Antony Dominic, J.@mdashThis appeal is directed against the order passed by the Family Court, Thrissur in G.O.P. No. 772/13. The appellant and the respondent are husband and wife whose marriage was solemnized on 12.5.2008. Even prior to the marriage, the respondent was working as a Nurse in Ireland and subsequent to the marriage, though the appellant joined her in Ireland, he could not secure a regular employment there. On 27.5.2009, the respondent gave birth to a son Alan Puthoor Rimy.
2. While the couple were in Ireland, problems arose in their matrimonial life and now they are living separately, wife in Ireland and the husband in India. Subsequently, there were litigations between the parties regarding the custody of the child and when the wife was in India, she was given his interim custody and she returned the child to the husband when she went back to Ireland. In May, 2013, the wife again came to India, when according to her, the husband refused to give custody of the child and thereupon, she filed G.O.P. No. 772/2013 before the Family Court for custody of the child.
3. The appellant entered appearance and filed his objections. He denied all allegations against him and contended that the welfare of the child will be served better if the child is left in his custody. The respondent and her father were examined as PWs 1 and 2 and the appellant was examined as RW1. Exts.A1 to A9 and Exts.B1 to B10 were also marked in evidence. The Family Court finally passed the impugned order, the operative portion of which reads thus:
In the result, the petition is allowed and the minor is given in the custody of the petitioner and she is allowed to take him to Ireland. She has to bring the child to Kerala twice in a year, that is, to say every six months and hand over his custody to the respondent for a minimum period of 10 days. She has to deposit a sum of Rs. 5 lakhs and produce bank guarantee for Rs. 5 lakhs each by any of her two relatives who are residing in Kerala before taking the child to Ireland. The respective parties are directed to suffer their respective costs in this petition.
4. It is this order which is under challenge before us.
5. We heard the learned senior counsel for the appellant and also the learned counsel appearing for the respondent wife.
6. Two contentions were raised. The first contention was that the application filed under Sections 7 and 25 of the Guardians and Wards Act, 1890 claiming custody of the child, who is in the custody of his father, is not maintainable. The second contention was that once the child is allowed to be taken to Ireland and the wife and the child acquires citizenship of that country, the enforcement of the order, in the event of its non compliance, will not be possible. Therefore, according to him, the Family Court should not have passed the impugned order.
7. The first contention raised by the learned senior counsel for the appellant has to be answered with reference to the provisions of S. 25 of the Guardians and Wards Act, 1890.
8. Section 25 of the Act reads thus:
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 his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the powers conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.
Language of Section 25(1) shows that if a ward "leaves or is removed from the custody of a guardian" of his person and if the Court is of opinion that it will be "for the welfare of the ward to return to the custody of his guardian", it may make an order for his return.
9. The word "guardian" occurring in S. 25 has been defined in S. 4(2) of the Act which reads thus:
4(2). "guardian" means a person having the care of the person of a minor or of his property or of both his person and property.
10. Language of S. 25 shows that this section is attracted only if a ward "leaves or is removed" from the custody of a guardian. Use of the word "guardian" in S. 25 leaves little doubt that it is the guardian who, having the care of the person of his ward, has been deprived of the same and is in the capacity of guardian entitled to seek the assistance of the Court for the return of his ward to his custody. The court''s power under S. 25 of the Act is to be governed primarily by the consideration of welfare of the minor and the discretion vested in the Court is to be exercised judiciously. While considering the rival claims for the custody of the minor child, the Court is bound to pay due regard to the right of the father or mother to be the guardian. However, in cases of conflict or dispute between the mother and father about the custody of their children, the approach has to be somewhat different and if the Court finds that the custody of the father cannot promote the welfare equally or better than the custody of the mother, then the father cannot claim any indefeasible right under the Section merely because he is not disqualified or that he has attachment to his children. In other words, the father''s fitness to be the guardian of the child cannot override considerations of welfare of the minor children. This is the principle laid down by the Apex Court in
11. In so far as this case is concerned, rival claimants are the mother and father of the minor. The child was in the custody of the father, who of course is a guardian. The contention raised by the learned senior counsel for the appellant is that, in such a case, an application under S. 25 of the Guardians and Wards Act filed by the mother is not maintainable. As already seen, in so far as S. 4(2) of the Guardians and Wards Act is concerned, guardian includes all categories of guardians and the person having the care of the person of his ward is a guardian for the purposes of this Section. The appellant did not argue that the mother is not a guardian for the purposes of this Act. Thus the question to be resolved is whether an application under S. 25 filed by one guardian for the custody of the child against another guardian is maintainable. We have already held that S. 25 of the Act enables guardian to maintain an application when a ward leaves or is removed from his custody. Even according to the appellant, mother is also a guardian. The meaning of the expression "leaves the custody of the guardian" has been considered in several judicial precedents and Courts have taken the view that the jurisdiction of the court under this section to enforce the right of the guardian of the person of a ward to the custody of that ward can be invoked, by the terms of sub-section (1), if (a) the word "leaves or is removed from" the custody of the guardian; and (b) an order for the return of the ward to the custody of the guardian is, in the opinion of the court, for the welfare of the ward. Prima facie, when a ward leaves the custody of the guardian, he may do so with or without the permission of the guardian, but when he is removed from the custody of the guardian, the removal may be with or without the compulsion of a third person. In each of the aforesaid cases, the jurisdiction of the court is attracted if the third person into whose possession the ward has passed refuses to return the ward to the guardian. In order to take action under this section it is immaterial whether the minor was removed forcibly or left the guardian''s custody of his own accord and the word "removed" is not used as a term of art. Whether a child has been removed voluntarily or involuntarily, with the consent of the guardian or without it, the guardian can enforce his right to the custody of the child under this section.
