1. This is an appeal from the order of Bakewell J. in an application by the respondent to be declared the guardian of his minor girl aged about five years. The petitioner is living in the Civil and Military Station, Bangalore, and the child at the time of the application was and now is in the custody of her deceased mother's mother and father living in Madras. The learned Judge bases his order on the only ground that nothing was shown 'disqualifying the respondent either in his conduct or in his opinion from having the custody of his child.'
2. It would appear that the learned Judge treated the application as one to enforce the petitioner's legal right to the custody of his child and as similar to an action to recover the child from the appellants. The appellants, the child's maternal grandfather and maternal grandmother, alleged in their affidavits that the petitioner and his wife (now deceased) had not been getting on well for some time before her death, that she had been living with her husband, the respondent, at Bangalore till May 1906, that she then came over to Madras apparently for her confinement, and while she was here the respondent instituted a suit against her for restitution of conjugal rights and another against her parents for the recovery of his wife. There was also criminal proceedings in which he charged his wife and her parents with theft. The child was born in September 1906. Alter the death of the wife the petitioner demanded the restoration of the child by a lawyer's notice, but the appellants sent no reply to it. This was in December 1907. The present application for being declared guardian of the minor was in May 1911. The respondent stated in his affidavit that he made one or two attempts to see his wife and child but the appellants would not allow him to see them.
3. We may at once say that we agree with the learned Judge that no serious misconduct is proved against the respondent. But the question we have to decide is whether it is for the welfare of the minor that the respondent should be declared or appointed her guardian. Recent decisions of the High Court have established the principle that in an application of the kind in question, the welfare of the child is the paramount consideration although 'regard must also be had to the recognised rights of guardianship under the law.' As a matter of fact the texts of the Hindu law do not recognise any absolute rights of guardianship in any one, the sovereign being entrusted with the guardianship of all minors and entitled to appoint any person as guardian in their interests. Re. Gulbai and Sulbai I.L.R. (1907) Bom. 50, Bindo v. Sham Lal I.L.R. (1906) All. 210 and Tota Ram v. Rama Charan I.L.R. (1910) All. 222 all recognised the principle that the welfare of the minor is the first consideration to be borne in mind. It has also been affirmed in the decisions of this Court in Krishnasawmi Chetty v. Colla Mangammah (1911) M.W.N. 365, Muthmwami Sasri v. Narayana Sastris and Sami Rao v. Eliawatha Rao (1905) 16 M.L.J. 357. The case in Bindo v. Sham Lal I.L.R. (1906) All. 210 is very similar in its facts to the present case. Mr. Justice Bake well distinguishes these cases on the ground that it was possible in some of them to consult the wishes of the minor and that the court acted in accordance with the minor's wishes, but that it is not possible to do so in this case as the minor is only five years old. But we do not think that this would enhance the rights of the respondent. It would make it the duty of the court to come to its own conclusion as to what would best promote the minor's interests. It does not appear that excepting the respondent's .we there is any female relation living with him competent to take proper care of the child. It would be hardly safe to presume that his wife, the child's step-mother, would be witling to do so. On the' other hand the grandmother with whom the child has been living till now might be trusted to take good care of her. The maternal grandfather's father has made a gift of a house in favor of the child's mother to which the child has now succeeded. There is good reason for believing that the maternal relations have strong affection for the child. We cannot also ignore the fact that the respondent, who as a fact has never seen the child, was not during the last years of his wife's life on the best terms with her. It was also urged for the appellants that the respondent would be next heir to the child's property but we should not attach much importance to this fact in the case of a father applying to be declared the guardian of his child. It also appears that the respondent is not a person possessed of ample means though we do not suggest that he would not be able to bring up the child properly.
4. The claims of persons recognised as having preferential rights of guardianship have not been recognised in several of the cases referred to above where the Court came to the conclusion that the best interests of the child did not lie in their being declared or appointed guardians. The petitioner himself is residing beyond the limits of the jurisdiction of this court and it would not be very easy for the court to control his conduct as guardian. The application is one which the court is not bound to grant unless it is satisfied that is for the welfare of the child that an order should be made.
5. In all the circumstances of the case we are of opinion that the application of the respondent should not have been granted. We therefore reverse the order of the learned Judge and dismiss the application with costs both here and before the learned Judge.