Sathi Jagannadha Reddy vs Kovvuri Rukmini and others

Motilal B. Naik, J.—This appeal arises out of judgment dated 16-7-1991 in OP No. 609 of 1987 on the file of the District Judge, East Godavari, Rajahmundry.

The appellant, Sathi Jagannadha Reddy is the petitioner in OP No.609 of 1987. He filed the said OP seeking guardianship of the minor Sathi Sowmya @ Sravani, who is his daughter. Respondent No.1-Kovvuri Rubnini is the maternal grandmother of the minor and respondent No.2 Kowuri Abbai Reddy is her maternal uncle.

The petition filed by the appellant herein, on being contested by the original respondent Nos. 1 and 2, was dismissed by the lower Court holding that it would not be in the interest of the minor to give her custody to the appellant, though he is the natural father of the minor, and therefore, he cannot be appointed as guardian to the person and property of the minor. Against the said order, the present appeal is filed.

During the pendency of the appeal, both the original respondent Nos. 1 and 2 died, and in their place respondent Nos. 3 and 4 were brought on record as their L.Rs. Respondent No.3-Kovvuri Suryanarayana Reddy is the eldest son of the original respondent No.l, and respondent No.4-Kowuri Radha Rani is the wife of original respondent No.2.

OP No.443 of 1987 was filed by Kowuri Rukmini praying to appoint her as ''guardian for the person and property of the minor, who is her granddaughter. OP No. 609 of 1987 was filed by Sathi Jagannadha Reddy seeking custody of the minor, being her natural father. OP No.308 of 1989 was filed by Kowiiri Abbayi Reddy seeking to appoint him as guardian for the person and property of the minor being her maternal uncle. All the above three OPs were disposed of by a common order dated 16-7-1991. Against the decision in OP No.443 of 1987, CMA No.1891 of 1991 was filed. As against the decision in OP No.308 of 1989, CMA No.1892 of 1991 was filed, and against the decision in OP No.609 of 1987, CMA No. 1976 of 1991 was filed.

Insofar as CMA Nos. 1891 and 1892 of 1992 are concerned, they were dismissed by this Court by separate orders on 1-5-1998, and the decision in OP No.609 of 1987, which is the subject-matter in the present appeal CMA No. 1976 of 1991, is now taken up separately for consideration by us on merits.

Before adverting to the main contentions, the following few facts are necessary for the disposal of this appeal:

The marriage of the appellant was performed with one Kantha Ratnam, daughter of respondent No. 1 at Rajahmundry on 6-9-1985 according to the customs. The said Kantha Ratnam gave birth to the minor-Sathi Sowmya @ Sravani on 18-9-1986 at Rajahmundry. After the birth of the minor, the appellant seems to have not visited the house of his in-laws nor enquired about the well-being of the minor. Though, Kantha Ratnam contacted the appellant on telephone several times to take her back alongwith the child to their house at Tadepalligudem, the appellant never bothered to take her, and as a result, Kantha Ratnam became mentally sick and depressed, and she died under mysterious circumstances in her bedroom on 12-5-1987 at her parents house in Rajahmundry.

Even after the death of his wife, the appellant did not care to seek the custody of the minor daughter, who was under the care of.her maternal grandmother and maternal uncles. The maternal grandmother and maternal uncles were and are nursing the minor child. To get over the legal embargo, the maternal grandmother as well as the maternal uncle filled different OPs., as indicated above, seeking custody of the minor child and to appoint them as guardian to the person of the minor and her property, which she acquired as a share from the property of her mother late Kaniha Ratnam. The father of the minor, appellant herein, filled OP No.609 of 1987 seeking custody of the minor. The maternal uncle of the minor-Kovvuri Abbayi Reddy, obtained an Adoption Deed from the father of the minor, and pursuant to that he became the adoptive father of the minor-Sathi Sowmya @ Sravani. During the pendency of the OPs., the father of the minor, appellant herein, filed suits OS No.380 of 1990 on the file of the I Additional Junior Civil Judge, Rajahmundry, to declare the adoption deed dated 17-6-1989 obtained by Kowuri Abbayi Reddy from him, as illegal and not binding on him. The appellant herein, subsequently contracted second marriage, and now has two daughters from his second wife.

