G.K. Misra, J.
1. Nayani Dei is the daughter of Kusa Parida. She married to Kanhu Mallik, who died on the 27th day of Aswin, 1958. A daughter Pema Dei was born to them in Asar 1956. On 17th March, 1961 Kusa Parida filed an application under Section 10 of the Guardians and Wards Act (Act VIII of 1890) hereinafter to be referred to as the Act, with a prayer that he might be appointed as the guardian of the person and property of the minor, Pema Dei. The averments in the application are that on the death of Kanhu Mallik, his brother Baishnab Mallik, mother Suka and another brother Gopal Mallik, who had been adopted away ill-treated Nayani Dei, who left her husband's place and resided with her father. She was not allowed to bring Pcma Dei with her. In Asarh 1959 Nayani remarried Baidhar Tarai and she has been throughout living with her second husband thereafter. A son has been born to her through the second husband. Dhani Malik, father of Kanhu Malik and the other members of the family transferred some properties to the detriment of the minor's interest and were ill-treating and harassing the minor and that there was the risk of the minor's losing her life. Nayani Dei, mother of the minor was living with her 2nd husband in a different village after the second marriage and was not taking any interest in the minor's affairs.
Baishnab Mallik and the other members of his family denied the aforesaid allegation and averred that the application was not bona fide. Nayani Dei filed her written statement on 3rd July, 1961 supporting the case of her father. She clearly stated that she having remarried a 2nd husband, it was in the interest 'of the minor that Kusa Parida should be appointed as the guardian of the minor. On the 12th January 1963 an application was filed on her behalf that she should be appointed as the guardian of the minor. The learned District Judge rejected the application. Against the order of the District Judge dated the 12th July, 1963 dismissing the applications, the two Misc. appeals have been filed. Both the appeals were analogously heard. Mr. Ray did not press Misc. appeal No. 100/63 filed by Kusa Parida and it is accordingly dismissed. He confined his arguments to the appointment of a guardian in respect of person of the minor and not of the properties. The original application for appointment of a guardian in respect of the properties of the minor thus stands dismissed on the statement of Mr. Ray. The discussion must therefore be confined only to the question whether Nayani Dei should be appointed as the guardian of the minor's person.
2. Before examining the law on the point, the findings of the learned District Judge may be noticed. Before him the Advocate for the petitioner gave up the plea of cruelty or ill-treatment towards the minor by Baishnab Malik and his family members. The story of the petitioner that the minor was forcibly detained and snatched away from Nayani Dei was discarded. The learned Judge also held that the minor was being properly held and looked after by Baishnab Mallik and his family members, these findings were not assailed by Mr. Ray.
3. Mr. Ray contends that the mother is the natural guardian and that there being no finding that she is unfit for appointment as guardian of the person of the minor, she should be appointed as guardian. This contention requires close examination of the relevant provisions of the Act and of the Hindu Minority and Guardianship Act (32) of 1956, hereinafter referred to as the Act of 1956.
4. The Act of 1956 came into force on 25th August, 1956. It purports to amend and codify certain parts of the law relating to minority and grardianship among Hindus. Section 2 thereof enacts that the provisions of this Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of, the Guardians and Wards Act. Section 5 prescribes the overriding effect of this Act. Clause (b) of Section 5 lays down that save as otherwise expressly provided in the Act, any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. It would thus be clear that the provisions of this Act of 1956 and of the Guardians and Wards Act are complementary. In case of repugnancy, the provisions of the Act of 1956 would prevail.
5. It would be pertinent to examine the position of law, as it stood, prior to the passing of the Act of 1956. Section 7 of the Act relates to power of the Court to make order as to guardianship. Sub-section (1) thereof lays down that where the Court is satisfied that it is for the welfare of a minor that order should be made appointing a guardian of his person, the Court shall make an order accordingly. Section 17 of the Act provides various matters to be considered by the Court in appointing a guardian. In appointing a guardian of a minor, the Court shall 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. 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 of any existing or previous relations of the proposed guardian with the minor or his property. If the minor is old enough to form an intelligent preference, the Court may consider that preference. Emphasis is placed by Mr. Ray on the expression 'consistently with the law to which the minor is subject.' He contends that under the Hindu law as well as under the Act of 1956, the mother is the natural guardian of the minor and so she must be appointed as the guardian unless she is unfit. No exception can be taken to this argument. Even though the mother has been remarried, she can be appointed as the guardian of the minor as it is permissible under the Hindu Law.
