The main legal point established in the given judgment is that the petitioner, as the mother of the child, is the natural and legal guardian of the child and is entitled to seek the aid of the Court for securing the possession of her minor child Nirmala from the counter-petitioners who were wrongfully withholding the child from her. The court also confirmed that the Trichur District Court had jurisdiction to entertain the Guardian and Wards Petition as the child's ordinary place of residence was Trichur. The court further held that it will be decidedly to the welfare of the minor to make over its custody to the petitioner who is the natural and the legal guardian of the child.

Headnote:
Custody - Guardian and Wards - Madras Marumakkathayam Act - S.25 of the Guardian and Wards Act - The court held that the petitioner, as the mother of the child, is the natural and legal guardian of the child. The court also confirmed that the Trichur District Court had jurisdiction to entertain the Guardian and Wards Petition as the child's ordinary place of residence was Trichur. The court further held that the petitioner is entitled to seek the aid of the Court for securing the possession of her minor child Nirmala from the counter-petitioners who were wrongfully withholding the child from her and that the petition under S.25 is maintainable. The court also found that it will be decidedly to the welfare of the minor to make over its custody to the petitioner who is the natural and the legal guardian of the child. The court allowed the petitioner's appeal and terminated the temporary custody of the child, declaring that the petitioner is entitled to have the custody of the child in her own right as the natural and legal guardian of the child.
Fact of the Case:

The petitioner, Sarada Nayar, filed a Guardian and Wards Petition seeking custody of her daughter, Nirmala, who was being wrongfully withheld by the counter-petitioners. The court found that the petitioner, as the mother of the child, is the natural and legal guardian of the child and is entitled to seek the aid of the Court for securing the possession of her minor child Nirmala from the counter-petitioners who were wrongfully withholding the child from her. The court also confirmed that the Trichur District Court had jurisdiction to entertain the Guardian and Wards Petition as the child's ordinary place of residence was Trichur. The court further held that it will be decidedly to the welfare of the minor to make over its custody to the petitioner who is the natural and the legal guardian of the child.
Finding of the Court:

The court found that the petitioner, as the mother of the child, is the natural and legal guardian of the child and is entitled to seek the aid of the Court for securing the possession of her minor child Nirmala from the counter-petitioners who were wrongfully withholding the child from her. The court also confirmed that the Trichur District Court had jurisdiction to entertain the Guardian and Wards Petition as the child's ordinary place of residence was Trichur. The court further held that it will be decidedly to the welfare of the minor to make over its custody to the petitioner who is the natural and the legal guardian of the child.
Issues: The main issue was the custody of the minor child Nirmala, with the petitioner seeking to secure possession of her daughter from the counter-petitioners who were wrongfully withholding the child from her. Another issue was the jurisdiction of the Trichur District Court to entertain the Guardian and Wards Petition, which the court confirmed in favor of the petitioner.
Ratio Decidendi: The court held that the petitioner, as the mother of the child, is the natural and legal guardian of the child and is entitled to seek the aid of the Court for securing the possession of her minor child Nirmala from the counter-petitioners who were wrongfully withholding the child from her. The court also confirmed that the Trichur District Court had jurisdiction to entertain the Guardian and Wards Petition as the child's ordinary place of residence was Trichur. The court further held that it will be decidedly to the welfare of the minor to make over its custody to the petitioner who is the natural and the legal guardian of the child.
Final Decision: The court allowed the petitioner's appeal and terminated the temporary custody of the child, declaring that the petitioner is entitled to have the custody of the child in her own right as the natural and legal guardian of the child.

Judgment :-

1. The order passed by the District Judge at Trichur in Guardian and Wards Petition No. 8/1954 on the file of his court has given rise to these two appeals. The petitioner Sarada Nayar of Anavangode family in Palghat Taluk, was married to Dr. Vasunni Nair of Manakkampat family in the same Taluk. Their marriage took place on 1.2.1948. A daughter was born to them on 17.4.1949 and this girl is known by the name of Nirmala alias Ammu. The relationship between Sarada Nayar and Dr. Vasunni continued to be happy only for a short period of 21/2 years after which misunderstandings arose between them and by about 1954 their continued residence under the same roof became very difficult. Dr. Vasunni Nayar who was originally in military service, had been discharged from that service in the year 1947 and at the time of his marriage with Sarada Nayar he was employed as an Assistant Surgeon under the Madras Government and was staying at Madras. Because of this strained relationship between himself and his wife, the latter went back to her parent's house in May 1952. But she was not allowed to take with her the child Nirmala. According to the petitioner, she was told by Dr. Vasunni Nayar that if she wanted to have the child with her, she should move for her divorce from him. It appears that she filed O.P. No. 38/1954 in the District Munsiff's Court at Alathur on 1.6.1954 for a dissolution of her marriage with Dr. Vasunni Nayar. Ext. I is copy of that petition. After she had gone away to her parents' house, the first counter-petitioner who is a widowed sister of Dr. Vasunni Nayar, used to stay with him at Madras to look after the affairs of himself and his child Nirmala. The 2nd counter-petitioner is another sister of Dr. Vasunni Nayar, and her husband is the third counter-petitioner who belongs to Kannambra House at Trichur. All these three counter-petitioners have their permanent residence at Kannambra House. Early in the year 1954 Dr. Vasunni Nayar became ill and had to undergo treatment in the Madras General Hospital. Counter-petitioners 2 and 3 who had been to Madras to see him, returned to Trichur in May 1954 and then Nirmala was also sent along with them by Dr. Vasunni Nayar, so that she may stay on at Kannambra House and may have her education at Trichur. Accordingly, the girl was admitted into the Sacret Heart's Convent Girls' High School, Trichur on 11.6.1954. Ext. N is the copy of the application for admitting her to that school. That application was signed and presented by the third counter-petitioner as the local guardian of Nirmala. The evidence in this case is to the effect that the girl attended that School upto 22.9.1954. That fact is sworn to by P.W. 2 who is a Sister attached to that Convent. In the first week of September 1954 Dr. Vasunni Nayar came to Trichur in connection with the Sradha of his mother. While staying there the disease from which he was suffering took a dangerous turn and so he went back to Madras on the 26th of that month and got himself admitted to the General Hospital and there he died on the next day i.e., 27.9.1954. Soon after this event, the petitioner wanted to get back the custody of her daughter Nirmala. But the counter-petitioners were not prepared to give the custody of the child to its mother, the petitioner. The petitioner thereupon filed Guardian and Wards Petition No. 8/1954 in the Trichur District Court on 12.10.1954. The petition was filed under S.25 of the Guardian and Wards Act and the petitioner's prayer is that the counter-petitioners, who are unlawfully retaining custody of the child Nirmala, may be ordered to hand over the child to the petitioner who is the natural and legal guardian of the child.

2. The first counter-petitioner remained ex-parte, while counter-petitioners 2 and 3 entered appearance and contested the petition. Even though they maintained that Nirmala is not in their custody, but is staying away at Bombay under the protection and guardianship of the first cou

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1957 Supreme(Ker) 102

Cases Referred (1)