Skip to content


Sheokumar Ram Prasad Tiwari Vs. Smt. Shiv Rani Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 11 of 1965
Judge
Reported inAIR1966MP189
ActsGuardians and Wards Act, 1890 - Sections 17, 25 and 50(1)
AppellantSheokumar Ram Prasad Tiwari
RespondentSmt. Shiv Rani Bai and anr.
Appellant AdvocateJ.V. Jakatdar, Adv.
Respondent AdvocateN.N. Pandey, Adv.
DispositionAppeal allowed
Cases ReferredNazir Khan v. Ganesh.
Excerpt:
.....if the father treats the boy with the same care that ganesh has done, the boy will have no reason to regret the order which we feel it our duty to make. if the respondents, instead of developing in-sushila a deep affection for her father, sheokumar, only attempt to alienate her from him, then clearly the father would be perfectly justified in refusing to permit the respondents to see sushila......in consonance with the view expressed by him earlier on 24th april 1965 that the welfare of the minor sushila required that she should be restored to the custody of her father sheokumar. when the appellant sheokumar was held to be entitled to get the custody of sushila the respondents were clearly not entitled to have any say in the matter of sushila's education and residence after the restoration of her custody to her father. they could not lay any such claim on the ground that they had reared and brought up the girl for nearly 13 years. in giving the directions that he did on 16th july 1965, the learned single judge altogether nullified the effect of his finding that sheokumar was entitled to the custody of sushila and that it was in the interest of the minor that she should return.....
Judgment:

Dixit, C.J.

1. This is an appeal under clause 10 of the Letters Patent against an order dated 16th July 1965 of Shiv Dayal J. finally disposing of an appeal arising out of proceedings under Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act).

2. The facts are simple. The minor in question is a girl named Sushila who was born on 14th January 1952. When she was about six months old, her mother died. The appellant Sheokumar, who is her father, resides at Burhanpur and was employed as a peon in the Tahsil Court at Burhanpur. As he was very often required to go out of Burhanpur on duty he after his wife's death, entrusted his minor daughter to the care of the respondents Shiv-rani Bai and Rampal who were his neighbours and with whom he was on very friendly terms. The appellant and the respondents all belong to the same community, namely, Kankubja Brahmin community. After this entrustment, Sushila was looked after and brought up by the respondents. She is still in their custody. In 1963 Sheokumar asked the respondents to return the girl to him. When they refused to do so, Sheokumar on 9th April 1964 made an application under Section 25 of the Act for restoration of Sushila's custody to him alleging that the respondents had not given her proper education; that her marriage prospects depended on her education; and that he apprehended that the girl, who was approaching marriageable age, would be married away by the respondents against his wishes and without his knowledge, He also stated in his application under Section 25 that Rampal was being prosecuted for possessing illicit liquor. The learned District Judge of Khandwa, before whom the application under Section 25 was filed, allowed and directed the respondents to restore forthwith Sushila to the custody of the appellant.

3. The respondents then preferred an appeal in this Court against the order of the District Judge, Khandwa. The learned Single Judge, after finding that Sheokumar's application under Section 25 was maintainable, that being the father of Sushila he was her natural guardian and that the plea of the respondents that Sushila was given in adoption was false, proceeded to consider whether it would be in the welfare of the minor to restore her custody to Sheokumar. He found that the respondents had not given her proper education; that at the age of 13 Sushila had not passed even the fifth class examination; that the appellant Sheokumar's financial condition was such that he could look after Sushila and educate her; and that it could not be said of Sheokumar that he was not otherwise a lit person for exercising his rights of guardian over Sushila. The learned Single Judge was of the view that the respondents, who had entered in the school register Sushila as daughter of Rampal, intended to deprive Sheokumar of his child Sushila for all time; and that they were not entitled to do so merely because they had brought up the girl for nearly 13 years. He observed :--

' Thus, from the point of view of her education and her marriage, her welfare lies in being restored to the custody of her father. Her welfare is the paramount consideration. To respect the mutual affection between the girl and the appellants, the latter should be given facilities of meeting the girl. The appellants, on their part, should not give any occasion for her father to complain of any undesirable conduct. '

4. The learned Single Judge, while dismissing the appeal on 24th April 1965, gave the following detailed directions with regard to the restoration of the custody of Sushila to Sheokumar and her admission into a school at Jabalpur. The directions were :--

' (1) The appellants shall either deliver the custody of Sushila to her father Sheokumar on or before 30th June 1905, or shall bring her to Jabalpur punctually and positively on 1st July 1965 and deliver her custody to her father at the Maharani Lasmibai Government Girls' Higher Secondary School, Jabalpur.