OP No.609 of 1987 was filed by the appellant u/s 25 of the Guardian and Wards Act, seeking custody of the minor child against the minor''s maternal grandmother and maternal uncle. The said OP was contested by the respondents i.e. maternal grandmother and maternal uncle on various grounds. In the counter, the respondents made serious allegations against the appellant herein. They alleged that the appellant was only interested in money and was a money hungry person and that he had no love either for his wife Kantha Ratnam or for his minor child. They further alleged that after the birth of the minor on 18-9-1986, the appellant never came and enquired about the welfare of his wife and minor daughter. The respondents further alleged that nearly after one year of the birth of the minor, despite the efforts made by them and Kantha Ratnam, requiring the appellant to come and take his wife Kantha Ratnam along with the child to his house, the appellant never cared to come and has not seen the face of the minor daughter so far. The respondents alleged that the appellant had shed crocodile tears on the death of his wife Kantha Ratnam to show to the Society that he loved her, though he had not bothered to come and see his wife and daughter when she was bom on 18-9-1986 at Rajahmundry. Kantha Ratnam sent several persons to her husband, the appellant herein, and contacted him on telephone on 12-5-1987 and requested him to take her and the baby to his house on 14-5-1987, being the auspicious day. But, according to the respondents, the appellant condemned her and threw the phone saying that he would be the happiest person in the world if she dies so that he can marry another lady and get more dowry. After conversation on the telephone was over, Kantha Ratnam started weeping, and was upset, and she died under mysterious circumstances in her bed room in the house of her parents on 12-5-1987. The respondents alleged that the appellant is responsible for the death of Kantha Ratnam. It is further alleged by the respondents that though the parents of Kantha Ratnam sent some elders to the house of the appellant to bring him for performing the funeral obsequies, the appellant refused to come and that they could only bring the father-in-law of Kantha Ratnam from Tadepalligudem to Rajahmundry for performing the funeral rites of Kantha Ratnam.

The father of the appellant promised the elders that the entire amount of Rs.4,00,000/-, which was given as streedhana to Kantha Ratnam by her parents would be kept in fixed deposit in the name of the minor, and he had given an undertaking on stamp paper stating that he would tell his son, appellant herein, to keep the entire streedhana amount of Rs.4,00,000/- in fixed deposit in the name of the minor. The respondents have categorically stated that the brutish and cruel attitude of the appellant is the reason for the death of Kantha Ratnam. The appellant even did not bother to attend the funeral of his wife and he even did not bother to enquire about the welfare of the child. Under these circumstances, the minor continued to stay with her maternal grandmother. The respondents also alleged that within a few days after the death of the deceased, the appellant withdrew a sum of Rs.4,00,000/-, lying in deposits in various companies in the joint names of the appellant and his wife, and kept only one half of the said amount in the name of the minor and retained the other half of the amount for his personal use. The respondents alleged that it was a contrary to the undertaking given by the father of the appellant. The respondents also apprehended that the minor''s life would be at stake if she is to be given custody to her natural father i.e. the appellant, and therefore, pleaded dismissal of the OP.

The lower Court on consideration of the oral and documentary evidence, recorded in common in all the three OPs., found that though the father being natural guardian is entitled to seek custody of the minor''s person and property, and yet held that the interest of the minor would serve only in the company of her maternal grandmother and accordingly handed over custody of the minor to her maternal grandmother, who is respondent No.l in OP No.609 of 1987. This decision of the lower Court, is challenged before us.

