VMUNISAMAPPA Vs. KRISHNAMMA

JUDGEMENT

(1.) The petitioner in this revision petition is the husband and the respondent is his wife. It appears that the petitioner took a second wife some years age. By his marriage with the first wife who is the respondent, he had a child who is still a minor aged about ten years. In the Court below the petitioner made an application under the provisions of Section 25 of the Guardians and Wards Act for the restoration of the custody of his minor daughter to him. By an order made on December 17, 1956, that application was dismissed. But in the course of the order dismissing that application, the learned District Judge gave the following direction: "The petitioner may take steps to get the minor girl Rhigarathnam admitted into the St. Teresa's School and the Hostel bearing all the expenses therefor. The minor girl shall stay with her mother during holidays. The petitioner may see her either in the respondent's house or in the hostel at all convenient times. He shall however not take her to his own house and keep her there for more than a day in a month without the content of the respondent in writing." The view that the learned District Judge took was that by reason of the petitioner having taken a second wife, it was not in the interests of the welfare of the minor girl that the petitioner should have the custody of his minor daughter. That view which he took was in consonance with the well established principle that although the father is the natural guardian of a minor, he can never be an adequate substitute for the mother whose care and affection a minor child, and particularly one still of tender years, is so much in need of.

(2.) So that as it may, he gave the direction in regard to the education of the minor as mentioned above. That was the order which he made on December 17, 1956. The mother of the minor girl thereafter made an application on June 7, 1957, purporting to do so under the provisions of Section 151 of the Code of Civil Procedure for a modification of the directions given in the previous order referred to above. The learned District Judge, after perusing that application, directed the minor girl to be produced before him. When she was so produced, he ascertained from her that she was not willing to go to the hostel and get admitted in the institution referred to in the earlier order. The learned District Judge thereupon ordered that since the minor girl appeared to him to be a girl of tender years and also sickly and particularly since he believed the statement made by the mother that the girl was vomitting blood, it was not possible for him to force the girl to go and reside in a hostel or to permit the father to put her into that hostel or that school by force. The iearned District Judge accordingly modified the order that he had previously made, the effect of which was that the direction that the minor girl should be educated in the St. Teresa's School was rescinded. He however gave a direction that the mother should get the minor girl educated properly. The father of the girl has presented this revision petition against that order made fay the learned District Judge.

(3.) The first contention urged by Mr. Rama-chandra Rao, learned Advocate for the petitioner is that the learned District Judge had no juridiction to rescind the order which he had made on December 17, 1956. This contention rests on the provisions of Section 48 of the Guardians and Wards Act which provides that an order made under the provisions of the Guardians and Wards Act becomes final unless set aside in appeal under Section 47 of the Act or in revision by the High Court. Mr. Ramachandra Rao therefore urges that the order made on December 17, 1956 not having been set aside in appeal and not having been set aside in revision by this Court, had become final and that therefore the District Judge had no jurisdiction to revise his previous order for doing which the Guardians and Wards Act conferred no power on him.