1. This is a petition under Sections 7 to 10 and 25 of the Guardians and Wards Act 1890, for declaring the petitioner herein to be the guardian of the person of the petitioner's minor illegitimate daughter born on 8-9-1955 and for directing the respondent herein, the putative father of the said illegitimate child, to give custody of the said minor child to the petitioner herein. The respondent is the husband of the petitioner's mother's younger sister. The petitioner, two other daughters and her brother were the children of her parents. After the death of the petitioner's father, the petitioner's mother married one G. Ballard. The petitioner claims to be very much attached to her aunt, namely, the wife of the respondent. According to the petitioner, she used to frequently visit the respondent and his wife. From 1950 to 1963, the petitioner lived with the respondent in the respondent's house as his mistress and it is as a result of this illicit connection between the petitioner and the respondent, the daughter was born on 8-9-1955. In 1963, the petitioner left India for England, where she secured a job as a short-hand writer Secretary. During the period of her stay in England, she used to send small amounts and presents to the illegitimate daughter. In December 1967, she came over to India and the evidence makes it clear that she was friendly with the respondent. She requested the respondent to send the minor to England along with her at least for a holiday and the respondent also agreed to send the minor to England during the summer vacation, when the school would remain closed, I may mention here at this stage that the minor is studying in VII Standard in St. Kevins Presentation Convent, Royapurarn, During her stay in India, in December 1967 January 1968, for the purpose of taking the minor to England, the petitioner contacted the High Commissioner of the United Kingdom, at Madras and she was advised that she must obtain a declaration of sponsorship for the child. After the petitioner returned to England in January 1968, on 31st January 1968, she made a sponsorship declaration before Notary Public in London, undertaking to bear the cost of passage of the minor from India to United Kingdom to maintain her during her stay in the United Kingdom and repatriate her to India at her cost, if and when necessary. She sent the sponsorship declaration to the respondent herein to enable him to take necessary steps by way of obtaining a passport and completing the other formalities, with a view to send the minor to England. A photostat copy of the said declaration of sponsorship has been filed as Ex. P-l in this case. The petitioner's case is that after she sent the declaration of sponsorship to the respondent, the respondent did not take steps pursuant to the same, as agreed to by him for sending the minor to England, when the petitioner was here in India and her letters to the respondent in this behalf were not replied to and she wrote to the minor also and she also did not write back. On the other hand, the case of the respondent is that the minor was not willing to go to England and he replied to the letters of the petitioner. It is under these circumstances, the petitioner has now come over to India and Instituted the present proceedings before this Court.
2. In the petition and in the affidavit filed in support of the petition, the case of the petitioner with regard to her prayer for being declared a guardian of the minor is that she is the mother of the child and has great love and concern for the minor's welfare and she is the natural guardian and that she is in a good position and hence she is able to maintain the minor in comfort in a decent atmosphere, In support of her case that the respondent should be directed to hand over the custody of the minor child to the petitioner, the petitioner states that the law recognises the right of the mother to the guardianship of her illegitimate child and the putative father has no rights; that the putative father is profligate and callous and is in an impecunious condition: that the respondent is legally married and has to maintain his wife and a son on a meagre salary. And the petitioner has also given the following reasons, which led to the present petition, the utter disregard and silence of the respondent after agreeing to send the minor to England at the request made by the petitioner, when she was in India in December 1967--January 1968, the respondent's refusal to deliver custody of the minor even after the petitioner obtained a declaration of sponsor-ship from the Notary Public in London and forwarded the same to the respondent in February 1968: the respondent's failure to reply to the solicitor's notice sent to him in April 1968, on behalf of the petitioner; and the impressionable age of the minor and the unhealthy surroundings in which she is growing up at a time when the petitioner could give her a good, healthy and normal life in London, The petitioner further avers in the petition that the minor is reaching an age when she should be looked after with great care and affection and in the minor's present set up her future happiness is in jeopardy; that