We have heard Sri. M.V. Ramana Reddy, learned senior Counsel for the appellant-father of the minor and Sri. M.S.K. Sastry, learned senior Counsel for respondent Nos. 3 and 4. Respondent Nos. 1 and 2 have died during the pendency of the appeal. As indicated earlier, respondent Nos.3 and 4 are legal representatives of the deceased respondent Nos.l and 2, respondent No.3 being son of respondent No.,1 and respondent No.4 being the wife of respondent No.2. ''

It is firstly contended by Sri. Ramana Reddy, learned Counsel appearing on behalf of the appellant-father of the minor that in view of the death of respondent No.1-Kowuri Rukmini, maternal grandmother of the minor to whom the custody of the minor was ordered by the lower Court, the custody of the person of the minor including her property should be handed over to the appellant. He secondly contended that according to Section 6 of the Minority and Guardians Act, the father becomes the natural guardian of his children, and hence, in view of the said provision, the appellant being the natural father of the minor, is entitled to be appointed as guardian to the person and property of the minor. The learned Counsel thirdly contended that respondent Nos.3 and 4, who were brought on record as LRs of respondent Nos. 1 and 2, cannot as a matter of right claim custody of the minor as the respondent No.1-Kowuri Rukmini, to whom custody of the minor was originally given, she being her maternal grandmother, is no more. The learned Counsel further contended that though respondent No.3 is the maternal uncle of the minor, since he is an unmarried person, he cannot give proper care and protection to the minor girl and also cannot show the same love and affection which the father of the minor would shower on her. He further contended that respondent No.4 is widow of respondent No.2-Kovuri Abbai Reddy and has a minor daughter of her own to take care, and hence, she cannot be the proper person to be given custody of the minor girl. The learned Counsel further submitted that though the appellant had contracted second marriage and has two daughters from such marriage, the second wife of the appellant evincing interest to take care of the minor girl as her own daughter, and pleaded that custody of the minor girl in any event should not be given to respondent Nos.3 and 4.

Sri. Ramana Reddy, learned Counsel for the appellant further contended before us that the appellant being the natural father of the minor girl is very much interested in having the custody of the minor child. He contended that though the appellant had made efforts to meet the minor girl by going to Rajahmimdry town, where the minor girl was staying in the house of respondent No.4 after the death of her husband-respondent No.2, he was prevented from talking to the child, and as such he had no opportunity to talk to the minor girl. The learned Counsel states that the appellant is sincere and that if the custody of the minor is given to him, he is prepared to admit the minor girl in a boarding school and meet the entire expenditure. He further stated that the appellant had already kept a sum of Rs.3,27,750/- in fixed deposits in the name of the minor girl in State Bank of Hyderabad, Tadepalhgudem Branch on 8-8-91 foraperiod of eight years and the matured amount would be available for withdraw by 1-8-1999. The learned Counsel states that the efforts of the appellant i.e. depositing of monies in the Bank in the name of the minor child is an indication to show that the appellant has love and affection towards his minor daughter, and hence, pleaded that custody of the person of the child and her property be given to the appellant, and the appellant be permitted to act as guardian to the person and property of the minor child. The learned Counsel in support of his contentions has taken us through the following decisions of this Court in the cases of Archana Desaradhi Vs. V. Sivakumar, , Smt. Vidya Vs. Anil Kumar Lakotia, and Malakala Ramu @ Ramam Vs. Mammidi Gopalamurthy, . While drawing our attention to these decisions, the learned Counsel for the appellant stated that the custody of the minor cannot be denied to the appellant as he is the natural father of the minor and pleaded that the decision of the lower Court be set aside and the custody of the minor be ordered in favour of the appellant.

