1. The appellant Kamalamma is the mother of a child by name Raja alias Nagaraja alias Nagendra. She filed a petition before the learned District Judge, Shimoga, in Misc. No. 25 of 1964 under Section 10 of the Guardians and Wards Act for appointing her as the guardian of the person of the aforesaid child. That petition was presented to the Court on 1-2-1964. The respondent Lakshminarayanarao alias Shamanna is the husband. The marriage between the appellant and the respondent was consummated sometime during the year 1961. The said child was born to them on 13-4-1962.
2. The appellant in the course of the petition alleged that during her stay with the respondent in her father-in-law's house, she was being ill-treated by her husband and her father-in-law and that she was not being looked after properly. She further averred that she was taken to the MentalHospital at Bangalore under false pretext even though she was not mentally unsound for being treated there and that after she was found to be perfectly normal by the Doctor at the Mental Hospital at Bangalore, she came back to Sakrepatna where the respondent and her father-in-law lived. After sometime, it is stated that the appellant left the house of the respondent on 3-9-1963 leaving the child behind. She thereafter presented the petition under Section 10 of the Guardians and Wards Act before the District Judge, Shimoga, requesting that she might be appointed as the guardian of the person of the child and the custody of the child be handed over to her.
3. The respondent in his objection statement claimed that he was a fit and proper person to be the guardian of the person of the child. He has stated that he was not in any way incapacitated to continue as the guardian of the child by virtue of his position as the natural guardian under law. He further urged that the appellant was not looking after the child well even when the appellant was staying with him and during that period he had to take care of the child. He pleaded that the child had been brought up by him after the appellant left his house on 3-9-1963 with all love and care and that there was no reason to appoint the appellant as the guardian of the person of the child. The said petition which was pending before the learned District Judge, Shimoga, was later on transferred to the Court of the Civil Judge, Chickmagalur, where it was numbered as Misc. 17 of 1964. Before that court the appellant made an application I. A. I. to hand over the custody of the child pending disposal of the case and by an order passed on 16-4-1964, the custody of the child was handed over to the appellant.
Thereafter, in that case, some evidence was also recorded. But on 12-11-1969 it was reported by the appellant that she had filed a fresh petition under Section 10 of the Guardians and Wards Act for identical reliefs in G. W. Misc. 8 of 1969 on the file of the same court. At that stage, it was agreed by both the parties that the evidence already recorded in Misc. 17 of 1964 could be treated as closed. The Civil Judge accordingly closed the earlier case and proceeded with the later case. It may be mentioned here that the pleadings in both the cases are identical. After trial, the learned Civil Judge dismissed the petition on 27-7-70. Aggrieved by the said Order, the appellant has filed this appeal.
4-5. Sri Rangaswami lyengar, the learned counsel for the appellant, contended that the question of paramount importance in the matter of appointment of a guardian of a minor is the welfare of the child. He relied upon two decisions of the Punjab High Court In Smt. Avinash Devi v. Dr.Khazan Singh Aneja and Captain Rattan Amol Singh v. Smt. Kamaljit Kaur .
There is no dispute about this proposition. The Parliament by enacting Section 13 of the Hindu Minority and Guardianship Act which should be read as supple-mental to the Guardians and Wards Act has affirmed the view expressed by the several Courts before. Section 13(i) requires that in the matter of appointment or declaration of any person as the guardian of a Hindu minor by a Court, the welfare of the minor should be given the paramount consideration. We shall therefore examine this case in the light of the judicial decisions and Section 13 of the Hindu Minority and Guardianship Act on which Sri Rangaswami lyengar relies.
6. It may be mentioned at the outset that in the petition presented by the appellant before the Court below it is not pleaded that the respondent who is father of the child in question and thereby his natural guardian is a person who is not fit to continue as the natural guardian of the child. Nor, in the course of the evidence led on behalf of the appellant, it has been established that it is so. It is well settled that while construing a statute, courts should as far as possible interpret the several provisions of law in a harmonious way. Section 2 of the Hindu Minority and Guardianship Act provides that the provisions of the Act shall be in addition to and not in derogation of the Guardians and Wards Act of 1890. Section 6 declares that in the case of a Hindu minor boy the father and after him the mother is the natural guardian of his person as well as in respect of his property excluding his interest in joint family property. It is further provided in the same section that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
Section 13 of the Hindu Minority and Guardianship Act as already stated requires the court to keep the welfare of the minor in view while passing an order relating to the guardianship of the person of the minor. The provisions of the Hindu Minority and Guardianship Act referred to above do not in any way lay down any new rule or principle materially different from the personal law which was already in force before. They virtually reiterate what the position was before the enactment of the said legislation. A perusal of the several decisions rendered prior to the enactment of this Act by the High Courts in India and the Privy Council would show that the position was the same even before the enactment of the said Act and it is also accepted on all hands that in the matter of guardianship of minors, the law has not been different in England. So, the courts in India and the Privy Council have freely relied upon several principles enunciated by the Courts in England from time to time to determine question relating to the appointment of a guardian in any given case.
7. Section 7 of the Guardians and Wards Act reads as follows:
'7. Power of the Court to make order as to guardianship, (i) where the Court is satisfied that it is for the welfare of a minor that order should be made....
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian, the court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the court.' It is not necessary to refer to Sub-section (3) of Section 7. It is under this Section the court has been empowered to appoint a guardian of a person or property of a minor.
Section 17 of the Guardians and Wards Act sets out the matters to be considered by Court in appointing guardian. It reads thus:
'17 (1). In appointing or declaring the guardian of a minor the Court shall, subject to the provisions or this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) if the minor is old enough to form an intelligent preference, the court may consider that preference.
(4) xx xx xx (5) The court shall not appoint or dedeclare any person to be a guardian againsthis will.'
Both Sections 7 and 17 of the Guardians and Wards Act are controlled by the provisions of Section 19 which according to us is a mandatory provision. Section 19 reads as follows:
'Nothing in this chapter shall authorise the court to appoint (or ?) to declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint and declare a guardian of the person;
(a) xx xx xx (b) * * * * 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, or (c) xx xx xx
8. Reading the provisions of theHindu Minority and Guardianship Act and also the Guardians and Wards Act referred to above together, it is to be seen that the father in the case of a Hindu minor boy is the natural guardian of the person during his minority and it is permissible for the court to remove him from that position and to appoint either the mother and if the mother is also unfit somebody else as the guardian of the person of the minor boy only if in the opinion of the court the father is unfit to be the guardian of the person of the minor. The question whether a father is fit or unfit to be the guardian of the person of a minor is a question of fact. It has got to be pleaded and established as any other fact has to bo pleaded and established in court. By merely saying that mother is a better person to look after interests of the Hindu minor than the father, the restriction imposed on the power of the court to appoint a guardian of the person of minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor cannot be got over. To us it appears that the court has no jurisdiction to appoint a guardian of the person of a minor whose father is alive and is not unfit to be the guardian of the person of the minor.
9. Sri Rangaswami Iyengar relied upon some observations made in the decision of the High Court of Punjab in to show that Section 19 need not be considered as a serious obstacle to exercise of the power by the court under Section 7 of the Guardians and Wards Act to remove the father from the position of the natural guardian and to appoint somebody else as guardian in his place. We do not feel that the High Court of Punjab went to the extent of saying that Section 19 has to be ignored. No doubt, in that decision it is stated that the Court should have in mind the welfare of the minors while passing an order. The decision does not certainly say what Sri Rangaswami lyengar is contending for.
