Chandra Reddy, C.J.
1. This appeal is filed by the first respondent in O.P. No. 79 of 1957 on the file of the District Court, Anantapur, against the order of the District Judge giving to the respondent the custody of her minor daughter, Sanjeevamma, under the Guardians and Wards Act. 1890.
2. The facts that have given rise to this appeal may he briefly stated. The application was filed by the mother of Sanjeevamma under Section 10 of the Guardians and Wards Act for the custody of her minor daughter against her own mother and brother with whom the minor was living. Sanjee-vamma was the only surviving issue of the respondent whose husband died in 194S leaving a will dated 30-6-1948 by and under which he settled some property on his sister, Narayanamma. The testator also expressed his desire that his daughter, Sanjeevamma, should be married to the adopted son of P. W. 4.
3. The application was opposed by the appellant on the ground that it was not in the interests of the minor that she should be left under the care and protection of her mother, who was not leading a respectable life.
4. Besides examining a number of witnesses On either side, the District Judge examined theminor in order to ascertain her wishes as to her preference. The minor definitely and categorically stated that she would not stay with her mother but would like to continue to live with her grandmother who was bringing her up with care and with whom she was quite happy. The District Judge thought that the wishes of the minor, girl were not quite relevant in the context of the paramount right of her natural guardian to the custody of her minor child. In that view, he directed the minor to be handed over to her mother. It is this order that is brought under appeal now.
5. The view of the District judge is canvassed by the learned counsel for the appellant on the ground that the trial Court misdirected itself in thinking that the wish of the minor is not entitled to any weight.
6. We think this argument is substantial. Section 17(3) of the Guardians and Wards Act requires the Court to take into consideration preference of the minor, if he or she is old enough to form an Intelligent preference. The question whether a minor is old enough to form an opinion or not has to be decided with reference to the actual age of the minor. Surely, it cannot he contended that a girl who has completed sixteen years is not old enough to express an intelligent preference. In such a case, the wish of the minor is certainly a relevant consideration.
It is true that that Is not the sole factor to be taken into account in adjudging the proper custody of a minor. In our opinion, the paramount and dominant consideration is the welfare and interests of the minor and every other consideration should yield to it. It is not so much the rights of the parties to have the custody of the minor that should weigh in the determination of the question as to who should be the fiuardian of the minor. If the interests and welfare of a minor require that he or she should live with a person other than the natural guardian, Courts which exercise jurisdiction over Infants will give effect to it.
7. This is a well-settled proposition and does not need any citation. However, we mav refer to the pronouncement of the Privy Council in Mrs. Annie Besant v. Narayaniah, ILR 38 Mad 807 : (AIR 1914 PC 41), There, their Lordships remarked that though the father is the natural guardian of his child during his minority, it is the interests of the infant that should be taken into account in the consideration of the question as to who should be the guardian and, consequently, care should be taken to ascertain the wishes ol the minor on all material points.
8. To a like effect is the judgment of the Madras High Court in Fonm'ah Asari v. Suppiah Asari, 68 Mad LJ 213: (AIR 1935 Mad 363). In that case, the girl who was nearly thirteen years old was taken away to live with her maternal uncles with the consent of her father. The application by the father for the custody of the child was dismissed ultimately by the High Court in view of the fact that the girl had clearly shown her preference to live with her maternal relations and the father had not shown any interest in the welfare and health of the child for nearly thirteen years.
The learned Judges relied on the decision in R. v. Gyngall, 1893-2 QB 232 apart from ILR 38 Mad 807 : (AIR 1914 PC 41). In the former case, the defendant in whose custody the minor was, had looked after the child for some time. The child's mother who was not guilty of any misconduct was nevertheless refused the custody of the girl, because it was essential for the welfare of the child that she should remain in the custody of the defendant. In the course ot the judgment, negativing the claim of the mother, this is what Lord Esher M. R., observed :
'As Lindley, L. J. well pointed out in the case of In re Me Crath, (1893) 1 Ch. 143, it is the welfare of the child in the largest sense of the term that is to bo considered. In the present case, I proceed on the footing that the mother has not been guilty of any misconduct that would, as between her and other people derogate from her natural right. The Court has to consider what is for the welfare of the child and for her happiness, what her prospects are if not interfered with, the fact that in a short time she will be able to choose for herself, and what her position will be if taken by her mother to live with her. The child is not a mere infant; if she were only six or seven years old, the case would be very different.'
The last remark is very appropriate in the present context. In this case, the minor is sixteen years old and, in our opinion, is intelligent enough to know where her preference lay.
9. For an opposite effect, reliance is placed by Sri Kondaiah on the decision in Rama Iyer v. Nataraja Iyer, 1948-1 Mad LJ 125 : (AIR 1948 Mad 294) but that has no analogy to this case for the reason that there the minor was under fourteen years of age and, it was thought that he was not in a position to form an intelligent preference. The learned Judges also felt convinced that the inclination of the boy to live with his maternal relations was more due to the fact that they were encouraging his truancy and that his stay with his father necessitated his going to school which the boy was disinclined to do. It was also found that the aversion to the father was the result of the pernicious influence of the maternal grand parents. Taking this and several other factors into consideration, the learned Judges decided that it was not in the interests of the boy to allow him to stay with his maternal grand parents. The instant case, therefore, cannot tall within the rule stated in 1948-1: Mad LJ 125 : (AIR 1948 Mad 294).
10. In this case, we have examined the minor in our chamber to find out her attitude and to ascertain her wishes. She expressed a strong preference to her grand-mother and an utter distaste for her mother, and stated that she would not stay with her mother, the reason being that 'her mother has not brought her up and has not protected her.' which means that the mother was not evincing any interest in her. The minor girl impressed us as a very intelligent one. She is old and wise enough to form a judgment about her own interest and welfare, as could be gathered from the answers given by her. She has expressed a very strong determination not to go back to her mother. In the circumstances, we do not think that any usefulpurpose will be served by compelling her to go back to her mother. We have, therefore, to set aside the order of the District Judge sllowing the petition of the respondent.
11. Sri Kondiah pointed out that there is the danger of the girl being married to her maternal uncle who is staying with her grand-mother. This cannot he avoided even if she is compelled to go back to her mother, since nothing prevents her from doing so. However, in order to provide against any such contingency, we direct the grandmother, who is appointed as the guardian of the person of the minor, to make the necessary application before the District Judge when the marriage of the minor girl is contemplated. It is only after obtaining the sanction of the Court that the minor should be married.
12. The appeal is allowed. The parties will bear their own costs throughout.