G.D. Sahgal, J.
1. This is an appeal under Section 47 of the Guardians and Wards Act against an order of the District Judge of Unnao passed on an application purporting to be one under Section 10 of that Act. Section 10 of that Act only describes the form of an application and it is not correct to treat an application given in that form to be an application under Section 10. In fact the application is one under Section 7 of the Act. Section 7 provides that where the court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property or both or declaring a person to be such a guardian, the court may make an order accordingly. The application was made by the father of the minor and it was contested by the mother in whose custody the minor was living.
The application was contested on the ground that the minor was born in the month of Bhadon and in the community to which the parties belong a son born in the month of Bhadon is born under inauspicious stars and he brings destruction to the family. It is on this ground that it was said by the mother that the father would kill the boy if he is given in his custody and he is appointed as his guardian. It may here also be pointed out that the mother with whom the minor was living has been divorced by the father and as such the father claimed it would be in the interest and for the welfare of the minor to appoint the father as the guardian of the person of the minor. The application was accordingly moved by the father for the appointment of the guardian of the person of the minor.
2. The learned District Judge came to the conclusion that the belief on which the defence is founded, namely, a boy born in the month of Bhadon brings destruction to the family had not been established. The court then went to decide that it would be for the welfare of the minor to appoint the father as the guardian, the age of the minor being nine years, and the ultimate order of the court passed reads as follows:--
'Having regard to the circumstances of the case I am satisfied that it would be for the welfare of the minor that the applicant is given his custody. The application is allowed with costs. The applicant Dilawar is appointed guardian of the person of Usman minor. His custody shall be handed over to the applicant by Smt. Rasulan within fifteen days from today.'
3. The first point that has been urged and which in fact is the only point in the case, is that no application was maintainable for the appointment of the father as the guardian of the minor as the father is the natural guardian of the minor and no question of appointment arises in such a case. There is, however, a different provision, namely, 25 relating to the custody of the minor and if the father wanted the custody of the son, the proper procedure to be followed by him should have been to move an application under that provision of the Act. This section provides that if a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it would be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, on an application being moved under the section. But if an application is moved by the father under Section 10 it was not maintainable and should be dismissed. The trial Judge also seems to have realised this difficulty and so he passed a mixed order, namely, the appointment of the father as guardian of the minor and also an order regarding the handing over of the custody of the minor to the father.
4. We have, therefore, to see in the circumstances as to whether the application should have been dismissed.
5. Section 19 of the Guardians and Wards Act in so far as it is relevant provides that nothing in this Chapter shall authorise 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. It clearly means that father being the natural guardian of an infant, there is no occasion for appointing any one else to be the guardian of a minor unless the father is unfit to be the guardian of the person of the minor. Itnecessarily follows that there is no occasion for the father to be appointed as the guardian for appointment or no appointment he is the natural guardian of the minor and no one else can be appointed as guardian unless he is unfit. As has been observed by the Privy Council in Besant v. G. Narayaniah, 41 Ind App 314 = (AIR 1914 PC 41):
'The father is the natural guardian of his children during their minorities but this guardianship is in the nature of a sacred trust and he cannot therefore during his lifetime substitute another person to be guardian in his place. He may, it is true, in the exercise of his discretion as guardian, entrust the custody and education of his children to another, but the authority he thus confers is essentially a revocable authority, and if the welfare of his children require it, he can, notwithstanding any contract to the contrary, take such custody and education once more into his own hands.'
6. On the strength of this observation and also on the specific provisions of Section 19 of the Guardians and Wards Act it has been held from time to time that the appointment of the father as guardian of the minor is ultra vires. He is in fact the guardian of the person of the minor and no appointment is needed for the purpose. It has been so held in Mt. Taj Begum v. Ghulam Rasul, AIR 1925 Lah 250 which lays down that 'Section 19(b) of the Guardians and Wards Act deprives a Court of jurisdiction under the Act to appoint or declare a father of a minor to be the guardian of his person'. The authority of the Privy Council referred to earlier also was relied upon in this case. Two cases of Oudh Chief Court have also been referred to, namely, Chhote Lal v. Chandra Kunwar, AIR 1925 Oudh 257 (1) and Mohammad Saddiq v. Wafati, AIR 1948 Oudh 51. Our own High Court has taken a similar view in Sukhdeo Rai v. Ram Chander, AIR 1924 All 622 and Mt. Ulfat Bibi v. Bafati : AIR1927All581 .
The application, therefore, that was moved on behalf of the respondent, the father of the minor in the court of the District Judge under Section 10 of the Guardians and Wards Act was a misconceived application and the Judge should have at the very stage when the application was moved dismissed the same in limine.
7. But what he has done is that he had entertained the application and allowed it to be contested. It was contested by the mother of the minor, the appellant before this Court, and in connection with that dispute it was also considered by the learned District Judge as to whether it would be for the welfare of the minor to restore the custody ofthe minor to the guardian of the minor The learned Judge has thus treated the application as one under Section 25 of the Guardians and Wards Act and passed an order which could be passed under that provision of law though he has also appointed the father as the guardian of the minor as he could do if it could be lawfully done on an application under Section 7 of the Act.
8. It was open to the court to treat the application though given under one provision of law as being given under another provision of law if the facts justify that it be so treated. In the instant case no prejudice seems to have been caused to either party. The question of the welfare of the minor was to be decided under Section 7 under which the application was presented. The welfare of the minor has also to be seen under Section 25 in a case arising out of an application under Section 25 of the Act. That question has been considered by the trial court. The minor may not have been physically removed from the custody of the father but he will be deemed to be in his constructive custody and if the custody of the mother is against his wishes, he would be entitled to the custody of the minor if it is for the welfare of the minor to restore his custody to him.
As has been observed in : AIR1927All581 the law has taken a merciful view of the matter so as to prevent the courts from being rendered powerless and has treated the custody mentioned in Section 25 as constructive custody. In the instant case the only ground under which the application was challenged was that in case the boy was given in the custody of the father, the father would kill him as in view of the prevalent belief in the community on account of the birth of the child in the month of Bhadon, he might think that the son would bring destruction to him and to his family. The evidence produced in the case to make out this point has been considered by the learned Judge. Jeet Bahadur who was examined as a witness on behalf of the appellant spoke about some thing before the days of his recollection. The other witness was a member of the family of the lady herself. The statements of these two witnesses have, therefore, been rightly rejected. For the necessary guardianship of the minor, therefore, the father was entitled to the custody of the son and it is he who can provide education and his bringing up and it would be for the welfare of the minor if the boy is restored to his custody.
9. In the circumstances treating the application as an application under Section 25 though moved under Section 10, an order could be passed under Section 25 of the Act restoring the minorUsman to the custody of the father from that of the mother.
10. The appeal is accordingly allowed only to this extent that so far as the order appointing the appellant as the guardian of the minor is concerned it should be vacated and the minor shall be directed to be handed over to the respondent. The following order shall accordingly be substituted for the order passed in the case:
'Being satisfied that it would be for the welfare of the minor that minor Usman shall be restored to the custody of his father Dilawar, it is directed that he shall be restored to him by his mother Smt. Rasolan.'
She shall be directed by the trial Court, after the record is received by that court, to produce the minor before it to be handed over to the respondent.
11. No order, however, is made as to costs in the circumstances of the case.