REGINALD DANIEAL Vs. SAROJAM

JUDGEMENT

(1.) THIS appeal arises out of an application under Section 25, Guardians and Wards act, filed by the appellant for the custody of his son from the first respondent, his wife. The appellant's case was that on 19-11-1966 his son, aged six years, was taken away by the first respondent and is living with the second respondent her father. The first respondent contended that on 11-11-1966 the appellant came home fully drunk, beat her and dragged her out of the house and later left the house for good, that what he did upset her mentally and as the appellant did not return to the house till 19-11-1966, she had to leave the house. Her case further was that the appellant has taken to another woman by name Gomathi and he is unfit to be the guardian of the child. The lower court took the view that the point that arose for consideration was whether it was in the interests of the minor to hand over the custody of the child to the appellant and in order to determine that point it had further to decide whether the petitioner has taken to another woman by name Gomathi and married her. The lower court was of the view that the appellant had married Gomathi and that it was not in the interests of the minor to hand him over to the appellant and dismissed the petition.

(2.) I do not think that the lower court was right in its conclusion that the appellant had married Gomathi. The appellant is an advocate and is a Christian. He would certainly know that he cannot marry a second wife, while the first wife is living, whether she is a Christian or a Hindu. I do not think that the evidence of taxi drivers R. W. 3 and R. W. 4 can be relied upon to hold that the appellant had married Gomathi, R. W. 5's evidence that the appellant is now living with Gomathi cannot also prove that the appellant had married Gomathi. The evidence of R. Ws. 6, 7 and 8 also does not establish that the appellant had married Gomathi, But I think the evidence is sufficient to establish that since April 1967, the appellant is living with Gomathi. The conclusion that follows is that the appellant is living with a mistress in his house, the lower court was not correct in thinking that the appellant's conduct in relation to his wife is one of hatred. Exs. B. 1 and B. 2 written in the heat of passion cannot be solely relied upon to prove either that the appellant ill-treated the first respondent or that he hated her. In any case, the fact that the appellant ill-treated his wife would not be a relevant consideration in coming to the conclusion that he is not a proper person to have the custody of his child; nor can it be said in this case that the appellant has permitted or allowed the other persons to have the custody of his child, and therefore, he should not be allowed to have the custody of the child. The child was taken away in November 1966 and after giving notice, the petition has been filed on 6-1-1967. There is no delay in the appellant taking action; nor am I satisfied that this petition is merely to forestall any action that might be taken against him for all that he has done to his wife. I do not see how this petition can forestall any such action and even if all that the wife alleges against her husband is true apart from the fact of his keeping a mistress, I do not see what action she could take against the appellant. If the first respondent can take proceedings either for judicial separation or for divorce, the very consideration mentioned by the lower court would show that the appellant would not mind such action being taken. Therefore, the case would have to be considered without reference to the appellant's attitude towards the first respondent or without reference to the contention that the present petition is intended only to forestall any action that the first respondent might take against the appellant.

(3.) I consider that the lower court was not correct in proceeding to determine this question merely on consideration whether it was in the interests of the minor to make him over to the appellant, Though this petition is under Section 25 of the guardians and Wards Act, Sections 17 and 19 of that Act are also relevant in discussing this question, Section 17 in so far as it is relevant reads: