T S DORAIRAJ Vs. SRLAKSHMI ALIAS RAJALAKSHMI

JUDGEMENT

(1.) This appeal arises out of an application under Section 25 of the Guardians and Wards Act preferred by the present respondent in which she prays for an order for the restoration of the custody of her minor son of whom the appellant is admittedly the father. The facts are not seriously in dispute. Both the appellant and the respondent are cinema artists, the appellant apparently being a man of importance in the cinema world and the respondent being comparatively unimportant. In 1941, they met in the course of their profession and the appellant took the respondent into his house as his concubine. She lived with him at Madura in a house in which the appellant's wife was also, living. In March 1943, the child with whose welfare we are now concerned was. born and at or about the time of its birth the appellant added to his household the younger sister of the respondent who also became his concubine. In 1945 relations, between the appellant and the respondent became strained. The two of them went along with the child to Madras where the respondent's mother had met with an accident. The respondent stayed in Madras to look after her mother and the child stayed with her. The appellant returned to Madura. Then there was a definite quarrel between the appellant and the respondent. The respondent refused to return to the appellant and the appellant managed to get possession of the child. Hence the present petition which appears to have been brought after an abortive attempt made by the respondent to get maintenance from the appellant.

(2.) Now on these facts the respondent contends that she is entitled to the custody of her child, while the appellant objects that the child is his son and he is its lawful guardian. The child is now a little ever three years of age. It has been held by the learned trial Judge that the respondent as the mother of the child is prima facie entitled to its custody and that it is in the best interests of the child, notwithstanding the criticisms which may be levied against the character of the mother that she should have charge during the next two years when the child would depend naturally upon its mother. Thereafter, it is suggested, it will be possible to send the child to some institution where it might be free from the undesirable associations which might threaten it in the mother's custody.

(3.) In appeal Mr. Sitarama Rao has contended that the respondent must be deemed to have been a regularly kept concubine of the appellant and that the relationship was sufficiently continuous to entitle the son to be regarded, the parties being Sudras, as the son of the appellant by a permanently kept concubine and therefore entitled to the limited right of inheritance which the law gives to such a son. He contends further that the relationship is not merely that of a son to the father but also that of a father to the son relying upon the decision in Subramania Ayyar V/s. Rathanvelu Chetty where it was held that the father of an illegitimate son by a permanently kept concubine could in a Sudra family inherit to his son. The contention is that if the illegitimate son stands as the son of his father for the purpose of inheritance and the purpose of maintenance, there is every reason why the father should have his natural right of guardianship over the son.