1. This is an appeal under the Letters Patent from a judgment of Mr. Justice Divatia confirming an order of the District Judge of Poona by which the respondent was appointed guardian of his minor niece Lilavati and it was directed under Section 25 of the Guardians and Wards Act that she should be restored to his custody from that of the opponents. The respondent who made the application to the District Court is the paternal uncle of the minor girl. The appellants are the persons who opposed that application. Opponent No. 1 is the maternal uncle of the girl and opponent No. 2 is his brother-in-law. According to the findings of the lower Courts, which have not been seriously disputed, the respondent, i.e., the paternal uncle, who is a resident of Kolhapur State, brought up the minor and maintained both her and her mother from the time of her father's death. It appears that the girl now and again visited her other relations who resided in Poona,. but for the greater part of the time she was with the respondent in Kolhapur, It is not disputed that he was and is her guardian.
2. In April, 1934, she was taken away by the opponents to the Poona District. While she was staying with them in August, 1934, arrangements were made for her marriage to a young man who resides at Supa, also in the Poona District. The relations of the girl all approve of this marriage but the maternal uncle and also opponent No. 2 object to a term of the agreement by which the girl's guardian, the paternal uncle, is to receive a sum of Rs. 2,000 from the father of the bridegroom. The learned District Judge has found that this is in accordance with the custom of the community to which the parties belong, that there is nothing unusual or objectionable in it and that the opponents are not actuated by any concern for the welfare of the minor but are simply trying to maintain their personal views about the-marriage which they have supported by perverting the facts. They have apparently tried to prevent the payment of the money to the paternal uncle and declined to allow the girl to return to him when he wanted her back. Accordingly, in January, 1935, he made the application under Section 25 of the Guardians and Wards Act which has given rise to this appeal.
3. The District Judge was of opinion that it was for the welfare of the minor that she should be restored to the custody of her guardian. Mr. Justice Divatia evidently agreed with him and on that matter of discretion we see no reason whatever to interfere with the view taken by the lower Courts.
4. The only point of substance in the appeal is whether the District Judge, Poona, had jurisdiction to appoint the respondent guardian of this minor girl and to make the order under Section 25 in his favour. The question arises by reason of the fact that he does not reside within the jurisdiction of the District Court but in the State of Kolhapur. Mr. A.G. Desai who appears for the appellants contends that the Court had no jurisdiction. He relies on the following provisions of the Guardians and Wards Act. Under Section 1(2) the Act extends to the whole of British India. In Section 9(2) it is provided that applications with respect to the guardianship of the person of a minor are to be made to the District Court having jurisdiction in the place where the minor ordinarily resides. In Section 26 it is laid down that a guardian of the person appointed or declared by the Court shall not without the leave of the Court remove the ward from the limits of its jurisdiction. Section 39 provides for the removal of a guardian on certain grounds. One of the grounds on which he may be removed is for ceasing to reside within the local limits of the jurisdiction of the Court. Lastly Section 44 provides that a guardian may be punished by fine or imprisonment if he removes the ward from the limits of the jurisdiction of the Court in contravention of the provisions of Section 26.
5. Mr. Desai's argument is that it is against the spirit, if not actually against the letter, of the Act to appoint a person as guardian who is resident outside the jurisdiction or to make an order under Section 25 in favour of such a person. In support of this proposition he relies on Subbarathnammal v. Seshachalam Naidu I.L.R. (1931) 54 Mad. 758 and Asghar Ali v. Amina Begum (1914) I.L.R. 280. In the former case it was held that it is clearly against the intention of the Guardians and Wards Act that anyone residing outside British India should be appointed guardian of a minor's person, as over such a guardian the Court could not exercise its proper control. There is no discussion of the provisions of the Act in the judgment. It may be mentioned also that in the present case the District Judge has required security to be furnished with a surety resident in the Poona District and thereby the carrying out of any orders that the Court might think fit to make have been ensured. In Asghar Ali v. Amina Begam it was held that the Guardians and Wards Act contemplates that an applicant should reside within the jurisdiction of the Court to which he makes the application. Here also no detailed reasons are given. The case has been referred to and distinguished in a later case of the same High Court, Bent Prasad v. Mt, Parwati A.I.R. All. 78 where it has been held that the remarks in this connection in the earlier case were obiter dicta and not intended to lay down any universal rule, and that there is nothing illegal in appointing a person resident outside the jurisdiction as guardian in a proper case.
6. This is the view of the law which has been accepted by Mr. Justice Divatia. He points out that it is nowhere enacted specifically in the Act that no person shall be appointed as a guardian who does not reside within the jurisdiction of the Court. Section 39(h) empowers the Court to remove a guardian for ceasing to reside within the jurisdiction but does not say that he must be removed as a matter of course. In all proceedings under the Act the paramount consideration is the welfare of the minor, and if it were to be held that in no circumstances could a person residing outside the jurisdiction be appointed guardian, the Court might be prevented from making the appointment which most conduced to the minor's welfare. Mr. Justice Divatia says in this connection :-
if the law were that only a person living within the jurisdiction of the Court could be appointed a guardian, then in some cases the consequences may be disastrous, as it may permit an unscrupulous person to prevent the well-wishers of the minor from being appointed guardian, by inducing the minor for remove himself and his property from the district in which his friends and relatives most competent to act as his guardian reside.
That, according to the learned Judge, is precisely what has happened in the
7. We agree with the learned Judges below in holding that there is no legal prohibition against the appointment of a person as guardian who is not residing within the jurisdiction of the Court, though naturally the Courts would as an ordinary rule be reluctant to make such an order. The same applies to orders under Section 25. Here we think the special circumstances of the case justify the orders made by the District Judge.
8. It is to be noted of course that in order to give the Court jurisdiction the minor must be 'ordinarily resident' within the local limits of the jurisdiction. That is provided, so far as the appointment of a guardian is concerned, by Section 9(1), and as regards Section 25 the word 'Court' is mentioned there and 'Court' is denned in Section 4(5) as the District Court having jurisdiction in the place where the ward for the time being ordinarily resides. In view of the fact already mentioned that the minor has spent the greater part of her short life with the respondent in Kolhapur, there might have been some difficulty in this connection, but since April, 1934, she has admittedly been residing with the opponents in the Poona District. At the time the application was made in January, 1935, she had already been residing with them for eight months. The husband with whom her engagement has been made is a resident of Poona. If the application under Section 25 had not been made at all she would doubtless have continued to reside in Poona. Under these circumstances we think that it can be said that she was ordinarily residing within the jurisdiction of the District Court of Poona at the material time both for the purpose of appointment of a guardian and for the purpose of an order under Section 25. I may say that there appears to have been no dispute on this point either in the District Court or before Mr. Justice Divatia, it being common ground apparently that the minor must be taken to be ordinarily resident in Poona. We hold, therefore, that the appeal fails and must be dismissed with costs.