1. This is an appeal against the order of the First Civil Judge of Meerut appointing Tara Chand the guardian of his minor daughter Lachmi Devi, who on the date of the application was about 10 years of age. The mother, Sm. Bhagwanti, turned unchaste and she eloped with one Lajpat Rai, a tenant of Tara Chand, and she took. away the girl as well. The father made an application under Section 19, Guardians and Wards Act for his being appointed as the guardian of the minor.
Sm. Bhagwauti contested the application on the ground that Lachmi Devi was not the daughter of. Tara Chand and consequently Tara Chand was not the proper person to be appointed as guardian. The learned Civil Judge held that it was successfully proved that Tara Chand is the father of Lachmi Devi. He further held that Tara Chand was entitled to the custody of the minor as the mother had become unchaste and had gone astray. Upon these findings he directed that Tara Chand be appointed as the guardian of the person of Lachmi Devi minor.
Against that order this appeal has been preferred and it is contended that under Section 19, Guardians and Wards Act such an order could not be made. Section 19, Guardians and Wards Act provides that nothing in this chapter shall authorise the Court to appoint or declare a guardian of the person of a minor girl whose father is living and is not in the opinion of the Court unfit to be the guardian of the person of the minor.
It is not suggested that Tara Chand, the father of the minor, is in any way unfit to be the guardian of the girl and that being so it is contended that the Court cannot make an order appointing him or anybody else as her guardian. It is said that the father is the natural guardian and where he is a fit and proper person to be a guardian, no order for appointing a guardian can be made by the Court.
2. This view of the section has been taken by a Bench of this Court in Mt. Ulfat Bibi v. Bafati : AIR1927All581 . In that case, the father of an infant applied to be appointed as the guardian. The Court held that the order appointing him as guardian was invalid by reason of Section 19, Guardians and Wards Act.
This case follows an earlier decision of the Privy Council in Annie Beasant v. Narayaniah, ILR 38 Mad 807: (AIR 1914 PC 41) (B) and it was followed later by another Bench of this Court in Govind Singh v. Ram Prasad, : AIR1935All838 Having regard to these authorities, I am bound to hold that Tara Chand could not be appointed guardian of his daughter, and therefore, the order made by the First Civil Judge cannot be supported.
3. It is clear from the fact that Tara Chand brought these proceedings that he desires the custody of his minor daughter and in my view the proceedings for custody of this child should have been brought under Section 25, Guardians and Wards Act.
Under that section, where a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. If an application had been made under this section, an order directing Sm. Bhagwanti to hand over the girl to Tara Chand should have been made.
4. In : AIR1927All581 cited above as also in : AIR1935All838 , though taking the view that an order appointing the father as guardian of the person of a minor could not be made, this Court made an order directing the minor to be placed in the custody of the father and further made it clear to the person in whose custody the minor was that if the minor was not delivered into the custody of the father within a certain time, proceedings would be taken against her for contempt of Court. It appears that a similar order should be made in this case.
5. Before the learned First Civil Judge could have appointed him as the guardian he had to consider the matters which are laid down in Section 17, Guardians and Wards Act. He must have been satisfied that it was in the interest of the child that she should return to her father; otherwise he would not have made the order which he did. Further, I am satisfied that it is in the interest of the minor to return to her father.
6. The appellant Sm. Bhagwanti must hand over the child to Tara Chand in the Court of the First Civil Judge of Meerut in the presence of the presiding officer within three months from the date of this order. The appellant Sm. Bhagwanti must understand that if she does not within this period of three months hand over the child to Tara Chand, notice will be issued against her to show cause why she should not be committed for contempt of Court and dealt with according to law for disobedience of this order. The order appointing Tara Chand as the guardian cannot, of course, stand and is set aside and the order which I have indicated above substituted for it. Each party shall bear its own costs of this appeal. Let a copy of this order be sent to the First Civil Judge of Meerut.