PAMELA WILLIAMS Vs. PATRICK CYRIL MARTIN

JUDGEMENT

(1.) THIS is a petition under Sections 7 to 10 and 25 of the Guardians and Wards Act 1890, for declaring the petitioner herein to be the guardian of the person of the petitioner's minor illegitimate daughter born on 8-9-1955 and for directing the respondent herein, the putative father of the said illegitimate child, to give custody of the said minor child to the petitioner herein. The respondent is the husband of the petitioner's mother's younger sister. The petitioner, two other daughters and her brother were the children of her parents. After the death of the petitioner's father, the petitioner's mother married one G. Ballard. The petitioner claims to be very much attached to her aunt, namely, the wife of the respondent. According to the petitioner, she used to frequently visit the respondent and his wife. From 1950 to 1963, the petitioner lived with the respondent in the respondent's house as his mistress and it is as a result of this illicit connection between the petitioner and the respondent, the daughter was born on 8-9-1955. In 1963, the petitioner left india for England, where she secured a job as a short-hand writer Secretary. During the period of her stay in England, she used to send small amounts and presents to the illegitimate daughter. In December 1967, she came over to India and the evidence makes it clear that she was friendly with the respondent. She requested the respondent to send the minor to England along with her at least for a holiday and the respondent also agreed to send the minor to England during the summer vacation, when the school would remain closed, I may mention here at this stage that the minor is studying in VII Standard in St. Kevins Presentation convent, Royapurarn, During her stay in India, in December 1967 January 1968, for the purpose of taking the minor to England, the petitioner contacted the High commissioner of the United Kingdom, at Madras and she was advised that she must obtain a declaration of sponsorship for the child. After the petitioner returned to England in January 1968, on 31st January 1968, she made a sponsorship declaration before Notary Public in London, undertaking to bear the cost of passage of the minor from India to United Kingdom to maintain her during her stay in the United Kingdom and repatriate her to India at her cost, if and when necessary. She sent the sponsorship declaration to the respondent herein to enable him to take necessary steps by way of obtaining a passport and completing the other formalities, with a view to send the minor to England. A photostat copy of the said declaration of sponsorship has been filed as Ex. P-l in this case. The petitioner's case is that after she sent the declaration of sponsorship to the respondent, the respondent did not take steps pursuant to the same, as agreed to by him for sending the minor to England, when the petitioner was here in India and her letters to the respondent in this behalf were not replied to and she wrote to the minor also and she also did not write back. On the other hand, the case of the respondent is that the minor was not willing to go to England and he replied to the letters of the petitioner. It is under these circumstances, the petitioner has now come over to India and Instituted the present proceedings before this Court.

(2.) IN the petition and in the affidavit filed in support of the petition, the case of the petitioner with regard to her prayer for being declared a guardian of the minor is that she is the mother of the child and has great love and concern for the minor's welfare and she is the natural guardian and that she is in a good position and hence she is able to maintain the minor in comfort in a decent atmosphere, In support of her case that the respondent should be directed to hand over the custody of the minor child to the petitioner, the petitioner states that the law recognises the right of the mother to the guardianship of her illegitimate child and the putative father has no rights that the putative father is profligate and callous and is in an impecunious condition: that the respondent is legally married and has to maintain his wife and a son on a meagre salary. And the petitioner has also given the following reasons, which led to the present petition, the utter disregard and silence of the respondent after agreeing to send the minor to England at the request made by the petitioner, when she was in India in December 1967-January 1968, the respondent's refusal to deliver custody of the minor even after the petitioner obtained a declaration of sponsor-ship from the Notary Public in london and forwarded the same to the respondent in February 1968: the respondent's failure to reply to the solicitor's notice sent to him in April 1968, on behalf of the petitioner; and the impressionable age of the minor and the unhealthy surroundings in which she is growing up at a time when the petitioner could give her a good, healthy and normal life in London, The petitioner further avers in the petition that the minor is reaching an age when she should be looked after with great care and affection and in the minor's present set up her future happiness is in jeopardy; that she is In the midst of people who lead abnormal lives; that the wife of the respondent who happens to be the maternal aunt of the petitioner is a woman of weak will, feeble in mind and body, who is a complete slave of the respondent and lives in virtual fear of being thrown out by him; that the respondent's only son Charles la a lad of 21 years who is leading a wayward life; that the respondent does not wish his daughter, the minor, to get away from his clutches, for she feels that he will lose all hold on the petitioner, the mother of the child, whom he wants back at any cost; that the respondent is in short a sadist and thoroughly selfish man whose mind is completely warped and who does not care for the happiness of these close to him; and that the petitioner fears that her only child will develop into an emotionally troubled person, for she has found out when she was with the child last, that is, barely six months before the filing of the petition, that the father had succeeded to some extent in alienating the love of the minor for its mother, the petitioner. These allegations are further elaborated in the affidavit filed in support of the petition. In the affidavit, the petitioner states that during the four and odd years she had been away, she had been making herself secure financially well so that she might provide a comfortable home for her daughter, that she had been sending her money and other articles so that the minor might not be in want, as her father, the respondent, is unable to maintain her properly, as his income is only about Rs. 500 p. m. now and as he has in addition to maintain his lawful wife and son Charles who is 21 years and who are dependent on him; that the respondent is about 54 years and is a frustrated man who has not been able to adiust himself gracefully to the vicissitudes of life; and that continuing with him will result in an emotional upheaval in the minor who needs a steady hand to guide her at this juncture. The petitioner further states that she wants to give the minor proper and adeauate training in good surroundings so that she may become a useful member of society; that the respondent is poisoning the minor's mind against the petitioner: that when she was In Madras in last December, 1967 -January 1968, she found the minor treating her with scant respect and showing no signs of affection for her, the mother, though she had been doing her best for the minor's welfare; and that the respondent is sowing seeds of hatred in the minor's mind to destroy her and she is very much concerned about preserving the minor's mental stability. She has also stated in her affidavit that in England she got married to Mr. Hugh Williams in february 1965, and that she has no children through him and he wishes to give the minor, the illegitimate daughter of the petitioner, a home and happiness.

(3.) IN Ms counter statement, the respondent has denied the allegations of the petitioner and states that he has been maintaining the minor ever since her death (?) at his own expense and educating the child at his own cost; that the said minor child is loved and treated by the wife of the respondent and looked after, as her own child and the minor girl is attached to the respondent, his wife and son; that the respondent is earning about Rs. 800 p. m. and has been providing the child with every comfort and convenience. With regard to what happened in December 1967, January 1968, the respondent does not deny that he agreed to send the minor to England for a holiday, when the school in which she is studying closed for summer vacation, but states that the petitioner did not send any money to pay for the passage and also the minor refused to leave for. England and the respondent could not force the child. With reference to the circumstances under which the petitioner came to live with the respondent, the respondent states that the petitioner and her sisters were sent out of the house by their step-father and they sought the asylum of this respondent and the respondent was feeding and clothing them and he got the sisters married and met all the expenses of the petitioner for qualifying herself as a stenotypist. With reference to the allegation of the petitioner that she was sending money and other articles to the minor, the respondent denies the same and states that the petitioner used to end postal orders for paltry sums of 10 shillings or so very occasionally and that too only very recently. The respondent has denied the allegations made by the petitioner against his character and conduct. He also relies on a letter written by the petitioner to the respondent from England on 3-2-1968 marked as Ex. R-l in this case, as completely falsifying the allegations of the petitioner with reference to the character and conduct and behaviour of the respondent.