(1) This is an appeal instituted by the respondent in the court below in an application by a father (Sri E. H. B. David) for the restoration to custody of his little daughter, now aged nearly 4 years, under S. 25 of the Guardians and Wards Act. The application was allowed by the learned Additional District Judge of Coimbatore on the merits, and the respondent below, who is the mother-in-law of the petitioner in the lower court and the grandmother of the child, now appeals.
(2) At the outset itself I think it is important to stress the principles upon which the court should approach amateur of this kind. It has been repeatedly laid down, that in such proceedings, the welfare of the minor should be the predominating interest. The law no doubt permits a person to have the custody of his minor child, and the right in law is really one which flows from certain universal feelings in nature and the common organisation of society all the world over. But that right is not an absolute right. It is subject to the overriding power of the Court, which may interfere in the interests of the infant.
But, while enunciating this, it is equally important to emphasize that the court will not ordinarily take away or negative this right, unless it is predominantly for the welfare and interest of the minor child, that the minor child should be brought up by some person other than the father and the natural guardian. In the present case, the petitioner below (Sri E. H. B. David) has admittedly married again, his first wife (the mother of the minor) having died some years ago in the house of the appellant (the mother-in-law), and one of the arguments advanced by the learned counsel on behalf of the appellant is that a step mother may not be fit and proper person to bring up a child of tender years.
In Bindo v. Shamlal, ILR 29 All 210 a Bench of that court took the view that where the father married again it will be in the interests of the minor that she should reside with her maternal grandmother, rather than with her step mother. Learned Judges observed 'weighing all the circumstances, we think that it will be more for the welfare of the minor to live with the maternal grandmother than with the step mother.' But with very great respect, I find myself unable to agree with this approach. It is difficult to generalise with regard to such situations, and certainly instances are not wanting where the father and the second wife have bestowed great affection on the child by the first wife, and brought up that child in a proper manner.
Otherwise, we would be really assenting to a proposition that a second marriage per se involves a father which is adverse to a claim of a father for the custody of his minor child. I am fortified in this view by the authority of this Court in Soora Reddi v. Chenna Reddi : AIR1950Mad306 , where Govinda Menon and Basheer Ahmed Sayeed JJ. have clearly laid down that the father ought to be the guardian of the person and property of the minor under ordinary circumstances, and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.
Again, in that case also, it was argued that the minor might have developed love and attachment to the other relations with whom he was and this argument was also negatived. Consequently, the fact that the petitioner has a second wife, or the fact that the appellant might have developed considerable affection for the child cannot ordinarily stand in the way of the rights of the respondent to have the custody of the minor.
(3) But the facts of this case are somewhat peculiar and exceptional, in the sense that relations between the respondent and his first wife appear to have seriously deteriorated at the time that she gave birth to this child, or shortly thereafter. The first wife went away to the house of the appellant, and notices passed between the parties followed by proceedings in courts. It is alleged that, in the context of these proceedings, the respondent wrote several letters and sent several notices in which he made reckless imputations against the chastity of his mother-in-law and other ladies of that household, and also threatened to file proceedings for divorce against the wife upon the ground of adultery.
It is seriously argued that this, taken in conjunction with evidence concerning an incident when the respondent bodily assaulted Sri Yadhava Rao, the then counsel for his first wife, sufficiently shows that the respondent is a man of unbalanced, almost unhinged mind, totally unfit to be in charge of the minor. It is further alleged that, under these circumstances the predominating interests of the child require that the child should be left with the maternal grandmother alone, I have carefully looked into this matter, and perused the records; in addition I have taken the precaution of sending for the respondent (Sri E. H. B. David), and have examined him in chambers, with a view to ascertaining the truth of his present mental state.
I am clearly of the view that a great deal of the material relied on by the learned counsel for the appellant ought to be given very little weight, indeed most of it being challenged as not genuine. Several of the letters are either unsigned or typed without a signature, and the respondent totally denied hat he sent them when confronted with them in the lower Court. Similarly, certain lengthy letters alleged to have been sent to the infant, indicating the very unsettled mind of the respondent, have also been denied by him. Obviously, I cannot act upon unproven material of this kind. But, it is true that the admitted material does show that the respondent, at least in one reply to a registered notice, made reckless allegations against the character of his mother-in-law and his sisters-in-law. It is not disputed by the respondent that there was an incident of assault of Sri Yadhava Rao.. But with regard to these matters, the respondent would plead that he had grave provocation concerning the assault, though he actually apologised for the violence used, later, and that it was necessary for him in his reply notice to make these allegations relating to the character of the ladies, which were further justified by truth. I cannot go into these issues here. It may be that the respondent was deprived on his balance to some extent, by the bitter feelings between him and the family of his first wife. It may also be that, when suffering from such temporary loss of balance, he levelled certain wild allegations in unbridled language. Concerning the true merits of the incident of assault, obviously this is not at all a matter that can be canvassed in the present proceedings.
(4) It would indeed lead to startling results, if we were to hold that the use of unbridled language, or the wielding of a pen somewhat given to vilification would be sufficient to automatically unfit the individual concerned for the custody and upbringing of his minor children. A man in his social capacity may be reckless or eccentric in certain respects, and others may even develop a considerable distaste for his company with some justification. But all that is a far cry from unfitness to have the natural solace of the company of one's own children, or for the duty of bringing them up in a proper manner.
My impression of the respondent is that he is a perfectly normal and intelligent young man, who appears to be doing fairly well in his profession, and even to enjoy some social prestige. There are not the slightest indications of imbalance of mind in him, or of anything that is likely to unfit him to bring up a small daughter. The respondent has his mother with him in addition to his second wife, and I have no reason whatever for thinking that he is destitute of natural affection for the minor child, or likely to exercise any harmful or corrupting influence over that child.
On the contrary, he seems to be anxious to have the minor child with him as early as possible, in order to look after it properly, and to provide for its future education. The feelings being what they are, between the respondent and the mother of his first wife, I think it is also natural on the part of the respondent to feel that if the minor child continues to live with its maternal grandmother, it may be brought up to hate the father, or to have a very adverse impression about him. This certainly is not desirable.
(5) Needless to say, this Court is not called upon to find that the respondent has been entirely blameless in his conduct on the several occasions referred to in evidence. It is not the duty of this Court even to ascertain whether the respondent is, in all respects, a good citizen, and a perfect individual. Many people have shortcomings. But that does not imply that they are not deserving of the solace and custody of their children. Considerable latitude will also have to be allowed for a young man, who loses his head momentarily, under the stress of a bitter quarrel. I am definitely o the view that the respondent is in no way unfit to have the custody of his minor child and to bring her up. The respondent need not be deprived of the custody of his child, which he is entitled to in law. Under the circumstances, therefore, the appeal is dismissed. I make no order as to costs.
(6) Appeal dismissed.