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Ruxmaniben Tribhovandas Jethabhai Vs. Minor Narmada Alias Nandu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 490 of 1961
Judge
Reported inAIR1962Guj227; (1962)0GLR566
ActsGuardians and Wards Act, 1890 - Sections 12 and 25
AppellantRuxmaniben Tribhovandas Jethabhai
RespondentMinor Narmada Alias Nandu and ors.
Appellant Advocate N.R. Oza,; B.R. Shah and; V.P. Shah, Advs.
Respondent Advocate R.C. Mankad, Adv.
DispositionRevision allowed
Cases ReferredAchratlal Jekisandas v. Chimanlal Parbhudas
Excerpt:
.....hindu marriage act, 1955 and sections 12 and 25 of guardians and wards act, 1890 - application for interim custody of minor dismissed - revision application against such order - petitioner-mother being natural guardian claimed custody of her minor daughter - facts showed that petitioner gave minor to opponent in marriage against consideration of some amount - section 12 empowers court to make interlocutory order for interim custody of minor for appointment of guardian - priority should be given to welfare of minor - it would not be safe to entrust custody of minor to petitioner - opponents committed breach of provisions of section 38 - impugned order set aside - direction given to hand over minor to officer of ashram till petition is finally disposed off. - - the learned assistant..........assistant judge, baroda, dismissing the application of the petitioner for interim custody of the minor narmada. the circumstances under which the application came to be filed by the petitioner may be briefly stated as follows :2. the petitioner is the mother of narmada who is 71/2 years old. the case of the petitioner was that narmada was betrothed to opponent no. 4 who is the son of opponents nos. 2 and 3. opponents nos. 2 and g wanted to show narmada to the residents of their village and they accordingly took away narmada with, them on 4th june 1961. after about four or five days the petitioner's son went to bring back narmada but opponents nos. 2 to 4 refused to send narmada back to the petitioner. the petitioner thereupon filed a petition in the district court, baroda, under.....
Judgment:
ORDER

P.N. Bhagwati, J.

1. This Revision Application is directed against an order made by the learned Assistant Judge, Baroda, dismissing the application of the petitioner for interim custody of the minor Narmada. The circumstances under which the application came to be filed by the petitioner may be briefly stated as follows :

2. The petitioner is the mother of Narmada who is 71/2 years old. The case of the petitioner was that Narmada was betrothed to opponent No. 4 who is the son of opponents Nos. 2 and 3. Opponents Nos. 2 and G wanted to show Narmada to the residents of their village and they accordingly took away Narmada with, them on 4th June 1961. After about four or five days the petitioner's son went to bring back Narmada but opponents Nos. 2 to 4 refused to send Narmada back to the petitioner. The petitioner thereupon filed a petition in the District Court, Baroda, under Section 25 of the Guardians and Wards Act, 1890, praying for an order for the return of the minor to the custody of the petitioner. The petition was based on the allegation that the petitioner was the natural guardian Of the person of Narmada and that Narmada had been removed from the custody of the petitioner by opponents Nos. 2 to 4. Opponents Nos. 2 to 4 resisted the petition and contended that Narmada had been married to opponent No. 4 according to Hindu rites on 19th May 1961 and that a sum of Rs. 3,100/-had been paid to the petitioner and her son in consideration of the marriage and that opponent No. 4 being the husband was therefore, the natural guardian of the person of Narmada and was entitled to the custody of Narmada. Opponents Nos. 2 to 4 alleged that the object of the petition was to obtain the custody of the girl with a view to selling her off to another person and the petition was, therefore, liable to be rejected.

3. During the pendency of the petition an application was made by the petitioner for interim custody of Narmada. The application was opposed on behalf of opponents Nos. 2 to 4. Various affidavits were filed on behalf of both the parties and some documentary evidence was also produced. The learned Assistant Judge after hearing the parties came to the conclusion that a prima facie case of marriage was established on behalf of opponents Nos. 2 to 4 and that opponent No. 4 was therefore, prima facie the natural guardian of the person of Narmada. The learned Assistant Judge also felt that it was not in the interests of Narmada to keep her in the custody of the, petitioner even for a temporary period for it was not improbable that the petitioner might again sell the girl to another party for 'a large amount. The learned Assistant Judge considered the suggestion made on behalf of the petitioners that even if it was considered not to be in, the interests of Narmada that her custody should be given over to the petitioner, Narmada should be kept in a remand home and rejected the suggestion on the ground that there was no reason why opponent No. 4 who Was the natural guardian of the person of Narmada should be deprived of the custody of Narmada merely because the petitioner had approached the Court for custody of Narmada being given to her. The learned Assistant Judge also observed that it would not be in the interests of Narmada to keep her in the atmosphere of a place like the remand home as though she were a criminal; The learned Assistant Judge accordingly took the view that the custody of Narmada should remain with opponents Nos. 2 to 4 and dismissed the application of the petitioner. The petitioner thereupon filed the present Revision Application before this Court.

