1. Niraja and Neeratha are two little kids aged 4 years and 3 years. Their father Vijayakrishnan Nair and their grandmother are fighting a fierce legal battle for them. Vijayakrishnan Nair married Sreedevi on 5-7-1984. It was not an arranged marriage. They met and decided to live in marriage bond. The parents of Sreedevi were not very happy about the marriage. Sreedevi is now no more. She died on 30-1-1990. It was not a natural death. Sreedevis parents believe that it is a homicide and Vijayakrishan Nair is responsible for the death of Sreedevi. Vijayakrishnan Nair tells the court that it was a suicide and the cause was not at all attributable to him, but the end result of an intense remorse, Sreedevi had on the guilty feeling of her own marital infidelity and deviations. These unhappy events made two innocent children, the spear head of a hotly contested litigation.

2. The maternal grandmother of Niraja and Neeratha reached the Guardian Court (District Court) for the custody and Guardianship of Niraja and Neeratha. It was seriously opposed by the father, Vijayakrishnan Nair. The legal battle with all its fury and frenzy followed. The District Court discussed the evidence thoroughly, appreciated, assessed and weighed all the circumstances and facts emerged in the case, applied the law on the subject, keeping in mind the paramount consideration, when such a litigation comes before the court, viz, the welfare of the child; of course, under a legal setting and found that the father cannot be dumbed as an unfit person to be the guardian of the person of the children, but thought it fit to entrust the custody of the two minor children with the grandmother. Of course, the order is not a permanent one, it is an order, which is capable of review time to time and on new circumstances. Liberty was given to both parties to approach the court for modification of the order or for cancellation of the order or substituting fresh orders.

3. When the custody was given to the maternal grandmother, the court made it not free from conditions; it attached certain conditions, for creating a genial and cordial atmosphere so as to bring together all who are fighting with canine madness but are intensely concerned with the welfare and Interest of the minors. The grandmother is aggrieved both on account of the conditions imposed in the order and also on account of the refusal to appoint her as the guardian of the person of the minor children. The father is more aggrieved on account of the conditions in the order and on account of the deprivation of the primary right of the guardian to have the custody of the minor children. Both the parties are dissatisfied and disappointed. Learned counsel on both sides by their lengthy, simmering and high spirited arguments before us echoed the dissatisfaction of their clients with the order. Grandmothers appeal is M. F. A. No. 363 of 1991 and fathers appeal is M. F. A. No. 771 of 1991.

4. The grandmother filed the appeal challenging only the conditions imposed in the order. She did not challenge the refusal to appoint her as the guardian of the person of the minor children. Apprehending that such an appeal may be incompetent or defective insofar as the appellate provisions contained in the Guardian and Wards Act, 1890, for short, the Act, did not allow an appeal only against the conditions imposed in the matter of custody of a ward, the appellant - grandmother wanted to amend the appeal memorandum adding a prayer challenging the order on the ground of refusal to appoint her as the guardian Of the person of the minor children. The amendment was also considered along with the appeal.

5. The respondent - father submitted that in view of the appeal provisions contained in the Act, viz. S.47, the appeal filed by the grandmother cannot be considered as an appeal at all. because such an appeal is not maintainable and so, the amendment is not possible and the application to amend the appeal has to be dismissed, and as a consequence, the appeal also has to be dismissed. The provision regarding appeal reads thus: -

"47. Orders appealable. An appeal shall lie to the High Court from an order made by a Court, --

(a) under S.7, appointing or declaring or refusing to appoint or declare a guardian; or

(b) ............

(c) under S.25, making or refusing to make an order for the return of a ward to the custody of his guardian; or,

6. Learned counsel, Shri P. Sukumaran Nair, appearing for the father, submitted that so long as the refusal to appoint the grandmother as the guardian of the person has not been challenged at the first instance, that appeal cannot be considered as an appeal at all, and so, if there is no appeal, it cannot be rectified or amended. Counsel Shri Karthikeya Panicker, appearing for the grandmother, submitted that this court will not be justified in taking such a hyper technical view about the matter. The grandmother wanted . her to be appointed as the guardian of the person of the minor and also absolute unfettered custody of the minors, but the order refused her prayer to be appointed as the guardian, but allowed custody of the children on certain conditions. Certainly, she was aggrieved both by the conditions imposed in the matter of custody and also on the refusal to appoint as the guardian. The order challenged is an appealable one and that it was put in appeal, but the prayer was confined to removal of the conditions. The subject matter of the appealed order is one refusing to appoint the grandmother as the guardian; so it can be treated only as a defective appeal. It will be too grammatical and literal, far from meaningful and realistic to treat the appeal filed by the grandmother as no appeal at all, since it is an appear against an appealable order, and so it is difficult to hold that such an appeal cannot be amended.