Sri M.S.K. Saslry, learned senior Counsel representing respondent Nos.3 and 4 being the L.Rs. of respondent Nos.l and 2 respectively stated that the minor girl was bora on 17-9-1986 and the appellant being her father has not enquired about the well-being of the girl since her birth. He further contended that the appellant is so cruel that even after knowing the death of his wife Kantha Ratnam-mother of the minor, did not attend the funeral ceremony and even did not make any efforts to seek the custody of the minor girl nor made any enquiries about the well-being of the minor girl. The learned senior Counsel appearing for respondent Nos.3 and 4 while meeting the submissions made by Mr. M. V. Ramana Reddy, learned counsel for the appellant stated that parents of the wife of the appellant (Kantha Ratnam}, had paid an amount of Rs. 4,00,000/ - as streedhana, intended to be kept in fixed deposit in the name of Kanlfia Ratnam. He stated that the appellant after the death of his wife-Kantha Ratnam, manipulated the accounts and deposited only Rs.3,27,730/- in the name of the minor girl under special term deposit scheme on 8-8-91 and withdrew the remaining amount and spent for his personal use. The learned Counsel stated that the amount of Rs.3,27,730/-, which was deposited in the name of the minor includes interest accrued on Rs.2,00,000/- as on 8-8-91, which was kept in fixed deposit earlier. The Counsel stated that the appellant had enjoyed the other half of Rs.2,00,000/- and the interest thereon. He thus refuted the submission of the appellant that he has deposited more than three lakh rupees in a Bank in the name of the minor girl and for her benefit. The learned Counsel, as a matter of fact stated that not even a single pie had been spent on the welfare of the minor girl by her father either for her upbringing or on her education. On the contrary, he stated that respondent No.4-wife of respondent No.2, who had received nearly Rs. 15,00,000/- towards insurance claims on the death of respondent No.2 had from out of the said amount deposited a sum of Rs.5,00,000/- in the name of her own daughter, Rs.5,00,000/- in the name of the minor girl on account of her being adopted by respondent No.2-Kowuri Abbai Reddy, and with the remaining amount of Rs.5,00,000/-she had purchased an apartment in Rajahmundry, the place where she is residing presently. In this way, the respondent No.4 had divided the amount which she got as insurance claims on account of the death of her husband-respondent No.2. The learned Counsel thus states that the acts of respondent No.4 though is not the natural mother of the minor girl had parted with Rs.5,00,000/-, which normally would have been shared by her natural daughter and herself, with generosity. The learned Counsel further contended that the appellant is a money-minded and avarice person and that he has no love and affection either towards his late wife or his minor daughter bom to her. He further contended that from the conduct of the appellant in refusing to attend the funeral of his late wife Kantha Ratnam itself is an indication as to how much love he has for his wife and daughter. He further stated that the appellant is a master-actor and knows the art of shedding crocodile tears when situations demand, and that his eyes are now cast on the monies which have been deposited by respondent No.4 in the name of the minor girl and other deposits made from out of the streedhana amount given to Kantha Ratnam, which are likely to mature on 1-8-1999. The learned senior Counsel further stated that though the natural father is entitled to seek custody of the minor and act as guardian to the person and property of the minor, the Courts before granting custody should take into consideration the paramount interest of the minor. The learned Counsel further stated that the appellant may be financially sound and well-placed, but that itself cannot be a ground for granting custody of the minor girl to the appellant. Respondent No.4 is looking after the minor, who is residing with her as her own daughter since her marriage with respondent No.2 and even after his death. The respondent No.4 has admitted the minor girl in a good school in Rajahmundry Town and she is presently studying in 8th class and is aged about 12 years. When the interest of the minor is being taken care of well by respondent No.4, at this point of time, it would not be proper to disturb the custody of the minor. The learned Counsel in support of his arguments has drawn our attention to the following decisions of the Supreme Court in the cases of Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and Another, , Kirtikumar Maheshankar Joshi Vs. Pradipkumar Karunashanker Joshi, , and Dhanwanti Joshi Vs. Madhav Unde, .

