Skip to content


Jalbhai Cursetji Driver Vs. Jerbai Hormasji Palkhivala - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 35 of 1930
Judge
Reported in(1930)32BOMLR1301
AppellantJalbhai Cursetji Driver
RespondentJerbai Hormasji Palkhivala
Excerpt:
parsis-navjate ceremony-sight to perform-natural father-maternal grand-. mother who is de facto guardian-order by single judge-appeal-inherent jurisdiction-high court.;among parsis, the natural father has the right to perform the navjote (thread) ceremony of his minor daughter in preference to the maternal grandmother who is the de facto guardian of the minor.;an appeal lies under the inherent jurisdiction of the high court from an order passed by a single judge of the high court directing the performance of the navjote ceremony of a minor, who is a ward of the court. - .....and that no order in these proceedings has deprived him of this natural guardianship. he says the right to perform this ceremony is a right, which would naturally fall to the father, and that seems to be so, because there are the two letters from the parsi priests saying that the father would be the proper person to perform the ceremony, and in paragraph 8 of the respondent's affidavit on this appeal, she does not really dispute that that would be so. no doubt, circumstances might occur and be disclosed in the evidence, which would justify the court in the interests of the minor, depriving the father of his right to perform the ceremony, but i have not been referred in this cane to any evidence suggesting that the father is not a proper person to perform the ceremony. it is, of course,.....
Judgment:

J.W.F. Beaumont, C.J.

1. This appeal raises the question, whether the father of an infant, or the maternal grandmother, ought to be allowed to perform the Navjote or thread ceremony, according to the Zoroastrian faith, in respect of the infant who is a ward of Court and whose parents were Parsis.

2. Now, the relevant facts are that the parents of the minor were married in 1917, and the wife died in 1929. During the lifetime of the wife, the minor lived a great part of the time with the wife's mother, who is the present respondent.

3. After the death of the wife, the father of the minor presented a petition in the matter of the Guardians and Wards Act, Act VIII of 1890, and in the matter of the infant, in which he asked for directions as to the custody and maintenance of the infant, and in September 19 29 a consent order was made under which the petition was adjourned sine die, the infant was to live for six months of the year with the father and six months of the year with her grandmother, the respondent, the party having the custody of the minor during the period of six months was to maintain the minor, and the father was to pay and bear the school fees, and then there was to be liberty to apply.

4. The grandmother on July 1, 1930. took out this summons asking that she might perform the Navjote or thread ceremony, and that the petitioner should pay the costs of the summons. The matter came before Mr. Justice Wadia in Chambers, and, in the first instance, on July 14, it appears from a note with the papers, he gave directions that having regard to the wishes of the minor and having regard to the fact that the minor is reared by her grandmother, the grandmother to perform the Navjote ceremony, that the principal consideration was the welfare of the minor and that it appeared that the welfare of the minor had been looked to by the old lady.

5. The learned Judge subsequently gave more detailed reasons for his judgment, and I think that what influenced him was his interview with the minor. The minor apparently expressed a desire that the ceremony should be performed by her grandmother. The learned Judge refers to two letters from Parsi priests as to the right of the father to perform this ceremony, but says that as they were not annexed to an affidavit they were not evidence. The learned Judge was misinformed as to that, because the letters were annexed and exhibited to an affidavit and, therefore, were in evidence.

6. Mr. Taleyarkhan for the respondent takes the point, first of all, that no appeal lies in this matter having regard to Section 47 of the Guardians and Wards Act, but, in my opinion, the answer to that is that the order of Mr. Justice Wadia was not made under that Act at all. In my view the Court, apart from Clause 15 of the Letters Patent, has inherent jurisdiction to hear an appeal in a matter of this sort affecting a ward of Court. Therefore, I think, an appeal lies.

7. It is then said that this is a matter of discretion and that the Court of Appeal should not interfere with the learned Judge's discretion. It is to be remembered, in the first instance, that this, child is a ward of Court. The issue of the petition asking for an order as to her custody and maintenance constitutes her a ward of Court. That being so, the Court must always consider, as the paramount question, the interest of the minor. But, in the peculiar circumstances of this case, I am unable to see that the interests of the minor are in any way affected. The nature of the Navjote ceremony has been explained to the Court and it would appear that the ceremony is performed practically entirely by the priest. The desire of the father and the grandmother is to be allowed the privilege of paying for the ceremony, and, I suppose, making arrangements as to the date and place and so forth. But, so far as the welfare of the minor is concerned, it seems to me that as long as the ceremony is performed, it will not matter to her by whom it is paid for or who arranges the date and place of the ceremony.

8. The way the case is put on behalf of the father is this. He says that he is the natural guardian of the child and that no order in these proceedings has deprived him of this natural guardianship. He says the right to perform this ceremony is a right, which would naturally fall to the father, and that seems to be so, because there are the two letters from the Parsi priests saying that the father would be the proper person to perform the ceremony, and in paragraph 8 of the respondent's affidavit on this appeal, she does not really dispute that that would be so. No doubt, circumstances might occur and be disclosed in the evidence, which would justify the Court in the interests of the minor, depriving the father of his right to perform the ceremony, but I have not been referred in this cane to any evidence suggesting that the father is not a proper person to perform the ceremony. It is, of course, very unfortunate that the parties did not adopt the suggestion of Mr. Justice Wadia that the matter should be settled by both the father and the grandmother sharing in arranging for this ceremony. The parties, however, not having come to terms, and this being a matter of sentiment between them, they have pressed to have the strict rights of the parties determined, and in my-view, the father is the person, who has the strict right to perform this ceremony, and there is nothing in the evidence to justify us in depriving him of this right. I should generally be slow to interfere with the exercise of the discretion of the Judge relating to a ward, but in this case the learned Judge did not, in my opinion, address his mind to the right point. He only considered the interests of the minor, which seem to me not to be affected and he did not consider whether there was any case for depriving the father of his right. In my view the appellant is entitled to perform the ceremony, but I hope that he will arrange to let the grandmother attend and take such share as he considers proper. As the father does not ask for costs, there will be no order as to costs.

Madgavkar, J.

9. On the whole, I agree. An appeal does not, in my opinion, lie under the Guardians and Wards Act, and I am doubtful if Mr. Justice Wadia's judgment is a judgment within Clause 15 of the Letters Patent and appealable. But the Court cap, in its inherent jurisdiction and following the practice on the Original Side, consider the propriety of the order appealed against.

10. On the merits of that order, the father being the natural guardian and not having been set aside, and being admittedly the usual person to perform the ceremony, previous dissensions between him and the deceased mother of the child are not, in my opinion, sufficient, even when coupled with the grandmother's long guardianship de facto, to override his right to perform the ceremony which he desires. And as both the parties are unwilling, even in the interests of the child, to join hands, I agree with the order proposed by my Lord, the Chief Justice.

11. Each party to bear his own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //