Sentiment expressed by deceased in her suicide note cannot be ignored.

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 S. 25 of the Guardian 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 some time, the respondent took away the minor child. Even though he filed a criminal case before the Chief Judicial Magistrate, Tiruchirapalli under S. 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 character of the father, the respondent herein. The mother of the minor has committed suicide because the respondent had developed illicit intimacy with the maid servant. 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 :

(matter in vernacular omitted - Ed.)

The next sentence is also very important.

(matter in vernacular omitted - Ed.)

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 Ex. R. 6 to R. 8 tally with the hand-writing in Ex. R. 2. What the lower Court says is that the contents in Ex. R. 2 are not natural. For arriving at that conclusion the lower appellate Court finds that the letter bequeathed the entire property to her younger brother Mudiazhagan. This is unnatural. When her daughter was alive, the mother would not have intended to do so. Again, the lower Court finds that the direction that the minor child should be brought up by a person belonging to different religion 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 thi