent Jacob A. Chakramakkal (described herein as husband) sometime in 1952. Three children were born from this wedlock. Ajit alias Andrews,, son, was born in 1955, Maya alias Mary was born in 1957 and Mahesh alias Thomas was born in 1961. Sometime in 1962 the wife started proceedings for judicial separation (O.M.S. 12 of 1962). on the ground that the husband had inflicted upon her several acts of physical, mental and moral cruelty and obtained a decree on April 15, 1964. Sadasivam J., while granting the decree directed that Ajit alias Andrews (son) the eldest child should be kept in the custody of the husband and Mary alias Maya (daughter) and Thomas alias Mahesh (youngest son) should be kept in the custody of the wife. The husband was directed to pay to the wife ₹ 200/ per mensem toward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely made an order on February 2, 1967 modifying its earlier directions. The modified order directed Maya to be left in the exclusive custody of the wife who was at liberaty to educate her in the manner she thought best at her own cost. The appellate court also modified the direction regarding maintenance and ordered that the husband should pay to the wife maintenance at the rate of ₹ 200/- p.m. as awarded by the learned single judge. Subsequently the directions of the appellate, court regarding access of the mother and the father to the children were also sought by the parties to be modified to the prejudice of each other. The matters are stated to have been heard by most of the Judges of the Madras High Court at one stage or the other and according to Maharajan J., ',he parties even tried to secure transfer of these proceedings by making wild allegations of partiality against some of the Judges. The husband who is an advocate of the Madras High Court, had, according to the wife, been filing cases systematically against her and the wife, who, in the opinion of Maharajan J., has the gift of the gab also argued her own cases. The children for whose welfare the parents are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y which a mother alone could give, was also kept in the custody of his mother. With respect to Maya and Mahesh it was further observed that from their educational. point of view the wife was a more suitable custodian than the husband because she was running a primary school from nursery to fifth standard with more than a hundred pupils and was also residing in a portion or the school premises enjoying certain facilities in her capacity as the founder and principal of that school. The husband, who was described as a grass widower without female relatives to look after the children, was not preferred to the wife as, while being with her, the children would be living in an academic atmosphere. With respect to the husband's complaint that from the moral point of view the wife was not fit to have the custody of the children, Maharajan J., observed that earlier Sadasivam J., had dealt with the entire evidence relating to this charge and had found no sufficient ground for such amputations and that they were likely to cause mental pain to the wife and affect her health. The husband had even been held guilty of mental and moral cruelty to the wife. The husband's contention that his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge, fater considering at length the wife's allegations against the husband with respect to his extravagance and inability, reduced the quantum of maintenance payable by him to the wife to ₹ 100/- p.m., the reduced amount being payable with effect from January 1, 1971. The husband was directed to pay the monthly maintenance on or before the 10th of the succeeding month. This order was made with the observation that the earning capacity of the wife was superior to that of the husband. It is un necessary to refer to the formal orders separately passed in the various applications. Suffice it to say that the parties were left to bear to their own costs and hope was expressed in the concluding para of the judgment by Maharajan, J. that the parties will refrain from rushing to this court with applications of the kind that have been dismissed and will apply themselves assiduously to the improvement of their status in their respective professions and to alleviation of the pain of material failure, which has unfortunately been visited upon the three lovely and sprightly children that they have produced. Contrary to the hope expressed by learned Judge, the matter was taken to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to who is fit and proper to be the guardian for the person of the minor children in this case. In his view the principle on which the Court should decide the fitness of the guardian mainly depends on two factors : (i) the father's fitness or otherwise to be the guardian and (ii) the interests of the minors. Considering these factors it was felt that both the parties in the present case loved their children who were happy during their stay with both of their parents. There was in his view, absolutely no proof as regards disqualification of the husband to be the guardian of the minor children. It may here be pointed out that both the Judges constituting the Letters Patent Bench wrote separate judgments. Gokulakrishnan J., commenting on the Judgment of Maharajan J., observed thus : Maharajan J. in his judgment under appeal no doubt referred to section 19 of the Guardians and Wards Act, but would observe that if the Court finds that the welfare of the minor children could be protected only in the maternal custody, the Court has power to put the children in the care of custody of the mother. The learned Judge clearly observed that Ajit, the eldest boy, who is in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter and protected and imparted with proper education by the affectionate father, the appellants After reproducing certain observations from the judgment', of (i) Sadasivam J., dated April 15, 1964, (ii) Veeraswamy 1.. (as he then was) and Krishnaswami Reddy J., dated February 1967 in C.M.P. 415 in O.S.A. nos. 63 65 of 1969, Ramamurthy J., dated April 24, 1968 in application nos. 769 and 770 of 1968 in O.M.S. 12 of 1962 and after referring to the view of Maharajan J., that Ajit when produced in Court was found quite healthy and cheerful and was doing well at school, Venkataraman J. in his concurring judgment observed thus :- Regarding the other children, he gave their custody to the mother, because he thought that they were of tender years and needed emotional security which a mother alone could give. Here, with respect we must differ from the learned Judge. We find that the father is quite fit to have the custody of the children, and. in law, custody of the minor children cannot be refused to him. We are also satisfied from what we saw of the appellant and, heard from him during the several hearings, that he is very deeply attached to his children and is quite competent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressed before us at the outset. These lengthy applications covering nearly 50 pages mainly contain arguments on the merits and there is hardly any cogent ground made out justifying revocation of the special leave. It is no, doubt open to this Court to revoke special leave when it transpires that special leave had been secured by the appellant on deliberate misrepresentation on a material point having a bearing on the question of granting such leave. The extraordinary discretionary power vested in this Court by the Constitution under Act, 136 is in the nature