12. Having considered the issue of maintainability in the light of the above principles, in our view, it can safely be concluded that even if the respondent mother has voluntarily given the ward into the custody of the appellant father, she is still entitled to make an application under S. 25 of the Act, and in such a conflict, as held by the Apex Court in Rosy Jacob''s case (supra), considerations of welfare of the minor child will prevail over the legal entitlement of the rival claimants. Therefore, we are unable to agree with the learned counsel for the appellant that the application filed by the respondent wife under S. 25 is not maintainable.
13. The second contention raised was that in the event the wife and the child acquires Irish citizenship, the Family Court will not be in a position to enforce the order in the event of its non compliance. First of all, the impugned order itself is a conditional one. Secondly, even today, the wife is an Indian citizen. Thirdly, it is without any factual basis that the appellant is arguing about a hypothetical situation that can arise if the wife and child acquire Irish citizenship. Thus what the appellant contends is a possibility which he imagines. This Court cannot sit in judgment over the Family Court''s order on the basis of such hypothetical situations, which has no factual foundation. Therefore, we do not find any reason to accept the second contention raised by the learned counsel for the appellant
14. The real question is whether it is in the welfare of the minor child to be left in the custody of the mother. This issue has been considered by the Family Court in paragraphs 14 to 16 of the order, which reads thus:
14. It has come out in evidence that the respondent is hailing from a family of farmers. He has no permanent job. He is indulged in different petty businesses and doing agriculture operation in the parcel of land. The respondent has not produced any documents to prove that he is a professional photographer and earning income from other business in this case. It has come out in the evidence of the witness RW1 that his parents are pretty old. To put it more particularly the mother of the respondent is aged 62 years and the father 67 years. The witness RW1 would depose that his mother was looking after the minor child while the minor was putting up with the respondent. The house of the respondent is situated in a rural area.
15. The learned counsel for the petitioner would argue that the child was suffering from skin diseases while he was in the custody of the respondent. It is true that the respondent has emphatically denied the same. Any how it has come out in evidence of the witness RW1 that he will be fully engaged in other activities to eke out his livelihood. He has no steady income. He has not produced any documents to prove that he has got steady income from the different business and his avocation as a photographer.
16. The petitioner is a staff nurse who is working in Ireland. The respondent has admitted the same. It is true that she is working for 12 hours in a day. But it has come out in the evidence of the witness PW1 that her sister and brother-in-law are settled in Ireland. They will lend their helping hand to look after the minor child. The love and affection of the mother are absolutely necessary for the child while considering his age at present The petitioner is financially sound enough to maintain the child since she is a nurse. She has got steady income. She has no one to look after. She has got one brother and sister who are all well placed. The apprehension of the respondent that the petitioner will not return to Kerala is out of place. The court can impose necessary conditions for bringing the child to Kerala. The scrutiny of the evidence of both parties will compel me to take a view that it is better to give the custody of the minor to the petitioner while considering his welfare at present The petitioner will be able to impart a proper education to the minor and to up bring him. She will be able to give the motherly affection to him. Hence I am of the view that the petition is to be allowed on conditions. There is no taboo for the court to allow the petitioner to take her child to Ireland. The law is well settled on that score. If an authority is needed on this point I am refer to the decision reported in
15. Further, para 13 of the order shows that during his interaction with the Judge of the Family Court, the child expressed his desire to live with the mother and has revealed that he is even afraid of the father. Reading of the above paragraphs of the impugned order would show that the Family Court has not only considered the welfare of the child but also his desire. Nothing was even argued before us to hold that these findings are incorrect. We do not find any substance in this appeal. Appeal will stand dismissed.
