Custody to Father on Holidays

Chennai High Court

Equivalent citations: (1995) 2 MLJ 273

Mrs. Indira Kumari vs B. Ramakrishnan on 27/2/1995

JUDGMENT

S.S. Subramani, J.

1. This appeal is directed against the order of a learned single Judge of this Court in O.P. No. 439 of 1991 concerning the ward named Lakshmanan, son of the parties to this proceedings.

2. By the impugned order, the learned Judge directed that the petitioner (father) will have the custody of the son. The mother of the ward has filed this appeal.

3. The parties to this appeal are described as parties in the Original Petition, for the sake of convenience.

4. The material facts are:

The marriage between the petitioner and the respondent took pi ace on 19.8.1983. A male child was born to them on 19.8.1984, who is now named as Lakshmanan. The mother calls him as Lokesh. The husband and wife are not on good terms, and the petitioner filed O.P. No. 269 of 1987, on the file of the City Civil Court, Madras, praying for a decree of divorce, dissolving the marriage that took place between the parties. The same was later transferred to the Family Court and was renumbered as O.P. No. 721 of 1988. On the date of the O.P., the said petition was pending, but it has now come out in evidence that the O.P. was dismissed, and the petitioner has filed an appeal in this Court. According to the petitioner the minor boy is not maintained properly by the mother, and because of improper maintenance, he is suffering severely and is also facing difficult health problems. He was suffering all along since his birth, and he is constantly visiting doctors. This, according to the petitioner, is due to the failure of the mother in not bringing up the child in a proper manner. On one occasion, severe illness of the minor was reported by the respondent very late, and the petitioner paid sum of Rs. 1,000 voluntarily for his treatment. The petitioner is very much affectionate towards his son, and he is very much interested in his welfare. It is further stated that even though the son was running 6th year, he is studying only in U.K.G. thereby losing one year, and it was only due to the sheer negligence of the respondent. The loss of one year is very grave and is against the interest of the minor. The minor child is sent to school in a dirty manner with torn clothes, and he is not being looked after properly. His continued life with the respondent will be against the context of the child. It is also contended by him that since the birth of the child, the petitioner did not have any reasonable, duration to live with the sort, and whenever the petitioner visited the respondent’s house, the petitioner was ill-treated, abused and threatened by the respondent’s father and brother on the instigation of the respondent. But, in spite of the ill-treatment, he took pains to see the minor son with high risk to his life. In the month of January 1989, the respondent informed him that the minor boy is having primary complex which, if not treated properly, will end in T.B. It is stated that the respondent did not give proper care and treatment to the son. The petitioner states that he was not informed about the illness of the child directly and that he came to know about it through his brother’s father-in-law. It is further stated that he the respondent’s mother is dead, and his parents are alive, and they can look after his son. The petitioner is a law abiding citizen, and is also a well qualified person, enjoying a very good social status. The petitioner is employed in a premier public sector company as a Senior Engineer and is getting handsome salary, and he is the right person to bring up the minor son. The petitioner is living with his parents, who are loving the minor child. He is getting a handsome salary and, therefore, he can provide a comfortable accommodation to his son. He has also purchased a property worth Rs. 2 lakhs and intends to put up a construction therein. There are good schools close to his residence where he can provide good education to his son. The present school where the child studies, according to the petitioner, is not congenial, for his future. The petitioner is the natural guardian of the minor son and, therefore, entitled to have the custody. It is further stated that the respondent is not leading a chaste life. She has deserted the matrimonial home and she has broken the institution of marriage, and has no reputation, the petitioner filed an application before the Family Court for getting custody of the child atleast temporarily, but it was dismissed, on the ground that the child as on that day had not completed five years. The respondent has filed another application before the Family Court for restitution of conjugal rights, and on the date of this petition, the same was pending. But, it has come out in evidence that during the pendency of this proceedings, the petition for restitution of conjugal rights filed by the respondent was allowed and the petitioner has been directed to resume cohabitation. It is further stated that the respondent has failed to discharge her duties as wife and left the matrimonial house without any cause and reasonable excuse and lives according to her whims and fancies. According to the petitioner, it is harmful to the minor child. The minor according to the petitioner, is living in a very unsafe condition and the same is disadvantageous to him. For these reasons, he wants the custody of the child.

