Child custody on basic of child welfare ground

L. Chandran vs Venkatalakshmi And Anr. on 5 September, 1980

grand-daughter into her care and custody and since then has been bringing her up in her home at Secunderabad. Now, the petitioner, the father of the child, moves this application under Article 226 of the Constitution for the issuance of a writ in the nature of habeas corpus directed against the child's grandmother, the first respondent, for the production of the child into this Court and for handing over the baby to the custody of the petitioner. 2. The petitioner's mainstay of his case is his argument based on his paternal right to the custody of the child. He being the father and the natural guardian of the child, the petitioner asserts he has an unlimited right to claim back the custody of the minor from the hands of the maternal grand-mother. He also states that the child would be happier with him than with its maternal grandmother with her moderate financial resources. In view of the fact that one day in the none-too distant future the child has to live with the petitioner-father the petitioner also argues that it would be in the best interest of the welfare of the child for this

innocent and motherless child. 4. We may begin this case on a sad reflective note that this is the kind of human tragedy from which there is no help that drove away the compassionate souls like those of Lord Buddha and Lord Russel from the theological solutions to agnostic answers for solving problems of human misery. 5. Should we today deliver this motherless child to the petitioner by taking it away from the first respondent's custody, is the substance of the debate before us. Has the petitioner as a father got an unlimited right to claim the child's custody without reference to the latter's well being? 6. Smt. Malini Ganesh, the petitioner's counsel who moved this application, answered those questions in unhesitative affirmatives. She said that the baby should be handed over to her client, the petitioner herein, because he is its father. She contended that the petitioner being the father of the child is the natural guardian and as such he has an absolute and unlimited right to the custody of the minor child. She said that in issuing this writ, this court would be doing nothing more than enforcing the general

maternal grandparents from its birth and that it would be cruel to remove the child from them and deliver it to the father overruling the argument of the maternal grandparents that under Section 25 of the Guardians and Wards Act the Court has to consider whether it would be for the welfare of the child to direct the return of the child to the custody of the father, the District Court ordered in that case the child to be handed over to the father mainly on the basis of the father's right to his child's custody. Against that, the maternal grand-father filed an appeal to the High Court. That appeal was dismissed by a Division Bench consisting of Madhavan Nair and Thiru Venkatachariar, JJ. mainly on the ground that "when the guardian of the person of a Ward applied for the custody of the ward, he is only asking the Court to help him to discharge the duty cast on him by law, with reference to his ward and it is for those who oppose such an application to make out that the welfare of the ward will be better served by its being kept

Ward to be arrested and to be delivered into the custody of the guardian." Thus the Court can, nay it should consider the welfare of the child. The Court can under Section 25 of the above Act, handover the custody to the father only subject to the overriding consideration of the welfare of the minor child. It is, therefore, possible to read the above underlined observations in Atchayya v, Kosaraju Narahari (AIR 1929 Mad 81) (supra) as being confined to its own facts although there is no gainsaying the fact that those observations do suggest that when the child's custody is claimed by its father, as it is being done in this case, the Court cannot but grant the custody of the child to the father except in the rare instances where it is proved that the father is unfit to be the guardian. In other words, proof of parental unfitness alone according to that judgment can defeat the father's claim for custody. That judgment cites as authority for that view. Beasant's case (AIR 1914 PC 41) and Vijayanagaram's case. The question is whether this absolute proposition of law is correct. 11. It is now well