D RAJAIAH Vs. DHANAPAL

JUDGEMENT

(1.) THIS Civil Miscellaneous Appeal concerns the guardianship and custody of two Hindu Minor Girls. The first minor girl named Meena alias Arthi was born on 13.5.1972. The second minor girl named Priya was born on 13.9.1973. They have lost their mother. The mother is stated to have died on 10.8.1982. Their father is alive and he is the first respondent in this appeal. The appellant is their maternal grandfather. The facts placed in the case have disclosed that the marriage between the parents of the minor children took place on 26.5.1969. The father is an Engineer and he is a M.Tech., and his profession took him to Bhopal, Delhi and Tiruchira-palli. During these years, his wife, the mother of the minor girls, was alive. His employment as such was with Bharat Heavy Electricals Ltd., (BHEL) and he was so employed last at Tiruchi-rapalli. The mother of the minor children seemed to have fallen sick and she had come to her parents' house at Madurai for treatment. The two minor children seemed to have been brought to Madurai in May, 1982, since their mother was taking treatment there and they were joined in a school at Madurai. Until the death of the mother, no problem seemed to have cropped up. But the demise of the mother seemed to have brought about problems over the guardianship and custody of the two minor children. The father is stated to have left his assignment with BHEL with the intention to start an industry of his own and it is stated that he borrowed money from the maternal grandfather, namely, his father-in-law. The father also was indicating his anxiety to raise a loan over the jewels of the mother, namely, his late wife, for this commitment. It is admitted that the said jewels are in the custody of the maternal grandfather. The father also began to re-claim the custody of his two minor children, which he is lawfully entitled to and he had been writing letters with that end in view. But the maternal grandfather seemed and seems to have a different idea and he wants to have the custody of the two minor children with him. The maternal grandfather preferred O.P.No.98 of 1983 before the District Judge, Madurai South, to declare or in the alternative to appoint himself as the guardian for the two minor children and for continuing their custody with him. The father of the two minor children contested the original petition and the Learned District Judge did not countenance the case of the maternal grandfather and dismissed the petition, and the maternal grandfather had preferred this Civil Miscellaneous Appeal against the orders of the learned District Judge.

(2.) MR.G.Ramaswami, learned counsel appearing for the maternal grandfather, the appellant in this appeal, would draw a chart of comparison to impress upon this Court that though the father is the natural guardian of his two minor children, yet on the facts and circumstances of the case, this Court should go by the principle of the paramount interest of the minors and if that principle is kept in mind, the Court should only countenance the case of the maternal grandfather for guardianship and custody. Learned counsel expressed anxiety of his client that if not guardianship, atleast the custody of the minor children should be left with the maternal grandfather. As points speaking in favour of retaining the guardianship and custody of the minor children with the maternal grandfather, the following factors were delineated by the learned counsel: (1) The maternal grandfather is aged 60 and the maternal grandmother is aged 50 years (2) The financial position of the' maternal grandfather is sound (3) Ever since May, 1982, the minor children are with the maternal grandparents. The minor children are studying in a good school at Madurai, and it is not worthwhile to disturb their education by taking them away from the custody of the maternal grandparents at Madurai. (4) The jewels of the deceased mother are with the grandparents and they shall be given to the minor children at the appropriate time of their marriage and (5) the children have been with the maternal grandparents sufficiently long and they are being tended to by the maternal grandparents with love and affection and if they should be snatched away from the said atmosphere, it will bring about a trauma in the minds of the minor children. In contrast, learned counsel for the maternal grandfather would also stress the following factors as speaking against leaving the guardianship and custody of the minor children with the father (1) The financial position of the father is not good and he had been borrowing loans from the maternal grandfather and was not averse to pledge the jewels of the mother, namely, his late wife. He started his business venture only recently and cannot be stated to be in a stabilised financial position (2) The father is a widower and he lives only with his own father (paternal grandfather of the minor children), who is also a widower and the age of the paternal grandfather is 70 (3) There is no female member in the household of the father and it is claimed that an aunt of the father, who is stated to be aged 50 and who is living away from her husband, is living with the father of the minor children. There is no guarantee that the said aunt will continue to be in the household of the father and may not go away to join her husband. In the said circumstances, it is not safe to entrust the two minor children under the impression that a reliable lady would be in the household to take care of the minor children, who are girls (4) The minor children are not willing to go and live with their father and any compulsion over them to do so will bring about a trauma and (5) The father is a temparamental man and the evidence placed in the case has disclosed that he used to beat his children.

