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Muthuswami Chettiar and anr. Vs. K.M. Chinna Muthuswami Moopanar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1935Mad195
AppellantMuthuswami Chettiar and anr.
RespondentK.M. Chinna Muthuswami Moopanar
Cases ReferredAtchayya v. Kosaraju Jarhari
Excerpt:
.....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. 3. if a minor has for many years from a tender age lived with grand-parents or other near relatives and has been well cared for and during that time the minor's father has shown a lack of interest in the minor, these are, in our view, circumstances of very great importance. he must consider whether the petition is a bona fide one and also whether, having regard to the circumstances of the case, the interests of the minor and the minor's welfare will be better served by allowing her to remain with the respondents......with grand-parents or other near relatives and has been well cared for and during that time the minor's father has shown a lack of interest in the minor, these are, in our view, circumstances of very great importance. they bear both upon the question of the interests and welfare of the minor and on the bona fides of the petition. in our view, the learned subordinate judge was in error here and should not have made the order in question without an inquiry which should have embraced the contentions put forward by the respondents. ho never went into the matter at all. he must consider whether the petition is a bona fide one and also whether, having regard to the circumstances of the case, the interests of the minor and the minor's welfare will be better served by allowing her to remain.....
Judgment:

Beasley, C.J.

1. This is an appeal from an order of the Subordinate Judge of Ramnad at Madura. The petition was one under Section 25, Guardian and Wards Act, 1890, praying for an order directing the respondents to produce a minor girl with her jewels and deliver her to the petitioner in the presence of the Court and in default for an order that the minor be delivered into the custody of the petitioner. The Subordinate Judge directed the respondents to produce the minor before the Court on 10th December 1933 and deliver her to the petitioner. The question with regard to the jewels was left open. This is a contest between the father of the minor girl and her maternal grandfather and maternal uncle. It seems that the petitioner's first wife who was the mother of the minor daughter died and a year after the minor girl was allowed to be taken by her maternal grand-father to his house and to be brought up by him. On behalf the petitioner, the father of the minor, it is alleged that the respondents, the maternal grandfather and maternal uncle of the minor, have not been maintaining the minor girl in comfort as befitted her status in life, that he demanded her return to him and that the respondents had been putting off the return of the child. The petitioner alleges that he has reason to believe that the respondents are arranging to secretly marry her to respondent 2's son and that it will not be in the interests of the minor to continue in their custody.

2. The respondents allege that the minor is being looked after properly and deny that they have any intention to get the minor married to respondent 2's son. They say that the petitioner never cared to see the minor though he was frequently going to the second wife's house which was near the respondent's house, that ho is not a man of good morals, that 'ho neglected his first wife, the minor's mother, that only seven days after her death he took a second wife, that it will not be in the interests of the minor to remove her from the protection of the respondents and that the petition has been presented maliciously because respondent 2 has filed a suit against the petitioner on 10th April 1933 for the recovery of Rs. 500 as arrears of nruntenance due in respect of the minor. Tie learned Subordinate Judge relies upon certain rulings particularly that in 1929 Atchayya v. Kosaraju Jarhari 1929 Mad. 81, a decision of this High Court. It was there decided that neither the fact that the father married a second wife nor the circumstances that he illtreated the child's mother during her life time rendered him unfit to have the custody of his child although immorality of the father, if proved, will have to be taken into consideration. It was also held that both according to the Hindu law and the English law a father is the natural guardian of his children during their minority and has therefore a paramount right to the custody of his children of which he cannot be deprived unless it is clearly shown that he is unfit to be their guardian. 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.

3. If a minor has for many years from a tender age lived with grand-parents or other near relatives and has been well cared for and during that time the minor's father has shown a lack of interest in the minor, these are, in our view, circumstances of very great importance. They bear both upon the question of the interests and welfare of the minor and on the bona fides of the petition. In our view, the learned Subordinate Judge was in error here and should not have made the order in question without an inquiry which should have embraced the contentions put forward by the respondents. Ho never went into the matter at all. He must consider whether the petition is a bona fide one and also whether, having regard to the circumstances of the case, the interests of the minor and the minor's welfare will be better served by allowing her to remain with the respondents. The order is therefore set aside and the petition is remanded to the lower Court for disposal according to law. Costs here and throughout will abide the event.


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