1. The simple question that arises for decision in the appeal is whether it will be for the welfare of the minor daughter to return to the custody at her lather, the appellant herein. To appreciate this question, it is necessary to set out a few relevant facts.
2. The appellant herein married Venkata Kalua-vati in 1945 and the minor daughter Swayamprabha alias Papa was born in 1947. The appellant and his wife lived amicably till 1947. According to the respondent, the maternal grand-father, the appel-tant wanted the respondent to purchase a house in his name and as he refused to do so, his wife and child were left with him in 1948 or 1949. It is common ground that from 1948 or 1949, both Venkata Ratnavati and her minor daughter were living with the respondent. The appellant admitted that he did not send a pie to the minor girl for her maintenance.
3. The exact date of the death of Venkata Ratnavati is in dispute between the parties. The appellant stated in his examination-in-chief that his wife and child were taken to the respondent's house in 1948, that she died in January, 1949 and that he took a second wife thereafter. In the cross-examina-tion he stated that his first wife eloped with a Muhammadan and that he consequently married a second wife. Towards the end of the cross-examina-tion he stated that his wife was still living at Hyderabad. The respondent also gave varying ver-sions as to the date of the death of his daughter. In M. C. No. 20 of 1953 on the file of the Sub-Divisional Magistrate, Peddapuram, filed on 28-5-1953, he stated that the whereabouts of his daughter were not known and that he presumed that she was dead. But, in his counter to the present application, he stated that she died in August, 1952. When he was examined as R. W. 1, he deposed that she died in 1951. It is clear from the proceedings in C. C. No. 229 of 1950 on the file of the Addl. 1st Class Magistrate, Kakinada that the appellant's wife was living at least on 12-10-1950. It is not necessary to decide for the purposes of the present application when exactly she died. She must have died some time after October 1950.
4. As the mother and child were not taken back and as the appellant had married a second wife, C. C. No. 229 of 1950 was filed in the Addl. 1st Class Magistrate's Court, Kakinada under the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act VI of 1949. The application was dismissed for default in November, 1950. As the father had neglected to maintain the child, the respondent herein filed M, C. No. 20 of 1953 on the file of the Sub-Divisional Magistrate, Peddapurarn for maintenance under Section 488 of the Code of Criminal Procedure on 28-5-1953. As a counterblast thereto, the present application under Section 25 of the Guardians and Wards Act was filed by the father for the return of the minor daughter to his custody. The respondent herein opposed the application, and the Court below accenting his contention dismissed the application. The father of the minor girl has thereupon preferred the above appeal.
5. The main question that arises for consideration in the appeal is whether it will be for the welfare of the minor to return to the custody of her father. Sections 7, 17 and 25 of the Guardians and Wards Act enact that the Court will have to decide under each of the provisions the welfare of the minor. Section 19, on the other hand, provides that when the husband or the father is to be removed from the guardianship, the question as to whether they are unfit to be the guardians of the person of the minors has to be decided. As pointed out in Muthuveerappa Chetty v. Ponnuswamy Chetty, 22 Mad LJ 68,
'the texts of Hindu Law do not recognize any absolute rights of guardianship in any one, the sovereign being entrusted wiih the guardianship of all minors and entitled to appoint any person as guardian in their interests.'
In delivering the judgment on behalf of the Division Bench in Kumaraswami v. Rajammal, : AIR1957Mad563 , Panchapakesa Ayyar J., pointed out that the Hindu Law vests the guardianship of the minor in the sovereign as parens patriae and that Manu, Gautama and others are specific about this. It was rightly pointed out by Govinda Menon J., in Soora Reddy v. Chenna Reddi, : AIR1950Mad306 .
'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.'
The same view was laid down by a recent Bench of this Court in Basavalingam v. Swarajyalakshmi, 1956 An WR 939: (AIR 1957 Andh Pra 704). Chandra Reddy J., (as he then was) held as follows:
'It is clear from this section that the para-mount consideration in the decision of the question arising under Section 25 of the Guardians and Wards Act is the welfare of the child. It is true that a father is the legal guardian of the child under Hindu Law, but in deciding whether a child should be entrusted to the care of a particular person, it is no: so much the rights of the individuals that should be taken into consideration as the interest of the minor child.'
