(Kode) Atchayya v. Kosaraju Narahari .

1. This is an appeal against an order passed by the District Judge of Guntur under Section 25, Guardians and Wards Act (8 of 1890) directing the appellant to hand over to the respondent his male child aged 4 years. The respondent is the father of the child and the appellant is its maternal grandfather. The material facts of the case are these : The child's mother died about three years ago. From the time she gave birth to the child she was ailing from some disease and it was thought advisable in the interests of the child that it should be separated from the mother. The child was, therefore, left under the care of the appellant and his wife who have since brought it up. The respondent married a second wife sometime after the death of the child's mother and his second wife is living with him. Besides her, he has a widowed sister who is also living with him as a member of his family. His case is that he requested the appellant to send back the child to his custody as he was desirous of bringing him up himself. The appellant refused to do so without assigning any proper reasons therefor. He therefore, applied to the Court under Section 25, Guardians and Wards Act for an order directing the appellant to deliver over the child to him. The appellant filed a counter-petition in which he opposed the application on the following grounds.

2. The application is not a bona fide one the respondent was wasting away his properties and so the appellant demanded the separation of the minor's share in the family properties and the delivery of the minor's moveables which were with the respondent and threatened to file a suit against him for partition. He also threatened to file a suit against the respondent's sister in respect of certain jewels belonging to the child. The application has been filed out of spite and as a counter move. The respondent was ill-treating his wife as long as she lived and his character created considerable pain and anguish in her mind.

3. The child has almost from its birth been brought up by his maternal grandmother, the appellant's wife, and he is feeling quite happy in the appellant's house; it would be cruel to remove him from there and deliver him to the respondent. Further there is none in the respondent's house to look after the child properly. Subsequent to the filing of the suit the appellant has filed a suit for partition of the minor's share in the family properties and he has also filed another suit against the respondent's sister for Rs. 300 being the value of jewels belonging to the minor's mother which were sold through the sister. Both those suits are still pending trial. The learned District Judge being of opinion that the grounds alleged by the appellant (respondent in the lower Court) in his counter-petition, even if true did not disclose sufficient cause for depriving the petitioner (respondent) of the custody of his minor son allowed the application and directed the appellant to hand over the child to the respondent by 23rd February 1928. That order has not been executed pending disposal of this appeal and the child is still in the custody of the appellant.

4. It is contended for the appellant that the learned District Judge was wrong in disposing of the application summarily without taking any evidence, in the view that the allegations made by the appellant did not disclose any sufficient ground for refusing the application. It is argued that under Section 25, Guardians and Wards Act the main question which the Court has got to consider is whether it will be for the welfare of the child to return to the custody of his guardian and that in the circumstances set out in the counter-petition it will be altogether prejudicial to the interests of the child to be sent back to its father, the appellant. The learned District Judge, it is contended, has not looked at the case from the standpoint of the Welfare of the minor which ought to be the main consideration in the decision of such a question; on the other hand he has approached the question from the standpoint of the assumed rights of the father. On the facts, it is contended that the child being still of tender age, it will not be to its interest to remove it from the care of its maternal grandmother and place it under the care of its stepmother or even of the respondent's widowed sister. The contention that the application is not a bona fide one is also pressed on us on the ground that it was after the appellant demanded the partition of the minor's share that the respondent presented the petition under Section 25, Guardians and Wards Act for the custody of the child and that pending the disposal of the partition suit it would not be in the interest of the minor to be placed in the custody of his father, against whom that suit has been filed.

5. We are of opinion that the learned District Judge was right in the view he took that none of the grounds taken by the appellant in his counter-petition, even if true, can be sufficient to deprive the father of the custody of his child. Under Section 25 the consideration which is to guide the Court is no doubt stated to be whether it will be for the welfare of the child to return to the custody of his guardian. It is, however, scarcely necessary to point out that the decision of that question depends upon the circumstances of each case and the relationship between the guardian and the ward when the application is made. Here the appellant is the father and natural guardian of the child. He is not only a person who is presumably most interested in the welfare of the child but he is also under the obligation of maintaining it suitably to his means. The appellant, as the maternal grandfather of the child, is also a person interested in the welfare of the child and his wife as the maternal grandmother is also in the absence of the mother, a proper person to look after the child. But they are under no legal obligation like the father to keep the child in their custody and maintain it suitably to their means. They can at any moment require the father to take over the child and the latter will be bound to do so. The rights and duties of the guardian of the person of an infant are clearly stated in Mayne's Hindu Law thus:

The guardian has a prima facie right to the possession' of the infant, a right which arises out of his obligations in respact of his children. He cannot, therefore, be deprived of it, even by the desire of the minor himself except upon sufficient grounds. In the case of parents, especially, it is obvious that the custody of their children is a matter of greater moment to them than the custody of any article of property. But his guardianship is in the nature of a sacred trust and the father cannot, therefore, substitute another in his stead. He may entrust the custody and education of his children to another but the authority he thus confers is essentially a revocable authority, and, if the welfare of his child requires it he can notwithstanding any contract to the contrary take such custody once more into his own hands. If, however, his authority has been acted upon in such a way as to create association or give rise to expectations on the part of the infants which it would be undesirable in their interests to disturb or disappoint, the Court will interfere to prevent its revocation. Mayne's Hindu Law Exn. 9 Para. 212.

