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Rev. Dr. Albrecht and anr. Vs. Bathee Jellamma - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1912)22MLJ247
AppellantRev. Dr. Albrecht and anr.
RespondentBathee Jellamma
Cases ReferredMokund Lal Singh v. Nobodip Chunder Singha I.L.R.
Excerpt:
- - the counter-petitioner accordingly went to taliapalli, held an enquiry, and induced narasayya to take back the petitioner, as there was no proof that she was leading a bad life as he suspected. about a week later he came and complained that he had found her pregnant when he took her back. he was then under an apprehension which proved well founded. she was produced in court and appears to be healthy and well cared for......about four months before his death in 1906; that when the counter-petitioner came to the village narasayya asked him and. mrs. albrecht to take charge of the child, but they told him to keep it for six months. the respondent's witness no. 4, narasayya's younger brother, also speaks to this, as does the respondent's witness no. 6, another relative of narasayya.4. in january 1906 narasayya was found murdered, and when the acting tahsildar, the respondent's witness no. i, went to enquire he found living in narasayya's house, in addition to narasayya's concubine and a son by a former concubine (venkayya), a little girl aged 5 or 6 who was said to be the daughter of narasayya and the petitioner, but not the petitioner herself who was living elsewhere. there was then no reason for pretending.....
Judgment:

Wallis, J.

1. This is an appeal from an order of the District Judge of Guntur appointing the respondent, a Hindu widow, guardian of her minor daughter and directing the counter-petitioner, Dr. George Albrecht, who belongs to an American Mission, to deliver up the minor to her mother. There was some conflict of evidence, but on a careful examination the facts proved seem to me as follows, The petitioner and her deceased husband lived at Tallapalli, some 14 miles from Rentachintaka, the head quarters of the respondent, who accordingly visited Tallapalli in the course of his missionary tours. According to his evidence, which I see no reason to disbelieve, Narasayya, the petitioner's husband and father of the minor, came to him and asked to be baptised. The request was refused as he was living with a concubine, but he continued to attend the counter-petitioner's services. His wife also asked the counter-petitioner to baptise her and get her husband to take her back. The counter-petitioner accordingly went to Taliapalli, held an enquiry, and induced Narasayya to take back the petitioner, as there was no proof that she was leading a bad life as he suspected. About a week later he came and complained that he had found her pregnant when he took her back. Later there was another enquiry when Narasayya drowned the child, which had been born in the meantime. Narasayya and the petitioner went on living apart, the minor at first living with the petitioner. In 1903 Papamma, Narasayya's daughter by a concubine, was baptised, and in October 1905 Venkayya, a grown up son of Narasayya by a concubine, was also baptised.

2. In November 1905 Narasayya came to Rentachintaka and got the respondent to baptise the minor, and some time later he came again and said that his toddy had been poisoned and that he was not likely to live long, and asked the respondent to take charge of the miner, in case anything happened to him, and respondent promised to do so at his house in Rentachintaka but did not then take the girl into his school. According to the respondent's evidence, Narasayya had previously asked Mrs. Albrecht to take the girl and look after her, but she had not then consented.

3. The respondent's witness No. 3, who had for many years been Village Munsif and has since retired, says that Narasayya took the minor from the petitioner's custody about four months before his death in 1906; that when the counter-petitioner came to the village Narasayya asked him and. Mrs. Albrecht to take charge of the child, but they told him to keep it for six months. The respondent's witness No. 4, Narasayya's younger brother, also speaks to this, as does the respondent's witness No. 6, another relative of Narasayya.

