S. Thirumavalavan vs Natarajan

S.M. Abdul Wahab, J.—This appeal has been preferred by the grand-father of the minor child, who was the respondent before the lower

court.

The respondent herein filed a petition for appointing him as guardian of the minor Rajeswari and for custody u/s 25 of the Guardians and Wards

Act, 1890. His case was that the deceased Narpasalai was married to him on 13.9.1981. The minor Rajeswari was born out of the wedlock on

22.6.1982. After the death of his wife, the petitioner and his wife were living with the respondent for some time. After sometime, the respondent

took away the minor child. Even though he filed a criminal case before the Chief Judicial Magistrate, Tiruchirapalli u/s 98 of Criminal Procedure

Code, he could not succeed. Hence, he has filed this petition.

The defence of the appellant was that the respondent never cared the minor or his wife. On account of his cruel treatment, the mother of the

minor child set fire to herself and committed suicide. Before her death, she has also left a letter blaming the respondent indicating that the properties

belonging to her must go to her brother. The appellant was in custody of the minor child. The child, was forcibly removed from the custody of the

appellant. As the respondent was having illicit intimacy with a house servant, he should not be entrusted with the custody of the child. The

respondent was also arranging to have a second marriage.

The learned Principal District Judge, Tiruchirapalli, passed an order directing the custody of the minor child to the respondent, rejecting the

various allegations against the respondent, hence, the grand-father has preferred this appeal.

The appeal is of the year 1988, the minor was aged about six years at that time. Stay was granted after the appeal was taken on file by this

Court. The minor child has been all along in the custody of the grand-father/appellant. The minor is a girl child and is aged now about 16 years. I

do not find any material from the records that any attempt was made by the respondent to advance the hearing of the appeal.

The question that has to be considered in this appeal is; whether the minor should be entrusted to the custody of the father at this stage?

When we go into the facts, the father though legally entitled to the relief, as in my view forfeited that legal right as the facts and circumstances of

the case reveal.

The mother has committed suicide by setting fire to herself. She has left a letter before, her death. The said letter speaks volume about the

conduct and char-acter of the father, the respondent herein. The mother of the minor has committed suicide because the respondent had

developed illicit intimacy with the ser-

vant maid. He has been treating the mother and the child cruelly. In the said letter, there is a statement that even though the mother wanted to kill

the child also she changed her mind and states as follows:

The next sentence is also very important.

Hence, the deceased mother herself has desired that the custody should not be given to the father-the respondent.

The lower court has chosen to disbelieve this letter even though it has stated that the hand-writing in Exs. R-6 to R-8 tally with the hand-writing

in Ex. R-2. What the lower court says is that the in Ex. R-2 are not natural. For arriving at that conclusion the lower appellate court that the letter

bequeathed the entire property to her younger brother Mudiazhgan. this is unnatural. When her daughter was alive, the mother would not have

intended to do so. Again, the lower court find that the direction that the minor child should be brought up by a person belonging to different reli-

gion was also unbelievable. In my view, these two reasons are untenable. Normally, among Hindu Community, the brother is allowed to marry the

sister''s daughter. Probably, the deceased Narpasalai had that idea in her mind. Instead of saying all those things in the short letter, which she has

written few minutes before her death, she could not express all her desires. The other reason that the custody must be given to a person belonging

to other religion is also untenable. The mother has indicated that she believed that her colleague working with her would bring up the child in a

better manner. That itself is an answer to the doubt of the learned District Judge.

When we compare the handwriting in Ex. R-2 with the admitted handwriting contained in Exs. R-6 to R-8 the handwriting is beyond any

doubt, in the hand of the deceased. Her last desire is contained in the said letter. the said letter deserves to be treated as a testament. She has

signed four times immediately after the completion of the sentence in the letter. That itself is an indication that she wanted that letter to be accepted

and acted upon and dispel any doubt about its genuineness. In my view, if anything is done contrary to the last wishes of the deceased, we will fail

to satisfy the desires of a departed soul. In such circumstances, we should not harp upon the legal rights con-ferred upon the father and ignore the

sentiments expressed by the mother that too at the time of her suicide. When we consider the welfare of the child also, a female child in the custody

of a grand-father or mother would feel better and happier than to in the custody of a step-mother. In my view, when we come across a case like

this, we must take note of the traditional proverbial treatment of a step-mother and as far as possible, the court must stretch its arms to prevent the

chances for such a treatment/As otherwise, even from the childhood the minor child will begin to experience a frustration and nurture a hatred

towards the step-mother and to some extent towards the father, who usually ignores the cry of a minor child for fair treatment at the influence of his

second wife. In this case, the respondent has admitted that he has taken a second wife, Further, it is also stated that the second wife has also

conceived.

It is true that the aforesaid opinion need not be the same in all the cases of an unfortunate/female minor child. But in this case, the father''s

conduct is unappreciable as per the certificate given by his deceased wife. There is also no evidence to show that the grand-father is not in a

position to take care of the minor child and bring her up in the way in which he deserves according to her status. There are statements in the

counter and the same is spoken to by the appellant that the respondent was always in financial difficulties and hard pressed for money. But on the

other hand, in the petition of the respondent, there is no whisper about any financial difficulty faced by the appellant. As we have seen already, the

minor child is all along in the care and custody of the appellant. she has attained the age of 16. In another two years time, she will be able to decide

about her future by herself. In such situation, I do not find that the inter-est of the minor will be better served if the custody is transferred to the

respondent. Hence the status quo should be maintained for another few years to come. 12. The lower court is not justified in giving due regard to

the last wishes of the mother by rejecting Ex. R-2. The reason for rejecting the said document is flimsy and unjustified. I therefore feel that the

judgment and decree of the lower court has to be reversed. Accordingly; the same are set aside. The appeal is allowed. However, there will be no

order as to costs. Consequently, C.M.P. No. 14228 of 1988 is dismissed.