SARADA NAYAR Vs. VAYANKARA AMMA

JUDGEMENT

(1.) The order passed by the District Judge at Trichur in Guardian and Wards Petition No. 8/1954 on the file of his court has given rise to these two appeals. The petitioner Sarada Nayar of Anavangode family in Palghat Taluk, was married to Dr. Vasunni Nair of Manakkampat family in the same Taluk. Their marriage took place on 1.2.1948. A daughter was born to them on 17.4.1949 and this girl is known by the name of Nirmala alias Ammu. The relationship between Sarada Nayar and Dr. Vasunni continued to be happy only for a short period of 2 years after which misunderstandings arose between them and by about 1954 their continued residence under the same roof became very difficult. Dr. Vasunni Nayar who was originally in military service, had been discharged from that service in the year 1947 and at the time of his marriage with Sarada Nayar he was employed as an Assistant Surgeon under the Madras Government and was staying at Madras. Because of this strained relationship between himself and his wife, the latter went back to her parents house in May 1952. But she was not allowed to take with her the child Nirmala. According to the petitioner, she was told by Dr. Vasunni Nayar that if she wanted to have the child with her, she should move for her divorce from him. It appears that she filed O.P. No. 38/1954 in the District Munsiffs Court at Alathur on 1.6.1954 for a dissolution of her marriage with Dr. Vasunni Nayar. Ext. I is copy of that petition. After she had gone away to her parents house, the first counter petitioner who is a widowed sister of Dr. Vasunni Nayar, used to stay with him at Madras to look after the affairs of himself and his child Nirmala. The 2nd counter petitioner is another sister of Dr. Vasunni Nayar, and her husband is the third counter petitioner who belongs to Kannambra House at Trichur. All these three counter petitioners have their permanent residence at Kannambra House. Early in the year 1954 Dr. Vasunni Nayar became ill and had to undergo treatment in the Madras General Hospital. Counter petitioners 2 and 3 who had been to Madras to see him, returned to Trichur in May 1954 and then Nirmala was also sent along with them by Dr. Vasunni Nayar, so that she may stay on at Kannambra House and may have her education at Trichur. Accordingly, the girl was admitted into the Sacret Hearts Convent Girls High School, Trichur on 11.6.1954. Ext. N is the copy of the application for admitting her to that school. That application was signed and presented by the third counter petitioner as the local guardian of Nirmala. The evidence in this case is to the effect that the girl attended that School upto 22.9.1954. That fact is sworn to by P.W. 2 who is a Sister attached to that Convent. In the first week of September 1954 Dr. Vasunni Nayar came to Trichur in connection with the Sradha of his mother. While staying there the disease from which he was suffering took a dangerous turn and so he went back to Madras on the 26th of that month and got himself admitted to the General Hospital and there he died on the next day i.e., 27.9.1954. Soon after this event, the petitioner wanted to get back the custody of her daughter Nirmala. But the counter petitioners were not prepared to give the custody of the child to its mother, the petitioner. The petitioner thereupon filed Guardian and Wards Petition No. 8/1954 in the Trichur District Court on 12.10.1954. The petition was filed under S.25 of the Guardians and Wards Act and the petitioners prayer is that the counter petitioners, who are unlawfully retaining custody of the child Nirmala, may be ordered to hand over the child to the petitioner who is the natural and legal guardian of the child.

(2.) The first counter petitioner remained ex parte, while counter petitioners 2 and 3 entered appearance and contested the petition. Even though they maintained that Nirmala is not in their custody, but is staying away at Bombay under the protection and guardianship of the first counter petitioner who had taken up her residence with her brother Sreekumaran Unni Nair employed as an Income Tax Officer at Bombay, they opposed the petitioners prayer on all conceivable grounds. The more important of these grounds are that the Trichur District Court has no jurisdiction to entertain the petition, that the petition under S.25 of the Guardians and Wards Act is not maintainable in the nature and circumstances of this case, that the first counter petitioner is retaining custody of the child as per the directions given and the wish expressed by the father of the child, that the child is being well looked after by the first counter petitioner and that it will not be to the welfare of the child to entrust its custody to the petitioner. After considering the evidence adduced by the contesting parties, the lower court came to the conclusion that Nirmalas ordinary place of residence was Trichur and as such the court had jurisdiction to entertain the Guardian and Wards Petition, that at the time of filing the petition the child was in the custody of counter petitioners 2 and 3 and that they retained such custody even though the child had been subsequently sent along with the first counter petitioner to Bombay for taking up residence with the first counter petitioners brother Sreekumaran Unni Nair and that it will be to the welfare of the child to direct its custody being given to its mother, the petitioner, who is also the natural and legal guardian of the child. Consistent with these findings, an order was issued against counter petitioners 2 and 3 on 27.8.1956, directing them to hand over the child Nirmala to the petitioner on or before the 15th of September 1956. No specific order was passed against the first counter petitioner.

(3.) It is against the order passed against counter petitioners 2 and 3 that they have filed C.M.A. No. 108/1956 challenging the legality and propriety of that order. Finding that the lower court had omitted to pass a specific order against the first counter petitioner who is having the actual custody of the child, the petitioner has filed C.M.A. No. 15/1956 (K) praying that the lower courts order may be modified by directing the first counter petitioner also to hand over the child to the petitioner. In order to secure the presence of the child within the jurisdiction of this court, the petitioner appellant in C.M.A. 15/1956 (K) filed a separate petition, C.M.P. No. 36/1956 (K) under S.12(1) and 25(1) and (2) of the Guardians and Wards Act praying for an order for the production of the child before Court, and in case of default, to get the child arrested and brought before Court, so that proper arrangements may be made for its temporary custody pending final orders on the C.M. Appeals. That petition was allowed and the necessary orders were issued in enforcement of which the child was produced before this Court on 14.12.1956. After hearing both sides, an order was passed on the same day, entrusting the child to the temporary custody of its mother, the petitioner, on taking bonds from herself and two sureties undertaking that the child will not be removed beyond the territorial limits of this Court and to properly look after the welfare of the child and to produce it before Court whenever ordered to do so. Thus the child is at present in the temporary custody of the mother, the petitioner.