S. Soora Reddi vs S. Chenna Reddi and Others

Govinda Menon, J.—This is an appeal u/s 19 and 47, Guardians and Wards Act against the order"" of the learned District Judge of

Cuddappah by which the learned District Judge dismissed an application by the appellant herein u/s 10 of the same statute for a declaration that he

is the guardian of his minor son who was born on 15th April 1944.

The two grounds on which the learned District Judge dismissed the application are firstly, that since the death of the minor''s mother immediately

after the birth of the minor, the father, the appellant, had married a second wife and is now living in the house of the second wife''s father. The

second reason which impelled the learned Judge to reject the application is that the petition to the lower Court was made 19-. months after and

therefore there was undue delay in the making of it. In our opinion, the learned Judge''s view that the application was made 19 months later is

based upon a misconception.

A few facts have to be stated in order to-understand the exact situation. The minor was born on 15th April 1944 and the mother died

immediately. The joint family of which the. appellant was a member consisted of himself and his elder brother, respondent 1 and it is contend-ed

that respondent 2, the sister''s husband of the appellant and respondent 1, is also a member of the family having been adopted into it as an-illatom

son-in-law. Therefore the admitted members of the family are the petitioner and respondent 1 and their children, but respondent 2 also claims to be

a member of the family. It is alleged that on account of the appellant not admitting the right of respondent 2 as an illatom son-in-law, there were

disputes between the parties which necessitated the appellant leaving the family house in July 1945. Learned counsel for the appellant urges that his

client was driven, out of the family house, which on the other hand, Mr. K. E. Bajagopalachari for respondent 1 submits that it was rather a case of

desertion from the family house and not one of having been-driven out. Whatever that might be, it is clear that the appellant was living in the family

house until July 1945. In about September 1945 the appellant brought a suit for partition of the joint family properties for making respondents l and

2 parties to the suit. There are parties with whom we are not concerned. It is after, the filing of the partition suit, i. e. nearly, four months later, on

27th. February 1946 that the present application u/s 10 was made to the lower Court. The learned counsel for respondent 1 also states that within

a short time after the second marriage it was that the appellant brought the suit for partition.

In these circumstances, the question for consideration is whether the learned Judge was justified in refusing the appellant''s request. That the

Court has no power to appoint a guardian of the person of a minor, whose father is living and is not in the opinion of the Court unfit to be the

guardian of the person of the minor, has been decided in Annie Besant v. Narayaniah, 33 Mad. 807: A. I. R. 1914 P. C. 41. In. a. very recent

ease in S. Rama Iyer Vs. K.V. Nataraja Iyer, , to which one of us was a party, it has been held that the fact that the father has married a second

wife and that his son by the first wife, who at the time of the petition was 14 years of age and was living with the maternal relations, is not sufficient

justification for depriving the father of the natural rights of guardianship which inhere in him according to the Hindu law. As against these cases, Mr.

Rajagopalachari invites our attention to four cases : Muthuveerappa Chetti v. Ponnusami Chetti, 22 M. L. J. 68 : 13 I. C. 16, Seeyali Veettil

Abubacker Vs. Ovinakath Vayyilapurayil Mariyumma, , Muthuswami Chettiar and Another Vs. K.M. Chinna Muthuswami Moopanar, and

Ponniah Asari v. Suppiah Asari A. I. R. 1935 Mad. 363 : 158 I. C. 95. It is a proposition so well known and established that it cannot be

questioned at all that the welfare of the minor is the prime consideration in such matters and that even the paramount rights of the father as the

natural guardian should be subordinate to the welfare of the minor. Muthuswami Chettiar and Another Vs. K.M. Chinna Muthuswami Moopanar,

is in point on that. Where the dispute is between the father and the mother of the minor, it has been held in Seeyali Veettil Abubacker Vs.

Ovinakath Vayyilapurayil Mariyumma, that the Court will give due consideration to the welfare of the minor as well. We do not think that the facts

of Muthuveeruppa Chetti v. Ponnusami Chetti, 22 M. L. J. 68 : 13 I. C. 16 are apposite for the , consideration of the present point in controversy.

The learned District Judge, though he has stated towards the end of his judgment ""In the interests of the welfare of the minor he should be

allowed to continue where he is now"", does not show the data on which he came to that con. clusion, or the evidence on which he founded that

opinion. As we have already stated, one of the reasons given by him that the application was 19 months later is based on a misconception because

he left the family in July 1945 and the application was filed in February 1946, i. e., about 7 months later. As regards the other reason, namely, that

the father has married a second wife, there has been a long course of decisions of this Court to the effect that the fact that a Hindu father has

married a second wife is no ground whatever for depriving him of his parental right of custody of the person of his minor son. We are, therefore, of

opinion that the learned Judge has not given sufficient reasons for not conforming to the ordinary accepted and general principle of law that the

father ought to be the guardian of the person and property of the minor.

Mr. K. E. Rajagopalachari for respondent 1 says that the minor has grown up in the family of the father''s relations, namely, the father''s brother

and the father''s brother-in-law. It is also submitted that the deceased mother of the minor was a near relation of respondent 2. But these are all

matters which cannot, in our opinion, be given predominance when the question is as to who should have the custody of this minor boy. Naturally

since the boy has been from the date of his birth among persons like respondents 1 and 2, it may be that the boy might have by this time developed

some love and attachment to these people. Even so, we do not think that that will be a sufficient reason for depriving the father of his rights of

guardian- ship.

We therefore hold that the decision of the learned Judge is not correct and accordingly give a declaration u/s 10, Guardians and Wards Act that

the appellant is entitled to the guardianship of his minor son. He is entitled, as a result of this declaration, to apply to the lower Court for the

coutody of the minor boy. The appeal is allowed and the order of the lower Court set aside. In the circumstances of the case and as it is between

near relations, we direct the parties to bear their own costs.