6. Applying this test, I am satisfied on thefacts of this case that the view taken by the courtbelow is perfectly justified. The father did nottake any interest in the child or her mother from1948 or 1919. As admitted by him, he did notsend a single pie for their maintenance. After thedeath of the mother, he did not apply for thereturn of the. custody of the child to him. It wasonly after maintenance proceedings were startedunder Section 488 Cr. P. C. that he applied for thereturn of the child. If really the case of the appellant that his wife had eloped with a Muhammadansix months prior to his second marriage is true, heshould have taken steps for the return of the childimmediately thereafter.
As the appellant had married a second wife and has three children he has apparently not taken any interest in the minor girl. I have no doubt that with a view to avoid the liability to pay maintenance, the present proceedings had been started by the appellant. Moreover, the child has been living with her maternal grand-father and grandmother from 1948-1949. By removing the child from their custody and by transplanting her in new surroundings i. e., in her father's house in the company of the step-mother and his children by the second wife her health might be impaired and it would not be in her best interests. I do not accept the argument of Sri B. V. Subrahmanyam, the learned Advocate for the appellant, that neglect of the child has not been sufficiently proved in the case.
He contended that as the respondent stated that the wife died only in August 1952, the delay in filing the application is not very long. As I have already pointed out, it is not very clear when she died. If she died in 1948, as admitted by the appellant himself, the delay is extremely long. I am quite clear that the application is not a bona fide one, but is made in view of the proceedings in M. C. No. 20 of 1953 on the file of the Sub-Divisional Magistrate, Peddapuram.
7. The learned District judge held that as the appellant had married a second wife and as he did not treat his first wife properly, the child ought not to be returned to his custody. Sri B. V. Subrah-manyam, the learned advocate for the appellant concended that the view taken by the District Judge is opposed to the decisions reported in Audiappa Pillai v. Nallendran Pillai, ILR 39 Mad 473: (AIR 1916 Mad 605), Rama Iyer v. Nataraja Iyer, 1948-1 Mad LJ 125: (AIR 1948 Mad 294), and Venkatarama Ayyangar v. Thulasi Animal, : AIR1950Mad320 . I follow those decisions and hold that the application is not liable to be dismissed on those two grounds.
8. The learned District Judge held that the preference of the minor should be taken into account in deciding whether the child should be restored to the custody of her father or not. He overlooked the terms of Section 17(3) that the minor should be old enough to form an intelligent preference as to who should be her guardian. The minor, in the present case, was only nine years old at the time when she was produced before the Court and expressed her preference to stay with her maternal grand-father and maternal grand-mother. I agree with Sri B. V. Subrahmanyam that no importance should be attached to the preference indicated by the minor girl.
In this view, it is unnecessary to refer to the several decisions cited on behalf of the appellant where the learned Judges held that the preference indicated by the minors need not be taken into account.
9. The learned Advocates on both sides cited several decisions bearing on the interpretation of S. 25 of the Guardians and Wards Act and as to when the custody of the minor child should or should not be returned to the natural father of the child. As pointed out in Muthuswami v. Chinna Muthuswami, AIR 1935 Mad 195:
'Each case must depend upon its own circumstances, and however paramount the right of a father may be, that right in our opinion, is liable to be defeated where it is shown that it is better in the interests of the minor and for its welfare that it should remain where it is.'
On the facts of this case, it is more or less akin to the decisions reported in Ponniah Asari v. Suppiah Asari, AIR 1935 Mad 363 and Abubacker v. Mariyumma, AIR 1946 Mad 110. The learned Judges pointed out that in deciding what is for the welfare of the minor, the mala fides of the application as also the neglect of the father to maintain the child might be taken into account. Strong reliance was placed by the learned Advocate for the appellant on the decision reported in Atchayya v. Kosaraju Narhari, AIR 1929 Mad 81. That decision has been distinguished by Beasley, C. J., in AIR 1935 Mad 363 on the ground that it cannot be taken as deciding that the best interest and the welfare of the minor cannot override a father's prima facie right to have the custody of the minor child. In the recent bench decision of this Court in, 1956 An WR 939: (AIR 1957 Andh Pra 704), Chandra Reddy J., (as he then was) distinguished it on the same ground. As pointed out by him, it may be assumed that the father, who is charged with the duty of protecting the child, looks after his interests much better than anyone else. But it does not follow that in every case, the custody of the child should be returned to the father.
10. For the reasons already stated, I am convinced that it is not in the interests of the minor that she should be restored to the father. It cannot be held that the learned Judge was wrong in taking into account the omission of the father to pay even the interim maintenance ordered to be paid by the Sub-Divisional Magistrate in M. C. No. 20 of 1953.
11. I confirm the judgment of the DistrictJudge and dismiss the appeal with costs.