4. Mr. R.C. Mankad, learned advocate on behalf of opponents Nos. 2 t0 4 urged as a preliminary objection that the application of the petitioner was not maintainable and that the petitioner was not entitled to apply for interim custody of Narmada during the pendency of We petition. The argument of Mr. R.C. Mankad was that the power to make interlocutory order for interim custody of a minor was to be found only in Section 12 of the Guardians and Wards Act 1890, and that power could be exercised only where there was an application for appointment or declaration of a guardian of a minor. Mr. R. C. Mankad contended that the power to make interlocutory order for interim custody could not be exercised in a petition under Section 25. No interlocutory order for interim custody of a minor could also be made, argued Mr. R.C. Mankad in exercise' of the inherent powers, for the Court had no inherent powers to make such interlocutory order apart from the express provisions of the Act. The application for interim custody of Narmada was, therefore, according to Mr. R. C. Mankad, not maintainable. I am afraid I cannot accept this contention for reasons which I shall immediately proceed to state.

5. Mr. R.C. Mankad is no doubt right when he says that the power to make interlocutory order for interim custody under Section 12 can be exercised only in an application for appointment ordeclaration of a guardian of a minor and that no such power can be exercised in a petition under Section 25. This contention is supported by a decision of the Bombay High Court reported in Achratlal Jekisandas v. Chimanlal Parbhudas, ILR 40 Bom 600 : (AIR 1916 Bom 129) where it has been observed by Scott C. J., that

'Section 12 provides for the summoning before the Court of the minor for whom an application has been made for the appointment of a guardian, and for the interim custody of the minor pending the hearing, of the application under Section 13''.

That this should be so is also clear from the context in which Section 12 occurs. Section 12 occurs in Chapter II of the Act which deals with the appointment and declaration of guardians. The fasciculus of Sections commencing from Section 6 and ending with Section 19 relates to appointment and declaration of guardians by Court and in that contest I do not see how Section 12 can be given an interpretation which would bring within its scope petitions made under Sec, 25. Section 7 confers power on the Court to make an order appointing or declaring a guardian of a minor. Section 8 declares as to who shall be entitled to apply for an order for appointment or declaration of a guardian. Section 9 prescribes which Court shall have jurisdiction to entertain the application for appointment or declaration of a guardian. Section 10 provides for the form of the application and Section 11 prescribes the procedure to be followed on admission of the application. Then comes Section 12 which confers on the Court the power to make interlocutory order for production of the minor and interim protection of the person and property of the minor. This is followed by Section 13 which provides for the hearing of evidence before making a final order on the application. . The juxtaposition of Section 12 leaves no doubt that it provides for the making of interlocutory orders in an application for appointment or declaration of a guardian and that it does not confer any such power on the Court in relation to a petition under Section 25. The application for interim custody of Narmada could not, therefore, be maintained by the petitioner under Section 12.

6. The question would, however still remain whether the petitioner was entitled to maintain the application for interim custody of Narmada under the inherent powers of the Court. I do not agree with Mr. R. C. Mankad that the Court has no inherent powers to make interlocutory order for interim custody of a minor apart from the express provision of Section 12. It is no doubt (rue that since there is an express provision contained in Section 12 for making of interlocutory order for interim custody in an application for appointment or declaration of a guardian, the inherent powers of the Court cannot be invoked for making any order for interim custody in an application for appointment or declaration of a guardian. The enactment by the Legislature of an express provision would exclude the inherent powers of the Court in the area over which the express provision operates but when the question arises whether interlocutory order for interim custody can be made in a petition under Section 23to which the provisions of Section 12 do not apply I do not see how the inherent powers of the Court can be excluded. If the Court can under Section 25 order that the minor should be returned to the custody of the guardian on the ground that it is for the welfare of the minor to return to such custody, I do not understand why the Court cannot do so as an interim measure. It may take considerable time before a petition under Section 25 may be disposed of by the Court and if the Court has no power to make interlocutory order for interim custody of the minor, considerable injury may be caused to the interests of the minor during the period that it may take to dispose of the petition. Surely the Court is not so powerless as to prevent any injury being caused to the welfare of the minor during the period that the petition is not disposed of by it. I am of the opinion that the Court has inherent powers to make interlocutory order for interim custody of a minor in a petition under Section 25. This being the position it is obvious that the application of the petitioner for interim custody of Narmada was maintainable under the inherent powers of the Court.