7. Certainly, in an appeal challenging the order refusing to appoint the aggrieved person as guardian, this court can surely consider the legality of the conditions of the custody of the minors given to the appellants. Further, counsel submitted that at any rate, the grandmother has got the right to file a fresh appeal and in such a case, the only question that has to be considered is the delay caused in filing the appeal. The delay is excusable in the circumstances of the case. Counsel submitted that all these aspects have to be taken into account before accepting the submission made by counsel for the father to dismiss the appeal of the grandmother. He also submitted that there if a paramount obligation on the part of the court to approach a question of custody of a minor/minors coming under the Act, not to take a too narrow and technical view, even if it is a question relating to the maintainability of the appeal or the delay in filing the appeal or rectifying a defective appeal filed by one of the parties in the litigation.

8. We were reminded the additional fact that the father has filed an appeal before this court, against the same order. This also has to be taken into account in considering the weight of the submission made by counsel for the father to dismiss the appeal filed by the grandmother. We feel that if we should consider the appeal filed by the grandmother as a defective appeal rather than a non est appeal, it will only promote justice by giving an opportunity to rectify the defect holding that the appeal pending is a defective one. We are of opinion that it will be super technical to say that what has been registered and numbered as an appeal against an appealable order is no appeal at all. When It is filed by an aggrieved party, all, necessary parties are arrayed as parties in the appeal. At any rate, it was not returned by the registry and it may not be possible for the registry to return it without posting it before the court. All these circumstances certainly persuade us to treat the appeal filed by the grandmother as one, which can be rectified by the, amendment. We allow the application for amendment. Certainly, we have to consider both the appeals together, because the points raised in both the appeals are intimately interlinked and the question raised in both the appeals is common. We shall proceed to consider the appeals now.

9. The marriage of the parents of the minor children was on 5-7-1984. After the marriage, the couple initially resided in the house of the husband. Thereafter, they shifted their residence and began to reside in a rented building in the city of Trivandrum. The husband was employed as a K.S.R.T.C. bus conductor. The evidence shows that he is a graduate. The mother of the children, Sreedevi, wanted to complete her studies. She secured a temporary job in the Life Insurance Corporation. Sreedevi died on the night of 30-1-1990. Of course, there is an aura of suspicion encircled on the death of Sreedevi.

10. The Guardian Court has adverted to those facts also. We feel that it has not got much bearing so long as we cannot decide the question involved in these appeals on the basis of any suspicion, as to the cause of the death of Sreedevi. After the death of Sreedevi, the children were taken by their maternal grandparents and they were living with them till this date. According to the grandmother, she is taking utmost interest in the welfare of the children and she has even made some deposits in favour of the children to manifest her concern about the welfare of the children.

11. The husband of Sreedevi contended that he is the natural guardian of the children and as a natural guardian, he has got the absolute right to have the custody of the children. Apart from that, he submits that the allegations against him that he is responsible for the death of Sreedevi are absolutely baseless and that should not have any influence in deciding this case. His only interest in life is to see that the children are brought up under his filial affection, care, direction and guidance. He submits that it is his right to determine, how the children have to be educated and in what way they have to be brought up as good citizens of the country. This right, being a guardian and father of the children, he cannot surrender to the grandmother of the children, The grandmother has got a case that the father of the children will be always out of station, considering the nature of his employment and cannot find time to take proper care of the motherless children. The status, character, age, manageability, convenience, disencumbrance and other allied and relevant circumstances of the grandparents and the father of the children are relevant in deciding the question Involved in these appeals. The grandmother, at the time of filing the petition was a High School Assistant in N. S. S. (HS) Madavoor, and her husband was a retired postmaster. Further, the grandmother of the children submitted that her mother, Chellamma Pillay, is also very much affectionate and fond of the children and she is always available in the house to look after the children.

12. On the above format of facts and after analysing the evidence regarding the status life style, official obligations of the father and discussing the various aspects of the matter concerning the question of appointing the grandmother for the person of the children, the Guardian Court found that there is no reason to hold that the father is unfit to act as the guardian, thereby saying that he cannot be removed from the natural guardianship of the minors. At the same time, the court considered the position of the grandmother and grandfather and their financial and other commitments and found that the welfare of the children will be better secured if the custody is given to the grandmother. So, the court ordered that the custody of the minor children must be with the grandmother on certain conditions.

