Bhagyalakshmi And Anr. vs K.N.

Narayana Rao on 21 September, 1981

Madras High Court

Bhagyalakshmi And Anr. vs K.N. Narayana Rao on 21 September, 1981
Equivalent citations: AIR 1983 Mad 9
Bench: Ratnam
JUDGMENT
1. This is an appeal under Section 47 of the Guardians and Wards Act 1890, against the order in O.
P. 103 of 1978, District Court, Salem allowing an application filed by the respondent herein under
Section 25 of the Guardians and Wards Act (hereinafter referred to as the Act) praying that the
appellants should be directed to hand over custody of three minor children Rama Rao, Punitha and
Nagaratnam to the respondent. The first appellant is the wife of the respondent herein, while the
second appellant is the father of the first appellant. The first appellant and the respondent were
married in 195 7 at Katapadi Village, Udipi taluk. The respondent secured a job with Kandasami
Spinning Mills, Komarapalayam, in 1964, and brought the first appellant to that place where they
lived together. Three children, viz., Rama Rao, Punitha and Nagaratnam were born to the first
appellant and the respondent and the children had been admitted into school at Komarapalayam
where they were studying. There were some minor quarrells and misunderstandings between the
first appellant and the respondent. The first appellant appears to have suggested that she may be
allowed to go to the village of Kote for a brief stay to which the respondent agreed and persuant to
this, the first appellant and the three minor children left Komarapalayam in or about July, 1975, and
the first appellant promised to return back to Komarapalayam with the children within a short time.
Thereafter, the respondent also is stated to have visited the first appellant and the children several
times, when he was informed by her as well as the second appellant that the first appellant was
suffering from a severe form of Arthritis and that she was undergoing treatment and believing this,
the respondent had allowed the first appellant and the children to continue to live at Kote. Even
thereafter, the respondent had visited the first appellant and the children once in every month and
also looked after their needs. While so, in or about March 1978, according to the respondent, the
appellants suggested that the respondent should deposit a substantial sum in the name of the first
appellant at Udipi so that she may draw the interest thereon and incur the expenditure on behalf of
the children. This suggestion, according to the respondent, was only to enrich the second appellant,
as he was a man of no means and when it was found by the respondent that all the sums given by
him had been utilised for the family expenses of the second appellant and only very little had been
spent on the children, the respondent appears to have informed the first appellant that she should
come back to Komarapalayam with the children and that further treatment can be had at that place.
On the refusal of the first appellant to do so, the respondent returned to Komarapalayam and
thereafter made attempts through one Y. Ramakrishnaiya to get back to Komarapalayam the first
appellant and the minor children, but all attempts in that direction failed. The first appellant sent a
notice on 15-4-1978, claiming a sum of Rs. 1000 per month as maintenance for herself and the
minor children. According to the respondent, he even thereafter requested the first appellant to
come back to Komarapalayam with the children, but she did not do so as she was only determined to
exploit the situation to squeeze some money out of the respondent. The respondent stated that he is
entitled to the guardianship and custody of his minor children Rama Rao, Punitha and Nagaratnam,
aged about 14, 12 and 9 respectively. It was also the further case of the respondent that in Kote
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village proper facilities for the education of children were not available and that the appellants also
did not command the means as well to give good education to the minor children. In addition, the
respondent claimed that minor Punitha was about to attain puberty and that it became necessary to
make arrangements for her marraige as well. The respondent further claimed that owing to lack of
adequate educational facilities as well as other psychological factors, it will not be in the interest of
the minors to allow them to remain to Kote. He therefore prayed that they should be directed
immediately to return to Komarapalayam. It was under these circumstances that the respondent
filed O. P. 103 of 1978, District Court, Salem, praying that his minor children Rama Rao, Punitha
and Nagaratnam should be restored to him.