(2) Sheokumar shall get Sushila admitted to the school and its Boarding House. He shall also deposit in advance all school and hostel fees for the whole academic session (1965-66).

(3) In all school record, Sheokumar will be registered as her father and guardian.

(4) Sheokumar shall be entitled to visit the school and see the girl according as the rules of the school and the Boarding House permit. The appellants are also likewise permitted to see Sushila at Jahalpur.

(5) Sushila shall be produced in this Court on 15th July 1965, and, thereafter, immediately before the school closes for long holidavs and the girl will be required by her school and hostel to go home. Subject to any order to the contrary, Sushila will stay with Sheokumar during the vacations.

(6) Subject to the above directions, Sheokumar shall not withdraw Sushila from the school or the Boarding House, except with the permission of this Court.

(7) If Sheokumar is not to be found at the above named school on 1st July 1965 the appellants shall positively produce Sushila before this Court for appropriate orders.'

5. It appears that on 16th July 1965 the respondents made an application before the learned Single Judge praying for modification of the directions given by him on 24th April 1965. In that application they stated that they accepted Sheokumar as the guardian of Sushila; that there was a school at Burhanpur where Sushila could be admitted; that they were prepared to bear all the expenses of Sushila's education; and that they were prepared to keep Sushila with them in their house at Burhanpur. The appellant Sheokumar also made an application for modification of the directions given by the Learned Single Judge on 24th April 1965. He stated that Sushila, instead of being put in it Boarding House, could live with him in Burhanpur and could be admitted in a Higher Secondary School at Nepanagar. After considering these applications the Learned Single Judge, rescinding the directions given by him on 24th April 1965, made the following directions :--

'(1) Rampal shall get Ku. Shankuntala alias Sushila, daughter of Sheokumar, admitted to the Government Girls' Higher Secondary School, Burhanpur, within a week from today Sheokumar will also sign the necessary application for admission as guardian.

(2) Shrimati Sheorani Bai, as undertaken by her shall stay at Burhanpur to take care of Ku. Shankuntala alias Sushila. Rampal as undertaken by him, shall make necessary arrangements fur the residence of Smt. Sheorani Bai and Ku. Shakuntala alias Sushila at Burhanpur.

(3) In all school records, Sheokumar will be registered as her father and guardian.

(4) Sheokumar shall be entitled to see and meet Ku. Shakuntala alias Sushila as often as he wants, Rampal or Smt. Sheorani Bai shall not create any obstructions in his meeting with her, but Sheokumar shall not be entitled, without an order of this Court, to take her to his own house, except as directed in paragraph (8) below.

(5) Sheokumar is prepared to contribute Rs. 10 per month for her education. Out of this amount, her school fees shall be paid and also books and stationery purchased. The rest of the expenses shall be met by Rampal. There will be no objection to Sheokumar contributing more than Rs. 10 per month.

(6) Rampal shall file an affidavit in this Court soon after Ku. Shakuntala alias Sushila is admitted to the Government Girls Higher Secondary School, Burhanpur in compliance with the above directions. Thereafter, he shall be an affidavit in this Court soon after Diwali and again in January 1966 that Ku. Shakuntala alias Sushila is continuing her studies in that School and that he and Smt. Sheorani Bai are complying with these directions.

(7) Rampal or Sheokumar shall not withdraw Ku. Shakuntala alias Sushila from that School except with prior permission of this Court.

