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Achratlal Jekisondas Vs. Chimanlal Parbhudas - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case Number First Appeal No. 63 of 1916
Judge
Reported inAIR1916Bom129; (1916)18BOMLR582
AppellantAchratlal Jekisondas
RespondentChimanlal Parbhudas
Excerpt:
guardians and wards act, (viii of 1890) - custody of son-application by father for custody-regular suit for custody.;a father who has never had the care or custody of his infant child cannot successfully call upon the court by an application under the guardians and wards act, 1890, for an order upon the person in whose custody the infant is to hand him over. he can, however, file a regular suit for the custody of his son. - .....court by an application under the guardians and wards act for an order upon the person in whose custody the infant is to hand him over. the learned joint judge holds that the father has two courses only open to him, viz., to file a regular suit for the custody of his boy, or apply to the high court for an order in the nature of habeas corpus under section 491 of the criminal procedure code. in regard to the criminal procedure code, section 491 the learned judge is in error, for such an application could only be made in a case falling within the limits of the ordinary civil jurisdiction of the high court, whereas this is an ahmedabad case. that a suit can be filed for the custody of the boy may be conceded on the authority of two decisions in this court, one being sharifa v. munekhan.....
Judgment:

Basil Scott, Kt., C.J.

1. The question in this appeal is whether the father who has never had the care or custody of his infant child can successfully call upon the Court by an application under the Guardians and Wards Act for an order upon the person in whose custody the infant is to hand him over. The learned Joint Judge holds that the father has two courses only open to him, viz., to file a regular suit for the custody of his boy, or apply to the High Court for an order in the nature of Habeas Corpus under Section 491 of the Criminal Procedure Code. In regard to the Criminal Procedure Code, Section 491 the learned Judge is in error, for such an application could only be made in a case falling within the limits of the ordinary civil jurisdiction of the High Court, whereas this is an Ahmedabad case. That a suit can be filed for the custody of the boy may be conceded on the authority of two decisions in this Court, one being Sharifa v. Munekhan I.L.R. (1901) Bom 574, 3 Bom. L.R. 167 and the other being referred to in the report in that case. We are not prepared to hold that the dictum of the Privy Council in Annie Besant v. Narayaniah (1914) 16 Bom. L.R. 623 to the effect that a suit inter partes is not the proper proceeding was intended to be of such general application as virtually to over-rule the decision of this Court in Sharif a v. Munekhan.

2. The only question remaining then is whether the learned Judge was right in refusing to make an order on the application under the Guardians and Wards Act. It may be taken on the authority of the Privy Council in Annie Besant v. Narayaniah, that the jurisdiction of the District Court is defined by the Guardians and Wards Act, and that it has no inherent powers to make orders with reference to minors which are not expressly conferred upon it by that Act. The Chapter of the Act relating to the appointment and declaration of Guardians is Chapter II. Section 12 provides for the summoning before the Court of the minor for whom an application has been made for the appointment of a guardian, and for the interim custody of the minor pending the hearing of the application under Section 13. Then Section 17 lays down matters to be considered by the Court in appointing a guardian, and Clause 4 of that section lays down the respective rights of parents claiming guardianship where those parents are European British subjects. In such cases the Court will appoint one or other of them a guardian, and the minor will then be given to such parent as is appointed guardian. But where the parents are not European British subjects, Section 19 lays down that nothing in the Chapter shall authorize the Court to appoint or declare a guardian of the person of a minor whose father is living, and is not, in the opinion of the Court, unfit to be guardian of the person of the minor. Now if a father has had the care and custody of his infant child, he may be within the definition of the Act a 'guardian', and the provisions of Sections 24 and 25 may then apply to him. But that is not the case where he has not had the custody of his infant child. Section 25 cannot apply to this case for the ward has never left or been removed from the custody of his guardian; nor again can the provisions of Section 24 be invoked, which were held on a liberal interpretation by the Allahabad High Court in Utma Kuar v. Bhagwanta Kuar I.L.R. (1915) All. 515 to justify the Court in obtaining and delivering over the custody of a minor to a Mahomedan mother who had been appointed guardian by the Court. It appears to us that on the peculiar facts of this case the learned Joint Judge is right, and the only remedy of the father is to file a suit. We think that under the circumstances of the case we should make no-order as to costs.


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