she is In the midst of people who lead abnormal lives; that the wife of the respondent who happens to be the maternal aunt of the petitioner is a woman of weak will, feeble in mind and body, who is a complete slave of the respondent and lives in virtual fear of being thrown out by him; that the respondent's only son Charles la a lad of 21 years who is leading a wayward life; that the respondent does not wish his daughter, the minor, to get away from his clutches, for she feels that he will lose all hold on the petitioner, the mother of the child, whom he wants back at any cost; that the respondent is in short a sadist and thoroughly selfish man whose mind is completely warped and who does not care for the happiness of these close to him; and that the petitioner fears that her only child will develop into an emotionally troubled person, for she has found out when she was with the child last, that is, barely six months before the filing of the petition, that the father had succeeded to some extent in alienating the love of the minor for its mother, the petitioner. These allegations are further elaborated in the affidavit filed in support of the petition. In the affidavit, the petitioner states that during the four and odd years she had been away, she had been making herself secure financially well so that she might provide a comfortable home for her daughter, that she had been sending her money and other articles so that the minor might not be in want, as her father, the respondent, is unable to maintain her properly, as his income is only about Rs. 500 p. m. now and as he has in addition to maintain his lawful wife and son Charles who is 21 years and who are dependent on him; that the respondent is about 54 years and is a frustrated man who has not been able to adiust himself gracefully to the vicissitudes of life; and that continuing with him will result in an emotional upheaval in the minor who needs a steady hand to guide her at this juncture. The petitioner further states that she wants to give the minor proper and adeauate training in good surroundings so that she may become a useful member of society; that the respondent is poisoning the minor's mind against the petitioner: that when she was In Madras in last December, 1967 - January 1968, she found the minor treating her with scant respect and showing no signs of affection for her, the mother, though she had been doing her best for the minor's welfare; and that the respondent is sowing seeds of hatred in the minor's mind to destroy her and she is very much concerned about preserving the minor's mental stability. She has also stated in her affidavit that in England she got married to Mr. Hugh Williams in February 1965, and that she has no children through him and he wishes to give the minor, the illegitimate daughter of the petitioner, a home and happiness.
3. In Ms counter statement, the respondent has denied the allegations of the petitioner and states that he has been maintaining the minor ever since her death (?) at his own expense and educating the child at his own cost; that the said minor child is loved and treated by the wife of the respondent and looked after, as her own child and the minor girl is attached to the respondent, his wife and son; that the respondent is earning about Rs. 800 p. m. and has been providing the child with every comfort and convenience. With regard to what happened in December 1967, January 1968, the respondent does not deny that he agreed to send the minor to England for a holiday, when the school in which she is studying closed for summer vacation, but states that the petitioner did not send any money to pay for the passage and also the minor refused to leave for. England and the respondent could not force the child. With reference to the circumstances under which the petitioner came to live with the respondent, the respondent states that the petitioner and her sisters were sent out of the house by their step-father and they sought the asylum of this respondent and the respondent was feeding and clothing them and he got the sisters married and met all the expenses of the petitioner for qualifying herself as a stenotypist. With reference to the allegation of the petitioner that she was sending money and other articles to the minor, the respondent denies the same and states that the petitioner used to end postal orders for paltry sums of 10 shillings or so very occasionally and that too only very recently. The respondent has denied the allegations made by the petitioner against his character and conduct. He also relies on a letter written by the petitioner to the respondent from England on 3-2-1968 marked as Ex. R-l in this case, as completely falsifying the allegations of the petitioner with reference to the character and conduct and behaviour of the respondent.
4. In support of her case, the petitioner has examined herself as P. W. 1, the landlady under whom her mother and step-father are living, as P. W. 2, her mother as P. W. 3 and her step father as P. W. 4 and has marked Exs. P-l to P. 13. On the other hand, the respondent has examined himself as R. W. 1 and his wife as R. W. 2 and has marked Ex. R. 1.
