SUBBARATHNAMMAL Vs. SESHACHALAM NAIDU

JUDGEMENT

(1.) The petitioner here is the mother of an illegitimate minor son and she has presented this petition praying for the issue of a writ of habeas corpus directing the respondent to hand over the custody of that child to her. The child was born on the 11 April last year. It would appear that the petitioner had been living as the respondent's mistress for some two or three years in the respondent's house in which also the respondent's wife lived. The latter was incapable of bearing any children. There had been previously born to the petitioner two other children both of which died in very early infancy. After the birth of this child the petitioner went to Mysore, it is said, in order to visit her sister who was very ill; and she alleges that she was prevented by the respondent from taking her child with her, and upon her return to Madras early in July that he has refused to hand over to her this child. Accordingly she has presented this petition for a writ of habeas corpus.

(2.) Some important matters must be referred to. The petitioner presented a petition under the Guardian and Wards Act to the District Court of Chittoor, namely, O.P. No. 18 of 1930. In that petition she prayed to be appointed the guardian of the person of the minor child. The. respondent here was the respondent in that petition. He put in a counter-petition alleging that the petitioner was not by reason of her immoral character and other matters a fit and proper person to be appointed the, guardian of the person of the minor child. He added also that he was a fit and proper person and that he was willing to be appointed the guardian of the person of the minor child and prayed to be so appointed. The District Judge of Chittoor went into the merits of the case and decided that the petitioner was not the right person to be appointed guardian of the person of the infant and decided at the same time that the respondent was; and he was accordingly appointed the guardian of the person of the child. The petitioner then brought the matter up to the High Court in C.M.A. No. 459 of 1930 See Subbaratnammal V/s. Seshachala Naidu (1931) 60 M.L.J. 615 and it was decided by the Division Bench, in that case that as it appeared that the appellant was a resident of Mysore and therefore residing outside the jurisdiction of British India, she could not be appointed the guardian of the minor as over such a guardian the Court could not exercise a proper control and in support of that view reference was made to Batcha Chetty V/s. Ponwuswami Chetty (1911) 22 M.L.J. 68.

(3.) The order of the Appellate Bench then goes on as follows: The appellant therefore cannot herself be appointed guardian of the minor under the Act. For this reason without going into any of the other questions raised, we find it unnecessary to interfere in the appellant's favour with the order of the learned District Judge. This will not preclude the appellant from seeking any other remedy open to her.