13. Counsel on both sides argued the matter, focusing from different angles the content of the right of the natural guardian in the light of the provisions of the statute which mandates that the over ridding consideration in the matter of custody of the children must be the welfare and best interest of the children. Since counsel on both sides adverted to the law on the subject, we feel that we are bound to discuss the principles though it has been discussed, repeatedly in several decisions of various High Courts.

14. Before referring to the decisions cited, we shall refer to certain important provisions of law. The question has to be decided, taking into account the provisions of the Guardians and Wards Act, and also the Hindu Minority and Guardians Act. The relevant provisions in the Guardians and Wards Act are S.7, 17, 19 and 24. S.7 empowers the court to make order as to guardianship. The provision makes it abundantly clear that the court should pass an order when the court is satisfied that it is required for the welfare of a minor that an order should be made, appointing a guardian of his person or property, or both, or declaring a person to be such a guardian. S.17 deals with matters to be considered by the court in appointing a guardian. This section mandates that in appointing or declaring the guardian of a minor, the court, shall subject to the provisions contained in S.17, be guided, consistently with the law to which the minor is subjected to by what appears in the circumstances to be for the welfare of the minor. Further, it provides that in considering what will be the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. It also provides that if the minor is old enough to form an intelligent preference, the court may consider that preference.

15. S.19 of the Act is very much relied on by counsel for the father. It reads thus :-

"19. 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 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."

16. We may also refer to S.6 of the Act, which provides that "in the case of minor, nothing in the Guardians and Wards Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property, or both, which as valid by the law to which the minor is subject. S.6 is designed to make sure that the personal laws as to the appointment of the guardian of the person and property of the minor should not be interfered with on the basis of the provisions of the Act. S.3 of the Act provides that the provisions of the Act shall be read subject to every enactment heretofore or hereafter passed relating to any court of wards by any competent legislature, authority or person in any State to which the Act extends and nothing in this Act shall be construed to affect, or in any way derogate from the jurisdiction or authority of any Court of Wards, or to take away any power possessed by any High Court.

17. S.13 of the Hindu minority and Guardianship Act provides that the welfare of the minor shall be the paramount consideration in the appointment of declaration of any person as guardian of a Hindu minor by a court. Further, it is provided under S.13(2) that no person shall be entitled to the guardianship by virtue of the provisions of the Hindu Minority and Guardianship Act, or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

18. The histogenetic and the dominant design of the statutory provisions are clear to the effect that there cannot be any unrestricted, unlimited or absolute power to any person, whether he is the legal guardian or natural guardian to have the custody of a minor, simply for the reason that he holds the position that he is the natural guardian or legal guardian. The principle is that in the case of minors, who cannot be expected to express their intelligent preferences, the State assumes the ultimate responsibility for the welfare of the minors. This is the origin of parents patriae jurisdiction of the Courts sharing in the sovereign power of the State. This power is a fundamental power exercised by the court, being a court, which is sharing the sovereign power of the State and is an exercise of the judicial power of the State and naturally, it should always look to the welfare of the minor in all matters relating to his life. Every claim, including the one which has been advanced in this case by the father by virtue of his position as the natural guardian, with the additional qualification that a court has found that he is not unfit to be a guardian of the minors for the custody of the minor children, must be subordinate to the power and duty of this court to choose the right person to whom custody of the person of the minor has to be given to secure the overall welfare of the minor.

19. The rights and duties of the guardian of the person of an infant are clearly stated in Maynes Hindu Law thus: -

"The guardian has a prima facie right to the possession of the infant, a right which arises out of his obligations in respect of his children. He cannot, therefore, be deprived of it, even by the desire of the minor himself except upon sufficient grounds. In the case of parents, especially, it is obvious that the custody of their children is a matter of greater moment to them than the custody of any article of property. But his guardianship is in the nature of a sacred trust and the father cannot, therefore, substitute another in his stead. He may entrust the custody and education of his children to another but the authority he thus confers is essentially a revocable authority, and, if the welfare of his child requires it he can notwithstanding any contract to the contrary take such custody once more into his own hands. If however, his authority has been acted upon in such a way as to create association or give rise to expectations on the part of the infants which it would be undesirable in their interests to disturb or disappoint, the Court will interfere to prevent its revocation". (emphasis added).

