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Mangalapurapu Dakshayani, Minor by Next Friend Koniki Nagabhushanam Vs. Mangalapurapu Brahmayya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberCivil Revn. Petn. No. 124 of 1948
Judge
Reported inAIR1950Mad37
ActsGuardians and Wards Act, 1890 - Sections 25
AppellantMangalapurapu Dakshayani, Minor by Next Friend Koniki Nagabhushanam
RespondentMangalapurapu Brahmayya and ors.
Appellant AdvocateV. Suryanarayana, Adv.
Respondent AdvocateG. Suryanarayana, Adv.
Excerpt:
- section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. - ..........this petition hag been filed on behalf of a minor wife by next friend to revise the order of the learned district judge of guntur declining to set aside a custody order he passed in o. p. no. 118 of 1947 on 80th september 1947 on the ground that he had not consulted the wishes of the minor who was a grown up girl before he passed his order.2. the custody order is as follows :'the petitioner as the husband of the minor wife is in law entitled to her custody especially when it is found from his evidence which has not been challenged that his marriage with the minor was consummated three years ago. the respondents have no objection to restore custody. they have endorsed on the petition to that effect. i therefore order the custody of the minor to the petitioner. the parties shall bear.....
Judgment:
ORDER

Mack, J.

1. This petition hag been filed on behalf of a minor wife by next friend to revise the order of the learned District Judge of Guntur declining to set aside a custody order he passed in O. P. No. 118 of 1947 on 80th September 1947 on the ground that he had not consulted the wishes of the minor who was a grown up girl before he passed his order.

2. The custody order is as follows :

'The petitioner as the husband of the minor wife is in law entitled to her custody especially when it is found from his evidence which has not been challenged that his marriage with the minor was consummated three years ago. The respondents have no objection to restore custody. They have endorsed on the petition to that effect. I therefore order the custody of the minor to the petitioner. The parties shall bear their own costs.'

3. The respondents to the original petition were the girl's sister and her husband. Along with this revision petition an application for stay of the custody order was admitted and stay was made absolute pending the disposal of this petition on the ground that the learned District Judge had not examined the minor and considered her objections to be restored to her husband's custody. It is brought to my notice by the learned advocate who has filed this petition that an application has been filed in this Court on behalf of the minor to be declared as major. I called for this petition which has not yet been numbered. On the merits the custody order passed by the learned District Judge cannot be sustained. It is a salutary practice for a Judge sitting on the Guardians and Wards Side to examine all minors and interrogate them before directing their return or being handed over to any custody, even that of the legal guardian. There are circumstances which may justify a refusal to hand over a minor even to the custody of a prima facie legal guardian, the interests of the minor being the paramount consideration. The application by the minor to be declared a major cannot be properly determined without the girl being produced in Court.

4. I set aside the custody order passed by the learned District Judge and remand C. P. No. 118 of 1947 for fresh disposal after a Court examination of the minor. If she is now found to be a major and sui juris, the Court will of course have no jurisdiction to pass any custody order. The application by the girl to be declared a major will be transferred to the District Judge for disposal. No order as to costs in this petition.


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