When the matter came up before us for hearing on 7-4-98, we directed Mr. M.S.K. Sastty, learned senior Counsel appearing on behalf of respondent Nos.3 and 4 to procure the presence of the minor girl in the Court, who is presently in the custody of respondent No.4, on 15-4-98 so as to read the mind of the minor girl. On 15-4-98, we had the benefit of knowing the mind of the minor girl. After retiring to our Chambers in the afternoon on that day, we asked the minor girt as to whether she would like to stay with the appellant, her father or respondent No.4, her maternal uncle''s wife. We also sought the presence of the appellant and his second wife to know their mind. Accordingly, the father, the step-moflier, and the paternal grandmother of the minor girl, were present before us on 27-4-98, and we interviewed them in our Chambers in the lunch time between 1-45 p.m. and 2-30 p.m. We had also secured the presence of respondent Nos.3 and 4 on that day, and we also interviewed them immediately after interviewing the father, the step-mother, and the paternal grandmother of the minor.

We found the minor girl-Shravani, who is studying 8th class, aged about 12 years, in goodstead and active at the time of interviewing her. She had no apprehension to reveal before us her happiness while her stay with respondent No.4, who is none-else than the wife of respondent No.2-late Kowuri Abbai Reddy, her maternal uncle. She expressed her satisfaction over the treatment given to her by respondent No.4 and wished to stay with her. She further stated that she has not seen her father nor her grandparents so far, and showed her disinclination to stay with her father, stepmother and for that matter her paternal grandmother. When we enquired the minor girl about her future plans, she expressed her desire of becoming a doctor, and she did not mince words in saying to us that respondent No.4 is treating her as her own daughter.

We have also examined respondent Nos.3 and 4. Respondent No.3 is a mining contractor and is aged above 40. He is a bachelor and is the senior maternal uncle of the minor. He stated that since he is not married and has no children, he is capable of taking care of the minor girl and give all the love and affection, which the minor girl requires. He expressed his apprehension that the minor would suffer a set back if her custody is given to the appellant. Likewise, we interviewed respondent No.4-widow of respondent No.2-late Kowuri Abbai Reddy. Respondent No.4 is educated upto Intermediate and she is in her late twenties. When we made varied suggestions as to her future plans of marrying, she outrightly rejected the idea and indicated that she has no desire to go for a second marriage. When asked as to how she is planning to meet the matrimonial expenses of her own daughter and the minor, she stated that she had already deposited a sum of Rs.5,00,000/- in each of their names and by the time they attain the marriageable age, the amounts deposited would swell beyond Rs.15,00,000/-. She further stated that her late husband was very much fond of the minor and that she did not want to hurt the sentiment of her husband. She boldly stated that she is prepared to face the difficulties that may come in, in bringing up the minor and her own daughter. We found in respondent No.4, a lady with pragmatic approach and determination to bring up the minor. She did not show an iota of ill-feeling towards the minor girl.

What we find from the statements made by the appellant before us is that he is a man who makes only statements but does not adhere to what he says. Though he stated that he would do this that and several other things, what we find in him is that he has not acted in any right direction for safeguarding the interest of the minor, who was bora in the year 1986. Though the appellant promised that he would put the minor girl in a good school and meet the expenses on her education, we have our own apprehensions about the bona fides of his statements. We have also examined the second wife of the appellant. She expressed the desire of taking the minor girl to their family fold and promised to treat the minor girl on par with her two daughters. The paternal grandmother of the minor who was also examined, made similar statements. She stated that she had been longing to see her granddaughter, the minor giri. We are not convinced that the claims made by appellant and his mother are really genuine.

As far as the law on the question of granting custody of the minor child is concerned, the Courts have time and again held that the paramount consideration should be the welfare of the minor. It is true that respondent No.4 is a widow and has a daughter of her own to support. It is also true that the appellant-father of the minor girl is financially sound and better placed. Merely because the appellant is financially sound and better placed and respondent No.4 is a widow and has a daughter of her own to support, it cannot be said that it is not in the interest of the minor to give the custody of her person and property to respondent No.4.

As discussed, the paramount consideration being the welfare of the minor, it has to be taken into account while granting the custody of the minor to a particular person. After spending a considerable time on reading the minds of the minor''s natural father, stepmother, paternal grandmother, maternal uncle-respondent No. 3 and respondent No.4-widow of late Kawuri Abbai Redcfy, we are convinced that the interest of the minor would be best served if the custody of the person of the minor girl and her property is given to respondent No.4.

