Isidore Bose vs Mrs. S. Brown and Another

Kapur, J.—This is an appeal against an order passed by Mr. Prahlad Singh Bindra, Guardianship Judge of Delhi allowing the petition of Mrs. S. Brown to be appointed the guardian of the minor Sudhir Edgar Bose in Case No. 68 of 1946.

Sudhir Edgar Bose is the son of Isidore Bose, the Appellant before me, and of Lydia Bose who is Respondent 2 in the appeal. He was born on 8-8-1939 and at the time of the order of the learned Guardianship Judge he was 8 years and 10 months old. Mrs. Lydia is the daughter of Dr. Mrs. S. Brown who was the Petitioner in the Court below. She made an application to the Guardianship Judge for her appointment as the guardian of the person of Sudhir Edgar Bose, but the father Isidore Bose opposed this application and applied u/s 25, Guardians and Wards Act for the custody of the child. The mother Lydia Bose also filed, an application for appointment as guardian of the person of the minor.

The family in which the minor was born does not seem to have boon a happy one. Isidore and Lydia were married in 1937 and there seems to have arisen some trouble between the husband and the wife soon after. The wife in her evidence has made serious allegations of cruelty, mal-treatment and even unnatural offences committed on her against the husband. She has also charged him with adultery. The husband has also made allegations of adultery against the wife, but these are not matters the correctness of which, is before me excepting; that I have to take these matters into consideration when deciding as to who should be appointed the guardian of the minor.

The minor was born in year 1939 at Bareilly. At that time the grandmother Mrs. Brown got an appointment at Lucknow. Isidore Bose is alleged to have told Lydia that he could not look after her and the child and that she should take them away, and there is evidence to show that when the child was only about six days old he was removed by the grandmother along with the mother to Lucknow and both of them stayed with the grandmother for some time, and although the grandmother took both of them back to Bareilly, they were sent back early in September 1939. The reason given is that the child was ill. There is also evidence to show that while the family was living at Bareilly the grandmother was contributing to their expenses. Soon after the grandmother seems to have come to Delhi and the mother as well as the child also came to Delhi. This time the reason given is that the mother had to appear for the Matriculation Examination of the Punjab University. They then returned to Bareilly, but for some reason or another. The mother and the child were again sent back to Delhi where the grandmother was living. The mother and the child were going to and fro from the husband''s house at Bareilly and the house of the grandmother at Lucknow and Delhi.

In 1942 Isidore Bose and Lydia Bose (the father and mother) came to Delhi and stayed with the grandmother, but their quarrels continued in rather violent form so much so that it is alleged that the husband threw a shoe and a knife at his wife but they both missed her. In the same year the grandmother went to the house of the father and the mother at Bareilly and there was some trouble with regard to a girl Mt. Bano. The daughter was complaining that the husband was carrying on with this girl.

There was some small sum of money deposited in the name of the minor son which had been contributed by the mother, Lydia Bose, and the grandmother, Mrs. Brown, at the rate of Rs. 10 a month. This sum of money was withdrawn by the husband to pay off his debts. There are also allegations made, that the husband tried to kill the child by administering opium to him. It is a curious feature of this case that although serious allegations have been made by the husband against the wife and by the wife against the husband and statements have been made on oath in the Court, no attempt was made to cross-examine them on these points. There is no doubt that each party has denied the allegations made by the other and, therefore, it is not possible to give a positive finding on the various allegations made, but this much seems to be clear that the husband and wife were on very bad terms with each other and most serious allegations of immorality amongst other things were being made against each other which is also clear from the letters which have been produced and placed on the record. So this was the family in which this unfortunate child was born and these were the environments in which he was living in the beginning. The husband and wife have been drifting apart and since October 1944 they are living separately.

For (from?) the year 1943 the minor has been living with Mrs. Brown although from what I have stated above it cannot be said that the child was living away from her at any earlier stage. Since that year he has been exclusively with her. The grandmother (the applicant) has produced several letters written by the father to her which show that the minor has been mainly with the grandmother and father knew that he was very happy with her. The letter of 5-8-1944 (P. l) shows that the son had learnt so much from the grandmother that Isidore Bose thanks her for what she was doing for the child. A letter of the father addressed to the grandfather dated 9-5-1944 shows how affectionate the child was towards the grandmother or the grandmother was towards the child. In the letter of the 6th of December of that year the following passage is of interest:

Now I write mainly about Baby. I of course realize all you have done for him and are still doing as also your great love and affection for him and I have no intention of taking him away from you.

A letter dated 31-8-1046, P. 14, page 121, shows that the child had come to the grandmother when he was four years old and had lived with her for three years. It appears that some kind of claim was made by the mother on Isidore Bose for the cost of his maintenance which the grandmother had incurred and the father seems to have begun to ask for the return of the child about this time, but the letter P. 30 dated 8-1-1947 is of a very damaging nature, and it was because of these claims for money made by the mother that the father seems to have started taking an interest in the return of the child to him. In this letter he said:

The point is not that Lydia claims him but that she has written that I cannot have the child unless I pay his maintenance for the last three years. If you desire me to alter my decision there are certain things to be done. I would like you to please come down by the 20th and bring in writing a letter from Lydia saying that she has no monetary claims as regards Baby or his maintenance....

