S ABBOY NAIDU Vs. R SUNDARA RAJAN

JUDGEMENT

(1.) This appeal is directed by the respondents here in the lower court (maternal grand-parents of the minor Anitha) against the judgment passed by the Second Additional Sub Judge, Coimbatore in G.W.O.P. No. 68 of 1986, directing them to hand over the child to her father, who is the petitioner before the lower court.

(2.) The facts which are necessary for the disposal of this appeal are briefly as follows :(For the sake of convenience, the array of parties before the court below is adopted in this appeal also). The petitioner, who is the father of the minor Anitha whose date of birth is 30-1-1985, filed the petition under Sections 25 and 7 of the Guardians and Wards Act. It is alleged in the petition that the petitioner married the respondents' daughter Sarojini on 2-6-1982 and out of the lawful wedlock, the female child Anitha was born on 31-1-1985 at Coimbatore Town and was brought up by the petitioner and his wife at Perianayakanpalayam. At the time of filing of the petition, the child was aged one year. On 12-11-1985 the second respondent insisted on the petitioner's wife to hand over the jewels for her other daughter's use and that there was a quarrel among them due, to the said demand. Due to the said quarrel, the petitioner's wife was upset and committed suicide on the same day immediately after her mother left the house, by pouring kerosene over her body and setting fire. The petitioner immediately took her to the C.M.C. Hospital and in spite of treatment, she died on 13-11-1985. Taking advantage of the above situation, the respondents insisted on the petitioner to return back the jewels and valuables and they also refused to permit the petitioner to take the dead body of his wife to his place for performing ceremonies. It was only in the circumstances, he was forced to hand over the valuables as well as the custody of the child. The petitioner was upset by the sudden collapse of his wife. A list was prepared by the interested persons and after acknowledging the goods, the respondents took away the valuables on 14-11-1985 representing that they will deposit the value of the articles, worth about Rs.75,000/-, in the name of the minor. At that time, the petitioner was not in a mood to realise the consequences of parting company of his daughter. Subsequently the petitioner learnt that the respondents sold away some of the jewels and gave some jewels and valuables to their other daughter Amirtham, and that they had not utilised the valuables for the welfare of the minor. The respondents are very old and sickly and they are unable to give adequate care to the minor and in fact they are not even providing the minimum comforts to the minor. The respondents are unfit and disqualified persons. The child is now being brought up by third parties without proper care. It is further stated that the respondents are not having sufficient income to look after the minor's interest and the sons of the respondents are addicts to alcohol. According to the petitioner, he is the natural guardian and loving father of the minor Anitha. He is employed as a teacher and is in Government service drawing a salary of Rs. 910/- per month. He owns lands and a house. His parents also are living with him. They are very much attached to the minor. It is they who were looking after the child from the date of birth. He is very much attached to the minor and the minor is also attached to her grandmother. Hence, he issued a notice on 8-2-1986 calling upon them to hand over custody of the child. Though the first respondent received the notice and the second respondent evaded the same, they did not choose to send any reply and comply with the demand. The petitioner apprehends that the life of the minor is not safe in the hands of the respondents. Hence he filed the petition.

(3.) The said petition was resisted by the respondents and in the counter filed by the first respondent, adopted by the second respondent, it is stated that in the absence of a prayer for appointment of a guardian after declaring the person to be the guardian, the petitioner is not entitled to ask for a direction to hand over the child as she was not removed from the custody or she left the custody of the petitioner. The child was handed over to the respondents under a voluntary and lawful agreement dated 14-11-1985 on the demise of her mother in tragic circumstances. In view of the said agreement, the respondents are in lawful custody of the ward. It is submitted that unless and until the agreement dated 14-11-1985 is nullified by the provisions of the Act, the authority of the respondents for custody of the ward is absolutely lawful. It is further stated that the police are investigating the case of death of the wife of the petitioner and in fact the petitioner was apprehended by police and remanded to judicial custody and thereafter he was enlarged on bail. They denied the allegation that Sarojini (wife of the petitioner) committed suicide as a result of quarrel over the jewels between her and her mother (second respondent). The allegation that the petitioner was forced to sign the agreement dated 14-11-1985 is false. They have not sold the ornaments. According to them, the allegation that they are old and unfit to look after the child is false. Lastly it was stated that the respondents are eminently fit persons to protect the interest of the minor. They prayed for dismissal of the petition.