ROSY JACOB versus JACOB A. CHAKRAMAKKAL

Citation: [1973] 3 S.C.R. 918 · Decided: 05-04-1973 · Supreme Court of India · Bench: C.A. VAIDYIALINGAM · Disposal: Appeal(s) allowed

Cited by 8 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

ROSY JACOB 
v. 
JACOB A. CHAKRAMAKKAL 
April 5, 1973 
[A. ALAGIR!SWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.] 
Guardians and Wards Act, 1890, Sec. 25-Husbond's application for 
the custody oj children-Welfare of the children is the dominant consi· 
deration. 
On the wife's application, judicial separation was granted under the 
Indian Divorce Act by the single Judge of the High Court. The custody 
of the eldest son was maintained with the husband while that of the dau-
ghter and the youngest son was given to the wife. In the Letters Patent 
Appeal preferred by the husband, the Division Bench varied the order 
directing handing over the custody of the daughter and the youngest son 
also to the husband. 
The principal question before the Court was whe· 
ther the husband's application for the custody of the children u/s 25 of 
the Guardian and Wards Act, 1890, was maintainable and, if so, what 
are the considerations which the Court should bear in mind in exercising 
the discretion regardin11 custody of children. 
Allowing the appeal, 
HELD : (i) On the facts and circumstances of the case, namely, that 
the Court cannot make any order under the Divorce Act, as the daughter 
had attained majority, and no guardian could be appointed u/s. 19 of 
the Guardians and Wards Act, 1890 during the life time of the existing 
guardian, husband's application was competent. 
Welfare of the children 
is the primary consideration, and hyper-technicalities should not be allo-
wed to deprive the guardian necessary assistance 
from the Court in 
effectively discharging his duties and 
obligations 
towards 
his 
ward. 
l932D] 
(ii) The controlling consideration g0veming the custody of the child-
ren is the welfare of the children concerned and not the right of their 
parents. 
The Court while exercising the discretion should consider all 
relevant 
facts and circumstances 
so as to ensure the welfare of the 
children. 
The contention that if the husband is not unfit to be the guardian of 
his minor children. then the question of their welfare does not at all 
arise, is misleading. 
If the custody of the father cannot promote 
the 
children's welfare, equally or better. than the custody of the mother, 
then. he cannot claim indefeasible right to their -custody u/s 25 merely 
because there is no defect in his personal character and he has attachment 
for his children-which every normal parent has. 
As the daughter has 
just attained puberty and the youngest son was of the tender age, in the 
interest of their welfare, the mother should have the custody in prefe-
rence to the father. 
.[933DJ 
• CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1295 
& 1296 of 1972. 
Appeals by special leave from the judgment and order dated 
April 26, 1972 of the Madras High Court in O.S.A. Nos. 2 and 
3 of 1971. 
918 
A 
B 
c 
D 
E 
F 
G 
H 
ROSY JACOB v. J. A. CHAKRAMAKKAL (Dua,].) 
919 
A 
K. N. Balasubramanian and Lily Thomas, for the appellant. 
8 
c 
D 
E 
F 
G 
H 
The respondent appeared in person. 
The Judgment of the Court was delivered by 
DUA, J.-The real controversy in these two appeals by special 
leave preferred by the wife against her husband, lies in a narrow 
compass. 
These appeals are directed against the judgment and 
order of a Division Bench of the Madras High Court allowing the 
appeals by the husband and dismissing the cross-objections by the 
wife from the judgment and order of a learned single judge of the 
same High Court dismissing a~out 25 applications seeking diverse 
kinds of reliefs, presented by one or the other party. According 
to the learned single Judge (Maharajan J.) "these 25 applications 
represent but a fraction of the bitterness and frustration of an 
accomplished Syrian Christian couple who after making a mess 
of their married life have endeavoured to convert this Court into 
a machinery for wreaking private vengeance". This observation 
reflects the feelings of the husband and the wife towards each 
other in the present litigation. The short question which we are 
called upon to decide relates to the guardianship of the three 
children of the parties and the solution of this problem primarily 
requires consideration ·of the welfare of the children. 
The appellant, Rosy Chakram.akkal (described her~ as wife) 
was married to respondent Jacob A. Chakramakkal (described 
herein as 
husband) sometime in 1952. 
Three children were 
born from this wedlock. Ajit alias Andrews,, son, was born in 
1955, Maya alias Mary was 

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