Sydney Wadsworth, Officiating C.J.
1. This appeal arises out of an application under Section 25 of the Guardians and Wards Act preferred by the present respondent in which she prays for an order for the restoration of the custody of her minor son of whom the appellant is admittedly the father. The facts are not seriously in dispute. Both the appellant and the respondent are cinema artists, the appellant apparently being a man of importance in the cinema world and the respondent being comparatively unimportant. In 1941, they met in the course of their profession and the appellant took the respondent into his house as his concubine. She lived with him at Madura in a house in which the appellant's wife was also, living. In March 1943, the child with whose welfare we are now concerned was. born and at or about the time of its birth the appellant added to his household the younger sister of the respondent who also became his concubine. In 1945 relations, between the appellant and the respondent became strained. The two of them went along with the child to Madras where the respondent's mother had met with an accident. The respondent stayed in Madras to look after her mother and the child stayed with her. The appellant returned to Madura. Then there was a definite quarrel between the appellant and the respondent. The respondent refused to return to the appellant and the appellant managed to get possession of the child. Hence the present petition which appears to have been brought after an abortive attempt made by the respondent to get maintenance from the appellant.
2. Now on these facts the respondent contends that she is entitled to the custody of her child, while the appellant objects that the child is his son and he is its lawful guardian. The child is now a little ever three years of age. It has been held by the learned trial Judge that the respondent as the mother of the child is prima facie entitled to its custody and that it is in the best interests of the child, notwithstanding the criticisms which may be levied against the character of the mother that she should have charge during the next two years when the child would depend naturally upon its mother. Thereafter, it is suggested, it will be possible to send the child to some institution where it might be free from the undesirable associations which might threaten it in the mother's custody.
3. In appeal Mr. Sitarama Rao has contended that the respondent must be deemed to have been a regularly kept concubine of the appellant and that the relationship was sufficiently continuous to entitle the son to be regarded, the parties being Sudras, as the son of the appellant by a permanently kept concubine and therefore entitled to the limited right of inheritance which the law gives to such a son. He contends further that the relationship is not merely that of a son to the father but also that of a father to the son relying upon the decision in Subramania Ayyar v. Rathanvelu Chetty : (1917)33MLJ224 where it was held that the father of an illegitimate son by a permanently kept concubine could in a Sudra family inherit to his son. The contention is that if the illegitimate son stands as the son of his father for the purpose of inheritance and the purpose of maintenance, there is every reason why the father should have his natural right of guardianship over the son.
4. There is singularly little authority on the subject. It is not disputed that in an ordinary case the mother of an illegitimate child has a right to the custody of that child during the years of nurture. This has been recognised in many cases, of which Venkamma v. Savitramma I.L.R.(1889)Mad. 67 is an example, though that, of course, was not a case of a dispute between the mother and the putative father. Mussammat Prem Kuar v. Banarsi Das I.L.R.(1933)Lah. 630 was a case of an application under Section 25 of the Guardians and Wards Act by a putative father for the custody of the child of his regularly kept concubine. The judgment of Bhide, J., in this case contains certain observations which have been quoted in certain text books as authority for the proposition that when the relationship is such as would make the father responsible for the maintenance of the son, the father would have the right of guardianship of the person of the illegitimate son. The learned Judge describes this as 'the ordinary rule' according to Sri Hari Singh Gour. We are informed that in the edition of Gour's Hindu Law from which this principle was extracted the only authority cited was, a certain decision of the Chief Court of Burma. We have not got that edition before us, but we note that in the present edition of Gour's Hindu Law the same rule is propounded, the only authority quoted for it being the Lahore case just cited.
5. It seems to us that the mere obligation to maintain cannot if itself confer a right to the custody of the minor who it, to be maintained. For instance a Hindu whose undivided brother dies leaving a widow and minor children would be under an obligation to maintain the minor children, but the right to the custody of the person of those minors would be with the widow and not with the uncle. Similarly the mere existence of a heritable relationship between the putative father and the son would not of itself necessarily carry with it a right of guardianship, during the minority of the illegitimate son. There are numerous well recognised rights of inheritance which do not carry with them a right of guardianship of the person of the heir. An obvious example is the case of a grandfather and a grandson. It seems therefore that the right of the putative father to the custody of the person of his illegitimate son by a regularly kept concubine does not necessarily flow either from the duty to maintain the son or from the fact that the son has a limited right of inheritance to the putative father. It might perhaps be put on the ground that amongst Sudras an illegitimate son by a regularly kept concubine is regarded for all purposes as a member of the family though of a somewhat inferior grade to an ordinary son. But here there is a difficulty. In the present case the association between the father and the mother lasted only for four years and is now completely broken. If the right of inheritance rests on the permanent nature of the alliance between the father and the mother, there would be no right of inheritance in the present case. Mr. Sitarama Rao has however pointed out that on the facts as summarised in the judgment in Sundararajan v. Arunachalam Chetty (1916) 29 M.LJ. 793 : I.L.R. 39 Mad. 136 it would appear that that was a case in which a right of inheritance was recognised when there had been a breach between the putative father and the mother which seems to have enured up to the death of the putative father. The facts of that case are not very fully set forth, but it does seem to us that if the right of the son to inherit in such cases depends only on an association between the father and the mother of sufficient duration as to leave no doubt as to the paternity, the right cannot rest on the basis of any permanent status of the mother and her son in the family of the father.
6. We are therefore left without any very clear logical basis for inferring in the father any right of guardianship either from the liability to maintain or from the heritable relationship or from the constitution of the family. In a recent case, Thangavelu v. Court of Wards, Madras : AIR1947Mad38 Patanjali Sastri and Bell JJ. had to consider the relative position of the illegitimate son of a Sudra by a permanently kept concubine in the matter of the right of inheritance to an impartible estate vis a vis, the widow of the late zamindar. In arriving at the conclusion that the widow would inherit in preference to the illegitimate son, Patanjali Sastri, J., observed:
It is pertinent here to point out that the illegitimate son is not included among the twelve categorieS of sons enumerated by Yagnavalkya in verses 128-133 but is separately mentioned in a special text. In commenting on verses 135 and 136 which prescribes the order of succession to the estate of a ' sonless ' person, (aputrasya) the Mitakshara observes:
A sonless person is he who has no son of any of the aforesaid twelve categories.(II.1. 3) It will thus be seen that illegitimate son is not among the principal and secondary sons to whom the heirs enumerated in Chapter II are postponed, but stands apart with his rights, such as they are, defined by a special text.
If it is correct to hold that the position of an illegitimate son of a Sudra by a permanently kept concubine rests solely on special text which recognises some rights of a limited nature and should not be taken as authorising anything in excess of those limited rights, it seems to be very dangerous on a priori reasoning to give to that relationship any greater scope than that which can be directly traced to the special text. Therefore, as we cannot see any authority either in the text or in the decided cases for recognising that the father of such an illegitimate son has any right to the custody of the person of that son during his minority, we do not feel disposed on somewhat dubious logical grounds to recognise any such right.
7. The result therefore is that the appeal is dismissed with costs.