SEBASTIAN Vs. THOMAS

JUDGEMENT

(1.) This is an unfortunate case in which the mother of the child of about whose custody there is dispute between the parties, died on 16th November 1973. The competition for custody is between the child's father who invoking S.8, 12 and 25 of the Guardians and Wards Act, 1890, approached the court for a declaration that he is the guardian of the person and property of the minor child, and for a direction to return the minor child to his custody. The application was dismissed by the learned District Judge taking the view that to direct the return of the custody of the child to the petitioner father would not be in the interest of the child.

(2.) It is not disputed that the petitioner who is the father is the natural guardian of the minor child. It may not also be necessary to appoint him as guardian nor to declare him as guardian as he is according to the personal law governing the parties, who are Christians, the natural guardian of the child. The question mooted before us is as to whether so long as he is not found to be unfit to be the guardian, is he not entitled to the custody of the child in question.

(3.) It is necessary to mention a few facts. As already stated the mother of the child, that is, the wife of the petitioner, died on 16th November 1973. He married a second time on 27th June 1974 a woman who according to the appellant was attending to his 1st wife during her illness as a good Samaritan and according to the respondents was the maid servant in the appellant's house. The child was in the custody of the petitioner on the date of the death of his first wife and till 27th May 1974 when the child was taken by its maternal grandmother, the 2nd respondent herein, to her house. The 1st respondent is the maternal grandfather of the child. In the second marriage a child was born to the petitioner within a month of that marriage, i. e., on 9th July 1974. As submitted at the bar before us on behalf of the respondents, the respondents have sent the child to a school and he who is now under seven years is studying in a school; and the respondents are looking after the education of the child.