AUDIAPPA PILLAI Vs. NALLENDRAN PILLAI

JUDGEMENT

(1.) THE District Judge held that no circumstances have been proved which could deprive the father of the right of guardianship of his minor daughters. We agree with him. Mr. Krishnaswami Aiyar has taken us through the whole of the evidence; accepting in their entirety the depositions of appellant s witnesses, we are unable to find that any circumstance has been spoken to which would render the father unfit to be the guardian of his minor daughters. THEre is some evidence that the deceased mother of the girls was not properly treated : that is not a ground for presuming that the children will not be properly looked after. THE eldest girl was 12 years of age at the time of the enquiry and the grandfather is unable to depose to any single act which shows that either the father or the step-mother ill-treated the girl. THE fact that the father has married a second wife is not a sufficient ground for holding that he is unfit to be the guardian of his children.

(2.) THE learned Vakil for the appellant relies on Bindu v. Sham Lal (1907) I.L.R. 29 A. 210 which seems to lay down that if the father marries again he ought to be deprived of his legal right of guardianship. THE learned Judges refer only to Section 17 and say that the welfare of the girls is the primary consideration. THEre is no doubt that that would be the consideration which would influence the Court ultimately at the same time, it ought not to be forgotten that the legislature advisedly draws a distinction between the legal rights of husband and parents on the one side and those of the other near relations on the other side. In the first class of cases, it must be established that any act or conduct of the husband or father renders him unfit for guardianship: the fact that the child may be happier and more comfortable with other relations is not sufficient to deprive the two relations referred to of their right and duty. THE same sanctity does not attach to the rights claimed by the other relations. It is for these reasons that Section 19 of the Guardians and Wards Act lays down that the Court must be satisfied that the husband or the father is unfit to be the guardian of his wife or child respectively before it can appoint another person as the guardian. For these reasons we are unable to follow the decision in Bindo v. Sham Lal (1907) I.L.R. 29 A. 210. THE decision in Be Gulbai and Lilbai (1908) I.L.R. 32 B. 50 deals with the guardianship of other near relations. To such cases Section 19 does not apply and the only consideration which should weigh with courts is the welfare of the minor : we think the order of the District Judge is right: we must dismiss this appeal. Having regard to the fact that the grandfather is deeply interested in the minors, we think the provision for consulting the court before giving the girls in marriage is a salutary one. We see no reason to think that the security is not sufficient. We make no order as to costs.