20. The case law on the subject of custody of child has been considered elaborately, in the light of the provisions contained in S.1 of English Act - Guardianship of Minors Act, 1971-by Ormrod L. J. In BD) v. 5 (DJ) (Infants: care and consent) (1977) 1 All E. R.656). Of course, it was a dispute between father and mother for the custody of the child. Ormrod L. J. said thus "In my judgment the learned judge in this has asked himself the wrong question. The question is not what the essential justice of the case requires but what the best Interest of the children requires". This conclusion was reached following the House of Lords decision in J. v. C (1969) 1 All ER 788. Lord Mac Dermott said while dealing with S.1 the Guardianship of Infants Act, 1925 thus : "I think they connote a process hereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests the childs welfare as that term had now to be understood. That is the consideration because it is of first importance and the paramount consideration because it rules on or determines to be followed

21. In the same judgment, Lord Mac Dermott considered the question unimpeachable parents and their rights. As far as the case at hand is concerned, since the husband is relying much on the finding of the court below that he is not unfit to be the guardian as his great claim for the custody of the child, the following passage of Lord Mac Dermott is relevant: -

"S.1 of the Act of 1925 applies to disputes not only between parents, but between parents and strangers and strangers and strangers. In applying S.1, the rights and wishes of parents, whether unimpeachable or otherwise, must be assessed and weighed in their bearing on the welfare of the child in conjunction with all other factors relevant to that Issue. While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over other considerations, such rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases, The parental rights, however, remain qualified and not absolute for the purpose of the investigation, the broad nature of which is still as described in the fourth of the principles enunciated by Fits Gibbon, L, J. in Re O Hara."

Quoting what Lord Mac Dermott has said, Ormrod L J said that "It would be desirable that we should hear less of the unimpeachable parent in these cases in future". And it is further said thus: "The phrase unimpeachable parent seems to exercise a certain fascination over judges and advocates from time to time. I think it is a most misleading phrase. It is hurtful to the other parent in whom it invariably creates an immediate resentment and a bitter sense of injustice, and, in my experience, it is a most potent stimulus for appeals to this court. I have never known and still do not know what if means. It cannot mean a parent who is above criticism because there is no such thing. It might mean a parent against whom no matrimonial offence has been proved. If so it adds nothing to the record which is before the court and In the event is now outmoded. I think In truth it is really an advocates phrase. It is to be found in some of the reported cases but only, I think, in those where a parent was trying to recover custody of the child from a non parent or stranger; and there the concept of unimpeachability may have some place."

22. In J. v. C. (1969) 1 All ER 788, the House of Lords (Lord Guest) said:-

"First in my view, the law administered by the Chancery Court as representing the queen as parents patriae never required that the fathers wishes should prevail over the welfare of the Infant. The dominant consideration has always been the welfare of the Infant."

23. There is a school of thought advocating for statutory protection of the rights on the children to divorce their parents (The Ascent of Man by J. Bronowski). It is settled law that the State would not use its power in its parents patriae jurisdiction to establish the right of the father as the guardian of the ward to have custody against the welfare of the children. Affirmatively, it can be said that the States power steamed from the parents patriae jurisdiction will be used only for the promotion and welfare of the infant.

24. Counsel for the father, referring to S.6 of the Hindu Minority and Guardianship Act, said that the father is the natural guardian and if he is not found to be unfit, he has got a right, which cannot be controlled by the court. According to him, his right to get custody is absolute in character, so long as he continues as a guardian and found not unfit to act as the guardian. Counsel repeatedly submitted that the court below which has found that the father is not unfit to be the guardian of the minors, went wrong in refusing custody, which is an inalienable right linked with the right of guardianship.

25. We do not think that the right of guardianship is inalienably interlinked with the right of custody. Further, we are of the view in the letting of the present day society, for that matter, in the setting of every society at any time at any period, the human rights can only be relational, See Maharaj v. Att. Gen of Trinidad and Tobago (1978) 2 All ER 670. All rights are relative even the right relating to freedom. In the ultimate analysis, rights are only relations between persons and exercise of certain powers to obligate others to accept the wishes of one. Recognition of fathers absolute right to the custody of the child would render the child an inanimate property or a chattel, which would be possessed and used as the owner pleases. Child is not a chattel. It possesses sacred human right. Moreover, it is the most precious possession of the society in the State. As such, it behoves the paramount obligation of the State to secure all the interests of the child and its welfare, which gives the entitlement to the State to make inroads in the right of the natural guardian; not only an Inroad, but even annihilation of that right, if the situation demands such an action. This power of the State, by the statutory provision and by virtue of being a guardian court of the realm is given to courts.

26. When we say that the father has no absolute right for the custody of the child, even in a case, where the father is found to be not unfit to be the guardian of the child, it should not be mistaken for an intention on our part for impairing or undermining the legitimate rights of the father to the custody of his minor child or children. We know that sacred obligation and rights flowing from the concept of Patria Protestas, which is considered to be an institution. We would say that interference with Patria Protestas rights can never be done lightly or casually. Normally the father or mother would spare anything for the promotion, protection and welfare of their child. History is jewelled with instances of great sacrifices made by the father and mother for the safety, security and welfare of their children. Self sacrifice to the extent of immolation for the love of their children by the father and mother is not very uncommon. The story of Humayun and Babur is one among such jewels in the many.