He goes on to say:

This is just the paragraph in her letter ''(monetary claims)'' which has caused me to do what I have done and unless she cancels it by writing the above I cannot think of changing my mind.

There is a postscript to this letter saying:

It ia only because I realize how fond you are of him ''(of the minor)'' that I am prepared to change my mind but that paragraph in Lydia''s letter must first be cancelled and one or two other things settled before I can drop my application for the custody of the child.

From the correspondence that I have referred to above it is quite clear that although for three long years the father took no interest in the child he suddenly began to claim him and the cause for it seems to be the claim made by the mother against the father for the maintenance of the child for the three years preceding, and if the mother was prepared to give up her claim to the maintenance of the child he was quite prepared to give up his claim to the child. This gives me an impression that the claim of the father was a counterblast to the claim of the mother which she had made for the maintenance of the child.

During the time that the child has been with the grandmother she has been expending on his education without the father contributing anything. There is the evidence of Mr. Tutler, Principal of the Navin Bharat High School, New Delhi, which shows that on the child''s tuition alone Rs. 30 a month is being spent. The financial position of the father does not seem to be very sound. He is a school master getting a small salary. The learned Guardianship Judge has found that the father had not contributed anything towards the education of the minor nor has he taken any interest in him. He has no woman who can look after the child. The relations between the father and mother are strained so much so that they are living apart. The father himself handed over the custody of the child to the grandmother for her to bring up the child. It is on these considerations that the learned Guardianship Judge has found the father to be unfit to look after his son and to get the custody of the child. He has also found that there is no person better than the grandmother who has the welfare of the child so much at heart. -It is in these circumstances that the learned Judge has handed over the child to the grandmother and appointed her the guardian.

My attention has been drawn to a dictum of Sir Raymond Evershed, M.R., In re Collins, 1950-1 ALL E.R. 1057 at p. 1058, where it is observed:

I think that on general principles and in the public interest the Court should be a little slow to entertain an appeal, since the decision in such cases is so very much a matter for the Judge''s discretion, and one of great responsibility.

And it was submitted, therefore, that I should not interfere with the discretion exercised by Mr. Bindra. The appeal Court should be slow in interfering with such a discretion where a discretion has been properly and judicially exercised, and in my opinion the learned Judge has exercised this discretion very properly in favour of the grandmother. To further quote Sir Raymond Evershed in the same judgment:

No judge can claim to exercise ideal wisdom in these matters, but the jurisdiction he has is that which devolves on him from the sovereign as parent patriae.

Appellant''s counsel addressed me at considerable length and after hearing him and the counsel for the Respondent I am satisfied that the learned Judge of the Court below did not misdirect himself and nothing has been shown which would justify me in interfering with the exercise of the discretion of the learned Judge.

The child has been living happily with the grandmother since 1943 and now it is seven years since he has lived with her. The evidence shows that she has been treating him with great affection and has looked after him and, his education as properly as any parent could possibly do. There are allegations against the father which are of an unsavoury character. The motive of the father in claiming back the child seems to me to be puerile as he has been moved by the monetary claim made by the mother. The father has not thought it fit to contribute anything towards the education on the bringing up of the child and even though the father may have a right to get the custody of his son, the welfare of the child still remains paramount. In the present case I find that it will be in the interest of the minor that he should remain where he is. Sections 17 and 19, Guardians and Wards Act also place that consideration in the forefront in the matter of appointment of guardians. In Queen v. Gyngall (1893) 2 Q.B. 232 at p. 241 : (62 L.J.Q.B. 559), there are some observations made by Lord Esher, M.R. which are of importance in such cases and apply to the facts of this case. His Lordship said:

The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child. The natural parent in the particular case may be affectionate, and may be intending to act for the child''s good but may be unwise, and may not be doing what a wise, affectionate, and careful parent would do. The Court may say in such a case that, although they can find no misconduct on the part of the parent they will not permit that to be done with the child which a wise, affectionate and careful parent would not do.... That its jurisdiction to interfere with the parental right is not confined, as was argued, to cases where there has been misconduct on the part of the parent seems to me clear from many cases.

The mere fact that the Appellant is the father will not be sufficient to relegate the minor''s welfare to a secondary position. The welfare of the minor must be predominant and in this case the circumstances require the minor to be where his father chose to leave him seven years ago.

For reasons that I have given above I am of the opinion that it would not be for the welfare of the child to be taken away from the fostering care of his grandmother and be handed over to the father. The appeal must, therefore, be dismissed. The Respondent grandmother will have her costs in this Court and in the Court below.