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accent salary and holding a responsible post is in a better position than the mother who is apparently not
possessed of any property to provide for the needs of the child and for her settlement in life.
5. Sri Lakshminaranappa, the learned counsel for the mother, argued that having regard to the fact that
attachments and affections of the
mother are higher than those of any other towards a child and that step-mothers as a rule are not kindly to their
step-children, the child should be allowed to live with the mother. He has also represented that the minor
being her only child would receive from her undivided attention unlike the stepmother who has children of her
own to be nursed. The sincerity of feelings and certainty of devotion of a mother to-wards an only child
particularly when it happens to be a girl and that a stepmother however well-disposed is not an adequate
substitute for a mother are beyond question. But these alone cannot be a determining factor for her being
appointed guardian, the paramount consideration being the welfare of the minor. Welfare cannot mean merely
physical comfort and must be taken in its widest sense to Include amenities and arrangement required for the
girl being educated and accomplished to be happy in the present as well as in the future. It is doubtful whether
the facilities now afforded to the child for these by the father will be available with the mother as she herself
has to live with others.
6. As mentioned in the order of the learned District Judge, Section 16, Guardians and Wards Act requires that
the personal law applicable to the parties is to be taken into account while appointing a parson as guardian.
Under the Hindu Law the primary right to be the guardian of the children is that of the father. (See
Colebrooke's Digest, Volume 3, Chap. 8). In '33 Mys HCR 226 (B)' a Bench of this Court held "a father as the
natural guardian is entitled to have the custody of the infant as against other relations inclusive of even the
mother and his claim must be allowed to prevail unless .....the Court is Judicially satisfied that
the welfare of the child requires that the parental right should be superseded."
Though it was a case in which the dispute was not between father and mother, as in this case, but between
father and maternal grand-father after the death of the mother, the principle enunciated in the decision is
important. Sri Lakshmina-ranappa, learned counsel for the appellant cited some cases in support of his
contention that the mother should be appointed guardian of the minor in preference to the father.
'Saraswathibai Shripad v. Shripad Vasanji', AIR 1941 Bom 103 (C) strongly relied upon was a case in which
the minor was a boy of 2 1/2 years living with the mother when the father who had taken a second wife
applied for being appointed guardian. The application was dismissed on the view that though the father was
the natural guardian the interests of the boy did not Justify his being taken away from the custody of the
mother, with a significant remark by Wadia J. "the father having married again may not be a ground for
depriving him of the custody of his minor child". --'Kaliappa Goundan v. Valliammal', AIR 1949 Mad 603
(D) is a decision of a single Judge in which this case is referred to as laying down that the mother's claim
should be upheld In preference to that of the father. The decision cannot be taken to be that the father should
be deprived of the custody of the child even though he is taking care of it well. --'Narasimha Setty v.
Chennamma', AIR 1950 Mys 8 (E) was also a case in which the application of the father was dismissed, the
reason being that the minor was brought up by the maternal relations for years ever since it was left with them
by the mother and father, the father evinced no interest in the minor for years and after the settlement of
properties for the benefit of the minor by the maternal relations and on the death of the mother the father put
forward the claim. -- 'Bai Tara v. Mohan Lal Lallubhai', AIR 1922 Bom 405 (P) and --'Shushila Ganju v.
Kunwar Krishna',- AIR 1948 Oudh 266 (G) are other cases in which the application of the father who had
taken a second wife was dismissed. In --'Bindo v. Sham Lal', 29 All 210 (H) also his application against
maternal relations was dismissed.
What may be gathered 'from all these cases is that the welfare of the minor is the primary and paramount
consideration for the appointment of any one as guardian and that subject to this, if the minor is and has been
in custody of the mother or other relations at the time the application is made and well looked after by them
Indian Kanoon - http://indiankanoon.org/doc/180862/
the Court will be loath to interfere. This is not a case of attempting to take away the child from its mother but
a case in which the question is whether a child who has been away from her mother for a long period shall be
'forced' to go back to her against the inclinations of the minor as ascertained in the lower Court whatever value
may be attached to it. It may look cruel to refuse the mother's request but no less painful would it be to snatch
the child from the father who has been a de facto mother. Sympathy and -sentiment apart, under the
circumstances, we think that it is not in the interest of the minor to disturb her stay with the father.
7. The appeal is dismissed. Parties will bear their own costs.
8. Appeal dismissed.