2. That application was resisted by the first appellant herein, who pleaded that there were quarrells
owing to the ill treatment meted out to the first appellant and the minor children and that after
1972, the respondent had been ill-treating the first appellant and the children which made it
impossible for them to live with the respondent, and therefore, the first respondent was obliged to
live away from the respondent. The first appellant further pleaded that she was obliged to leave the
respondent in July 1975, with her minor children, as the respondent refused to maintain them. The
several visits to Kote village stated to have been made by the respondent were denied. The attempt
of the first appellant to secure a large sum of money from the respondent in her name to facilitate
her to draw interest thereon was denied. The first appellant also denied that the respondent had
asked her and the children to come back to live with him. The attempts stated to have been made
through mediators to secure the first appellant and minor children were refuted. While admitting
the issue of a notice dated 15-4-1978 to the respondent, the first appellant charged the respondent
with carelessness to look after the children and also stated that the welfare of the minor children will
be in jeopardy, if they were left in the care and custody of the respondent. The first appellant also
claimed that proper facilities to educate the children at Udipi or Manipal were available and that
such facilities were better than those available in the place of the respondent. The first appellant also
claimed that she had the means to give good education to the minor children. The first appellant
also put forth the plea that it would be proper and safe for Punitha, who was about to atttain the age,
to stay with the first appellant rather than with the respondent. An objection was also taken that the
minor children were not living with in the jurisdiction of the District Court of Salem, at the relevant
period or at the time of the filing of the application. The welfare of the minors, according to the first
appellant, required that they should not be left with the respondent and the application filed by the
respondent was characterised as an attempt to forestall the maintenance claim of the first appellant
and the minor children.
3. The second appellant adopted the counter of the first appellant.
4. Before the court below, the respondent examined himself as P. W. 1 and marked Exs. A. 1 to A 4,
while, the first appellant examined herself as R. W. 1 and relied upon Exs. B. 1 to B. 3. On a
consideration of the oral as well as the documentary evidence, the Court below found that the first
appellant was unable to maintain herself and the minor children, that the second appellant is in
indigent circumstances and unable to maintain them and that the respondent was in a better
position to look after the children and their welfare and also best suited to be the guardian of the
minor children. On that conculsion, the petition filed by the respondent was allowed and the
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appellants were directed to hand over custody of the three minor children to the respondent herein.
Aggrieved by this, the appellants have preferred this appeal.
5. The learned counsel for the appellants first contended that the application filed by the respondent
herein could not have been entertained by the District Court at Salem, since the minors did not
`ordinarily reside' at any place within the jurisdiction of that Court. Elaborating this contention, it
was further submitted that the first appellant along with the minor children, left Komarapalayam on
1-7-1975 and thereafter all of them had been living at Kote village within the jurisdiction of the
District Court at South Canara and therefore, the District Court at South Canara alone had
jurisdiction to entertain the application. Reliance in this connection is also placed by the learned
counsel for the appellant on the decisions reported in Mst. Judge Kaur v. Jaswant Singh, and Mst.
Firoza Begum v. Akhataruddin Laskar, AIR 1963 Assam 193. It is also further pointed out that the
Court below had not adverted at all to this jurisdictional objection. On the other hand, the learned
counsel for the respondent and the first appellant had been living in Komarapalayam till July 1975
and that the minor children, should therefore, be taken to have been 'ordinarily residing' within the
meaning of Section 9(1) of the Act at Komarapalayam within the jurisdiction of the District Court at
Salem. It is also submitted that the actual place of residence of the minors at the time of the filing of
the application does not determine the jurisdiction of the Court and that in the absence of anything
to indicate that there was an intention to abandon Komarapalayam as a place of residence the mere
circumstances the minors were in the custody of the first appellant at Kote village would not make
them ordinarily residing at Kote so as to render the proceedings initiated before the District Court at
Salem without jurisdiction. A further point is also raised by the learned counsel for the respondent
that the order was passed by the Court below on the merits of the application after due hearing and
that technicalities should not be allowed to prevail when there was no failure of justice. In this
connection, reliance was also placed on the decision in Shah Haichand Ratanchand v. Virbal, .
6. It would be pertinent to notice the relevant statutory provisions which have a bearing on the
question debated. Section 4(4) of the Act defines a 'District Court' as having the meaning assigned to
that expression in the Civil P. C. and includes a High Court in the exercise of its ordinary original
civil jurisdiction. Section 4(5)(a) states that 'the court' means the District Court having jurisdiction
to entertain an application under the Act for an order appointing or declaring a person to be a
guardian. S. 9 relates to the jurisdiction of the court to entertain an application. The provision
relevant in this case is S. 9(1) of the Act which reads as under :"If the application is with respect to the guardianship of the person of the minor, it shall be made to
the District Court having jurisdiction in the place where the minor ordinarily resides."
Section 25 of the Act provides as follows:"25. Title of guardian to custody of ward:
(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court if it is of
opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make
an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested
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and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a
Magistrate of the first class by Section 100 of the code of Criminal Procedure, 1882 (now the code of
Criminal Procedure 1973 (Act 2 of 1974) and the corresponding section is S. 97).
(3) The residence of a ward against the will of his guardian with a person who is not his guardian
does not itself terminate the guardianship."
7. In the light of the aforesaid statutory provisions, the question whether the minor children in the
present case 'ordinarily resided' at Komarapalayam within the jurisdiction of the District Court at
Salem or not, has to be decided. If it is to be held that they were so residing, it is not disputed that in
that event, the District Court at Salem will have jurisdiction to entertain the proceedings. The words
'ordinarily resides' would in my view connote, a regular, normal or settled home and not a
temporary or forced one to which a minor might have been removed either by stealth or by
compulsion. The place of residence at the time of the filing of the application under the Act does not
help to ascertain whether a particular court has jurisdiction to entertain the proceedings or not, as it
would be easy to stifle proceedings under the provisions of the Act by the mere act of the moving the
minors from one place to another and consequently from one jurisdiction to another. The question
whether the minors were ordinarily residing in any particular place has to be primarily decided on
the facts of the particular case. The paternal family of the house of the family residence may
normally be taken to be the place of ordinary residence of the minors as well. The words 'ordinarily
resides' are incapable of any exhaustive definition as those words have to be construed according to
the purpose for which the enquiry is made. The intention of not reverting back to the former place of
residence would normally be relevant; but in the case of the minors, it is rather difficult to impute
any such intention to them. It has also be borne in mind that mere temporary residence or residence
by compulsion at a place however long, cannot be equated to or treated as the place of ordinary
residence. Bearing in mind these considerations, it is necessary to ascertain from the materials
available in this case as to where the minors 'ordinarily resided' for purpose of the Act. There is no
dispute that till 1-7-1975, the first appellant, the respondent and the minor children were all living
together under one roof in Komarapalayam. It is thereafter that the first appellant left
Komarapalayam taking the children also with her and continued to live with her father's house at
Kote village with the children till the proceedings were initiated by the respondent under S. 25 of the
Act. The evidence of the first appellant, examined as R. W. 1, is to the effect that she and the
respondent resided together with the children at Komarapalayam. In the course of her
cross-examination R. W. 1 admitted that the respondent requested her and the children to come and
live with him. It is also further admitted that an ex parte decree for the restitution of conjugal rights
had also been obtained by the respondent. On this evidence of R. W. 1, it is rather difficult to hold
that she had completely abandoned her husband's house at Komarapalayam as a place of residence
and had decided permanently to stay at Kote. The minor children had been taken by the first
appellant when she left her husband's abode, presumably on account of certain misunderstandings
and quarrels that had arisen between the first appellant and the respondent and though the
differences between them apparently had not been patched up later, there is nothing in the evidence
which would disclose that there was any idea of abandonment of the family house at
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Komarapalayam on the part of the first appellant. At any rate, the minor children cannot be imputed
with any intention of abandoning the family residence at Komarapalayam, as they are obliged to
stay with their mother, who had taken them to Kote village. The residence of the minors at Kote
village, though for some years, has necessarily to be regarded as a temporary one or under
compulsion or force of circumstances and could not therefore be regarded as the ordinary place of
residence, which as stated earlier connotes the idea of a settled home, which is only in
Komarapalayam. Though the words used in S. 9(1) of the Act are 'ordinarily resides', the mere
residences on the date of application, as stated earlier, cannot be decisive of the matter. In the
present case, the evidence points out that the settled home or abode of the minors is only at
Komarapalayam and not at Kote, village, to which place they had been merely removed by the first
appellant owing to certain misunderstandings between her and the respondent and such residence
at Kote village is merely a temporary residence taken up not with the idea of permanently
abandoning Komarapalayam as a place of residence. In Mst. Firoza Begum v. Akhtaruddin Laskar,
AIR 1963 Assam 193, on the facts, it was found that the minors had been ordinarily residing at
Silchar for a period of about 3 years prior to the making of the application and therefore the
requirements of S. 9 of the Act satisfied with reference to the Court at Silchar. There were also rival
applications filed by the father as well as the mother. On the facts of the present case, that decision
cannot, therefore, be applied. The reliance placed upon Mst. Jagir Kaur v. Jaswant Singh , does not
also assist the appellants as the Supreme Court in that case was concerned with the interpretation of
Sec. 488, Cr. P. C. The language employed in that provision is very different from that in S. 9(1) of
the Act. Apart from this, it is also pointed out by the Supreme Court that the meaning of the word
'residence' has to depend upon the context and that S. 488 Crl. P. C. is intended to serve a social
purpose and also to enable a deserted wife or a helpless child to get urgent relief against the
husband or the father, as the case may be, in a place where he resides, permanently or temporarily,
or where he last resided, or even where he happens to be at the time of the proceedings are initiated.
