Decided on February 09,1970

T. Damodaran Appellant
SULOCHANA Respondents


B.S.Somasundaram, J. - (1.) THE civil Miscellaneous appeal is directed against the order of the District Judge, Chingleput, and it relates to the custody of a minor now aged 11 years. The appellant herein is the father and the respondent is his wife. He had married her on 16th September, 1957. When she was pregnant by three months, she went to her father's house. She gave birth to the child in December, 1958. Misunderstandings arose and ever since she is living in her mother's house with the child. The appellant filed O.P. No. 61 of 1958 for restitution of conjugal rights. She contended that she was very badly treated by her husband and that as such there was no ground for ordering restitution. Her contentions were accepted. The petition filed by the appellant was dismissed by the Subordinate Judge, Chingleput. This decision was affirmed by the District Judge, in C.M.A. No. 7 of 1961. Exhibit B -2 is the certified copy of the judgment. During the pendency o these proceedings, the appellant's father executed a settlement deed Exhibit B -4 on 9th February, 1959, in favour of the appellant and his brothers. Meantime, O.S. No. 112 of 1965 was filed by the respondent as guardian of the minor, against the appellant, for partition and separate possession of the minor's half share in the properties. The appellant after receiving summons in that suit, filed the present application before the District Judge, for custody of the minor. The learned Judge has held that he is not entitled to custody. The correctness of this decision is now canvassed in this appeal.
(2.) THE evidence on record establishes that the appellant has shown, utter lack of interest in the minor, ever since December, 1958, when he was born. He has come forward with the present application after receiving the summons in O.S. No. 2 of 1965 wherein the minor sues him for partition of his share. True, the father is the natural guardian and as such he is entitled to the custody, but however paramount the right of a father may be, that right is liable to be defeated, where it is shown that it is better in the interests of the minor and for its welfare that it should remain where it is. If a minor has for many years from a tender age lived with grand parents or other near relatives and has been well cared for, and during that time, the minor's father has shown a lack of interest in the minor, these are circumstances of very great importance, which bear both upon the question of the interests and welfare of minors and on the bona fides of the petition by the father for their custody. It was so held in Muthuswami v. Chinna Muthuswami, A.I.R. 1935 Mads 195. The same view was expressed by a Bench of this Court in Ponniah Assari v. Suppiah Asari : AIR 1935 Mad 363 , where it was held that though the father had a prima facie right to the custody, still this right may be negatived by circumstances, showing either past indifference and neglect or tacit consent in the infant being brought up by other relatives. Sambayya v. Rudrappa : AIR 1935 Mad 568 , is a case where the facts are almost identical with the facts of the present case. The observations are as below: What has to be considered in all these cases is the failure on the part of the father or the person who is prima facie entitled to custody of the minor to take steps over a long period to get custody of the minor. Another matter which has to be taken into consideration is whether he is a fit person for the minor to be returned to him. Should the father be proved to have been guilty of bad treatment to his wife, the minor child's mother, he would not be desirable person to have the custody of the child. This is what exactly had happened in the present case. Her version is that her husband is of a bad temper and that he treated her cruelly. This has been so held by the Courts in the prior proceedings, for restitution of conjugal rights, evidenced by Exhibit B -2. Ever since December, 1958, till the year 1966, practically for a period of eight years his father never cared to look after the minor. That apart, he did not conceive the idea of getting custody of this child till the time he received the summons in the partition suit.
(3.) THE order of the learned District, Judge is therefore correct and the same is confirmed. The civil miscellaneous; appeal fails and the same is dismissed, but in the circumstances without costs.;

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