( 484 )
Present: Lascelles C.J. and Middleton J.KANAPATHIPILLAI v. SIVAKOLUNTHU.213—D. C. Jaffna, 199.
Tesawalamai—Father marrying a second time—Maternal relations ofchildren entitled to the custody of the children and control of the•property*
“ If a father wishes to marry a second time, the mother-in-lawor nearest relation generally takes the child or children (if they bestill young) in order to bring them up, and in such case the fatheris obliged to give at the same time with his child or children thewhole of the property brought in marriage by his deceased wife,and the half of the property acquired during his first marriage.”
1 This passage of the Tesawalamai is not obsolete. The dis-cretion of the Courts to have regard to the best interests of thechild is not entirely excluded, but the Courts should not departfrom the general principle laid down in the passage cited withoutsome substantial reason for so doing.
fJlHE facts are set out in the judgment.
Tambyah, for appellant.
Sampayo, K.C. (with him Tissaveerasinghe for the respondent.
Cur. adv. vult.
July 17,1911. Lascelles C.J.—
In this case the question is whether the father, who is married asecond time, is entitled to the care of the person and property ofhis child by his first wife, or whether the maternal grandmother ofthe child is entitled to be appointed guardian and curator. Itappears that the minor is entitled to property worth Rs. 1,500,consisting of a land and a house, and it also appears that this wasproperty devolving on the minor from his mother. The questionat issue turns on the construction of paragraph 11 of the Tesa-walamaiThe material words are as follows : “If the mother
dies first, leaving a child or children, the father remains in the fallpossession of the estate so long as he does not marry again, anddoes with his child or children and with his estate in like manner asis above stated with respect to the mother. If a father wishes tomarry a second time, the mother-in-law or nearest relation generally
( 485 )
takes the child or children (if they be still young) in order to bringthem up, and in such case the father is obliged to give at the sametime with his child or children the whole of the property brought inmarriage by his deceased wife, and the half of the property acquiredduring his first marriage.” It has been suggested in argument thatthis part of the Tesawalamai is obsolete ; but I am unable to agreewith this view. We have been referred to no enactment whicheither expressly or by necessary implication repeals this part ofthe Tesawalamai. It is also said that section 11 is a portion ofthat part of the Tesawalamai which deals with inheritance, andit is only incidentally that it refers to the case, of guardianshipand curatorship. This is true ; but at the same time the passagewhich I have cited does contain a distinct statement of the customarylaw of the Tamils as regards the rights of the maternal relations ofthe child with regard to the person and property of the child whenthe father is married a second time. I agree that there is nothingin the words of the enactment which makes it in all cases imperativeon the Courts to entrust the guardianship to the maternal relations,and that the discretion of the Courts to have regard to the bestinterests of the child.is not entirely excluded. But I think that itis necessary, in order to give effect to the intention of this provision,that the Courts should not depart from the general principle therelaid down without some substantial reason for so doing.
Thus, the question which we have to consider in this case is whetherthe District Judge had sufficient grounds for ignoring the rule ofthe Tesawalamai and decreeing the guardianship to the father ofthe child. Now, in the affidavit of the father there are graveallegations against the character of the grandmother, and if theseallegations were true, it would be within the power, and I think itwould be the duty of the District Judge, to withhold the guardian-ship from her. These allegations are, however, denied by therespondent, and the District Judge does not seem to have inquiredinto their substance. His order seems to be entirely based on theconsideration that the father is a better educated and more intelli-gent person than the grandmother. This I think is not a sifficientground for departing from the rule, and I think that the propercourse will be to set aside the order of the District Judge, and toremit the case for a further inquiry into the allegations made againstthe character of the respondent, and to make order in accordancewith the principles which I have endeavoured to indicate. I thinkthat the appellant is entitled to the costs of the appeal, and thatthe costs of the past and further inquiry must abide the result ofthe inquiry.
Middleton J.—I agree, and have nothing to add.
KANAPATHIPILLAI v. SIVAKOLUNTHU