Such consideration cannot be applied with reference to S. 9(1) of the Act. On a consideration of the
evidence, it has already been found that the settled home of the first appellant and the minors is
only Komarapalayam, where they had ordinarily resided and as there has been no manifestation of
any intention to abandon that as a home or abode, it must be held that the minors ordinarily resided
only at Komarapalayam and not at Kote village. The proceedings under S. 25 of the Act initiated by
the respondent where thus properly laid before the District Court at Salem.
8. There is yet another point of view from which the question of jurisdiction may be considered. The
objection with reference to the jurisdiction of the District Court at Salem to entertain the petition
filed by the respondent was no doubt raised in the counter but it does not appear to have been
seriously urged, as otherwise, that would have been dealt with by the court below. But even
otherwise, the appellants had participated in the proceedings and had also given evidence and on a
consideration of the evidence that was placed before the court and taking into account the welfare of
the minors, the court below had directed the appellants to hand over the custody of the minor
children to the respondent. It cannot be said that there has been a consequent failure of justice. S. 21
C. P. C. is intended to avoid technicalities based on local or territorial jurisdiction in the upholding
of the orders of the court. In Shah Harichand Ratanchand v. Virbal, , it has been laid down that S. 21
C. P. C. is a transcendental and curative provision to see that technicalities do not prevail, when
there is no failure of justice and that the appellate court was bound to resort to this curative
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provision before declaring the order of the District Court to be null and void by upholding the
objection about territorial jurisdiction. Even on this ground, the contentions of the appellants that
the District Court at Salem had no jurisdiction to entertain the application filed by the respondent
has to fail.
9. The next contention of the learned counsel for the appellants is that the court below has not
considered the question of the welfare of the minors at all but had proceeded to judge only the
suitability of the respondent and that such an approach is bad. It is also further submitted that the
custody of the children should be allowed to remain with the first appellant that she is the mother
and she is also best suited to look after the children with all her love and affection. On the other
hand the learned counsel for the respondent submits that the criticism of the learned counsel for the
appellants that the court below proceeded to consider only the suitability of the respondent to be a
guardian is not justified at all as the entire evidence had been considered and only thereafter the
respondent had been declared to be the person with whom the minors should be allowed to live
having regard to their welfare. The further point made is that the evidence discloses a definite
incapacity on the part of the appellants to look after even the daily needs and the minimum
requirement of the minors and that under these circumstances, the court below was quite correct in
directing the appellants to hand over the custody of the minor children to the respondent. In
deciding the question of custody, the paramount consideration is the welfare of the minors. The
expression 'welfare' is wide enough to include material as well as spiritual welfare. The court has to
consider as to what order would be best for securing the welfare and happiness of the minors. The
welfare of the children cannot at the same time be confined to either physical comfort or the comfort
that money can secure. The children have to be properly brought up, educated in healthy
surroundings in order to enable them to have the benefits of education and also to secure a footing
in life later on. Under S. 6 of the Hindu Minority and Guardianship Act, the natural guardian of a
Hindu Minor in respect of the minor's person as well as the property is the father and only after him,
comes the mother. This is no doubt, qualified by the circumstances that the custody of a minor who
has not completed five years, shall certainly be with the mother. In this case all the minors have
completed five years. Normally, the natural guardian is entitled to the custody of the minor and as
stated already, in so doing the court will be concerned only with the welfare of the minor. In the
present case, the children were aged 14, 12 and 9 even at the time the application was filed on
30-5-1978, and by now, they have grown up considerably. With a view to ascertain the wishes of the
minors, they were directed to be produced before Court and when questioned, they were not averred
