PAMELA WILLIAMS Vs. PATRICK CYRIL MARTIN

JUDGEMENT

(1.) THIS is an appeal against the order of Ismail, J. in an application by the appellant, a mother, under the Guardians and Wards Act (hereinafter called the act), for custody of her female child, Mary Charmine Martin, aged 14, from the respondent, the putative father, after a declaration that she is the natural guardian. The parties are Anglo-Indians, professing the Roman Catholic faith. They live at Royapuram, within the Madras city limits. When the appellant was barely 17 years of age, respondent, who is her mother's sister's husband, seduced her. This was in the year 1950. R. W. 2, Mrs, Martin, his wife, being frail, fickle minded and sickly, could not prevent this illicit intimacy between these two. The appellant became more and more involved, and she gave birth to the female child with whom we are now concerned on 8-9-1955. She lived with the respondent till the year 1963, and during this period, she was ill-treated and beaten occasionally by the respondent when he was under the influence of drink to which he was addicted. Too often he was in financial difficulties and impecunious circumstances. Two of the maternal aunts of the appellant. Mrs. Rennie Tuck and Mrs. E. A. Day live permanently in England. During the year 1963, the appellant also left India for england, leaving the child with the respondent, with a view to build a future. There she secured a job of a short-hand writer cum-secretary on a salary of. 1715 per week. She also got herself married to one Hugh Williams, and through him she has no Issues so far. She was remitting moneys and sending presents to her child, as will be evident from the acknowledgments (Ex. P. 7 series ). Meantime, in India the respondent was adjudged insolvent in the year 1966 in I. P. 43 of 1966, and it is stated that he has since been discharged. During december 1967, the appellant came over to India and resolved to take the child with her to England with a view to give her a decent life, good upbringing and sound education. It appears that at first the respondent agreed for this course, though he How states that he consented only for a temporary sojourn of the child for a holiday. The appellant had approached the High Commissioner of the United kingdom at Madras for this purpose and she had obtained Ex. p. 1, a declaration of sponsorship for this child. The respondent appears to have changed his mind and he did not even send her a reply to the letter written by the appellant in April 1968, through her solicitors. This refusal on his part resulted in the Initiation of proceedings by the appellant under Section 25 of the Guardians and Wards Act, for securing custody of her child for taking it to London.

(2.) THE appellant, in her affidavit, averred that it is not in the good interest of the child to continue to live with the respondent, his sickly wife, and their adult son aged 21, that the atmosphere is not quite congenial, and that the welfare of the minor required it to be taken away from the environment. The respondent denied the allegations and resisted the claim stating that the removal of the minor from his custody and delivering her to the appellant, who lives in London, outside the jurisdiction of this Court, would not be legally permissible, because it would be impossible for this Court to exercise any jurisdiction and effective control over the appellant when once she left the shores of India. He further contended that the appellant was not also entitled to ask for custody of the child under Section 25 of the Act.

(3.) ISMAIL, J. took the view that the mother is not the natural guardian and that no order could be passed in her favour, since she lived outside the jurisdiction of this court. On merits, he was inclined to take the view that there was not much substance in the several charges levelled against the respondent, and that In his view, the interests and welfare of the minor did not require a removal away to england. The child when examined by him had expressed its definite preference to live with the respondent and his family with the result, the learned judge upheld the respondent's contentions in law, and on merits, and dismissed the application. The mother in this appeal challenges the correctness of this order.