Audiappa Pillai vs Nallendrani Pillai

Seshagiri Ayyar, J.—The District Judge held that no circumstances have been proved which would deprive the father of the right of

guardianship of his minor daughters. We agree with him. Mr. Krishnaswami Ayyar has taken us through the whole of the evidence. Accepting in

their entirety the depositions of appellants'' witnesses, we are unable to find that any circumstance has been spoken to which would render the

father unfit to be the guardian of his minor daughters. There is some evidence that the deceased mother of the girls was not properly treated: that is

not a ground for presuming that the children will not be properly looked after. The eldest girl was twelve years of age at the time of the enquiry and

the grandfather is unable to depose to any single act which shows that either the father or the stepmother ill-treated the girl. The fact that the father

has married a second wife is not a sufficient ground for holding that he is unfit to be the guardian of his children.

The learned vakil for the appellant relies on Bindo v. Sham Lal ILR (1907) All. 210, which seems to lay down that if the father marries again, he

ought to be deprived of his legal right of guardianship. The learned Judges refer only to Section 17 and say that the welfare of the girls is the

primary consideration. There is no doubt that that would be the consideration which would influence the Court ultimately; at the same time, it ought

not to be forgotten that the legislature advisedly draws a distinction between the legal rights of husband and parents on the one side and those of

the other near relations on the other. In the first class of cases, it must be established that any act or conduct of the husband or father renders him

unfit for guardianship: the fact that the child may be happier and more comfortable with other relations is not sufficient to deprive the two relations

referred to of their right and duty. The same sanctity does not attach to the rights claimed by the other relations. It is for these reasons that Section

19 of the Guardians and Wards Act lays down that the Court must be satisfied that the husband or the father is unfit to be the guardian of his wife

or child respectively before it can appoint another person as the guardian. For these reasons we are unable to follow the decision in Bindo v. Sham

Lal (1907) 29 All. 210. The decision in Re Gulbai and Lalbai ILR (1908) 32 Bom. 50 deals with the guardianship of other near relations. To such

cases Section 19 does not apply and the only consideration which should weigh with Courts is the welfare of the minor; we think the order of the

District Judge is right; we must dismiss this appeal. Having regard to the fact that the grandfather is deeply intrested in the minors, we think the

provision for consulting the Court before giving the girls in marriage is a salutary one. We see no reason to think that the security is not sufficient.

We make no order as to costs.