to the idea of staying with their father. It was also attempted to be stated that the respondent was
leading a wayward life. It is atone evident that the children of tender years cannot really have any
knowledge of the wayward life stated to have been led by the respondent and that they have been
tutored to say so, especially when even the case of the first appellant is not that. Needless to say, this
attempt is only to prejudice if possible, the claim of the respondent. It is therefore not possible to act
upon what has been expressed by the children. That leaves for consideration the question of the
proper custody of the minor children. Out of the three children, the first is a boy and the other two
are girls. The evidence of the first appellant, examined as R. W. 1, discloses that the appellants have
borrowed large amounts and that the second appellant owns a house and an acre of land. The
annual income therefrom is stated to be only Rs. 1000 or Rs. 1500, R. W. 1 would also admit that the
respondent commands better facilities and that while living with him in Komarapalayam he was
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drawing a monthly salary of Rs. 3000. Ex A-1 issued at the instance of the first appellant also refers
to the inability of the first appellant to maintain herself and the minor children as her parents are
not in a position to maintain the first appellant and her children. From Ex. A-1 and the evidence of
R. W. 1, it is evident that she is unable to maintain herself and the children. It is therefore not
possible even according the first appellant to give a comfortable living to the children and also see to
it that they are properly brought up and educated. The evidence of the respondent, examined as P.
W. 1, would show that he is earning substantial amount and that he can also look after the children
and give them the best of education available in Komarapalayam where they had been studying
earlier. It may be that the children have lost touch with the respondent who has also been close to
them. It is also evident that there has also been a calculated attempt by the appellant to paint a
distorted picture of the respondent, in the impressionable minds of the children. But the
environment in which the children are now being brought up does not appear to be very congenial
for their growth and development. In so far as the son is concerned, he needs the care, love,
protection, guidance and advice of the father in order to enable him to embark upon a course of
useful study to secure a good footing in life and employment as well. In such matters the father's
advice and guidance would be more valuable and conducive to the welfare of the son rather than
that of the mother. The other two are, no doubt, girls and even in respect of them as noticed earlier,
the father would be the natural guardian. No doubt, those two children will be soon attaining age
and during that period they have to be carefully looked after. The respondent, who also appeared
before the court, impressed me as a very decent gentleman and a loving father and had assured that
he would endeavour to do his very best to see to it that even the girls are looked after carefully with
all comforts and convenience and also provided with education benefiting his status and means. The
respondent is decently employed in Komarapalayam and is also holding a responsible post in a
textile mill earning substantial amount, and it would, therefore, be not difficult for the respondent to
command the comforts as well as the conveniences that may be required by the children to make up
their life comfortable, happy and cheerful. The environment in which the children are now being
brought up is not so congenial to their welfare as the second appellant on whom the first appellant is
dependant, is heavily indebted and has practically no property and he is also very old and is not
expected to live for many years. In the event of something happening to the second appellant the
first appellant will be completely left in lurch without any male help or assistance. It would also be
exceedingly difficult for her to maintain the children on further borrowings living away from the
respondent. In my view, on the facts and circumstances of the present case, the welfare of the minor
children compels that they should be allowed to remain with the respondent, rather than with the
first appellant, though she is the mother. Having regard to these considerations, it cannot be said
that the Court below was in error in having directed the appellant to handover the custody of the
minor children to the respondent. Consequently, the civil miscellaneous appela fails and is
dismissed, but having regard to the close relationship between the parties, there will be no order as
to costs.
10. Appeal dismissed.

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