(8) As regards Ku, Shakuntala's stay away from Burhanpur during long holidays (for example, Summar Vacation, Dussehra, Diwali vacation etc.) in the absence of an order to the contrary, Sheokumar shall be at liberty to take Ku. Shakuntala alias Sushila with him. '

6. The short question that arises for consideration in this appeal is whether the directions given by the learned Single Judge on 16th July 19(53 are in consonance with the view expressed by him earlier on 24th April 1965 that the welfare of the minor Sushila required that she should be restored to the custody of her father Sheokumar. When the appellant Sheokumar was held to be entitled to get the custody of Sushila the respondents were clearly not entitled to have any say in the matter of Sushila's education and residence after the restoration of her custody to her father. They could not lay any such claim on the ground that they had reared and brought up the girl for nearly 13 years. In giving the directions that he did on 16th July 1965, the learned Single Judge altogether nullified the effect of his finding that Sheokumar was entitled to the custody of Sushila and that it was in the interest of the minor that she should return to his custody. By those directions the respondent Kampal was given the right lo get Sushila admitted into a school at Burhanpur and the other respondent was entrusted with the duty of making arrangements for her residence. Those directions merely allowed Sheokumar to sec and meet Sushila as often as he liked and the respondents were directed not to obstruct him in that. He was also allowed to keep Sushila with him during summer vacation and Dussehra and Diwali vacation etc. These directions virtually made the respondents Rampal and Shivrani Bai the guardians of Sushila and relegated Sheokumar to a subsidiary position, wherein he was not given any right at all in the matter of care, custody and education of Sushila. He was only allowed the courtesy of meeting Sushila whenever he liked and keeping her at his home during vacations.

7. In our opinion, the directions given by the learned Single Judge proceeded on an erroneous conception of the rights in Hindu law of the father as the natural guardian of his minor children. The leading case on the Hindu father's right over his minor children is Mrs. Anuie Besant v. G. Naravaniah AIR 1914 PC 41: 41 Ind App 314. In that case the Privy Council said :--

' As in this country, so among the Hindus, the father is the natural guardian of his children during their minorities, bill the guardianship is in the nature of a sacred trust, and he cannot, therefore, during his life-lime 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. If, however, the authority has been acted upon in such a way as, in the opinion of the Court exercising the jurisdiction of the Crown over infants, to create associations or give rise to expectations on the part of the infants which it would be undesirable in their interests to disturb or disappoint, such Court will interfere to prevent its revocation. Lyons v. Blenkin, (1821) Jac Rep. 245.'

8. These observations make it very clear that though Sheokumar entrusted the custody and education of Sushila to the respondents the authority he conferred on the respondents was a revocable one and if the welfare of Sushila required, he could take back the custody and education of the child once more into his own hands. The Privy Council no doubt observed that the Court could prevent the revocation of the authority on the ground that the authority had been so acted upon by the persons to whom the care of the child was entrusted that it created associations or expectations on the part of the infant which it would be undesirable in the minor's interest to disturb or disappoint. But the disturbance of this association or disappointment of expectations is a matter to be taken into consideration while determining the question whether the father should or should not be allowed to revoke the authority which he had conferred on another person when he hart entrusted the custody and care of the minor child to that person. Once the Court has found that it would be in the welfare of the minor to revoke the authority and restore the minor's custody to the father, then the above considerations cannot be made the basis for giving any voice to the persons, to whom the custody and care of the minor had been formerly entrusted, in the matter of the minor's care or residence or education after the restoration of the custody. So to ' do is to render ineffective the decision to restore the minor to the custody of the father. Once the minor is restored to the custody of the father, then his rights over the minor are no doubt subject to the provisions contained in the Guardians and Wards Act, 1890, and the Hindu Minority and Guardianship Act, 1950, and such orders as the Court may make thereunder; but they cannot be fettered by wishes of third persons. Subject to the statutory restrictions and the Court's orders, the father's rights over his minor child are absolute and uncontrolled. He is also the proper judge of the school in which to place his ward. (See Hall v. Hall, (1749) 3 Atk 721 : 26 ER 1213). When, therefore, the learned Single Judge came to the conclusion that it would be in the interest of Sushila to restore her to her father's custody, he was not right in giving Rampal the right to decide in which school she should go and Shivrani Bai the choice of determining Sushila's residence and in reducing the appellant Sheokumar, the father, who was held to be entitled to the custody of the girl, to the position of a person who could merely meet and see her at times and keep her with him during vacations.

9. The learned Single Judge was no doubt influenced by humane considerations for the minor Sushila when he made the directions under challenge on 16th July 1965. It is true that it would be painful for Sushila, at any rate at the commencement, to leave the present custody of the respondents and go to her father and live there. Having lived with the respondents for nearly 13 years it is inevitable that her natural inclination and desire should be towards persons who were closest to her. The respondents may also feel disappointed in parting with Sushila whom they have brought up for all these years as their own daughter. But, at the same time, the appellant, who is the father and natural guardian of his daughter Sushila, cannot be deprived of his undoubted right over her on account of consideration of feelings for the girl or for the respondents. Sushila is nut a baby. She is now in adolescent stage; and though, in that stage, she may for some time feel the change, in the custody, she will later on realise that her return to the father's custody is in her welfare and interest. When the girl is approaching marriageable age, it is not only natural but right that the father should desire to have the child in his own custody.

10. In this connection a reference may be made to the decision of the Allahabad High Court in Nazir Khan v. Ganesh. AIR 1926 All 687 where the High Court, after declaring that one Nazir Khan, the father of a minor, was his natural guardian, made a direction against one Ganesh for restoring to Nazir Khan the custody of the minor. The minor was entrusted by Nazir Khan to the custody and care of Ganesh when he was an infant. The Allahabad High Court observed :--

' In this case, the boy was allowed to go into the box and make statements, about some of which we feel somewhat incredulous, and it appears that Ganesh in the exercise of what he believed to be the right of an adoptive father, took steps to prevent the boy even seeing or communicating with his father. Where that sort of thing happens, it is inevitable that the natural inclination and desire of the boy will be to the individual who has been closest to him and has provided for his wants; that is the natural inclination of children, and it cannot but be a wrench to the individual, possibly to the boy, where the Court is called upon to intervene and put an end to such an arrangement by a parental order, but such considerations cannot affect our duty, and fortunately the memory of children is short and we are satisfied ' that if the father treats the boy with the same care that Ganesh has done, the boy will have no reason to regret the order which we feel it our duty to make.'

11. From what has been said above, if is very clear that on the finding of the learned Single Judge that the appellant is entitled to the custody of Sushila and that it would be in her welfare and interest to return to her father, the respondents, after they have restored Sushila to the appellant, cannot be allowed any right in the matter of Sushila's education, residence, marriage, upbringing etc. It was urged before us on behalf of the respondents that when Sushila is returned to the custody of her father, they should be allowed to visit and sec her. It is no doubt desirable that in order to soften the rigour of separation from the respondents that Sushila may feel when she returns to her father's place that she should have an opportunity of meeting the respondents, But no directions can be given by this Court as to how, when and where the respondents should be allowed to meet Sushila. This is a matter which can be adjusted by the parties themselves. It is for the respondents to inspire confidence in the appellant that they would, by their meetings with Sushila instil in her a filial affection for the appellant and make her feel that the appellant is her kind protector. If the respondents, instead of developing in-Sushila a deep affection for her father, Sheokumar, only attempt to alienate her from him, then clearly the father would be perfectly justified in refusing to permit the respondents to see Sushila. It was also said by learned counsel for the respondents that Sushila should continue to remain in the Burhanpur school. We have already pointed out that the choice of the school rests with the father. If he finds that it would be convenient both for him and for Sushila to attend the school at Nepanagar, then he would be justified in setting Sushila admitted in that school. It would however, be proper in the excrecise of the powers conferred on the Court under the Rules framed by this Court under Section 50, Sub-section (1), except clauses (a) and (i) of the Guardians and Wards Act, to direct that the appellant shall get Sushila admitted into the school at Burhanpur or at Nepanagar and shall continue to educate her at any of the aforesaid two schools till she attains the age of majority, if at any time it becomes necessary for the appellant to withdraw Sushila from any of these two schools and put her elsewhere for education. He shall first obtain the permission for that from the District Judge, Khandwa. Such a direction can be made under the rule contained in paragraph 313 (2) of the Rules and Orders (Civil) (page 153) at the time when the appellant is declared to he the natural guardian of the minor .Sushila.

12. For the foregoing reasons, this appealis allowed to this extent only that the direction given by the learned Single Judgeon 16th July 1965 are all set aside and therespondents are ordered to return Sushila to herlather's custody forthwith. We also direct theappellant to admit Sushila in the school eitherat Burhanpur or at Nepanagar and to continueto educate her there till she attains the age ofmajority and that he shall nut remove her fromany of the two schools and put her elsewherefor education without first obtaining the permission of the District Judge, Khandwa in thecircumstances of the case, we leave the partiesto hear their own costs here and in the Courtsbelow.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //