Rev. Dr. George Albrecht and Another vs Bathee Jellamma

Wallis, J.—This is an appeal from an order of the District Judge of Guntur appointing the respondent, a Hindu widow, guardian of her minor

daughter and directing the counter-petitioner, Dr. George Albrecht, who belongs to an American Mission, to deliver up the minor to her mother.

There was some conflict of evidence, taut on a careful examination the facts proved seem to me as follows. The petitioner and her deceased

husband lived at Tallapalli, some 14 miles from Rentachintalla, the headquarters of the respondent, who accordingly visited Tallapalli in the course

of his missionary tours. According to his evidence, which I see no reason to disbelieve, Narasayya, the petitioner''s husband and father of the

minor, came to him and asked to be baptized. The request was refused as he was living with a concubine but he continued to attend the counter-

petitioner''s services. His wife also asked the counter-petitioner to baptize her and get her husband to take her back. The counter-petitioner

accordingly went to Tallapalli, held an inquiry and induced Narasayya to take back the petitioner as there was no proof that she was leading a bad

life as he suspected. About a week later, she came and complained that Narasayya had put her away and he also came and explained that he had

found her pregnant when he took her back. Later, ther6 was another inquiry, when Narasayya disowned the child which had been born in the

meantime. Narasayya and the petitioner went on living apart, the minor at first living with the petitioner. In 1903 Papamma, Narasayya''s daughter

by a concubine, was baptized, and in October 1905 Venkiah, a grown up son of Narasayya by a concubine, was also baptized.

In November 1905 Narasayya came to Rentachintalla and got the respondent to baptize the minor and sometime later he cam6 again and said

that his toddy had been poisoned and that he was not likely to live long and asked the respondent to take charge of the minor in case anything

happened to him, and the respondent promised to do so at his house in Rentachintalla but did not then take the girl into his school. According to

the respondent''s evidence, Narasiah had previously asked Mrs. Albrecht to take the girl and look after her, but she had not then consented.

The respondent''s witness No. 3, who had for many years been Village Munsif and has since retired, says that Narasayya took the minor from

the petitioner''s custody about 4 months before his death in January 1903, that when the counter-petitioner came to the village, Narasayya asked

him and Mrs. Albrecht to take charge of the child, but they told him to keep it for six months. The respondent''s witness No. 4, Narasayy''s

younger brother also speaks to this as does the respondent''s witness No. 6, another relative of Narasayya.

In January 1906 Narasayya was found murdered and when the Acting Tahsildar, the respondent''s witness No. 1, went to inquire he found

living in Narasayya''s house in addition to Narasayya''s concubine and a son by a former concubine (Venkiah) a little girl aged 5 or 6 who was said

to be the daughter of Narasayya and the petitioner, but not the petitioner herself who was living elsewhere. There was then no reason for

pretending that the minor was living there if she was not, and I have no doubt that the minor was living with her father and not with her mother at

the time of his death. A short time afterwards the minor and Narasayya''s daughter by his concubine were brought to the respondent at

Rentachintalla by Venkiab, his grown up son by a previous concubine. The petitioner and also Venkiah were afterwards charged with Narasajya''s

murder but discharged. At the present inquiry Venkiah was not called by either side, but was present and said to be assisting the petitioner. The

petitioner in her evidence not only denies misconduct but also that she was ever put away by her husband. She denies that she ever asked the

respondent to get Narasayya to take her back, or that there was any panchayat, or that her husband repudiated the son who was born 2 years

before his death. She says that, after her husband''s death, she was at her husband''s house when the Magistrate came to the village, but his

evidence is the other way. She also says that the minor was living with her and was kidnapped while she had gone to a field. The petitioner''s

witnees No. 1 says that the minor was living with the petitioner when she was taken to the respondent and that the petitioner was living amicably

with the deceased. The petitioner''s witness No. 2 also says that the petitioner was living with Narasayya till his death. Her brother the petitioner''s

witness No. 3 also says she was-living amicably with her husband and that she was at his house when the Magistrate came to inquire after the

murder.

On a careful consideration of the evidence I am unable to take the same view of it as the District Judge. I see no reason to disbelieve the

respondent''s story as to the difference between the petitioner and her husband, as to his attempts to settle them, as to Narasayya having had his

illegitimate daughter baptized in 1903, and having brought the minor to Rentachintalla to be baptized in November 1905, and as to his having

asked the respondent, both at Rentachintalla and on an earlier occasion, to look after the minor after his death. He was then under an apprehension

of danger to his life, an apprehension which proved well founded. He had separated from hid wife on an allegation of misconduct and had

subsequently taken the minor away from her. He had made all his children Christiana and was only prevented from being baptized himself because

he was unwilling to put away his concubine. These considerations appear to me to sufficiently explain his action. After his death the minor early in

1906 was handed over to the respondent and has since been in his charge. She was produced in Court and appeared to be healthy and well-cared

for. In September 1906, the petitioner prosecuted the respondent for kidnapping but the complaint was dismissed. In her present petition, she

states that she subsequently sued him but in her evidence she denied this and the respondent was not asked about it. The present petition was not

presented until March 1909, 3 years after the minor came into the respondent''s custody, and the delay is not satisfactorily explained. On these

findings of fact it remains to be considered what order ought to be passed. As a Hindu the father was entitled to appoint a guardian for his child by

Will or word of mouth to the exclusion of the mother Soobah Pirthee Lal Jha v. Soobah Boorgah Lal Jha 7 W.R. 73 and this right, under the Act

of 1850, he would not lose by becoming a Christian. Further, the result of authorities as held in Mokoond Lel Singh v. Nabadip Chunder Singh 25

C.P 881 : 2 C.W.N. 379 is that prima facie the father is entitled to say in what religion an infant child should be brought up. These wishes,

however, are not conclusive. The paramount consideration is the welfare of the minor, and when applied to as here u/s 17 of the Guardians and

Wards Act the Court has to decide the question with reference to all the considerations set out in the section. Where, in the opinion of the Court, it

would be injurious to the minor to give effect to the father''s wishes, the Court will interfere even in his life-time as in Mokoond Lal Singh v.

Nobadip Chunder Singh 25 C.P 881 : 2 C.W.N. 379 where a father was prevented from altering the religion of his son. In considering in the

present case whether to disregard the wishes of the father and restore the child to the mother, the fact that before the present application was put in

the minor had been left for 3 years in her present custody and was being educated as a Christian, in my opinion most materially affects the

question, and makes it much more difficult to interfere than if the application had been made before the child had become accustomed to its present

surroundings and the ways of thought in which it is being brought up.

On a consideration of all the circumstances, I do not think it would be for the welfare of the minor to interfere on this application with the

arrangements which the deceased father made for the minor''s custody after his death and I would, therefore, refuse the application and reverse the

order of the lower Court. There will be no order as to costs.

Abdur Rahim, J.

I agree.