SHIVAWWA BALAPPA RAMPUR Vs. CHENBASAPPAGOWDA SANGANGOWDA GOWDAR

JUDGEMENT

(1.) THIS is an appeal from an order made by the District Judge of Bijapur in an application under Section 7 of the Guardians and Wards Act of 1890.

(2.) THE material facts are that the minor girl, in respect of whom this application was made, was born on October 28, 1937, and the mother died on November3. THE mother had gone for delivery to the house of her elder sister, who is the applicant in these proceedings, and after the birth of the child the sister kept and looked after it. In February, 1938, the father of the child filed a regular, suit in the Court of the Subordinate Judge of Bagalkot, which is in the Bijapur District, asking for the custody of the child, and in July, 1938, the present application was launched under Section 7 of the Guardians and Wards Act, in the Court of the District Judge of Bijapur, by the aunt who had the actual custody of the child. She asks to be appointed guardian of the child, and to be confirmed in the custody. When the application first came before the Court, it stood over pending the result of the civil suit. THE civil suit was decided on December 21, 1938. THE Subordinate Judge dismissed the suit on the ground that, having regard to the tender age of the child, it was better left with the aunt, but he stated that the father could make a further application for custody in the future. After that decision, the application under the Guardians and Wards Act came before the learned District Judge of Bijapur on January 18, 1939, and he then directed that the applicant should remain as guardian of the person of the minor till it became two years old. THE father was appointed guardian of the property of the minor. After the child became two years of age, the learned Judge made an order that the father should be declared the guardian of the minor, and directed the aunt to hand over the minor to him forthwith. I think it clear that before making any order the District Judge ought to have insisted on evidence, showing that the order was in the best interests of the child. He seems to have thought that he had actually made an order in advance in January that the minor was to be handed over to her father when she became two years of age. But he was not, competent to make such order. He would be bound to consider, at the time when the order was to take effect, whether the father was the proper person to have the custody of the child, However, apart from that, the contention of the appellant is that the Court had no jurisdiction to make the order.

(3.) THE appeal, therefore, must be allowed. Costs of the appeal to be paid by the respondent.