6. Section 24, Guardians and Ward's Act also lays down clearly the duty of the guardian of the person of a ward thus A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education and such other matters as the law to which the ward is subject requires.

7. It therefore follows that when the guardian of the person of a ward applied for the custody of the ward he is only asking the Court to help him to discharge the duty cast on him by law, with reference to his ward and it is for those who oppose such an application to make out that the welfare of the ward will be better served by its being kept out of the "custody of its guardian and retained in the custody of the person against whom the application is made. This onus according to the authorities is especially heavy when the guardian is the father of the child who as pointed out by their Lordships of the Privy Council in Beasant's case Annie Beasant v. Narayaniah A.I.R. 1914 P.C. 41 is both according to Hindu law and English law the natural guardian of his children during their minorities. He is charged with the duty of bringing them up properly. He has there-fore a paramount right to the custody of his children of which he cannot be deprived unless it is clearly shown that he is unfit to be their guardian. This is the view which has been clearly taken in the reported cases decided subsequent to Beasant's case : see Andiappa Pillai v. Nallendran Pillai [1915] 39 Mad. 473 Satyanarayana v. V.L. Narasayamma A.I.R. 1924 Mad 45 and Sakhdeo Rai v. Ramachandra Rao A.I.R. 1924 All. 622. The decision in George Albrecht v. Bathee Jellamma [1912] 22 M.L.J. 247 which was strongly relied upon by the learned advocate for the appellant not only rests on a special ground viz. that the natural father who applied for the custody of his child was residing in foreign territory and the Court could not therefore exercise an effective control over him in respect of the ward, but it looks at the question from a point of view which has been materially altered by the view taken in Beasant's case. The question therefore which had to be considered in this case was whether the objections raised by the appellant even, if true, showed that the father was unfit to be the guardian of his child. It cannot in our opinion be successfully contended that either by his marrying a second wife who is now living with him or by his having ill-treated the child's mother during her lifetime (even assuming the ill treatment to be true), he has rendered himself unfit to have the custody of his child. On this point we agree with the decision of Seshagiri Aiyar and Napier, JJ. in Andiappa Pillai v. Nallendra Pillai, which dissents from Bindo v. Sham Lal [1907] 29 All. 210. The case in Sukhdeo Rai v. Ramchandra Rao A.I.R. 1924 All. 622 is also in support of the same view. We are not however prepared to agree with the observation made therein that an immoral father has just as good a right to the custody of his children as a moral man.

8. We think that if the father is leading an immoral life it will be for the Court to consider whether he is of such a character that it would not be to the welfare of the child that he should have its custody. In this case a vague allegation is made in para. 4 of the counter-petition against the character of the father which purports to be based upon a letter alleged to have been written by the deceased wife to her brother. The allegation is extremely vague. Further the writer of the letter being dead the latter is clearly inadmissible in evidence. There is no allegation that the father was at the date of the application leading an immoral life and the vague allegation seems to be made only to create a prejudice against the father.

9. The only other ground, alleged in the counter-petition and which is also pressed before us is that the father has been wasting his properties and in supports of that reliance is placed upon his written statement in the partition suit in which he says his debts amount to Rs. 14,000; it is suggested that some of these debts are not real but fictitious. The question whether the father is really indebted to that extent, whether the debts were incurred on account of his reckless and improvident ways and whether there are sufficient circumstances to justify the granting of a decree for partition in favour of the minor are questions which will have to be decided in the partition suit and there will be no justification for our going into those questions in the present application and prejudge in a summary way what has to be decided upon a full hearing in the partition suit. On behalf of the father it is suggested that the appellant is a man of poor means and that his object in filing the partition suit is to get possession of the minor's properties ostensibly for the benefit of the minor but really for the benefit of his family. That again is a question which we cannot go into in this petition. We do not think that the institution of a partion suit on behalf of the minor is a sufficient reason for depriving the father of the custody of his child.

10. The learned District Judge observes as follows: Even considering the matter entirely from the point of view of the welfare of the minor it cannot be to the minor's welfare to estrange him from his own father at this tender age as will undoubtedly be the case if he continues under the guardianship of the respondent (appellant) between whom and the father there is little love lost.

11. We entirely agree with those observations and we may also add that the allegation that the respondent's widowed sister is living with him is not denied and we have no reason to presume that the child will not be properly looked after in his father's (respondent's) house.

12. Lastly we may observe that though a ground has been taken in the memorandum of appeal that Section 25 of the Act has no application to the case as the child neither left nor was removed from the custody of its father (respondent), the point was not seriously pressed. A literal construction of the section may no doubt support that view but in our opinion the refusal of the appellant to deliver back the child to its natural guardian (respondent) when asked to do so by the latter, amounts in effect to a removal from his custody and that he can therefore apply under Section 25 of the Act for relief claimed by him. In the result the appeal is dismissed with costs.