5. The first question for my consideration is whether the petitioner herein is entitled to invoke Section 25 of the Guardians and Wards Act 1890, for an order directing the respondent to hand over custody of the minor to the petitioner, tinder Section 25, the Court can pass an order for the return of the custody of a minor to its guardian. Consequently, if the petitioner wants to invoke Section 25 of the Guardians and Wards Act, in her aid, she must establish that she is the guardian of the minor concerned. For the purpose of this section, it is not necessary that she should be a guardian appointed by the Court or declared by the Court and it is enough if the person invoking that section happens to be a guardian, as defined in the Act, under Section 4(2) of the Act which states--
' 'guardian' means a person having the care of the person of a minor or of his property, or of both his person and property'.
Hence, the term 'guardian' as used in this section means all kinds of guardians whether testamentary, certificated, natural or even de facto. Therefore, the petitioner must establish that she is the guardian of the minor before she could have recourse to Section 25 of the Act. As already stated, from the date of the birth of the minor, the minor has been living with the respondent and of course the petitioner also lived with the respondent till 1963, when she left for England. When she left for England, she did not take the child with her and the child continued to stay with the respondent. The evidence makes it clear that during the period when the petitioner lived with the respondent, the petitioner had no means of supporting herself and it was the respondent who was maintaining both the petitioner and the minor child. Hence there is nothing surprising when the petitioner allowed the child to remain in the custody of the respondent and herself alone went to England with the help of her aunts. Consequently, it cannot be said that the petitioner is a de facto guardian. The only contention that was advanced by the learned counsel for the petitioner was that the petitioner is the natural guardian of the minor. Her argument is that the minor being an illegitimate child, the father is not the natural guardian and only the mother is the natural guardian. Whether the putative father or the mother or who else is the natural guardian of the illegitimate child has to be decided according to the law to which the parties are subject. The parties in this case belong to the Anglo-Indian community and consequently counsel on both sides wanted me to proceed on the basis that the law that is applicable to them is the English law. On the face of it, the two systems of personal law prevalent in the country, namely, Hindu law and Mahomedan law, cannot apply to the parties and therefore, necessarily both because of the fact that they happen to belong to the Anglo-Indian community and because of the fact they have invoked the jurisdiction of this Court, the question of guardianship will have to be determined with reference to the English law,
6. Learned counsel for the petitioner referred to several decisions as holding or deciding that under the English law, mother is the natural guardian of an illegitimate child, but was not able to bring to my notice any particular passage in any of the said decisions as holding or deciding that point. She referred to the decision in Re G. an infant, 1956 2 All ER 876. There, Lord Evershed M. R. observed in the course of his judgment thus:--
'As the child was illegitimate, according to the common law of the land, the mother was, and is, the person responsible for the upbringing of the child'.
The learned Master of the Rolls, referring to the judgment of Wynn Parry, J. against which the appeal in question was preferred had further stated--
'The last few lines that I have read make it, to my mind, quite plain that the judge's view was broadly this: First, that particularly since this was an illegitimate child, prima facie the child should be with her mother'.
In my opinion, neither of these two observations of the learned Master of the Rolls decides or holds that the mother of an illegitimate child is the natural guardian of the illegitimate child.
7. The other decision referred to by the learned counsel for the petitioner is In re Willoughby, an infant, (1885) 30 Ch D 324. In my opinion, that case also has nothing whatever to do with the point now under consideration. That case dealt with the appointment of a guardian for a minor who was a British subject, according to the law of England, but whose mother was a French citizen and the minor herself was residing in France. The question for consideration was whether the English Court could make an order appointing a guardian for such minor, when the minor who was a British subject had no property in England and was residing outside England and whose guardian according to the law of France was her mother, who was a French citizen. As landley, L. J. pointed out:
'This is a curious case. The infant is English by nationality and French by domicil. Her father is dead, and her mother is by the French law under the Code Civil the guardian of the infant. The infant is not resident here, and has no property here; therefore it is a little Strange that this Court should interfere by appointing a guardian; inasmuch as the guardian so appointed will have no authority in France and can do nothing here. The case is singular for these reasons, but it does not follow that the order ought not to be made'.
