G. Ponniah Asari vs Suppiah Asari and Others

Horace Owen Compton Beasley, Kt., C.J.—This is an appeal from an order passed by the District Judge of Ramnad at Madura and there

is also a memorandum of objections to that order. A petition was filed in the District Court under the Guardian and Wards Act. The first petitioner

was the father of the minor girl in question and the second petitioner her elder brother. The petitioners asked for an order directing her to be placed

in the custody of the first petitioner together with her jewels. The respondents were the maternal uncles of the minor girl. The petitioners alleged in

the petition that the minor girl was aged and that she had been taken by the respondents out of the custody of the first petitioner, her father, a

fortnight before the presentation of the petition on the pretext that her grandmother wanted to see her. The minor girl''s mother died when she was

about one year old. It was also alleged in the petition that the respondents were trying to bring about the marriage of the minor girl with the first

respondent''s son and that such a marriage was in violation of the Child Marriage Restraint Act. The petitioner stated that no guardian of the person

or of the property of the minor had been appointed by any Court and that under the law the first petitioner as the father of the minor was entitled to

be the guardian of her person and property. The learned District Judge made an order that the respondents were to hand over the minor with the

jewels described in the counter-petition to the first petitioner and that the first petitioner was to allow the minor to remain with the respondents and

their mother for four months in the year, i.e., January and February and July and August. He made the order directing the return of the minor girl to

her father because he was of opinion that upon the reported decisions he was bound to do this but he has found some of the most important facts

in the case against the petitioners and two of the petitioners'' allegations clearly false and put forward for the purpose of supporting the petition. The

statement that the minor girl was only nine years of age he finds to be quite untrue as she was proved to be 13 years of age. The object in making

this false statement clearly was to minimise the length of time during which the minor girl was living in the care of the respondents. It was also in

order to charge the respondents with being about to commit a criminal offence by marrying an under-aged girl. The allegation that the girl was

under the first petitioner''s protection alone until a fortnight before the date of the petition and that she was then taken away from him under a false

pretext is also clearly untrue and so the learned District Judge finds as a fact. This was obviously done in order to make it appear that the minor girl

had been in his custody all the time and had been taken out of his custody by a misrepresentation. The facts of the case really are that the minor girl

when she was about one year old was, with the consent of the first petitioner, taken away to live with her maternal uncles the respondents. At

about this time the first petitioner married a second wife and has had four children by her. It was probably because the first petitioner felt that

neither he nor the second wife could look after the girl properly that she went to live with the respondents. She remained with the respondents ever

since and has been, according to the learned District Judge, fondly brought up by the respondents and their mother ever since and she was at the

time of the petition still in their custody. The minor girl was examined as a witness and stated that she was not willing to go and live with her father,

the first petitioner, and that the respondents had made jewels for her and gave clothes to her. She stated that she had not seen her father and that

he had not come to her village nor had she seen her brothers and sisters. We can see no reason why the evidence of this girl should not be

accepted and we think that the learned District Judge also accepted it. He also finds that the first petitioner and the respondents have been on bad

terms since the death of the respondents'' brother. The learned District Judge relies upon certain decisions, viz., Mohideen Ibrahim Nachi v.

Mahomed Ibrahim Sahib I.L.R.(1915) 39 Mad. 608 : 30 M.L.J. 21, Reade y. Krishna I.L.R.(1886) 9 Mad. 391 and Kode Atchayya v.

Kosaraju Narahari (1958) 120 I.C. 474. In the latter case it was held that the father is the natural guardian of his children during their minority and

has 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 and

that the fact that he has married a second wife does not render him unfit to have the custody of his child. Certain other authorities are also referred

to. That the father is the natural guardian of his children during their minority and has prima facie a paramount right to their custody cannot be

disputed and, if he is not unfit and there are no other circumstances in the case, he must be given the custody of his minor child or children. But

there is one very important matter also which has to be considered and that is the welfare of the minor. In Bat Tara v. Mohanlal Lallubhai (1922)

68 I.C. 518 the Court dismissed the application of the father for the custody of his minor son who had been living with his mother for the past five

years and apparently the father had acquiesced in this. The Court tested the application by a consideration as to whether it would be in the interests

and welfare of the minor to return the minor to the custody of his father and held that it was not. In this case the decision in 18 CWN 1089 (Privy

Council) a decision of the Court of Appeal, the facts were that the defendant in whose custody the child was had looked after the child for a

considerable time. The child''s mother who had not been guilty of any misconduct so as to disentitled her to the custody of the child was

nevertheless refused the custody of the girl because it was essential for the welfare of the child that she should remain in her then custody. On page

243 Lord Esher, M.R. says:

As Lindly, L.J. well pointed out in the case of In re McGrath (Infants) (1893) 1 Ch. 143 it is the welfare of the child in the largest sense of the term

that is to be considered. In the present case I proceed on the footing that the mother has not been guilty of any misconduct that would, as between

her and other people, derogate from her natural right. The Court has to consider what is for the welfare of the child and for her happiness, what her

prospects are if not interfered with, the fact that in a short time she will be able to choose for herself, and what her position will be if taken by her

mother to live with her. This child is not a mere infant; if she were only six or seven years old the case would be very different. Again, it is not a

case of attempting to take away a child from its mother; it is a question whether a child who has been away from her mother for a long period shall

be forced to go back to her. If a child is living with its parent it may be a very serious dislocation of an existing tie to remove the child from the

custody of the parent. But suppose the case of a child which had been living from infancy with a grand-mother or an aunt, no one would say that

when the child had arrived at the age of fourteen without perhaps ever having seen either of its parents, by force of mere instinct it would

necessarily prefer to be with them rather than with the persons with whom it had always lived.

It is quite true that this case was a case of an application for a writ of habeas corpus but in our opinion the welfare of the minor which was such

an important factor in that case must also be an equally important one on an application such as this. In our opinion, the learned District Judge was

wrong in not regarding the interests and welfare of the minor child in this case as paramount to the rights of her father. The statement of a few facts

will, we consider, make this obvious. For 12 years the minor girl has lived with her maternal uncles. She came into their custody when she was a

baby certainly with the consent, if not at the request, of her father. She has throughout been well-cared for by the respondents. During these twelve

years it would appear that the first petitioner did not go and see his minor daughter more than twice if at all. He seems not to have shown the

slightest interest in her welfare or her health. It was almost as though the child had ceased to belong to him when her maternal uncles took her

away. He, shortly after her mother''s death, married again and has four young children by his second wife and this, it is probable, accounts for his

entire lack of interest in the minor. There is also the strongest probability that the father''s petition is not bona fide but is the outcome of spite and

grudge against the maternal uncles and that the real purpose of the petition is to satisfy that grudge and not any real desire for the custody of the

minor girl; and he has supported the petition by two serious and deliberate falsehoods. The minor girl has herself clearly shown where her

preference lies and it is useless to contend that a girl of 13 years of age is not capable of forming a good opinion on such a matter. We are satisfied

that the interests and the welfare of the minor are better served by allowing her to remain under the guardianship and in the custody of those

persons who have so well cared for her and that these considerations override any and all other claims advanced by the father and his prima facie

right as a father to the custody of the minor girl; and we will also add that where it appears that an application is not bona fide, it ought not to be

granted Kode Atchayya v. Kosaraju Narahari (1928) 120 I.C. 747, cannot be taken as deciding that the best interests and the welfare of a minor

cannot override a father''s prima facie right to have the custody of his minor child and that the bona fides of the petitioner cannot be considered

because, in our view, these matters are ones of first importance.

The result is that this appeal is dismissed with costs throughout and the memorandum of objections allowed with costs. The order of the District

Judge is, therefore, set aside and the petition dismissed and, if the minor child has been handed over to the first petitioner, he is directed to return

her to the counter-petitioner''s forthwith with her jewels.