(3.) THE father has not disqualified himself from being the natural guardian of his two minor children. He has not ceased to be a Hindu and he has not completely and finally renounced the world by becoming a hermit or an asetic so as to attract the proviso to section 6 of Act 32 of 1956. Until May, 1982, the father, mother and the two minor children lived together in the place where the father was working. Of course, there were periodical visits to the place of the parents of the mother. THE mother died on 10.8.1982. She had come earlier to her parents 'house for treatment. THE two minor children were also brought to Madurai and they were joined in a school there. THE father seemed to have planned to start an industry of his own and he had borrowed loans from his father-in-law, the maternal grandfather of the two minor children. He had requested for further loans and he also 'indicated an idea that if the loan was not forthcoming from his father-in-law, he had to think about the pledging of the jewels of his late wife, the mother of the two minor children. This is evident from his letter, dated 7.3.1983 addressed to his brother-in-law (brother of his late wife), marked as Ex.A.13. In this letter, he had also requested his brother-in-law to bring the two minor children to Vellore from where he has written the letter. Further, he has indicated a proposed trip to Colombo along with his brother-in-law and his two minor children. Ex.A.14 is another letter written by the father on 6.5.1983 to his brother-in-law. Apart from referring to the need to raise a loan over the jewels of his late wife, the father has requested his brother-in-law to bring the two minor children to him. He has stated that he cannot live without his two minor children. He has requested his brother-in-law to advise the two minor children that they should live only with the father. This part of the letter strikes a plaintive note. In Ex.A.14, the father states that he has no idea as to the details of the jewels of his late wife, and he sets out the compelling circumstances for raising a loan over the jewels. On 16.5.1983, the father has written a letter as per Ex.A.13 both to his children and to his brother-in-law. In this letter, the father has willingly accepted the proposal that the jewels of the mother, his late wife, should be kept in safe custody until the two minor children come up of marriageable age. THEre is an indication that his father-in-law was inclined to advance moneys. Obviously, the father was not keen to fritter away the jewels, but was only pointing out the need to raise loans over the jewels for want of any other alternative. THE loan was admittedly required for his business venture. In this letter the father pleads with his first minor child to come and join him, allowing the second minor child to study at Madurai for one year. This letter strikes a very affectionate and a pathetic note towards the minor children. THE father pleads that his minor child should talk to him over the phone. He has also requested his brother-in-law to bring the minor children to Vellore for a brief stay to that they can all go to Tirupati and Samayapuram the letter place, it is stated that the mother while she was alive, wanted to visit. On 5.9.1983 as per Ex.A.9 we find the father has written a letter to his first minor child. He expresses regret for having beaten the child and there is a helpless and a heart-rending plea that without his children, who could be with him. This letter again is a pathetic reading. This letter indicates that the father has enclosed a self-addressed inland letter requesting the first minor child to write a letter to him. This letter dated 5.9.1983, Ex.A.9 is stated to have been addressed to the first minor child to her school address. THE father has warned the child not to disclose the receipt of this letter to the maternal grandfather. This certainly brings on impression to the mind of this court that the maternal grandparents were wielding an unnatural influence over the minor children, alienating their natural feelings towards the father and frowning upon even communication between the father and his children. THE inland letter which came to be written by the first minor child has been marked as Ex.B.1. It bears the postal seal dated 14.9.1983 of Vellore. This imputation by the maternal grandfather is that this was written at the instance and with the help of the second respondent, who is the headmistress of the concerned school at Madurai where the children were studying. But there is no dispute that this letter was written by the first of the two minor children. A reading of this letter conjointly with Ex.A.9 certainly discloses that not only the father, but also the minor children were entertaining an apprehention and fear that the maternal grandparents would not relish and were against the natural rapport between the father and his children. In this letter Ex.B.1 it is stated that nothing will be mentioned to the maternal grandparents about the letters. THE first minor child has also stated that she and her sister will come and join the father next year and they will come to the father for holidays. It is further stated that the two minor children have no grievance against the father. This letter strikes a very affectionate note. THEn comes Ex.A.11 dated 20.9.1983 written by the maternal grandfather. This letter strikes a very unnatural note. THE maternal grandfather has taken exception to the father writing a letter to his own minor children. It is expressed the letter was not written voluntarily, and the maternal grandfather directs the father that the said letter should be either torn off or else returned to him. THE father writes Ex.A.10 on 30.9.1983 in reply to Ex.A.11. Apparently he was left aghast and chagrined by the attitude of the maternal grandfather, namely, his own father-in-law. THE direction to tear off the letter or to return the letter seemed to have pained him very much and pratically he characterised the maternal grandfather as a shameless person. THE father in this letter pleads for the return of his children to him.