M.Karpagavinayagam,J.

G.Eva Mary Elezabath has filed this Habeas Corpus Petition, seeking for a direction, directing the respondents to produce the minor male child Samuel Rily Macon before this Court and pass suitable orders for custody.

2. According to the petitioner, she and her family members are members of the Church of Christ situated at Kottur, Chennai. Jayaraj, first respondent herein, was also a member of the Church. The first respondent and his wife Tmt.Mallika used to visit the Church frequently. The first respondents wife Mallika delivered a male child on 10.08.2002. The said Mallika committed suicide on 17.09.2002; thereupon, Jayaraj, father of the child, abandoned the one month old male baby in the Church premises and left the place. Thereafter, one Vasanthi took care of the child for about 15 days. However, she handed over the child back to the Church, since she was not able to maintain the child. Then, Pastor of the Church handed over the child to the petitioner on 16.10.2002 to take care of the child. Accordingly, she and all her family members took care of the child. The child was admitted in Happy Home Nursery School at Kottur. For two-and-a-half years, the first respondent, father of the child, did not evince any interest. Suddenly on 15.12.2004, the first respondent with some men came to the house of the petitioner and took away the child forcefully. Then, the petitioner approached Kelambakkam Police Station, third respondent. At the intervention of police, the first respondent handed over the child back to the petitioner. In the meantime, she came to know that the first respondent married one Maria as second wife. Again on 04.01.2005, the first respondent, along with some police officials of the third respondent Kelambakkam Police Station, came and forcefully took away the child. Then, the petitioner rushed to the second respondent police, who are jurisdiction police, and complained the matter but no action has been taken. The child is hardly two-and-a-half years old. Due to the act of the first respondent in snatching away the child from the custody of the petitioner, who brought him up and gave education through Happy Home Nursery School, the childs welfare and education have got highly affected. Hence, this Habeas Corpus Petition.

3. According to the first respondent, after the death of his wife, on his request, the Church Director handed over the child to one Vasanthi to look after the child at the expenses of the Church. The said Vasanthi was unable to maintain the child and handed over the child back to the Church. Then, the Director of the Church, gave the child to the petitioners mother for maintenance. At that time, the first respondent was not in Chennai. As soon as he came back, he was informed by the Director of the Church that the child was with the petitioners mother. Then, the Director of the Church advised the first respondent to get married; have a family life and take care of the minor child Samuel Rily Macon. Accordingly, he got married on 20.09.2004. Thereafter, both he and his wife met the petitioners mother and requested her to hand over the child. The child was handed over to the Director of the Church, who, in turn, handed over the child to him. Then, suddenly on 28.12.2004, the petitioner mother and her persons came and forcefully took the child. Therefore, he went to Kelambakkam Police Station and gave a complaint to the third respondent. Then, at the intervention of Kotturpuram police, the child was handed over back to him and his wife in the presence of the Church Pastor. He is the natural guardian, being father of the child, and, as such, he is entitled to the custody of the child.

4. In support of the respective pleas, arguments were advanced by the learned counsel for the parties and also the Additional Public Prosecutor.

5. The petitioners main contention is that the question of custody of the minor child is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor and, as such, the petitioner, who brought up the child for two-and-a-half years and gave education, alone would be entitled to the custody in preference to the first respondent, father of the child, who has recently married.

6. In support of his contention, learned counsel for the petitioner would cite a decision reported in AIR 1987 SUPREME COURT 3 (ELIZABETH DINSHAW v. ARVAND M.DINSHAW).