During the course of hearing of this appeal, learned Counsel appearing on behalf of the appellant, Sri. M. V.Ramana Reddy stated that the suit OS No.380 of 1990, filed by the appellant for declaration of the Adoption Deed dated 17-6-1989 obtained by respondent No.2 from the appellant-plaintiff, as illegal and not binding on him, was decreed, and that by virtue of the judgment in the said suit dated 28-4-1998, late Kowuri Abbai Reddy-respondent No.2, is no more the adoptive father of the minor, and that the respondent No.4 being the wife of the respondent No.2, ceased to be the adoptive mother of the minor, and therefore, contended that the custody of the minor girl has to be granted to the appellant only.

Decree in the suit is on the question whether respondent No.2 is the adoptive father of the minor girl-Shravani. The question before us, in this appeal, is as to who is entitled to be given custody and appointed as guardian to the person and property of the minor, till she attains the age of majority. The minor girl is about 12 years. Since her birth, she has been in the company of her maternal grandmother, maternal uncles and respondent No.4, after she was married to respondent No.2. She has neither seen her father nor her paternal grand'' mother. She is a stranger to the relations of her father and for that matter to the father himself. On the other hand, the minor is very intimate and close to the relations of her mother. For 12 years, since her birth, the minor was in the care and custody of the relations of her mother, including that of respondent Nos.3 and 4. The respondent No.4, though is a widow and has a daughter bora to her through respondent No.2, yet she has taken the pains of nurturing die minor girl as her own daughter. The respondent No.4 from out of amount, which she had received towards insurance claims, has deposited one-third of the said amount in bank, in the name of the minor girl for her welfare. The appellant, though claims to have deposited above three lakh rupees in a bank in the name of the minor girl, on verification, we found that from out of the amount of Rs.4,00,000/-, which his in-laws gave to his late wofe-Kantha Ratnam as streedhana, the appellant had deposited only 50 per cent of the said amount in the name of the minor and retained the other 50 per cent for his personal use. We must say that the appellant has not parted anything from out of his earnings whereas respondent No.4 who is the widow of respondent No.2 and who is a stranger to the family, in her eagerness to fulfill the desire and wish of her late husband, has deposited a sum of Rs.5,00,000/- in the name of the minor girl. We have verified the feet of deposit of the said amount in our chambers when the fixed deposit certificate was produced before us. We do not think, the decree in the suit, on the question of adoption, will have any effect on the claim of respondent No.4 seeking custody and to appoint her as guardian to the person and property of the minor.

We have given our anxious consideration to the claims and counter-claims made by the rival parties and have come to a conclusion that the interest of the minor would be best served in the company of respondent No.4. We, therefore, have no hesitation to say that respondent No.4 is the best suited person to be given custody and be appointed as guardian to the person and property of the minor girl Shravani till she attains majority. Insofar as the suit OS No.380 of 1990 filed by the appellant which has been decreed, we make it clear, the judgment and decree in the suit shall have no effect on the claim of the respondent No.4 to be appointed as guardian to the person and property of the minor. When once the minor girl Shravani attains the age of majority, it is for her to decide as to the persons and place to live. Till such time, the fourth respondent is entitled to have the custody of the minor.

During the course of interview, respondent No.4 stated that she had spent a considerable amount towards legal expenses both in this Court and in the lower Court to contest the suit OS No.380 of 1990.

Having regard to the facts and circumstances as discussed above, we are not inclined to set aside the order passed by the Court below. Hence, we dismiss the appeal with costs quantifying at Rs.10,000/- to be paid by the appellant to the fourth respondent within a period of four weeks from today. We also make it clear that the minor girl Shravani shall be entitled to claim right in the properties of her father-appellant according to law in her own right, as and when occasion arises.