27. In AIR 1973 SC 2090 [LQ/SC/1973/122] (Rosy Jacob v. Jacob) the Supreme Court said thus:

"the dominant consideration in making orders under S.25 is the welfare of the minor children and in considering this question due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minors welfare."

28. We have made all the above observations in order to appreciate the case put forward by counsel for the father. Counsel submitted that the court below did not keep in mind that great difference in a case where the mother claims custody of a minor against the father and a grandmother making a claim for the custody of the minor as against the father of the minor. Counsel also emphasised that the court, after having found that the father is not unfit to be the guardian, was not able to extricate itself from the magnetic force of the wild suspicions brought in the discussion of the evidence regarding the allegation that the death of the mother is not a suicide, but homicide, for which the father is responsible. Counsel referred us to several decisions. In deference to counsel, we are now cataloguing all the decisions referred to by the counsel, but we do not propose to discuss all those decisions, we have made our own discrete elimination in the matter of discussing some of the decisions, to avoid making this judgment more elliptical. These are the decisions referred to us by counsel for the grandmother.

1. AIR 1984 SC 1224 [LQ/SC/1984/104] (Surinder Kaur v. Harbax Singh)

2. AIR 1977 SC 1359 [LQ/SC/1977/109] (Mohini v. Virender Kumar)

3. 1971 KLJ 729 (K. Parvathi alias Leela v. K. V. Radhakrishnan)

4. AIR 1976 Rajasthan 153 (Gangubai v. Bherulal)

5. AIR 1969 Delhi 283 (Chander Prabha v. Prem Nath), and

6. AIR 1964 Patna 505 (Balram Mandal v. Rajani Mandalain)

Counsel for the father referred to us the following decisions:

1. AIR 1977 SC 1359 [LQ/SC/1977/109] (Mohini v. Virender Kumar)

2. AIR 1989 Mad. 129 [LQ/MadHC/1987/530] (S. Abboy Naidu v. R. Sundara Rajan),

3. (1985) 1 MLJ 97 (Rajaiah v. Dhanapal),

4. 1984 (1) Karnataka LJ 322 (Gangamma v. Viawanatha),

5. AIR 1981 AP 1 [LQ/TelHC/1980/122] (L. Chandran v. Venkatalakshmi),

6. AIR 1979 Raj. 29 [LQ/RajHC/1978/269] (Snehlata v. Mahendra),

7. AIR 1980 Raj. 64 [LQ/RajHC/1979/137] Snehlata Mathur v. Mahendra Narain),

8. AIR 1971 Mys. 211 (Kamalamma v. L. Rao),

9. AIR 1971 AP 134 [LQ/TelHC/1970/27] (F. F, Narasaiah v. G. P. Raju),

10. 1974 P. & H. 124 (S. Bikramajit Singh v. Iqbal Kaur)

11. AIR 1961 Rajasthan 30 (Gurudeosingh v. Daulat Kaur) .

12. 1977 KLT 479 (Madhavan Nair v. Viswanathan)

13. AIR 1957 Mad. 563 (Kumaraswami v. Rajammal) and

14. AIR 1929 Mad. 81 (Atchayya v. Kosaraju Narahari)

29. Before proceeding further, we would like to mention that after hearing for some time, counsel for the grandmother and the father, we thought considering tender age of the minor children and their apparently happy company with their grandmother and taking into account, the great concern of the father and the natural love of the father towards his minor children and being very much conscious that these matters should be settled by the consent of the parties, than by the sanction of law, we suggested to the parties to agree to an amicable formula for the custody of the children. But, unfortunately, the parties failed to arrive at a formula, leaving us with no option to decide the case, according to our insight and intuitive reason, applying the law. The whole case reveals the problems of human misery. In what way the court is competent to mitigate it or to alleviate it is a vexed question. Great souls like Lord Budha and Lord Russel found no theological solutions for human miseries and tried to find non christian and non religious answers for solving the problems of human miseries.