A Hindu widow does not by the mere fact of her remarriage lose her right of guardianship in any case where remarriage is recognised by the custom of the caste to which she belongs. Under the Hindu Widows' Remarriage Act, 1856, remarriage is permissible. Mr. Das rightly did not take exception to the appointment of the mother as the guardian on the ground of her remarriage.
6. Law is well settled that the paramountconsideration for the appointment of a guardianof a minor is the welfare of the minor. Anatural guardian cannot be appointed as theguardian of the minor if it is found that suchappointment would be detrimental to the welfare of the minor. That this was the positionof law prior to the passing of the Act of 1956is not disputed. The position has in any waybeen affected by the passing of the Act of,1956.
7. Section 6 of the Act of 1956 enumerates the natural guardians of a Hindu minor.
In the case of a boy or an unmarried girl, the father is the natural guardian and, after him, the mother provided that the custody of minor who has not completed the age of five years shall ordinarily be with the mother. In the present case, as the father is dead, mother is the undisputed natural guardian. Section 13 thereof provides that in the appointment of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. Sub-section (2) issues an injunction that no person shall be entitled to the guardianship by virtue of the provisions of this Act, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor. Section 13 thus makes a clear provision that no guardian can be appointed, if such appointment will not be for the welfare of the minor. It also covers the case of natural guardian. Section 13 thus gives a clear statutory recognition to the pre-existing position of law that even a natural guardian cannot claim to be appointed as a guardian as of right unless such appointment is for the welfare of the minor in the opinion of the Court. There is no repugnancy in this regard between the provisions made under Sections 7 and 17 of the Act, and Section 13 of the Act of 1956. Had there been any repugnancy, Section 13 would prevail.
8. The only question for consideration is whether the appointment of Nayani Dei would be for the welfare of the minor on the facts of this case. For the following reasons I am inclined to think that the appointment would not be for the welfare of the minor:
(I) Kanhu Mallik, the first husband of Nayani, died in 1958. The minor was by that time only two years old. She left her and went to her father's place and thereafter remarried in 1959. The story that the minor was forcibly detained and snatched away from her has been found against. It is thus apparent that from 1958 till 1963, when she made the application for being appointed as a guardian, she had absolutely no contact with the child. There is no evidence of any anxiety on her part to have the child to herself. Things have gone so far that even, the minor does not recognise her as her mother.
(II) A son has been born to her through the second husband with whom she is residing. She has bestowed her affection on him. There is no proof of existence of similar filial affection for the minor.
(III) If she is appointed as the guardian of the person of the minor, the custody of the minor must be handed over to her. The minor shall have to reside in the house of the stepfather who has no reasons to have any affection for her. She shall have to live in a surrounding where the step-father must have a natural dislike for her, or at any rate, would not have liking for her as he would have for his own child. The atmosphere in the stepfather's house is likely to be surcharged with a feeling of spite and hatred. In the formation stage of her career, the minor's mind is likely to be adversely affected by a differential treatment. Impression so created on her plastic mind from the early stage of her life would be injurious to the growth of a healthy personality.
(IV) The mother's application does not appear to be bona fide. The first application for appointment of guardian of the minor was made by her father. In the objection filed to that application, she had stated that her father would be the best person to be appointed as the guardian of the minor as she had been remarried and was living with her husband. She had disclosed the real truth then that she would not be a fit person to be appointed as guardian of the minor. It is only when it appeared that her father could not be appointed as a guardian, she came forward to support the father's case as her claim would be easier she being the natural guardian.
(V) The minor is residing in the family of her father. She is treating her uncle and aunt as her parents. The learned District Judge was impressed from the dress, appearance and demeanour of the minor that she seemed to be contented and happy and that she was living in a healthy surrounding. There is no proof that the minor is being ill-treated or her material and moral welfare is not being properly looked after. Her removal from such surrounding, where she is growing from her second year of age, will be detrimental to the welfare of the minor. The another application for appointment as the guardian of the person of the minor is not bona fide and has no merit.
9. In the result, both the appeals fail and are dismissed with costs.
One set of hearing fee.