1. The appellant is the petitioner who filed Misc. case No. 51 of 47-48 in the Court of the Munsiff, Bangalore, under the Mysore Guardian and Wards Act for the appointment of himself as the guardian of the person of his minor daughter, Lingamma, and for the custody of the minor. Respondent 1 is the mother's sister of the minor and respondent 2 is the husband of respondent 1. The trial Court has refused to grant either of the prayers of the petitioner and hence this appeal.
2. One of the allegations in the petition is that in view of the close relationship existing between the parties, the petitioner was sending the minor Lingamma to live with the respondents for sometime off and on and bring her back after a few days, that about six months ago, the respondents took the child with the consent of the petitioner to keep her with them for a few days, but have refused to send the child back, the other allegation is that the respondents are arranging to give away the child in marriage to some unknown person without the consent of the petitioner. The respondents admit that the child is the daughter of the petitioner, but they assert that at their request the child was given to them by the parents when she was seven months old for being reared up as a foster child as they themselves were childless. Ever since, they have been looking after the child with love and affection as if she were their own child and in June 1944 have made a settlement on her of three items of lands and a house of become the separate property of the minor for her future welfare. Regarding the allegation of marriage, they deny any existing proposal and state that when that event is to happen they would take the express consent of the parents.
3. Respondent 1, the foster mother of the child, has examined herself in support of her assertions and produced the registered gift deed in favour of the minor. The petitioner has neither let in any evidence nor stepped himself into the box to substantiate the allegations in his petition. It has, therefore, to be accepted that the contention of the respondents are true.
4. From the evidence on record it is clear that the parents have voluntarily parted with the custody of the child when she was seven months old. She is now 13 years old according to the age stated in the settlement deed. There is no evidence to show that the father had any contact with the minor in question during the long period of over 12 years; the child who could be said to have reached the age of discretion is unable to recognise the petitioner as her father and when consulted by the lower Court, has, more than once, indicated her choice to reside with the respondents whom she is accustomed to regard as her parents. The father is, no doubt, the natural guardian of his minor child under his personal law and needs no sanction of the Court for being appointed as such under the Act; but as he has waived the duties of a father towards the child, he has evinced little or no interest in her welfare which entails forfeiture of his legal right to the guardianship. We are supported in this view by the decision reported in Ponniah Asari v. Suppiah Asari, A.I.R. (22) 1935 Mad. 363 : (158 I.C. 95), where it is stated thus:
'In proceedings under the Act for the custody of an infant, it is the welfare of the minor in the largest sense of the terms that is to be considered. Though the father has as natural guardian, a prima facie right to the custody, still this may be negatived by the circumstances of case, showing either past indifference and neglect or tacit consent in the infant being brought up by other relatives.'
5. It is not the case of the petitioner that the child is not looked after well, nor is any cruelty or ill-treatment alleged. Respondent 1 has sworn that she is bringing up the child with love and affection which is amply supported by the statements contained in the gift deed and the settlement of properties for her future provision. In fact, the respondents who are childless have done more than what the father himself would have done under the circumstances. In 1944, about 5 years ago, the properties are settled by the respondents on the child. The petitioner who is shown to have evinced no interest whatever in the child for such a long period is ill-fitted to guard her welfare when compared to the respondents. The remarks of Leach C.J. in Sivasankara Mudaliar v. Radhabai Ammal, A.I.R. (26) 1939 Mad. 611 : (185 I.C. 647) that:
'Where a father delivers his infant daughter to the custody of another and for over fifteen years takes no interest in her but allows others to do what he as a father should do, he is not fitted to exercise the rights of a father and is certainly not a person in whose favour the Court should pass an order unless Section 25.'
apply very aptly to the facts of the case.
6. In the appointment of a guardian under the Act, the paramount consideration is the welfare of the minor irrespective of technical rights and sentimental grounds. The willing entrustment of the child to the care and protection of other relations and her long and continued residence in other surrounding and consequent want of contract with her putative father are overriding circumstances to invalidate the father to enforce the custody of the child. In almost similar circumstances, it is observed by Beasley C.J. in the case quoted above, Ponniah Asari v. Suppiah Asari, A.I.R. (22) 1935 Mad. 363 : (158 I.C. 95) that
'these consideration override any or all other claims advanced by the father, and his prima facie right as a father to the custody of the minor girl.'
The apprehension of the petitioner that the girl may be married without his consent has been guarded by the lower Court by imposing the condition that the marriage should not be brought about without the permission of the Court. In conclusion, following the principles in the cases referred to, we are satisfied that the interest and welfare of the minor will be better served by allowing her to remain with the respondents who have so well cared for her, even to the extent of making a decent provision by way of settlement of immoveable properties for her future welfare.
7. We, therefore, see no reason to interfere with the order of the lower Court; this appeal is dismissed, the parties bearing their own costs.
8. Appeal dismissed.