10. But, on the other hand, there is a direct decision on this point of the Judicial Committee of the Privy Council in Mrs. Annie Besant v. G. Narayanaiah, AIR 1914 PC 41 in which while dealing with Section 19 of the Guardians and Wards Act, the Privy Council observed as follows:--
'It is to be observed, however, that whatever may have been the jurisdiction of the High Court to declare the infants to be wards of court, an order declaring a guardian could only be made if their interests required it, and, as appears above, they were not before the court, nor were their interests adequately considered. And further, no order declaring a guardian could by reason of the 19th Section of the Guardians and Wards Act, 1890, be made during the respondent's life unless in the opinion of the court he was unfit to be their guardian, which was merely not the case.'
It may be mentioned here that the respondent before court was the natural guardian of the minor in question. It should be assumed that Section 19 does not enact any principle which is derogatory to what is contained in Section 13 of the Hindu Minority and Guardianship Act or Section 17 of the Guardians and Wards Act. The legislature having taken into account the human behaviour and the way in which the parents deal with their children deliberately enacted Section 19 incorporating what is ordinarily a rule of human conduct. It is assumed that a father is the best person to look after the interests of his son during his minority. The guardianship as always understood in Hindu Society is in the nature of a trust and it has always been assumed that ordinarily interests of minors would not suffer when they are under the care of their father.
11. What we have stated above receives support from the decision in M.D. T. Kumaraswami Mudaliar v. M.D. Rajammal : AIR1957Mad563 in which it is observed as follows:
'The Hindu Law vests the guardianship of the minor in the sovereign as parens partriae. Manu Gautama, the others are specific about this. The father and next to him, the mother, are only delegated by the State with this duty the supreme consideration being the welfare of the minor and nothing else. No doubt, the only person who can compete with the father as natural guardian on an almost equal place is the mother, though even she is only second to him. The guardianship of the father has been considered to he a sacred trust and a right which should not be taken away from him unless he is proved to be utterly unfit. ' 'A greater fitness' cannot be urged either by the mother or by any other person in order to supersede the father as guardian of the persons of his minor sons. To supersede him, it must be proved that the father is permanently unfit to be the guardian.'
It is this principle of Hindu Law referred to by the High Court of Madras that has been incorporated Jn a statutory form in Section 19 of the Guardians and Wards Act. We therefore feel that unless it is shown by a proper pleading and evidence in support of it that the father who is the natural guardian is unfit to be the guardian of the person of the minor, it would not be permissible for the court to appoint anybody else as a guardian of the person of the minor during the lifetime of the father. As already stated, in this case, there is no plea of that type and no evidence has been adduced in support of it. We asked Sri Rangaswami Iyengar appearing for the appellant whether there is anything to show that the father is not a fit person to continue as guardian of the person of the minor, and he has not been able to show any such evidence in the case. On the other hand, we find that the mother abandoned the child in the year 1963 when the child was hardly one year old and went away to Mysore, a place which is more than about 150 miles from the place of her husband, under whose roof the child continued to live.
The child was being looked after very well and this is very clear from what is stated by the learned Civil Judge in the course of his order while handing over the custody of the child to the mother by the interim order on 16-4-1964 made on I. A. I. in Misc. 17 of 1964. The relevant part of that order reads as follows:--
'The child was produced before me. It was in the arms of its paternal aunt, i.e., his father's sister said to be an unmarried woman. I did find that the child was quite healthy, active and playful. It appeared quite attached to its father and aunt. On the other hand, its reactions to the mother was as though she was a stranger. But it has to be borne in mind that for 9 months the child has been staying with the father at Sakrepatna.'
In the course of the evidence of the appellant, she has admitted that when she took the child under the orders of the court, the child was in sound health and the child was not quite willing to go to her and he was weeping. It is also to be seen that the interests of the child have suffered after the appellant was entrusted with the custody of the child. The appellant admittedly is not living with her father. She is staying with one Narayanarao who has been examined as P. W. 1 in the case who happens to be her uncle. It is said that the appellant lost her mother when she was quite young and that since the death of her mother, P. W. 1 Narayanarao has been looking after the appellant. P. W. 1 Narayanarao is a person, according to his own evidence, of meagre means and having a number of children and grandchildren. His annual income is said to be in the order of Rs. 3,000/- and he is working in a private Mandi as an accountant. 2 or 3 years after the child was handed over to the custody of the mother, it is to be gathered from the record that the child contracted tuberculosis and the child had to be treated by a Doctor at Mysore.
The Doctor has been examined as P. W. 7 in this case. In the aforesaid circumstances, however much the uncle of the appellant may be attached to the appellant and her child, it may not be possible to expect him to meet the demands of the mother (i. e., the appellant) and her child and to maintain them as well as the father of the child could do. It is admitted that the respondent is a man of sufficient means; he is the owner of an arecanut garden at Sakrepatna; and, he is able to look after the child. The very fact that he was able to bring up the child from the time the appellant left the house of the respondent till the custody of the child was handed over to the appellant by an order of the court, shows that the respondent can very well take care of the child.
12. One other aspect of the matter in the case which was urged by Sri Bangaswami Iyengar may be stated at this stage. Mr. Rangaswami lyengar urged that it may not be proper to direct the appellant to surrender the custody of the child at this stage for, according to him, the child is being looked after well by the appellant from the year 1964. It is no doubt true, that by an interim order the court below directed the respondent to hand over the custody of the child to the mother, apparently because of the reason that the child was less than two years old at that time and even according to the provisions of Section 6 of the Hindu Minority and Guardianship Act, the mother would be the proper person to bo in custody of the minor child until the child attains the age of five years. Now the child is aged about 9 years. The parties belong to a Brahmin Community. According to customs and practices to which the parties are wedded, this is the appropriate time for the celebration of the Upanayanam Ceremony of the child. In fact, it appears to be one of the reasons which weighed with the Court below while dismissing the petition of the appellant.
The appellant in her evidence says that she does not know whether Upanayanam has to be performed at all. She says in the course of her evidence thus:
'I do not know if Upanayanam Ceremony of the child has to take place.'
It is no doubt alleged in the course of the objection statement of the respondent that the appellant is not mentally sound and she has to be treated by Doctors. Some evidence has been let in, in support of it but it is not necessary for us to decide, in this case whether the appellant is really mentally unsound or not. This question is foreign to the scope of the present case. But, in the circumstances in which the appellant has placed herself by staying with her uncle whose means as already stated are not quite adequate to maintain her, it may not be possible for her to claim that she would be able to look after the child properly hereafter. There is also some evidence in this case produced by the respondent by means of Exhibit D-2 which is a certified copy of an order of the former High Court of Mysore in which it is stated that P. W. 1 Narayanarao, the uncle of the appellant, was found guilty of offences punishable under Sections 420, and 471 read with Section 467 of the Indian Penal Code and sentenced to undergo imprisonment. In the above circumstances, we consider that the mother of the child and the said Narayanarao are both not to a position to look after the interests of the child.
13. We therefore hold that it ia not shown that the respondent is not a fit person to be the guardian of the person of the minor child. As a necessary consequence thereof and in view of Section 19 of the Guardians and Wards Act, we have to hold, of course, bearing in mind the interests of the minor child that the appellant cannot be appointed as guardian of the persons of the minor. In the circumstances of the case, the petition filed by the mother in this case cannot succeed.
14. We therefore dismiss this appeal, but we make no order as to costs.
15. Since the child has been now in the custody of the appellant under an interim order passed by the Court below we make the following order:
(1) The appellant is directed to appear before the learned Civil Judge at Chickmagalur on the 25th of February, 1971 at 11 a. m. and produce the child before him for being handed over to his father, the respondent.
(2) Sri A. C. Byrappa, the learned counsel for the respondent, has stated that the respondent would be present in the court of the Civil Judge at Chickmagalur on the 25th of February 1971 at 11 a. m., to take the child into his custody.
(3) The entire records in the case together with a copy of this judgment shall be sent to the court of the Civil Judge, Chickmagalur, within a week from this day for needful action in the matter.