of a special residuary power exercisable in its judicial discretion outside the purview of ordinary law in cases where the needs of justice demand interference. Being discretionary power intended only to Promote the cause of justice when there is no other adequate remedy, this Court expects those seeking resort to this reserve. of constitutional power for securing justice to be absolutely fair and frank with this Court in correctly stating the relevant facts and circumstances of the case. In the event of a party making a misrepresentation on a point having a bearing on the question of the exercise of judicial discretion and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench in the manner in which it is pressed before us. In this Court also in the special leave appeal the objection seems to be based on the argument that the Guardians and Wards Act would be inapplicable to cases where orders have been made in. matrimonial proceedings, and s. 19 of the Guardians and Wards Act cannot control the custody or children given by a consent decree under the Indian Divorce Act. However, as the objection was stated to pertain to jurisdiction we allowed the parties to address us on this point. For determining the question of competence of the husband's application under s. 25 of the Guardians and Wards Act (18 of 1890) it is necessary to examine the scheme of that Act as also the relevant provisions of the Indian Divorce Act. The Guardians and Wards Act was enacted in order to consolidate and amend the law relating to Guardian and Ward. But as provided by s.3, this Act is not to be construed, inter alia ,to take away any Power possessed by any High Court. According to s.4, which is the definition section, a minor' is a Person who, under the provisions of the Indian Majority Act, 1875 is to be deemed not to have attained his majority. Under S. 3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt from appointing guardians in certain cases, reads : 19. Guardians not to be appointed by the Court in certain cases Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person. (a)of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or (b)of a minor whose father is living and is not, in the opinion of the Court. unfit to be guardian of the person of the minor, or (c)of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor. Chapter III (ss. 2O to 42) prescribes duties, rights and liabilities of, guardians. Sections 20-23 (General provisions) do not concern us. Section 20 provides for the fiduciary relationship of guardian towards his wards and S. 22 provides for remuneration of guardians appointed or declared by the Court. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ren of the parties. Section 41 of the Divorce Act empowers the Court to make interim orders with respect to the minor children and also to make proper provision to that effect in the decree : s. 42 empowers the Court to make similar orders upon application (by petition) even after the decree. This section expressly embodies the legislative recognition of the ,fundamental rule that the Court as representing the State is vested with the power as also the duty and responsibility of making suitable orders for the custody, maintenance and education of the minor children to suit the changed conditions and circumstances. It is, however, noteworthy that under Indian Divorce Act the sons of Indian fathers cease to be; minors on attaining the age of 16 years and their daughters cease to be minors on attaining the age of 13 years : s. 3(5). The Court under the Divorce Act would thus be incompetent now to make any order under ss. 41 and 42 with respect to the elder son and the daughter in the present case. According to the respondent husband under these circumstances he cannot approach the Court under the Divorce, Act for relief with respect to the custody of these children and now that those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hildren's custody is S. 25. Without, therefore, laying down exhaustively the circumstances in which s. 25 can be invoked, 'in our opinion, on the facts and circumstances of this case the husband's application under S. 25 was competent with respect to the two elder children. The Court entitled to consider all the disputed questions of fact or law properly raised before it relating to these two children. With respect to Mahesh alias Thomas. however, the Court under the Divorce Act is at present empowered to make suitable orders relating to his custody, maintenance and education. It is, therefore, somewhat difficult to impute to the legislature an intention to set up, another parallel Court to deal with the question of the custody of a minor which is within the power of a competent Court under the Divorce Act. We are unable to accede to the respondent's suggestion that his application should be considered to have been preferred for appointing or declaring him as a guardian. But whether the respondent's prayer for custody of the minor children be, considered under the Guardians and Wards Act or under the Indian Divorce Act, as observed by Maharajan J., with which ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the mother, then, he cannot claim indefeasible right to their custody under s.25 merely because there is no defect in his personal character and he has attachment for his children which every normal parent has. These are the only two aspects pressed before us, apart from the stress laid by the husband on the allegations of immorality against the wife which, in our firm opinion, he was not at all justified in contending. Such allegations, in view of earlier decisions, had to be completely ignored in considering the question of custody of the children in the present case. The father's fitness from the point of view just mentioned cannot over-ride considerations of the welfare of the minor children. No doubt, the father has been presumed by the statute ,generally to be better fitted to look after the children-being normally the earning member and head of the family-but the Court has in each-case to see primarily to the welfare of the children in determining the question of their custody, in the background of .all the relevant facts having a bearing on their health, maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, no longer holds good and that, therefore, their custody must be handed over to him appears to us to be misconceived. The age of the daughter at present is such that she must need the constant company of ,I grown-up female in the house genuinely interested in her welfare. Her mother is in the circumstances the best company for her. The daughter would need her mother's advice and guidance on several matters of importance. It has not been suggested at the bar that any grown-up woman closely related to Maya alias Mary would be available in the husband's house for such motherly advice and guidance. But this apart, even from the point of view of her education, in our opinion, her custody with the wife would be far more beneficial than her custody with the husband. The youngest son would also' in our opinion, be much better looked after by his mother than by his father who will have to work hard to take a mark in his profession. He has quite clearly neglected his profession and we have no doubt that if he devotes himself' wholeheartedly to it he is sure to find his place fairly high tip in the legal profession. The appellant's argument based on estoppel and on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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