(Delivered by The Chief Justice.)
This appeal raises a question of the right of a Hindu father to the custody of his minor daughter, the allegation being that he had abandoned the minor. The appellant is the father of the minor who was born in 1922. Her mother suffered from tuberculosis and died a few months after the child was born. Before the mother's death, the appellant entrusted the minor to his sister Gnanambal, who was married to one Subramania Mudaliar. Subramaniam died in August 1931 and Gnanambal in October 1932. After the death of Gnanambal the 1st respondent, who is another sister of the appellant, took charge of the minor and has had charge of her ever since. In 1927 the 1st respondent went to live with Gnanambal and her husband. Gnanambal owned the house in which she, her husband, the 1st respondent and the minor were living and by her will left the house to the first respondent and the minor jointly. She further provided that on the death of the 1st respondent the minor should have the property absolutely. The appellant married a second time in 1923 and had a daughter by his second wife. It is said that upto 1934 he used to visit the minor, but it is common ground that he has not visited her since 1934. It is also common ground that she never returned to her father's house. In January 1937 the 1st respondent arranged to marry the minor to the 2nd respondent. The appellant's case is that he was not consulted about this and as he disapproved of the marriage he instituted the proceedings out of which this appeal arises. He applied under the Guardians and Wards Act for an order appointing him the guardian of the person and property of the minor. He also asked that the 1st respondent should be directed to hand over the custody of the minor to him and that the 1st respondent should be restrained by an injunction from giving away the minor in marriage to the 2nd respondent. The application was heard by Gentle, J. who treated it as one falling within S. 25 of the Guardians and Wards Act and on the ground that the appellant had abandoned the minor dismissed. The appeal is from this order.
The appellant is not entitled to apply under the Guardians and Wards Act for an order appointing him guardian of the person or property of the minor. Under Hindu Law the father is the lawful guardian of his child and a declaration by the Court cannot increase his powers. I had to consider this very question in K.V Venkateswaran v. Saradambal(1) when sitting as a Judge of the Rangoon High Court and I see no reason to change the opinion I expressed there. In fact the learned Advocate for the appellant has not challenged the correctness of this decision.
The important question is whether the appellant is entitled to an order under S. 25 of the Guardians and Wards Act. I Consider that the learned Judge was right in refusing to pass such an order. I have already referred to the fact that the minor was brought up by her aunts and that she has never been received again in her father's house. It is admitted that he has not contributed anything to her support since he delivered the child to Gnanambal and that he has taken no part in ceremonies which are so important to a Hindu girl, namely, the ear-boring ceremony and the ceremony which takes place when she reaches the age of puberty. The appellant has never even given her a present. The invitation to the ear boring ceremony was issued by Gnanambal and her husband Subramania Mudaliar. The invitation referred to the minor as the daughter of Gnanambal and her husband and no objection was taken to this by the appellant. This minor has always referred to her father as “uncle” and to Gnanambal and her husband as “mother” and “father”. If the fact that the minor referred to her father as “uncle” was all that the Court had to consider it might not be a point against the appellant but it can be taken into consideration in the circumstances of this case. While the appellant might have visited the house where the sisters were living, he has not visited the minor since 1934 and throughout the minor's life he has not taken the slightest notice of her. His character can be gauged from the fact that in the course of the evidence he alleged that dissolute persons were in the habit of frequenting the house where the 1st respondent and the minor were living. There is not the slightest foundation for this statement. The learned Judge was satisfied, as we are, that he made this unwarranted allegation thinking that if he attacked the character of the respondent it would strengthen his case. The learned Judge also held, and again we agree with him, that this application was filed because he had not been consulted about the marriage and he wished to annoy the 1st respondent. Where a father delivers his infant daughter to the custody of another and for over fifteen years takes no interest in her, but allows others to do what he as a father should do, it is evident that he is not fitted to exercise the rights of a father. He is certainly not a person in whose favour the Court should pass an order under S. 25 of the Guardians and Wards Act. It is abundantly clear in this case that the minor will be in far better custody if she remains with the 1st respondent. The learned Advocate for the appellant contends that even in these circumstances he should be granted an injunction restraining the 1st respondent from marrying the minor to the 2nd respondent. I fail to see how we can pass an injunction of this nature when the main part of the application has failed. The learned Advocate for the appellant has been unable to point to any section in the Guardians and Wards Act under which he can ask the Court to issue an injunction in these circumstances. If the appellant wishes to take other proceedings he is at liberty to do so but having failed in his application under S. 25 of the Guardians and Wards Act he is not entitled to any order on the present application.
The appeal will be dismissed with costs in favour of the 1st respondent.
Appeal dismissed.
N.R.R
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