Madras High Court
S. Thirumavalavan vs Natarajan on 10 December, 1997
Equivalent citations: (1998)1MLJ515, AIR 1998 MADRAS 281, (1998) 1 MAD LJ 515 (1999) 1 MARRILJ 181, (1999) 1 MARRILJ 181
JUDGMENT S.M. Abdul Wahab, J.
1. This appeal has been preferred by the grand-father of the minor child, who was the respondent before the lower court.
2. The respondent herein filed a petition for appointing him as guardian of the minor Rajeswari and for custody under Section 25 of the Guardians and Wards Act, 1890. His case was that the deceased Narpasalai was married to him on 13.9.1981. The minor Rajeswari was born out of the wedlock on 22.6.1982. After the death of his wife, the petitioner and his wife were living with the respondent for some time. After sometime, the respondent took away the minor child. Even though he filed a criminal case before the Chief Judicial Magistrate, Tiruchirapalli under Section 98 of Criminal Procedure Code, he could not succeed. Hence, he has filed this petition.
3. The defence of the appellant was that the respondent never cared the minor or his wife. On account of his cruel treatment, the mother of the minor child set fire to herself and committed suicide. Before her death, she has also left a letter blaming the respondent indicating that the properties belonging to her must go to her brother. The appellant was in custody of the minor child. The child, was forcibly removed from the custody of the appellant. As the respondent was having illicit intimacy with a house servant, he should not be entrusted with the custody of the child. The respondent was also arranging to have a second marriage.
4. The learned Principal District Judge, Tiruchirapalli, passed an order directing the custody of the minor child to the respondent, rejecting the various allegations against the respondent, hence, the grand-father has preferred this appeal.
5. The appeal is of the year 1988, the minor was aged about six years at that time. Stay was granted after the appeal was taken on file by this Court. The minor child has been all along in the custody of the grand-father/appellant. The minor is a girl child and is aged now about 16 years. I do not find any material from the records that any attempt was made by the respondent to advance the hearing of the appeal.
6. The question that has to be considered in this appeal is; whether the minor should be entrusted to the custody of the father at this stage?
7. When we go into the facts, the father though legally entitled to the relief, as in my view forfeited that legal right as the facts and circumstances of the case reveal.
8. The mother has committed suicide by setting fire to herself. She has left a letter before, her death. The said letter speaks volume about the conduct and char-acter of the father, the respondent herein. The mother of the minor has committed suicide because the respondent had developed illicit intimacy with the ser-
vant maid. He has been treating the mother and the child cruelly. In the said letter, there is a statement that even though the mother wanted to kill the child also she changed her mind and states as follows:
The next sentence is also very important.
Hence, the deceased mother herself has desired that the custody should not be given to the father-the respondent.
9. The lower court has chosen to disbelieve this letter even though it has stated that the hand-writing in Exs. R-6 to R-8 tally with the hand-writing in Ex. R-2. What the lower court says is that the in Ex. R-2 are not natural. For arriving at that conclusion the lower appellate court that the letter bequeathed the entire property to her younger brother Mudiazhgan. this is unnatural. When her daughter was alive, the mother would not have intended to do so. Again, the lower court find that the direction that the minor child should be brought up by a person belonging to different reli-gion was also unbelievable. In my view, these two reasons are untenable. Normally, among Hindu Community, the brother is allowed to marry the sister's daughter. Probably, the deceased Narpasalai had that idea in her mind. Instead of saying all those things in the short letter, which she has written few minutes before her death, she could not express all her desires. The other reason that the custody must be given to a person belonging to other religion is also untenable. The mother has indicated that she believed that her colleague working with her would bring up the child in a better manner. That itself is an answer to the doubt of the learned District Judge.
10. When we compare the handwriting in Ex. R-2 with the admitted handwriting contained in Exs. R-6 to R-8 the handwriting is beyond any doubt, in the hand of the deceased. Her last desire is contained in the said letter. the said letter deserves to be treated as a testament. She has signed four times immediately after the completion of the sentence in the letter. That itself is an indication that she wanted that letter to be accepted and acted upon and dispel any doubt about its genuineness. In my view, if anything is done contrary to the last wishes of the deceased, we will fail to satisfy the desires of a departed soul. In such circumstances, we should not harp upon the legal rights con-ferred upon the father and ignore the sentiments expressed by the mother that too at the time of her suicide. When we consider the welfare of the child also, a female child in the custody of a grand-father or mother would feel better and happier than to in the custody of a step-mother. In my view, when we come across a case like this, we must take note of the traditional proverbial treatment of a step-mother and as far as possible, the court must stretch its arms to prevent the chances for such a treatment/As otherwise, even from the childhood the minor child will begin to experience a frustration and nurture a hatred towards the step-mother and to some extent towards the father, who usually ignores the cry of a minor child for fair treatment at the influence of his second wife. In this case, the respondent has admitted that he has taken a second wife, Further, it is also stated that the second wife has also conceived.
11. It is true that the aforesaid opinion need not be the same in all the cases of an unfortunate/female minor child. But in this case, the father's conduct is unappreciable as per the certificate given by his deceased wife. There is also no evidence to show that the grand-father is not in a position to take care of the minor child and bring her up in the way in which he deserves according to her status. There are statements in the counter and the same is spoken to by the appellant that the respondent was always in financial difficulties and hard pressed for money. But on the other hand, in the petition of the respondent, there is no whisper about any financial difficulty faced by the appellant. As we have seen already, the minor child is all along in the care and custody of the appellant. she has attained the age of 16. In another two years time, she will be able to decide about her future by herself. In such situation, I do not find that the inter-est of the minor will be better served if the custody is transferred to the respondent. Hence the status quo should be maintained for another few years to come. 12. The lower court is not justified in giving due regard to the last wishes of the mother by rejecting Ex. R-2. The reason for rejecting the said document is flimsy and unjustified. I therefore feel that the judgment and decree of the lower court has to be reversed. Accordingly; the same are set aside. The appeal is allowed. However, there will be no order as to costs. Consequently, C.M.P. No. 14228 of 1988 is dismissed.