30. The substance of the whole controversy, we have to resolve is, whether we should deliver the two motherless children to their father taking them away from their maternal grandparents. The grandmother insists that in the interests and for the better welfare of the minor children, they must not be removed from the environment now they are in, for a considerable period, immediately after the tragic death of their mother and not to be delivered to the father. The father highlights that he is the natural guardian, and he is found to be not unfit to be the guardian. It is his right as the natural guardian to have custody of the children and further, he says that he has got all the facilities to rear the children better than the old grandmother and grandfather. Counsel for the father also submitted that there are decisions which would go to show that the fathers right of custody should not be Interfered with by the court in the circumstances emerged in the case. Though with riders, counsel submitted that proof of paternal unfitness alone can defeat the fathers right of custody, particularly, in a case where the competing parties are the maternal grandparents and the father. We shall examine the question adverting first the dictum laid down in AIR 1914 PC 41.

31. Counsel for the father submitted that the Privy Council decision in Annie Basant v. Narayaniah (AIR 1914 PC 41) is an authority for the proposition that the father has the paramount right to the custody of the children, which he cannot be deprived of unless it is clearly shown that he is unfit to be their guardian. A reading of the Privy Council decision, perhaps, may lead to such a suggestion, but a careful scrutiny of that decision would reveal that the Privy Council also was considering the rights of the father vis a vis the welfare of the child and ultimately found that the paramount consideration must be given for the welfare of the child. It is evident from the following observation of the Privy Council in Annie Basants Case:

"As in this country, so among the Hindus, the father is the natural guardian of his children during their minorities, but the guardianship is in the nature of a sacred trust, and he cannot, therefore during his life time substitute another person to be guardian in his place. He may, it is true, in the exercise of his discretion as guardian, entrust the custody and education of his children to another, but the authority he thus confers is essentially a revocable authority, and If the welfare of his children requires it, he can, notwithstanding any contract to the contrary, take such custody and education once more into his own hands. If, however the authority has been acted upon in such a way as, in the opinion of the Court exercising the jurisdiction of the Crown over infants, to create associations or give rise to expectations on the part of the Infants which it would be undesirable in their interests to disturb or disappoint, such Court will interfere to prevent its revocation."

32. This decision has been cited in almost all cases where the question of custody was debated. What we have to decide in this case is an important question, viz if there is a finding that the father is not unfit to be the guardian, what is the power the court can exercise in depriving such a father the custody of his minor child or children. As we said earlier, counsel for the father referred several decisions. In AIR 1971 Mysore 211 (Kamalamma v. L. Rao) the Division Bench of the Mysore High Court, relying on the Privy Council decision reported in AIR 1914 PC 41, held that in the case of a Hindu minor boy, father is the natural guardian of his person during his minority. However, If, in the opinion of the Court the father Is unfit to be the guardian of the person of the minor, it can remove him from that position and appoint either the mother or somebody else as the guardian. Counsel emphasised the observation of the court that ......"To us it appears that the court has no jurisdiction to appoint a guardian of the person of a minor whose father is alive and is not unfit to be the guardian of the person of the minor."

33. We would say that this decision is taking a very broad view by giving an unlimited power to the father to have custody of his minor child or children. We cannot extend that incidents of a natural guardian will confer an unfettered and unlimited power of custody of the minor child or children, if he is not found to be unfit to be the guardian without the consideration of the welfare of the minor or minors.

34. In AIR 1979 Raj 29 [LQ/RajHC/1978/269] (Snehlata v. Mahendra) a learned single Judge of the Rajasthan High Court held that the applicant father, who was an Assistant Engineer, who had not married any other girl and there was no charge or allegation that he had any Immoral habits, found that the applicant was in any manner unfit to be appointed or declared as a guardian of minor girl and to keep her in his custody; he could not be deprived of the custody of his only daughter. If we analyse the facts of this case, it is possible to say that the court allowed the custody of the minor girl with the father on an appreciation of the varied circumstances emerged in the case. Initially, the custody was with the mother, but the mother subsequently left the child to the care of her parents on account of her temporary absence from India to complete her studies in England. This peculiar circumstance makes a lot of difference in understanding the general proposition canvassed by counsel for the father, for which this decision has been relied on.

35. In 1977 KLT 479 (Madhavan Nair v. M. Viswanathan) a Division Bench of this court was considering the claim of custody of minor child by the father as against the maternal grandparents. Of course, in considering this question, the Division Bench held that there is a presumption in favour of the natural guardian in the matter of custody of the child as opposed to the claims of persons who are not to be considered as the natural guardians in law. Saying so, the court also said that unless there is evidence to suggest that the natural guardian is not a fit person to be the guardian of his child or that for other reasons it will not be in the interests of the childs welfare to entrust his custody to the natural guardian, the court would ordinarily be inclined to accept his claim in preference to the claim of any other person.