5. In her objection, the respondent contended that she never objected to the father seeing the son at school or at home. She is bringing up the child in an affectionate manner and in healthy conditions. The matrimonial house at Sriperumpudur is a small one where it is not convenient for all the members to reside. The in- laws of the respondents have nine children and most of them are residing in that house with their children. It is not congenial for the child to reside in that house. The minor is studying at Saraswathi Vidyalaya Matriculation School which is maintaining a very high standard and very often the first rank in the Matriculation Examinations is secured by this school. She is highly qualified. Her father is a retired Headmaster. Her brothers who are also residing nearby and some of whom are residing in the same house are also highly educated and are very much affectionate towards her son. Her father has got good income by way of pension as well as from his properties, and they arc being well maintained by them in a very affectionate manner. It is also stated that her mother died only when she received the divorce notice from court. It is also stated that any separation between the son and the mother will affect the child and his future. According to her, she is prepared to join her husband and lead a happy family life. The allegation regarding her reputation is denied. She is very much attached towards her son, and the son is also keeping good health and is getting good education. On these grounds, the respondents want dismissal of the petition.

6. Before the learned Judge, Exs.P-1 to P-12 were marked on the side of the petitioner and Exs.R-1 to R-5 were marked on the side of the respondent. Oral evidence was also let in. P.W.1 is the petitioner. P.W.2 is his mother. R.W.1 is the respondent.

7. After taking into consideration the entire evidence, both oral and documentary, the learned Judge held that the petitioner is entitled for custody of the minor son.

8. The only question that requires consideration in this appeal is, how far the learned Judge is correct in holding that the father is entitled to have the custody of the minor son Lakshmanan alias Lokesh.

9. Before going into the evidence in this case, we have to consider the law regarding the custody of the child, especially when the rival claimants are the parents.

10. There is no dispute in this case that the petitioner is the natural guardian he being the father of the minor son. After the father, mother is the natural guardian. But guardianship alone is not sufficient to have the custody. The parties arc Hindus governed by Hindu Minority and Guardianship Act. As per Section 6 of the said Act the natural guardians are the father and mother of a minor child. As per the provisions of the said Act, no rights are created. It only creates obligations on the parents in regard to their children. The parents do not have any right on the children. The parents only have obligation towards their children and that obligation is required to be discharged properly with care, affection and devotion.

11. In Suresh Babu v. Madhu , the question came up for consideration and it was held that the expression “welfare” must be read in its widest amplitude as meaning and including every circumstances which must be taken into consideration. The welfare of the child, particularly of an infant of about two years of age cannot merely be measured on the scales of yardstick of money or by physical comfort only. The physical well-being of the infant is not doubt important but that is not all. The claim of the husband that he is very well-to-do may be well founded. He may be in a position to employ any number of servants to look after the child. This indicates that there is every probability of the infant child being consigned to the mercy of the servants at home. So, the physical or material comfort by itself is not the welfare of the minor.

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12. In Surinder Kaur Sandhu v. Harbax Singh Sandhu , their Lordships had thus:

Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor….

In Rosy Jacob v. Jacob A. Chakramakkal , their Lordships held thus.

Section 25 of the Guardians and Wards Act contemplates not only actual physical custody but also constructive custody of the guardian which term includes all categories of guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward’s health, maintenance and education this section demands reasonably liberal interpretation so as to effectuate that object. Hyper- technicalities should not be allowed to deprive the guardian, the “necessary assistance from the court in effectively discharging his duties and obligations towards his ward so as to promote the latter’s welfare

If the court under the Divorce Act cannot make any order with respect to the custody of the wards and it is not open to the court under the Guardians and Wards Act to appoint or declare guardian of the person of his children under Section 19 during his lifetime, if the court does not consider him unfit, then, the only provision to which the father can have resort for his children’s custody is Section 25. The court’s power under Section 25 of the Guardians and Wards Act is to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom if ever identical.

In considering the question of the welfare of the minors 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 minor’s welfare. There is a presumption that minor’s parents would do their best to promote their children’s welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural selfless affection normally expected from the parents for their children.

Where there is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare, the father’s fitness has to be considered determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then he cannot claim defeasible right to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for his children – which every normal parent has Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them.

Thus the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.

[Italics supplied]

13. In American Jurisprudence, Volume 25, pages 202, 203, 204 and 205, it is observed thus:

It should be observed that as a general rule, where the writ is prosecuted for the purpose of determining the right to the custody of a child, the inquiry extends far beyond the issues that ordinarily are involved in a habeas corpus proceedings. The controversy does not involve the question of personal freedom, because an infant, for humane and obvious reasons, is presumed to be in the custody of someone until it has attained its majority. The court, in passing upon the writ in a case involving the custody of a child, deals with a matter of an equitable nature; it is not bound by any mere legal right of parent or guardian, but is to give his or her claim to the custody of the child the weight as a claim founded on human nature and generally equitable and just. Therefore, these cases are decided not upon the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the cases of an adult, but on the court’s view of the best interests of those whose welfare requires that they be in custody of one person or another; and hence a court is in no case bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after a careful consideration of the facts, leave it in such custody as the welfare of the child at the time appears to require. In short, the child’s welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to due consideration.

14. As observed by Lindley, L.J. in Mc Garth In re. (1893)1 Ch. 143

the welfare of the child is not to be measured by money only or physical comfort only…. The moral or religious welfare of the child must be considered as well as its well-being. Nor can the ties of affection be discarded.

15. In J and Anr. v. G and Ors. (1969)2 W.L.R. 540, the House of Lords went to the extent of refusing the joint request by the father and mother for the custody of their son which was with foster parents on the ground that the uprooting of the infant from the custody of the foster parents will not be in the best interests of the infant. The House of Lords observed thus:

There is an aspect which we think is very pertinent in considering the welfare and interests of the infants and that relates to the emotional upheavels that can be caused by the environmental changes resulting from the children being uprooted from Germany. That such emotional upsets must be avoided to the extent possible is now well established. The English Courts have even gone to the extent of taking the view that the unhappiness caused to the mother may result in emotional upsets in children which can vitally affect their future….

16. The following is what we get from a passage from P. (LM) (Otherwise F.) v. P. (Ge) (1970)3 All E.R. 659:

I am very firmly of opinion that the child’s happiness is directly dependent not only on the health and happiness of the mother but on the freedom from the very likely repercussions, of an adverse character, which would result affecting her relations with the stepfather and her ability to lookafter her family peacefully and in a psychological frame of ease, from the refusal of the permission to take the child to New Zealand which I think quite clearly his welfare dictates.

17. In J. v. G (1969)2 W.L.R. 540, Lord Mac Dermott made the following observation:

A growing experience has shown that if it is not always so and that serious harm even to young children may, on occasion, be caused by a change. I do not suggest that the difficulties of this subject can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion. But a child’s future happiness and sense of security are always important factors and the effects of a change of custody will often be worthy of the chose and anxious which they undoubtedly received in this case.

18. In Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor , it was held thus:

It is well settled that in matters concerning the custody of minor children the paramount consideration is the welfare of the minor and not the legal right of this or that particular party. The High Court, without adverting to this aspect of the matter, has dismissed the petition on the narrow ground that the custody of child with the respondent cannot be said to be illegal.

19. In Mrs. Elizabeth Dinshaw v. Arvind M. Dinshaw (1987)1 S.C.C. (sic) it is held thus:

Quite independent of the above consideration whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on consideration of legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor….

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[Italics supplied]

20. Thirty Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka , was a case under Parsi Marriage and Divorce Act. In that case, the fight was between the parents. In paragraph 17 of the judgment it is pointed out that in dealing with the matters concerning minors, the court has a special responsibility and it is the duty of the court to consider the welfare of the minor and to protect the minor’s interest. In considering the question of custody of a minor, the court has to be guided by the only consideration of the welfare of the minor. Thereafter, their Lordships approved the passage in Halsbury’s Laws of England, 3rd Edn., Vol.21, Para 428 at pages 193 and

194. It reads thus:

428. Infant’s welfare paramount: In any proceedings before any court, concerning the custody or upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application of the income thereof, the court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view, the claim of the father, or any right common law possessed by the father in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. This provision applies whether both parents are living or either or both is or are dead.

Even where the infant is a foreign national, the court, while giving weight to the views of the foreign court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the courts of any other country.

21. In Kirtikumar Mahashankar Joshi v. Pradipkumar Karunashanker Joshi , their Lordships gave importance to the wishes of the children while deciding as between the father and in-laws who is entitled to a preferential right. In that case, the fight was between the father and his in laws since the mother was dead. The children were with the maternal uncle. The minors were allowed to be with their maternal uncle in spite of the fact that the father was the natural guardian. The sole consideration was the welfare of the children and their wishes.

22. On the basis of the above settled law, we have to discuss the evidence in this case.

23. The learned Judge, in paragraph 27 of the Order has stated that the pivotal factor is the benefit and welfare of the minor child. But thereafter, the learned Judge has held that it is not proved by the respondent that the petitioner is not fit in any manner to be appointed as the guardian of the minor. Further, it is seen from the evidence that the respondent is not living in affluent circumstances and that she does not have any income. Her father is retired and is maintaining his family with his meagre income. The petitioner/father of the minor is financially sound and recently purchased some land for Rs. 2 lakhs and odd. His income, as admitted by the respondent is Rs. 6,800 per month. Nothing has been brought to my notice that it will not be desirable to leave the guardianship and custody of the minor with the petitioner. The learned Judge has further held in paragraph 28 as follows:

From the point of view of material comforts the minor boy is not likely to suffer for want of the requisite finance and wherewithal on the side of the father. The respondent/mother, though young, her parents are aged. I am unable to visualise a situation that the physical comforts of the minor child will be properly looked after by them. The petitioner’s mother is very eager to maintain her grandson with love and affection. The petitioner has further deposed that he can move over to city for the benefit of his son.

So, the main reason for handing over the custody of the minor son was, the material comforts and the facts that the father is having a very good income. The learned Judge also finds that the mother is not earning and she is at the mercy of her father. In paragraph 32 also, the learned Judge has said thus:

…The comforts available with the father are much more than that are available with the mother. The father will definitely be in a position to bring up the child in a good atmosphere, give him good education and other comforts which are needed. I am satisfied with his evidence. I am able to see that he has a real and genuine interest to have his custody.

It is for these reasons, the petition was allowed. In our opinion there are certain circumstances which are to be considered before custody can be granted to the father, and, on the basis of the said consideration we have to see whether the finding of the learned Judge is correct.

24. It is in evidence that the son is now nearing 11 years and he is attending the school. Even though various allegations have been made against the mother/appellant, the petitioner has not deposed anything about the same while he was in the box. He was examined as P.W.1 and he gave importance only to his financial position. In the box, he also did not speak anything regarding his allegation that the son has lost one year because he was taken to the school in the 6th year and that too for admission in U.K.G. He also does not speak about the performance of the boy in the school, and he does not know even in which class he is studying. It is also in evidence that till he filed the application for getting custody of the child before the Family Court, he was not interested in seeing the child, nor was he maintaining him. Only after the divorce petition was filed and when the wife moved an application for interim alimony, he thought of getting custody of the child. It is in evidence that even though the son is now 11 years old, for most part of his life, he was with the mother and mother only. From the evidence of P.W.1, it can be seen that except for two or three months in the entire life of the son, he was with his mother only.