Consequently, the, decision in that case has nothing to do with the question of the guardianship of an illegitimate child. No doubt, the learned counsel for the petitioner referred to this decision in connection with another objection raised by the learned counsel for the respondent and I shall refer to it later in the course of this judgment.
8. The learned counsel for the petitioner then relied on the decision of Venkatadri, J. in Neelamega v. Mrs. Angelina Neelamega, (1965) 78 Mad LW 151. In that case, a putative father applied for appointment of himself as the guardian under the Guardians and Wards Act of his four minor illegitimate children and for directing the mother to deliver custody of the children to the father. That petition was dismissed by the learned Judge and this Court confirmed that conclusion. The learned Judge stated--
'The question for consideration is who should be the legal guardian for the children born of such union. In similar circumstances while dealing with the question as to who is entitled to the custody of the minor child, it was held In Dorairaj v. Lakshmi, ILR (1947) Mad 519 : AIR 1947 Mad 172 that the mother was entitled to the custody of the child, as there is no authority either in the texts of Hindu law, or in the decided cases for recognising that the putative father of an illegitimate son by a permanently kept concubine has any right to the custody of the person of that son during his minority. It was also pointed out that the right does not necessarily flow from his duty to maintain the son or from the fact that the son has a limited right of inheritance to the putative' father'.
In my opinion, this decision also does not help the case of the petitioner. Just now I am not considering the question whether the petitioner is entitled to the custody of the minor child under the law and if so, how she can enforce that right. All that I am concerned is that in so far as the petitioner has invoked the aid of Section 25 of the Guardians and Wards Act, 1890, whether she is the guardian of the minor child so as to enable the Court to pass an order directing the return to the custody of the minor child to her. For the purpose of deciding whether the petitioner is the guardian as contemplated by Section 25 of the Guardians and Wards Act, the decision of Venkatadri, J. is not of any assistance to the petitioner.
9. The learned counsel for the petitioner then referred to the following passage contained in Eversley on 'Domestic Relations' 6th Edn. at page 440:--
'According to the older law, neither the putative father nor the mother of an illegitimate child had the legal right of guardianship; but the tendency of the modern law is to recognise the mother not only as the natural but the legal guardian of her bastard child, and entitled to its custody unless there are very strong reasons for displacing her right, so that she may sue out a writ of habeas corpus for the recovery of its person from strangers into whose custody she has delivered it, and if her choice of a home would be beneficial to the interests of the child, the Court will order it to be delivered up in order that it may go to such new home; but this right of the mother is not absolute'.
In my opinion, even this statement does not support the case of the petitioner that it is the settled principle of English law that in the case of an illegitimate child, it is the mother who is the natural guardian.
10. On the other hand, Trevelyan's The Law relating to Minors', 5th Edn, states at pages 60-61:
'Neither the father nor the mother has any absolute legal right to the custody of their illegitimate child. The Court would, however, in the interests of the child ordinarily prefer the mother, at any rate during the period of nurture, and will primarily consider her wishes as to the custody of the child; but it must in each case be guided by a consideration of what is best in the interests of the child. After the mother, the Court will prefer the putative father to the mother's relatives'.
The statement of law, as contained in Simpson's 'A Treatise on the Law and Practice relating to Infants' 4th Edn. at page 100, is :--
'In the eye of the law an illegitimate child is filius nullius, and consequently has no legal guardians, not even the mother or the putative father. The mother's legal rights as to its. custody are not the same as those of the father of a legitimate child; but though the mother may have had no legal right to the possession of the child, yet if it was within the age of nurture, and the putative father took it out of the mother's possession, by force or fraud, even a Court of law on habeas corpus directed it to be delivered to her; and the Court will prefer the mother to the father; but there is no case deciding that, if the father had the custody fairly the Court would deprive him of it. While the child is within the age of nurture, it seems doubtful whether the father has any right to take it from the custody of any one with whom it may be. The mother has a natural right to its custody, which will be regarded by the Court, and after her death, the putative father will be preferred to her relatives'.