4. In January 1906 Narasayya was found murdered, and when the acting Tahsildar, the respondent's witness No. I, went to enquire he found living in Narasayya's house, in addition to Narasayya's concubine and a son by a former concubine (Venkayya), a little girl aged 5 or 6 who was said to be the daughter of Narasayya and the petitioner, but not the petitioner herself who was living elsewhere. There was then no reason for pretending that the minor was living there if she was not, and I have no doubt that the minor was living with her father and not with her mother at the time of his death. A short time afterwards the minor and Narasayya's daughter by his concubine were brought to the respondent at Rentachintaka by Venkayya, his grown up son by a previous concubine. The petitioner and also Venkayya were afterwards charged with Narasayya's murder but discharged. At the time of inquiry Venkayya was not called by either side, but was present and said to be assisting the petitioner. The petitioner in her evidence not only denies misconduct but also that she was ever put away by her husband. She denies that she ever asked the respondent to get Narasayya to take her back, or that there was any panchayat, or that her husband repudiated the son who was born two years before his death. She says that after her husband's death she was at her husband's house when the Magistrate came to the village, but his evidence is the other way. She also says that the minor was living with her and was kidnapped while she had gone to a field. The petitioner's witness No. 1 says that the minor was living with the petitioner when she was taken to the respondent and that the petitioner was living amicably with the deceased. The petitioner's witness No. 2 also says that the petitioner was living with Narasayya till his death. Her brother, the petitioner's witness No. 3, also says she was living amicably with her husband and that she was at his house when the Magistrate came to inquire after the murder.

5. On a careful consideration of the evidence I am unable to take the same view of it as the District Judge. I see no reason to disbelieve the respondent's story as to the difference between the petitioner and her husband, as to his attempts to settle them, as to Narasayya having had his illegitimate daughter baptised in 1903 and having brought the minor to Rentachintaka to be baptised in November 1905, and as to his having asked the respondent, both at Rentachintaka and on an earlier occasion, to look after the minor after his death. He was then under an apprehension which proved well founded. He had separated from his wife on an allegation of misconduct and had subsequently taken the minor away from her. He had made all his children Christians, and was only prevented from being baptised himself because he was unwilling to put away his concubine. These considerations appear to me to sufficiently explain his action. After his death the minor, early in 1906, was handed over to the respondent and has since been in his charge. She was produced in court and appears to be healthy and well cared for. In September 1906, the petitioner prosecuted the respondent for kidnapping, but the complaint was dismissed. In her present petition she states that she subsequently sued him, but in her evidence she denied this and the respondent was not asked about it. The present petition was not presented until March 1909, 3 years after the minor came into the respondent's custody, and the delay is not satisfactorily explained; on these findings of fact it remains to be considered what order ought to be passed. As a Hindu the father was entitled to appoint a guardian for his child by will or word of mouth to the exclusion of the mother-Soohah Doorhga Tala Tha v. Raja Neelanand Singh (1867) 7 W.R. 74 and this right under the Act of 1850 he would not lose by becoming a Christian. Further, the result of the authorities as held in Mookund Lal Singh v. Nolodip Chunder Singha I.L.R. (1898) C. 881 is that prima facie the father is entitled to say in what religion an infant child should be brought up. These wishes, however, are not conclusive. The paramount consideration is the welfare of the minor and, when applied to, as here, under Section 7 of the Guardians and Wards Act, the court has to decide the question with reference to all the considerations set out in the section.

Where, in the opinion of the court, it would be injurious to the minor to give effect to the father's wishes, the court will interfere even in his lifetime as in Mokund Lal Singh v. Nobodip Chunder Singha I.L.R. (1898) C. 881 where a father was prevented from altering the religion of his son. In considering, in the present case, whether to disregard the wishes of the father and restore the child to the mother, the fact that before the present application was put in the minor had been left for three years in her present custody and was being educated as a Christian, in my opinion, most materially affects the question and makes it much more difficult to interfere than if the application had been made before the child had become accustomed to its present surroundings and the ways of thought in which it is being brought up.

6. On a consideration of all the circumstances I do not think it would be for the welfare of the minor to interfere on this application with the agreement, which the deceased father made for the minor's custody after his death, and I would therefore refuse the application and reverse the order of the lower court. There will be no order as to costs.


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