(KODE) ATCHAYYA Vs. KOSARAJU NARAHARI

JUDGEMENT

(1.) This is an appeal against an order passed by the District Judge of Guntur under Section 25, Guardians and Wards Act (8 of 1890) directing the appellant to hand over to the respondent his male child aged 4 years. The respondent is the father of the child and the appellant is its maternal grandfather. The material facts of the case are these : The child's mother died about three years ago. From the time she gave birth to the child she was ailing from some disease and it was thought advisable in the interests of the child that it should be separated from the mother. The child was, therefore, left under the care of the appellant and his wife who have since brought it up. The respondent married a second wife sometime after the death of the child's mother and his second wife is living with him. Besides her, he has a widowed sister who is also living with him as a member of his family. His case is that he requested the appellant to send back the child to his custody as he was desirous of bringing him up himself. The appellant refused to do so without assigning any proper reasons therefor. He therefore, applied to the Court under Section 25, Guardians and Wards Act for an order directing the appellant to deliver over the child to him. The appellant filed a counter-petition in which he opposed the application on the following grounds.

(2.) The application is not a bona fide one the respondent was wasting away his properties and so the appellant demanded the separation of the minor's share in the family properties and the delivery of the minor's moveables which were with the respondent and threatened to file a suit against him for partition. He also threatened to file a suit against the respondent's sister in respect of certain jewels belonging to the child. The application has been filed out of spite and as a counter move. The respondent was ill-treating his wife as long as she lived and his character created considerable pain and anguish in her mind.

(3.) The child has almost from its birth been brought up by his maternal grandmother, the appellant's wife, and he is feeling quite happy in the appellant's house; it would be cruel to remove him from there and deliver him to the respondent. Further there is none in the respondent's house to look after the child properly. Subsequent to the filing of the suit the appellant has filed a suit for partition of the minor's share in the family properties and he has also filed another suit against the respondent's sister for Rs. 300 being the value of jewels belonging to the minor's mother which were sold through the sister. Both those suits are still pending trial. The learned District Judge being of opinion that the grounds alleged by the appellant (respondent in the lower Court) in his counter-petition, even if true did not disclose sufficient cause for depriving the petitioner (respondent) of the custody of his minor son allowed the application and directed the appellant to hand over the child to the respondent by 23 February 1928. That order has not been executed pending disposal of this appeal and the child is still in the custody of the appellant.