7. In support of the plea made by the first respondent, the following decisions are cited :

(i) AIR 1914 PRIVY COUNCIL 41 (MRS.ANNIE BESANT v. G.NARAYANIAH AND ANOTHER);

(ii) AIR 1986 MADRAS 99 (D.RAJAIAH v. DHANAPAL AND OTHERS);

(iii) AIR 1989 MADRAS 129 (S.ABBOY NAIDU AND ANOTHER v. R.SUNDARA RAJAN);

(iv) 1990 (2) MLJ 417 [LQ/MadHC/1990/621] ( J.VELAN v. G.MUTHU AND OTHERS);

(v) 1997 (II) CTC 37 (JAYALAKSHMIAMMAL v. L.VENKATARAMAIAH AND ANOTHER);

(vi) 1997 (II) CTC 92 (KRISHNA RAJ v. RAJASEKAR AND ANOTHER);

(vii) 2000 (IV) CTC 212 (K.MATHIVANAN v. R.RAJALAKSHMI (DIED) AND ANOTHER);

(viii) 2000 (I) MLJ 330 (G.BAKTHAVATSALAM AND OTHERS v. K.SRINIVASAN);

(ix) 2003 (I) MLJ 738 (R.KASTHURI v. R.RAVEENDRAN);

(x) 2003 (3) CTC 577 (V.MARIA PUSHPA JANET RAJAM v. G.ANANTHA JEYAKUMAR);

(xi) 2004 (1) CTC 702 (ANOKHA v. THE STATE OF RAJASTHAN AND OTHERS); and

(xii) GUARDIAN AND WARDS ACT BY M.C.AGARWAL 1986 EDITION - PAGE No.114.

8. The learned Additional Public Prosecutor appearing for respondents 2 and 3 also would cite the following authorities :

(i) 1999 (2) SUPREME 123 (MS.GITHA HARIHARAN AND ANOTHER v. RESERVE BANK OF INDIA AND ANOTHER);

(ii) 1993 SUPREME COURT CASES (CRI) 485 (CHANDRAKALA MENON (MRS) AND ANOTHER v. VIPIN MENON (CAPT.) AND ANOTHER);

(iii) 1999 (7) SUPREME 561 (RAJIV BHATIA ETC. v. GOVERNMENT OF NCT OF DELHI & OTHERS);

(iv) AIR 2000 SUPREME COURT 2175 (STATE OF GUJARAT AND OTHERS v. KAUSHIKBHAI K.PATEL AND ANOTHER); and

(v) AIR 2001 SUPREME COURT 2179 (KUMAR V.JAHGIRDAR v. CHETANA K.RAMATHEERTHA).

9. The principles laid down by various Courts, including the Supreme Court, are as follows :

(1) No order declaring a guardian can, by reason of Section 19 of the Guardian and Wards Act, 1890, be made during the life-time of the father, unless in the opinion of the Court he is unable to be the guardian.

(2) Failing the father only, the mother comes into picture and she could assume such guardianship.

(3) The dominant factor for consideration of the Court is the welfare of the child. The welfare of the minor children is not to be measured only in terms of money and physical comforts. The word "welfare" must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well- being.

(4) The father as natural guardian is primarily entitled to the custody of the children unless there are overwhelming circumstances to the contrary.

(5) The Court is bound to take into consideration of the facts and circumstances of the case, bearing in mind that the pivotal factor is the benefit and well-being of the minor.

(6) The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.

(7) A Hindu father is the natural guardian of the children during their minority and he has prima facie a paramount right to their custody and must be given such custody unless he is unfit or there are other circumstances.

(8) The welfare of the minor child is a very important matter for consideration and the interest and welfare of the minor are even paramount to the rights of the father.

(9) In a matter relating to the custody of a minor child, the interest and welfare of the child are of paramount consideration and not the convenience or pleasure of the parents.

(10) The question regarding the custody of a minor child cannot be decided on the basis of the legal rights of the parties. The custody of child has to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor.

(11) The orders relating to custody of children are by the very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child.

10. The above guidelines would make it clear that the first respondent as of right cannot claim that custody of the child should be handed over to him as the natural guardian, especially when there are circumstances to show that the minor child was abandoned by him immediately after the death of his first wife. Originally, the Director of the Church handed over the child to one Vasanthi to take care of the child and as she was unable to maintain the child, the child was handed over back to the Church, which, in turn, handed over the child to the petitioners mother.

11. It is the case of the first respondent that only on the advice of the Director of the Church, he married for the second time, which is stoutly denied by the Director of the Church, by filing an affidavit. Further, various details about the facts, which have been given in the affidavit filed by the first respondent, are not found to be correct, in the light of the detailed written statement filed before this Court by Dennis H.Johnson, Director of the Church.

