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1929 Supreme(Mad) 272
IN THE HIGH COURT OF MADRAS
Waller
(Kakara) Tatamma
Versus
Marina Veerraju
Decided On : 9 August, 1929
The welfare of the child is paramount in determining guardianship under the Guardian and Wards Act, and a further inquiry may be necessary to assess the child's best interests.
Headnote:
Guardian and Wards Act - Appointment of Guardian - Summary
Fact of the Case:
The father applied to be appointed guardian of his minor daughter's person and property. The District Judge appointed him guardian of the property and directed the respondent to restore the child to her father, without making an order regarding the guardianship of her person.
Finding of the Court:
The conditional order of appointment as guardian of the property was deemed to be of no effect. The court found that a further inquiry should be conducted regarding the father's alleged desertion of his wife and remarriage, and whether it is in the child's welfare to return to his custody.
Issues: The issues included the appointment of a guardian under the Guardian and Wards Act, the necessity of an order regarding the guardianship of the child's person, and the application of Section 25 of the Act in a case where the minor has never been in the custody of the guardian.
Ratio Decidendi: The court held that a further inquiry was necessary to determine the welfare of the child in light of the father's alleged actions. It also emphasized the necessity of considering the child's well-being in the context of potential neglect by a stepmother.
Final Decision: The order appointing the father as guardian was set aside, and the District Judge was directed to re-entertain the application and dispose of it in the light of the court's remarks. No order as to costs was made.
Waller, J.
1. This is an appeal against an order appointing a guardian under the Guardian and Wards Act. A father applied under Section 10 of the Act to be appointed guardian of his minor daughters person and property and under Section 25 for an order directing the respondent to deliver her into his custody. The District. Judge appointed him guardian of the property and directed the respondent to restore the child to her father, remarking that no order as regards the guardianship of her person was necessary.
2. The conditional order of appointment as guardian of the property is of no effect: In re, Venkatesa Perumal A.I.R. 1927 Mad. 36, and must be set aside. The District Judge is not correct in saying that no order as regards the guardianship of the person was "necessary." No such order could have been passed. On this point, we agree in the view taken by Ramesam and Jackson, JJ., in Lakshma Beddi v. Vira Reddi A.I.R. 1925 Mad. 1085 and not in that taken by Venkatasubba Rao, J., in Raghavaiya v. Lakshmiah A.I.R. 1925 Mad. 398.. Mr. Rama Rao contends that no application lies under Section 25 of the Act in a case where the minor has never been in the custody of the guardian. That is, of course, the plain meaning of the section, but we must follow the rulings of this Court which lay down that, in order to make the Act workable, a fiction must be imported into the section, whereby it is deemed that the child has been constructively, in the guardians custody and has left it.
3. On the merits, we consider that there should be a further enquiry. The allegation is that the father more or less deserted his wife and endeavoured to marry again, while she was still alive. That allegation has not been investigated. If it is true, it will be for the Court below to consider whether it is for the welfare of the child to return to the custody of a father, who had no particular affection for her mother and has now married again. In effect, if she returns to her father, she will have to be looked after by a stepmother, who may have children of her own and neglect her. The order is set aside. The District Judge will re-entertain the application and dispose of it in the light of the above remarks. There will be no order as to costs.