36. It is clear that the court did not say that the only question that has to be considered, when the father makes a claim for custody is the question whether the guardian is not a fit person to be the guardian of his child. The Division Bench held very clearly that the custody and welfare of the child are matters of paramount consideration and that if the court Is convinced that it would be in the best interest of the child that the father being the natural guardian, the court will be inclined to give the custody of the minor by taking him away from the present custodians in that case, the maternal grandparents. So, this case cannot be considered as one laying down the proposition that if the natural guardian, - the father - is found to be not unfit to be the guardian, the court is bound to allow him to be in custody of his minor children de hors the question of welfare and interest of the children. The court also found that the father in that case is in a better position to give a better upbringing of the child and the grandparents are old; so the welfare of the child is secure if the custody is given to the father. Further, the court took note of the fact that the father has given an undertaking that he will bring the child to the home of the maternal grandparents every year during the period of summer vacation and stay with him for not less than two weeks. We feel that no absolute rule has been laid down in this case as pointed out by counsel for the father that he has got a legitimacy to get the custody of the child, when the court has found that he is not unfit to be the guardian of the children.

37. Much reliance was placed on the decision reported in AIR 1929 Mad 81 (Atchayya v. Kosaraju Narahari), by counsel appearing for the father. He submitted that this decision has laid down the dictum that custody of a minor child/children is a necessary concomitant of guardianship. But, it has to be noted that the court has said before reaching the depth of the discussion that "the decision of the question whether it would be for the welfare of the child to return to the custody of the guardian depends entirely on the circumstances of each case". After stating so, the court said that when the guardian of a person of a ward demands the custody of the ward, he is really approaching the court to aid 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 out of the custody of its guardian and retained in the custody of the person against whom the application is made.

38. The case really turned on a question of onus of proof. Of course, counsel submitted that the court considered that if a case is proved that the father had ill treated and had married a second wife, and the fact that the child was brought up by its maternal grandmother, removal of the child from the custody of grandmother may appear to be cruel. The court said that even considering the matter entirely from the point of view of the welfare of the minor, it could not be to the minors welfare to estrange him from his father at this tender age". There are several decisions, which have followed this decision. Certain decisions have explained it.

39. In AIR 1981 AP 1 [LQ/TelHC/1980/122] (L. Chandran v. Venkatalakshmi,) a Division Bench of the Andhra Pradesh High Court, considering a case where the fight for custody of the minor was between the maternal grandparents and the father, held that the right of the father is not unlimited and even if he was able to establish that he is not unfit to be the guardian of the minor children, that will not insulate him from meeting a defence that for securing the welfare of the minor children, the custody cannot be given to him. If the court is convinced that the welfare of the minors is better served, if the custody is given to some other persons, the fact that the natural guardian is not unfit to be the guardian of the person of the minor, will not prevent the court from giving the custody of the minors to a person other than the father. The Andhra Pradesh High Court did not agree with the propositions laid down in AIR 1929 Mad. 81. In fact, a careful reading of AIR 1929 Mad. 81 would make it clear that that decision has not laid down as the dictum of that decision that "so long as the father is not found to be unfit to be the guardian of the minor girl, the custody of the minor girt cannot be denied to the father."

40. The view taken by the Andhra Pradesh High Court is the same view taken in several decisions of the Andhra Pradesh High Court. Vide Narasimha Rao v. Manikyamma 1968 (1) Andh L.T. 132 and AIR 1971 AP 134 [LQ/TelHC/1970/27] (V. V. Narasaiah v. Ch. Peddi Raju)

41. In AIR 1961 Punj 51 (Rattan Amol Singh v. Kamaljit Kaur), the court held that the fathers right to the custody of his minor child is not absolute, nor is it indefeasible in law, it is circumscribed by the considerations of the benefit and welfare of the minor. A Division Bench of the Andhra Pradesh High Court consisting of Alladi Kuppuswami and Madhava Rao, JJ. held in C. M A. No. 231 of 1979 dated 22-6-1979 that guardianship and custody need not go together and while one person may be the legal guardian, another person may be given the custody of the child. This decision is very important, since in this case, the court below, while recognising the guardianship of the children to the father, has given the custody of the children to the maternal grandmother. We had some doubt as to the question, whether, without appointing a person as guardian, the custody can be given or, in other words, whether the guardianship and custody can be separated or dissociated in appropriate cases. We hold that both rights can exist distinctly in distinct persons.

42. In AIR 1971 MP 235 [LQ/MPHC/1970/215] (Budhulal v. An Infant Child), where, considering the welfare of a new born child, which lost its mother immediately after its birth and which needed urgent and special medical treatment, custody was given to the neighbours. The father claimed custody of the child after 21/2 months. The father contended that he is the natural guardian of the infant. According to the provisions of S.6 of the Hindu Minority and Guardianship Act, 1956, the respondents have no legal right for the custody of the infant and that the detention of the Infant by the respondents is illegal. The court negatived this contention by holding that the childs welfare is the paramount consideration and rejected the application filed by the father for the custody of the child on the ground that it would not be in the Interest of the child to give custody to the father.

