The Judgment was delivered by :

Both appeals arise out of a common order passed by the learned District Judge, Thanjavur, in O.P. Nos. 24 of 1992 and 48 of 1993. O.P. No. 24 of 1992 was filed by the respondent in this appeal praying for appointing hereself as guardian for the person of the minor Iswarya. O.P. No. 48 of 1993 was filed by the appellant herein who is the father of the minor child, for directing the respondent to hand over the minor being the only daughter of the appellant to him.

2. The respondent as originally impleaded, is the maternal grandmother of the child. Subsequently, on her death, the son of the respondent had sought to be impleaded as the legal representative.

3. According to the respondent, in her O.P. No. 24 of 1992, it was contended that the appellant was married to her daughter by name Geetha on 31-10-1988 at Thanjavur. The appellant belongs to Coimbatore where his parents are living and he was employed at Delhi at the time of the marriage. He was subsequently transferred to Madras where he was living with his wife. Out of the wedlock a female child was born on 9-11-1989 and named as Iswarya who was aged about 3 years on the date of the petition. The appellant and his parents were not happy about the child as the child was a female one. It was further stated that the petitioner's daughter's marital life with the appellant was not happy and the her daughter died in the midnight of 22-12-1991 at Kilpauk Medical College Hospital succumbing to burn injuries which she had received under suspicious circumstances at the appellant's residence. The unexpected sudden and unnatural death of Geetha implies the demand for dowry and attempted harassment. A case was registered in Crime No. 998 of 1991 of R2 Tank Factory Police Station and the same was pending investigation. The body of the petitioner's daughter was brought to Thanjavur and was cremated at Thanjavur. The minor was also brought along with the petitioner at Thanjavur with the intention of taking total care of her up bringing. The appellant and his parents never cared to keep the child with them. The minor was with the custody of the petitioner from the date of death of her mother. Therefore, appointing the petitioner as guardian would be required to safeguard the utmost welfare of the minor. Having lost her daughter, the child was the only consolation for the petitioner and her unmarried son was also showing affection towards the child. The existing arrangement was conducive and happy for the future of the child. The minor requires warmth of feminine affection. The appellant as a natural guardian of the minor, had rendered himself unfit for the above mentioned reasons. Further, he intends to marry again and no one in his family has any affection towards his child. Therefore, it is unsafe to leave the minor with the appellant. There was no responsible person to look after child when he leaves for his employment. He will not be able to devote his attentionto the child while at office.

4. In the counter filed by the respondent, appellant herein, it was contended that the petitioner cannot seek remedy under the Guardian and Wards Act, 1870 as she has no right to claim the guardinship over the minor. The allegation regarding the appellant and his wife not having lived happily, was false and that the said allegation has been made with ulterior motive to prejudice the Court. The death of his wife was due to accidental reasons and her dying declaration before the competent authority would prove the same. It is true that a case was pending as regards the death. But it was only for a formal investigation since she had died within seven years of marriage. The other allegation as regards his alleged incapacity was imaginary. He being the natural guardian, he was capable of looking after his only child. Eversince the marriage he was leading a happy life with his wife and out of wedlock a minor child was born. After his transfer from New Delhi to Madras.