1. This is an appeal against an order of the District Judge of Shahjehanpur appointing Ram Prasad the guardian of his infant daughter. Ram Prasad, a Brahmin by caste, applied to the Court to be appointed as the guardian of Mt. Man Piari who was then about five years of age. He alleged that the little girl was his illegitimate daughter conceived in adulterous intercourse between him and Mt. Sukh Dei now deceased, Mt. Sukh Dei was the legal wife of the appellant Govind Singh, but the learned Judge has found that at the time of conception of Mt. Man Piari Mt. Sukh Dei was living with Ram Prasad and that Govind Singh had no access to her. In those circumstances the learned Judge found as a fact that Mt. Man Piari was the daughter of Ram Prasad and that the appellant Govind Singh was not related to her in any way. For about eleven months before these proceedings were brought Mt. Man Piari had been living with Govind Singh, but the record is silent as to how she came to live with him. According to the learned Judge the little girl appeared to be living quite happily with Govind Singh and it is not suggested that she had been ill-treated or neglected in any way by him. On the other hand no suggestion has been made in these proceedings that the father Ram Prasad is in any way unfit to have the custody of his own illegitimate daughter. The learned Judge after considering these facts came to the conclusion that the proper person to apt as guardian for Mt. Man Piari was her father Ram Prasad and he accordingly made an order declaring Ram Prasad as such guardian.
2. Against that order this appeal has been preferred and it is contended that by reason of 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 and 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 is not suggested that Ram Prasad the father of the minor is in any way unfit to be guardian of this little girl and that being so it is contended that the Court cannot make an order appointing him or any body else as guardian. It is said that the father is the natural guardian, and where he is a fit and proper person to be a guardian of the minor no order appointing a guardian can be made by any Court.
3. This view of the section has been taken by a Bench of this Court in Ulfat Bibi v. Bafati 1927 All 581. In that case the father of an infant applied to be appointed as guardian but the Court held that an order appointing him as such guardian was invalid by reason of Section 19, Guardians and Wards Act. This case followed an earlier decision of the Privy Council in Annie Besant v. Naraynah 1914 P.C. 41. Having regard to these authorities we are bound to hold that Ram Prasad could not be appointed guardian of his illegitimate daughter Mt. Man Piari and therefore that the order made by the learned District Judge cannot be supported.
4. It is clear from the fact that Ram Prasad brought these proceedings that he desires the custody of his infant illegitimate daughter and in our view the proceedings for custody of this little 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. Had an application been made under this section, an order directing Govind Singh to hand over the little girl to Ram Prasad should have been made.
5. In Ulfat Bibi v. Bafati 1927 All 581, previously, cited a Bench of this Court, though taking the view which we do that an order appointing the father as guardian of the person of the minor could not be made, made an order directing that the minor be placed or taken into 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 fifteen days, proceedings would be issued against her for contempt of Court.
6. It appears that a similar order should be made in this case. As we have pointed out previously, nothing is suggested against Ram Prasad, the father. Before the learned Judge could have appointed him as 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 we are satisfied that it is in this little child's interest to return to her father. It is true that the little child is happy with Govind Singh, but a child of tenders years is happy with any person who treats it kindly. We have no reason to doubt whatsoever that this little child will be perfectly happy the moment she returns to her father and will be well cared for by him. A father is entitled to the custody and companionship of his own child unless, of course, it can be shown that the child would suffer by being placed in such custody. We are satisfied that so far from the child suffering by being placed in the custody of her father she will actually benefit by it. In those circumstances we propose to make the order which was made in Ulfat Bibi v. Bafati 1927 All 581, that is, an order under Section 25 directing that Mt. Man Piari be placed or taken into the custody of her father the respondent Ram Prasad within three months from the date of this order. The appellant Govind Singh must hand over the child to Ram Prasad in the Court of the District Judge of Shahjehanpur in the presence of the presiding officer within three months from the date of this order. Further the appellant Govind Singh must understand that if he does not within this period of three months hand over the child to Ram Prasad, notice will be issued against him to show cause why he should not be committed for contempt of Court and dealt with according to law for disobedience of this order.
7. The order appointing Ram Prasad guardian cannot, of course, stand and is set aside and the order which we have indicated above substituted for it. Each party will bear its own costs of this appeal. Let a copy of this order be sent to the District Judge of Shahjehanpur.