43. Counsel for the father submitted that this court should consider the peculiar circumstances surfaced in this case, viz, it is not a fight for the custody of the interest of the minors welfare as laid down in S.13 of the Hindu Minority and Guardianship Act.

44. In England the law is what is stated by the House of Lords in J. v. C 1969 (1) All ER 788. In 1977 (1) All ER 656 (S (BD) v. S (DJ)) 656, Sir John Pennycuick explained the correct position of law adverting to what has been said by the House of Lords. Sir John Pennycuick said that the learned Judge did not apply the principle laid down in 1969 (1) All ER 788, by quoting a passage from the lower court judgment. Further he observed that is not a correct statement of the principles be applied and that the words used by the learned Judge read like an echo of statement made in Re L (Infants) 1962 (3) All ER 1, which has been overruled in J v. C 1969 (1) All ER 788. The passage quoted from the judgment of the lower court is this: -

"Now, I have to consider the welfare of these two children. That consideration is the paramount, but not the only, consideration In deciding matters of custody, I have to have regard especially to the welfare of the children, but I am also bound or entitled to have regard to the views of the unimpeachable, or comparatively unimpeachable, parent, and I am bound to have some regard to the essential justice of the case."

45. Summarising the result of our discussion of law, we make it clear that we cannot accept the argument that the father has absolute right to have the custody of the child/children, though he has proved that he is not unfit to be the guardian of the children.

46. We now turn to consider the question whether in this case, we should direct handing over the children to the custody of the father, by the maternal grandparents, who have taken care of the children for a considerable, period with great affection. The Guardian Court, which had the occasion to see the parties and assessed the evidence, thought it fit to allow the maternal grandparents to continue the custody of the children. The order make it clear that it is not an order, which cannot be revised from time to time. The lower court has considered the complaints of the father that children are kept away from the father, in such a manner that the father is not even permitted to see the children. The grandmother has denied this allegation. The Guardian Court has considered the fact that the father is also very much concerned about the children and that the children must get the affection and filial love of the father. The court has taken into account the fact that it may not be always possible for the father to be in his house, since he is working as a conductor in the K.S.R.T.C. Bus. There is no clear evidence that there are any female members in the household of the father. But, it is contended that the, father has got his mother and sisters. It has to be noted that the grandmother, at the time of filing the petition was working as High School Assistant, Of course, now she is retired. It cannot be said that she is very old. It cannot be further said that the grandmother, who is a retired teacher, is not a proper person to take care of the welfare of the children The grandparents are found to be very affectionate towards the children and that they have made some bank deposits in their favour, for the future benefit of the children. Of course, all these are considerations, have to be taken cumulatively into account in deciding whether the welfare of the children will be better secured if the custody is given the maternal grandparents. We feel that the circumstances noted by the court below are relevant in deciding the crucial question. We cannot disagree with the conclusions of the court below. We take a positive view that the welfare of the minor takes precedence over the claims of the unimpeachable father.

47. Counsel for the father submitted that the conditions imposed are so rigorous and impracticable and so, even if this court is confirming the order, some modifications have to be made in regard to the conditions attached in the order. We make it clear that the order now we are confirming is only tentative: and on change of conditions and circumstances and passage of time, it is open to the Guardian Court to vary the order passed in this proceedings, when such variations are considered necessary in the interests of the children. We cannot predict what will happen tomorrow. Time alone can unfold it. We will only say that it should be open to the parties to apply to the Guardian Court for further directions or conditions as and when circumstances warrant such a course.

48. The Guardian Court has made it as condition No. 1 that the father respondent in the petition shall be permitted to visit the children on all holidays at the residence of the petitioner and that he shall also be allowed to take the children to his house during such holidays on condition that the children are returned to the custody of the petitioner in the course of that day itself. We modify the above condition and allow the father to visit the children as and when he feels so during day time at the residence of the maternal grandparents or in the school without causing any disturbance to the children and school authorities. The father is allowed to take the children to his house during Onam, Christmas and Summer holidays. The father can take the children to his house, the day after the commencement of the holidays and should return them the day before the reopening of the schools. The second condition of the order has now become unnecessary. The father can move the guardian court for deciding in which school, the children have to be admitted for their education and the guardian court has to decide this question. We are not vacating condition Nos. 3, 4 and 5 in the order of the court below.

Appeals are disposed of as above.