The law in respect of the relationship between an illegitimate child and its putative father on the one hand and its mother on the other has been stated in Halsbury's Laws of England, 3rd Edn., Vol. 3, at page 108, as follows:--
'The father of an illegitimate child so long as the child remains illegitimate is not generally recognised by the law of England for civil purposes. He is under no obligation to provide for the child in the absence of any affiliation order, unless he has adopted it de facto or obtained an adoption order. But he may make a binding contract with the mother to contribute towards its maintenance; this is terminated by the death of the mother.'
At page 109, it is stated:--
'Unless he has obtained an adoption order the father has no right to the custody of the child, even though he is in a better position to maintain it, and he cannot appoint a guardian for it by will. Whenever he is in lawful custody of the child the Court will protect his right.'
At pages 106-107 it is stated as follows:--
'A mother is bound to maintain her illegitimate child until the child attains the age of sixteen. If the child is committed to the care of a fit person or sent to an approved school (as, for example, where the child is in need of care or protection or is a juvenile offender) or if the child is received into the care of a local authority, the mother is liable to make contributions towards the upkeep of the child until the child attains the age of sixteen. The mother's obligation to maintain involves a right to the child's custody, which the Court will protect by habeas corpus and in determining any question as to custody the Court will have primary regard to the wishes of the mother even as against the father. She has also the right to determine the religion of her child, so long as her duty to support the child remains; and her consent is required to the marriage of the bastard child while an infant unless she has been deprived of the child's custody by order of the Court, or a resolution of a local authority is in force assuming parental rights. She may have the right to certain allowances and benefits in respect of the child'.
No doubt, the above statement of law has taken note of the statutory provisions in force in England. However, I must point that no decision of any Court in England or any recognised text book has been brought to my notice, which has held that the mother is the natural guardian of an illegitimate child under the English law.
11. The position, as emerged from the decisions of Courts in England, was summarised by Slesser, L. J., in In re J. M. Carroll, an infant, 1931 1 KB 317, as follows:--
'In the eye of the law such a child is filius nullius and has no legal guardians: R. v. Felton, 1758 1 Bott PLC. 478. The mother's legal rights as to custody are not entirely the same as those of the father of a legitimate child; Barnardo v. McHugh, 1891 AC 388; Rex v. Walker, 1912 28 TLR 342. Yet nevertheless, while the child is under the age of nurture the mother has a right to its possession; generally in such a case the Court will prefer the mother to the putative father if there be conflicting claims; Ex parte Knee 1804-1 B and P (N. R.) 148. Though the mother of an illegitimate child is thus not a legal guardian her claim upon the child has always been recognised in equity. The mother has a natural right to its religious education and custody which will be recognised (and) regarded by the Court; Reg v. Nash, 10 QBD 454 (See Blackstone's Commentaries Vol. 1, pp. 453, 458). She has by law obligations imposed upon her in respect of the child: 1891 AC 388; a contract between her and another person for the transfer to that person of her rights and liabilities is invalid: Humphrys v. Polak, 1901-2 KB 385'.