7. I have carefully gone through the Judgment of the learned Assistant Judge and I find that he has given adequate reasons for coming to the conclusion that it is not for the welfare of Narmada that her custody should be handed over So the petitioner. The allegations against the petitioner are that she gave Narmada in marriage to opponent No. 4 in consideration of a sum of Rs. 3,100/- which she received from opponents Nos. 2 and 3 and that it would, therefore, not be safe to entrust the custody of Narmada to the petitioner, for there would always be a real danger that she might sell off Narmada to another person for money. These allegations may be right or wrong but the fact remains that these allegations have been made against the petitioner and the learned Assistant Judge has prima facie come to the conclusion that these allegations are not ill-founded. For the purpose of deciding this application it is not necessary to come to a finding whether these allegations are true or false and I should not be deemed to have expressed any opinion on the correctness or otherwise of these allegations. But in view of these allegations T think the learned Assistant Judge was right in coming to the conclusion that the custody of Narmada should not be entrusted to the petitioner pending the hearing and final disposal of the petition.

8. Then the question would be whether Narmada should be allowed to remain in the custody of opponents Nos. 2 to 4. For reasons which I will immediately proceed to state I do not think it 'would be desirable to allow opponents Nos. 2 to 4 to retain custody of Narmada. Narmada is a girl who is hardly about 71/2 years old. According to opponents Nos. 2 to 4 she has been married to opponent No. 4 on 19th May 1961. Opponent No. 4 is, I am told, about 25 years old. On their own admission opponents Nos. 2 to 4 have committed a breach of the provisions of Section 38 of the Hindu Marriage Act 1955, and Sections 4 and 5 of the Child Marriage Restraint Act, 1949. According to opponents Nos. 2 to 4 opponent No. 4 who isabout 25 years old has been married to Narmada who is only 71/2 years old in contravention of fhe provisions of law. I do not think that under these circumstances I would be justified in entrusting the custody of Narmada to opponents Nos. 2 to 4 who have not hesitated to commit a breach of the law and to procure a marriage of opponent No. 4 with Narmada who is only about 71/2 years old. Narmada is of a very tender age and it may not be safe to allow her to remain in the custody of Opponent No. 4 when the very factum of marriage is in dispute and is going to be adjudicated upon in the petition. It may be that the marriage is ultimately established but it is too premature to say at this stage whether opponents Nos. 2 to 4 will succeed in esablishing the marriage. If the marriage is not established and it is not shown that opponent No. 4 is the husband of Narmada, it would not be right to have allowed Narmada to remain in the custody of opponent No. 4. Apart from this, way attention has been drawn to Section 12(3) of the Guardians and Wards Act, 1890, which prescribes that nothing in Section, 12 shall authorise the Court to place & female minor in the temporary custody of a person claiming to be her guardian On the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any. It is no doubt true -- and I have so held -- that Section 12 does not apply to an application for interlocutory order for interim custody in a petition under Section 25,--but the principle embodied in Section 12(3) is a principle which the Legislature has considered wholesome and necessary for the welfare of the minor and there is no reason why I should not apply that principle in deciding whether I should allow Narmada to remain in the custody of opponent No. 4 during the pendency of the petition, assigning that opponent No. 4 is the husband of Narmada. I am, therefore, of the opinion that Narmada should not be allowed to remain in the custody of opponents Nos. 2 to 4. The best course in the interest of Narmada would be to send her to some 'institution where she can be properly looked after and cared for during the pendency of the petition. I propose to direct the District Court, Baroda, to take up the hearing of the petition on some date not earlier than 28th August ,1961 and not later than 4th September 1961 and to proceed with the hearing of the petition from day to day as far as possible so that Narmada may not have to remain in such institution longer than is absolutely necessary. The petitioner is ready and willing to deposit In the first instance the amount which may be required for keeping Narmada in such institution.

9. I, therefore, set aside the order made by the learned Assistant Judge and direct that Narmada be sent to Mahipatram Ruprarn Ashram near Kagdapit Police Station outside Raipur Gate, Ahmedabad, and that Narmada be handed over to an officer of the institution for being kept in the institution until the hearing and final disposal of the petition. J also direct the petitioner to pay to the institution such amount or amounts as may be required for the purpose ofkeeping Narmada in the institution during the pendency of, the petition. The petitioner as well as opponents Nos. 2 to 4 are restrained from removing Narmada from the institution or from meeting her in the institution, pending the hearing and final disposal of the petition. The petitioner and opponents Nos. 2 to 4 will be at liberty to apply to this Court for any direction or directions which may become necessary in connection with this order. I also direct the District Court, Baroda, to take up [he hearing of the petition on any date which is convenient to that Court not earlier than 28th August 1961 and in any event not later than 4th September 1961 and Jo proceed with the hearing from day to day as far as possible so that the petition may be disposed of expeditiously. The record and proceedings shall to transmitted immediately to the District Court, Baroda. Costs of this revision application including the costs incurred in keeping Narmada in the institution will be costs in the petition.


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