25. P.W.2 has been examined to prove that the petitioner’s mother is willing to lookafter her grandson. She is more than 65 on this date. We are not saying that because of her age, she is incapacitated from looking after her grandson. But, how far she can be an affectionate grandmother is the point. Even during her evidence, she does not say that the child was with her at any time, except saying that she has seen him once or twice. The ward was never in that house. It is also in evidence from the deposition of the petitioner himself that he will be leaving for his office at about 7.00 a.m. and will be back in the house, in the night at about 10.00 p.m. This is spoken to by P.W.2, his own mother. So, it naturally follows that the petitioner will not be in a position to lookafter his son, nor to lookafter his education and the only person who can lookafter him in his petitioner’s house will be his aged mother, who is not that much educated. When the petitioner has to leave the house for his duty at 7.00 a.m. and can return to the house only at 10.00 p.m. in the night, it follows that the petitioner wants only to take away the custody of the child from the respondent (mother) and handover the child to the grandmother who has seen the child only once or twice in her life.

26. We have to take into account the educational qualification of the mother. She is a M.A., M.Phil., and B.Ed., (Tamil) of course, is not employed. But she is always at the service of the child. Taking her qualification, it follows that she can attend to all the needs of the son and she is better suited for his future requirements. That apart, the son was also brought up in good atmosphere with the mother and her relations. The petitioner has no case that the atmosphere in which the son is brought up is in any way injurious to his future. The emphasis of the petitioner is only regarding the financial requirements of the wife, and for that reason she may not be in a position to bring up the child. In the box, he does not say about the conduct of his wife, nor about the conduct of the grandfather or her brothers and their children. It is in evidence that the maternal grandfather is a retired Headmaster who knows how to develop a disciplined life among the students and he is there to teach discipline to his grandson also. It has also come out in evidence that the maternal uncles of the ward are highly educated and are well-placed in life. All of them are residing in the same compound and the child is being brought up in that atmosphere.

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27. The petitioner has produced some documents to show that he is very much affectionate towards his son. Of course, the wife is also not disputing the fact that the petitioner is affectionate towards the son. Affection by itself is not a ground for handing over custody. We have to consider whether the welfare of the minor requires the change of custody. As has been held in Rosy Jacob v. Jacob A. Chakramakkal , merely, because the father loves his children and is not shown to be otherwise undesirable, it cannot necessarily lead one to the inclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who in addition because of her profession and financial sources, may be in a position to guarantee better health, education and maintenance for them. In this case, we have an affectionate father and also in affectionate mother. But the question is, how far the affection of the father will better promote the welfare of the child. That will be the criterion for considering the custody.

28. Even though the petitioner alleges that the respondent is not bringing up the child properly and that was the reason for his ill-health, no evidence has been let in on that point, and even the petitioner does not speak about the same, except regarding the illness of the ward for some time. So, the said accusation against the mother falls to the ground.

29. P.W.1 has stated that even without a demand, he sent a sum of Rs. 1,000 to his son for treatment. But, according to us, nothing turns on the same. For it was the duty of the father to attend to the same. He also says that he has got medical benefits in his company and the same can be utilised for his son. Even if the son is living separately and is in the custody of the mother the medical benefit which the petitioner gets from his company can be utilised for his son. So, that itself is not a ground for getting custody. The other circumstances that have been taken into consideration are, that the petitioner has purchased a property and also some Units in the Unit Trust of India in the name of the son. But how far that can be for the benefit of the minor. At the most, it can be said that in future the minor may be the beneficiary. It is in the nature of savings by the father in the name of the son. The son is not getting any immediate benefit out of the property, or by the investments the welfare of the minor is not in any way promoted. Even the deposits c are only recent, and that too after the dispute between the husband and wife began. In this connection, it is also worthwhile to notice that the petitioner was not paying any maintenance to the son and only after an application was made in the Family Court, he made the payments. He boasts himself saying that he made payments of Rs. 2,500 and Rs. 2,000 totaling Rs. 4,500. We must take into account that even though the total amount paid is Rs. 4,500, the amount paid was only arrears of maintenance ordered by court.

30. The petitioner has no case that the mother is not affectionate towards the son. In view of the fact that the mother has genuine love and affection for the child and she can attend to all his needs and bring him up properly, we feel that the better course is to allow the ward to continue to be with his mother.

31. The respondent alleges that in her matrimonial home, the circumstance is such that the ward cannot have a peaceful life. According to her, not only the petitioner, his brothers and sisters and their children are all residing in that house, and so, naturally the grandmother cannot bestow a personal attention on the minor. The said explanation offered by the respondent (mother) cannot be lightly brushed aside. After a dispute between the parents has begun, P.W.1 says that he has offered certain gifts to the son and his son is also very anxious to receive them. Even though the respondent denies the same, nothing turns on the said statement of the petitioner.

32. As stated already, the learned single Judge has taken into consideration only the physical or material comforts of the minor to have the custody. Whether the change of custody from the mother to the father will affect the future of the minor was not considered. The learned Judge also assumed as follows:

…In the absence of any proof in that context, in my opinion, the custody of the child cannot be denied to the father. The interest of the infant will be saved if the infant is in the custody of the natural father….

The said approach by the leaned single Judge is not legally correct in view of the settled law laid down by the Apex Court. In the case of welfare of the child, the burden is both on the father and the mother and the parents have no legal right to have the custody, and all of them are only subject to the welfare of the child. It is not a disqualification of the father or disqualification of the mother. Everything has to be considered from the point of view of the welfare of the child. That has to be given primary importance.

33. In this connection, we had the opportunity of interviewing the ward. We have talked to him, and we are of the view that he can answer intelligently. We interviewed him for some time, and he was in a position to give very good answers. He also expressed his desire that he wanted both his mother and father to be with him. But at the same time, he was definite that in the present circumstances, he cannot go with his father, leaving alone his mother. In those circumstances, he prefers to be only with his mother. He has also expressed his desire that he prefers to be with his mother for the purpose of his education. According to him, the mother gives him every good coaching. He also said that he is within the first 10 ranks in the school and that he has secured more than 90% marks in Mathematics. We also ascertained from him the marks secured by him in the other subjects. He informed us that he has secured an average of 60% marks in all the other subjects, and that he is happy in the present atmosphere. We found him to be intelligent and in a position to give answers not on the basis of any coaching from any side. Even in our presence, he was very happy in the company; both his father and mother. We feel that any change in the custody will only affect the welfare of the child.

34. Taking into consideration all the questions of fact and law, and also the intelligent answers given by the ward, we are of the view that the father is not entitled to have the custody sought for. According to us, the welfare of the minor be better looked after by the mother.

35. The father as a natural guardian, has an obligation towards the child, and we are sure that he will discharge the same in spite of the fact that he has not been given the custody. The father will be entitled to have the custody of his minor son during the Navarathiri holidays, the Christmas Holidays for a period of five days each and also during the Summer Vacation for a period of 15 days. He will be entitled to get custody of the child from the respondent during these periods, and we direct the respondent accordingly. On the expiry of the stipulated period, the petitioner (father) shall handover custody of the child back to the mother. If the petitioner requires the custody of his son on any other specified date, he may move the learned single Judge by presenting a petition for such purpose which will be considered on its own merits. We are sure that even though we are denying permanent custody of the child to the petitioner, he will discharge his obligation towards his son by sending the sums required for the proper maintenance of the ward. In the course of evidence, it was brought to our notice that the petitioner was directed to pay Rs. 300 per mensem for the maintenance and education of the son. We make it a rule that the shall pay a sum of Rs. 500 per mensem from March, 1995 onwards. Without fail, and in case he fail to do so, the respondents (mother) is entitled to realise it by way of execution.

36. In the result, we set aside the order of the learned single Judge, O.P. No. 439 of 1991 is dismissed, with the above directions, observations. The parties arc directed to suffer their own costs.

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