The present question with reference to Section 25 of the Guardians and Wards Act specifically arose in Mst. Parem Kaur v. Banarsi-das, ILR Lah 630 : AIR 1934 Lah 1003 . That related to a petition filed by a putative father under Section 25 of the Guardians and Wards Act for the custody of his three illegitimate children from his mistress, the mother of the children. The point urged before the Court was that the putative father had no locus standi to present an application under Section 25 of the Guardians and Wards Act as the children being on his own admission, illegitimate, the mother and not he was the lawful guardian. The learned Judge who decided the question after referring to Ma Mya v. Felix Slym, 1912 17 1C 926 observed:--
'The personal law of the children concerned in that case was considered to be obscure and the case was decided on the equitable principles of English law. It was remarked that under English law, an illegitimate child is regarded as nobody's child and neither the father nor the mother has any absolute right to the custody of their illegitimate children, but it was also held on the authority of the well-known case 1891 AC 388, decided by the House of Lords, that the desire of the mother of an illegitimate child was primarily to be considered in the matter of its custody. In the Burma case there was nothing against the character of the mother, while the father was said to be living in adultery. Consequently, the father's petition to be appointed a guardian was dismissed. Now taking this authority at its best, it does not establish, that the mother is the lawful guardian of her illegitimate children. All that it says is that her desire as to their custody should be primarily considered. A reference to the case 1891 AC 388, will show that there also the contest was between the mother of an illegitimate child and a third party. That case arose out of a petition for a writ of habeas corpus and was decided according to the rules of equity which established that the wishes of the blood-relations, viz., the mother, the putative father, and the relations on the mother's side were entitled to consideration (Vide 1882 10 QBD 454 and 1891 AC 388). It is not clear whether the putative father of the boy was alive but in any case he did not appear and there was no occasion to consider his claims or wishes. The question whether the mother was entitled to guardianship according to common law also did not arise in that case and the case was decided according to rules of equity. The proposition was advanced in that case that the mother of an illegitimate child has the same rights as the father of legitimate children, but this position was not accepted (vide pages 394, 396, 397). It was remarked in the course of the judgment (though the point was not decided) that the obligation cast upon the mother to maintain her illegitimate children till the age of 16 under the Poor Laws Act would involve a corresponding right to custody (Vide 1891 AC 388, and the old view that an illegitimate child was filius nullius and therefore the mother has no right to its custody cannot be maintained ..... It seems to me, therefore, that none of the authorities cited really establish that the appellant as the mother of 'illegitimate' children is their lawful guardian''.
Hence, I must hold that it has not been established before me that under the English law, the petitioner herein as the mother of her illegitimate child is the natural guardian of the said child.
12. There arises the further question whether, notwithstanding the fact that the petitioner is not the natural guardian of her illegitimate daughter, she could obtain custody of her daughter by getting herself appointed or declared as guardian of her child, As a preliminary to obtaining custody, the present petition itself contains a prayer for the petitioner being declared as the guardian of the person of the minor in question. In my opinion, the petitioner cannot get herself declared as the guardian of her minor daughter. The declaration that may be made by the Court is merely a recognition of a preexisting right and this is made clear, when Section 7 of the Guardians and Wards Act, 1890, provides separately for appointment of a guardian and declaration of a person as a guardian. When the person who wants to be declared a guardian does not in fact occupy the position of a guardian pursuant to any power recognised by law, the question of the Court declaring such a person as a guardian does not arise. As a matter of fact, where a person happens to be the natural guardian of a minor under the law applicable to the parties, the question of such a person getting himself or herself appointed or declared as a guardian under the provisions of the Guardians and Wards Act, does not arise, since such an appointment or declaration is wholly unnecessary for such a guardian to exercise his powers and discharge his duties as the law itself designates him or her as the guardian of the minor concerned and pursuant to such designation, the guardian acquires the rights and incurs the obligations relevant to such a status. Only where a guardian bas been appointed by a will or other instrument, the question oJ Such a guardian getting himself or herself declared by the court may possibly arise. In this case, the petitioner has not been appointed by will or other instrument and even assuming that a natural guardian also can be declared as guardian under Section 7(1)(b) of the Act, I have already held that the petitioner herein is not the natural guardian of the minor child. Therefore, the petitioner cannot get any declaration of guardianship with regard to the person of the minor under the provisions of the Guardians and Wards Act, 1890.
13. Now, I proceed to consider whether the petitioner can be appointed as a guardian under the provisions of the said Act, since the same was argued before me. As a matter of fact, the petition itself does not contain any prayer tor appointing the petitioner as a guardian of the person of the minor child. However, if the petitioner had applied for amendment of the petition by including a prayer for appointing her as the guardian, I would have allowed such an amendment and therefore without reference to the technical point that the petition itself does not contain any prayer for appointing the petitioner as a guardian, I proceed to consider whether the petitioner can be appointed as a guardian.
