Report No. 133
(12) In Smt. Bindo v. Shyamlal, 1907 ILR 29 All 210, the dispute for the custody of a minor girl about 10 years of age was between the father of the minor and the maternal grand-mother of the minor. The mother of the minor had died when the minor was about 5 years of age and since then the minor was living with her maternal grand-mother. An application was made by the father for the custody of the child.
The said application was opposed by the maternal grandmother on the ground mainly that father had remarried and he was not well off and that the minor was happy to live with her grand-mother and did not wish to go to her father. The District Judge, by holding the father's right to be paramount, passed an order appointing him as guardian of the minor girl. On appeal to the High Court, the order of District Judge was set aside and the High Court directed that the minor girl be restored to the maternal grand-mother. The High Court held as under:-
"There is no suggestion that the maternal grand-mother is in any way unfit to continue to be a guardian of the ward. She is a Hindu lady in good circumstances, and it is obvious that if she had not cared for the child she would not have kept the minor so long under her charge. It is true that there is nothing against the father, but again it is an admitted fact that he has married a second time and the girl will have to go under the control of a step-mother, of whom probably she knows nothing. We cannot think that the girl, under these circumstances, will be so happy as she is in the house of the maternal grandmother. What we have to consider is what will really be for the welfare of the minor. Weighing all the circumstances we think that it will be more for the welfare of the minor to live with the maternal grand-mother then with the step-mother".
It is thus evident that the welfare principle has quite often not been properly appreciated or has been overlooked by the trial court and the mother has had to approach the higher court at considerable time-cost and money-cost. The need for spelling out some important considerations in the application of the welfare principle and for amplification of the relevant provisions to this end has, therefore, been clearly established.