Gangarapu Chinna Sambayya vs Polepalli Rudrappa and Others

Horace Owen Compton Beasley, Kt., C.J.—There is no appearance here for the respondents. In our view, the learned Subordinate Judge

has not dealt with this case in a satisfactory manner. He has found himself bound by the observations in (Kode) Atchayya Vs. Kosaraju Narahari, .

It is quite true that he was bound of course to follow that decision. However, as has been stated in more recent cases, each application must be

governed by the facts and circumstances of that particular case. No hard and fast rule can be laid down in such cases. The allegations made by the

appellant, the 1st respondent in the lower Court and the maternal grand-father of the minor, were that the petition was not bona fide, that the first

respondent here and the petitioner in the lower Court had ill-treated his wife during her life time and indeed a very serious allegation is made that he

poisoned her and the poisoning caused her death and that he was not the right and proper person to be given the custody of the minor girl. There

was also another allegation that he was about to marry again; and the learned Subordinate Judge finds that this has become an actual fact since the

filing of the petition. The admitted facts appear to be that the minor girl at the time of the application was just over five years of age, that she had

been with the appellant, the maternal grand-father, ever since her birth and that very soon after her birth the minor''s mother was brought to the

house of the appellant where she died. The position therefore, is that the minor girl had been at the time of the hearing of the petition some five

years or more in the care of the appellant. There is nothing to show that after the death of the minor''s mother or at any time during the interval

between that date and the presentation of the petition under appeal the first respondent here - the minor''s father - ever sought to have the girl

returned to him and the question as to why he now suddenly does so is one which bears upon this matter. It is quite true that there is the decision

referred to by the learned Subordinate Judge. He, however, did not take any evidence at all and none of the allegations made by the appellant

were enquired into. Since the decision to which reference is made in the judgment of the learned Subordinate Judge there have been other

decisions of this High Court. One of them is (Kakara) Tatamma Vs. Marina Veerraju, a decision of Waller and Cornish, JJ. The observations of

Waller, J. certainly bear upon such questions as this. There are two other decisions to which reference may be made although in fairness to the

learned Subordinate Judge it must be stated that they could not be put before him since they are decisions of a more recent date than the order

under appeal. One of these is Muthusami Chettiar v. Muthuswami Moopanar (1934) 41 L.W. 190 a decision of myself and King, J. and the other

is Ponniak Asari v. Suppiah Asari (1934) 68 M.L.J. 213 also a decision of myself and King, J. In these two latter decisions great importance is

placed upon the question of welfare of the minor. It is conceded that the father is the natural guardian of his minor children and that he has a right to

claim the custody of those children but these decisions to which reference has been made point out that that right can be defeated if the Court is of

the opinion that it is better in the interests of the minor that the minor should remain in its present custody and not be returned to that of the father.

In considering the question of the minor''s welfare the question as to whether or not the petition asking for the custody of the minor is bona fide

must be considered. If it is not bona fide that is a reason for not disturbing the custody of the minor. What has to be considered in all these cases is

the failure on the part of the father or the person who is prima facie entitled to the custody of the minor to take steps over a long period to get

custody of the minor. This of course bears on the question of bona fides. Another matter which has to be taken into consideration is whether he is

a fit person for the minor to be returned to. It seems to me that should the father be proved to have been guilty of such treatment as is alleged to his

wife, the minor child''s mother, he would not be a desirable person to have the custody of the child. All these matters do not appear to me to have

been properly taken into consideration by the learned Subordinate Judge. At this stage I do not desire to say anything which is likely to embarrass

the lower Court in its further enquiry into this case which we are about to order. In my opinion the further enquiry should be conducted with due

consideration to what has been stated here and the cases to which reference has been made. The order of the learned Subordinate Judge is

therefore set aside and the case is remanded to the lower court for disposal in the light of the observations we have made. The costs of this appeal

will abide the result of the enquiry.

Cornish, J.

I agree.