12. We are not inclined to give any finding with reference to the various allegations made by the first respondent against the Director of the Church or by the Director against the petitioner. However, it is to be mentioned that admittedly the first respondent had not chosen to take care of the child for two-and-a-half years; during that period, the petitioners mother was given custody by the Director of the Church and, after her custody, it is the petitioner, who took care of the child and admitted the child in Happy Home Nursery School at Kottur. These facts have not been denied by the first respondent.

13. Now, it is the stand of the first respondent that he married Maria as second wife on 20.09.2004 only for the purpose of taking care of the child.

14. The said stand taken by the first respondent is quite preposterous. As a matter of fact, an affidavit has been filed by the petitioner to show that the child was in her custody from 16.10.2002, which was handed over by the Church and, only on 15.12.2004, the first respondent came to her house and took away the child.

15. According to the petitioner, at the intervention of Kelambakkam Police, the first respondent handed over the child back to the petitioner, by considering the welfare of the child; again on 04.01.2005, the first respondent, with the help of the police, came to her house and forcefully took away the child and only thereafter, she had to rush to this Court by filing this Habeas Corpus Petition.

16. This Court ordered notice to the first respondent and he came to the Court with the child. As an interim arrangement, the child was handed over to the petitioner, since it was represented that the child had to attend the school. This Court, in fact, noticed that when the child was handed over to the petitioner by the first respondent, the child was so anxious to go with the petitioner with so much of affection. Thereafter, the interim arrangement continued and, ultimately, the matter was taken up for final disposal.

17. We had directed the parties to file affidavits, giving an undertaking to look after the child well, if custody is granted to them. Accordingly, both the parties filed their affidavits. The first respondents affidavit, with the supporting affidavit of his second wife, would indicate that the second wife got recently married to the first respondent. As per the affidavits, the first respondent got married Maria on 20.09.2004. If actually the first respondent wanted to marry the said Maria for the sake of the child, he would have taken action for securing the custody of the child even before the marriage. That was not done. But, now, he claims that he got married Maria on 20.09.2004 only on the advice of the Director of the Church. As noted above, this fact has been denied by the said Director. Ultimately, the first respondent came to the house of the petitioner only on 15.12.2004 to take the child. Thereafter, at the intervention of the police, taking into consideration of the welfare of the child, the child was handed over back to the petitioner. However, surprisingly, again on 04.01.2005, the first respondent, along with the police, who earlier intervened and got the custody of the child for the petitioner, thought it fit to take away the child again. Accordingly, the same was done.

18. As indicated above, though the first respondent is the natural guardian, we are not inclined to hand over the custody of the child to him, especially when the minor child is studying in school, arranged by the petitioner. Also, the minor child, aged about 3 years, is in the care and custody of the petitioner, who is a spinster. Therefore, it would be appropriate to continue the said arrangement so that the paramount interest of the child will be protected by the petitioner.

19. It is well settled in 2005 (2) CRIMES 161 (SC)(RAJESH K.GUPTA v. RAM GOPAL AGARWALA AND OTHERS) that in an application seeking a writ of habeas corpus for custody of minor child, the principal consideration for the Court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of someone else.

20. In the light of the peculiar facts, we are of the view that it would be better if the petitioner is allowed to have the custody of the child so that the child will continue his education under the care and affection of the petitioner, which she had for the past three years.

21. As held by the Supreme Court, whenever a question arises pertaining to the custody of a minor child, the Court has to decide about the custody not on the consideration of the legal rights of the parties, but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.

22. In our considered opinion, it would be in the best interest and welfare of the minor child if the custody of the child is allowed to be in the hands of the petitioner.

23. It is true that the first respondent is the natural guardian and he has got a legal right. In the light of the legal position, it is open to the first respondent to approach the Family Court to establish his legal right. The observation made by this Court with reference to the interim custody of the child in the hands of the petitioner would not stand in the way of the Family Court deciding the issue raised before it.

24. With the above observation, this Habeas Corpus Petition is allowed.