Mr. K. S. Varadachari, learned Counsel for the respondent, raised an objection more or less in the nature of a preliminary objection that the petitioner being a permanent resident of England cannot be appointed as the guardian of the person of the minor who is an Indian citizen and residing in India and relied for this purpose on two Bench decisions of this Court. In the petition, the petitioner herself has stated that she is permanently residing at No. 33, Alkham Road, Stoke, Newington, London N-16.
14. In Batcha Chetti v. Ponnuswami Chetti, (1911) 22 MLJ 68, a Bench of this Court was considering an appeal from an order of a learned Judge of this Court in an application by a father living in the Civil and Military Station, Bangalore, to declare him as the guardian of his minor girl aged about 5 years, then in the custody of her deceased mother's mother and father living in Madras. The learned Judges, while reversing the order of the learned Judge, made In favour of the father, considered whether the father was entitled to have the order made in his favour. In coming to the conclusion that the father was not entitled to such an order, one of the factors taken into account by the learned Judges was the fact that the father was residing beyond the limits of the jurisdiction of this Court and it would not be easy for the Court to control his conduct as guardian. The judgment of a Bench of this Court in Subbaratnarmnal v. Seshachala Naidu, : (1931)60MLJ615 is a very short one and it is:--
'In this case, it appears that the appellant is a resident of Mysore. It is clearly against the intention of the Guardians and Wards Act, that any one residing outside British India should be appointed guardian of a minor's person, as over such a guardian the court could not exercise its proper control - See (1911) 22 MLJ 68. The appellant, therfeore, cannot herself be appointed guardian of the minor under the Act. For this reason, without going into any of the other questions raised we find it unnecessary to interfere in the appellant's favour with the order of the learned District Judge. This will not preclude the appellant from seeking any other remedy open to her. The appeal is dismissed.'
Thus, whatever may be said of the decision in Batcha Chetti's case (1911) 22 MLJ 68, the decision of the Bench in Subba-ratnammal's case, : (1931)60MLJ615 is directly in point and is binding on me. The learned Counsel for the petitioner contended that the statement contained in the judgment in Batcha Chetti's case is only an obiter dicta and the learned Judges who decided the case of Subba-ratnammal did not consider the point in detail and simply proceeded on the basis of the obiter dictum contained in Batcha Chetti's case and there are decisions of other Courts taking a different view. It is in this context reliance was again placed on 1885 30 Ch D 324.
15. In this context, the learned Counsel drew my attention to the decisions of Lahore High Court in Mt. Nazir Begum v. Ghularn Quadair Khan, AIR 1937 Lah 797, Ghulam Qadar v. Allahdin, AIR 1942 Lah 162 : 44 P&H; LR 186: 201 Ind Cas 137, and the decision of the Allahabad High Court in Beniprasad v. Mt. Parwati : AIR1933All780 and the decision of the Bombay High Court in Chimanlal Ganpat v. Rajaram Maganchand Oswal, : AIR1937Bom158 . In these decisions, the provisions of the Guardians and Wards Act, have been elaborately considered and it has been held that there is nothing in the Act to disqualify a person resident outside the jurisdiction of the Court to be appointed as a guardian of the person of a minor. It has been pointed out in these cases that the control over the guardian may be exercised by the Court requiring the guardian appointed to furnish security with a surety resident within the jurisdiction of the Court so as to ensure the orders of Court being carried out. It has also been pointed out that Section 39(h) of the Act which provides that the Court may remove a guardian appointed or declared by the Court for ceasing to reside within the local limits of the jurisdiction of the Court is only an enabling provision and does not compel the Court to remove a guardian as soon as he ceases to reside within the local jurisdiction of the Court. It has been pointed out again--
'If die law were that only a person living within the jurisdiction of the Court could be appointed a guardian then in some cases the consequences may be disastrous, as it may permit an unscrupulous person to prevent the well-wishers of the minor from being appointed guardian, by inducing the minor to remove himself and his property from the district in which his friends and relatives most competent to act as his guardian reside.'
Whatever may be the criticism of the decision of this Court in Subbaratnammal's case that being the decision of a Bench of this Court, I am bound by that decision and on the basis of that decision, I must hold that the petitioner being a permanent resident of England cannot be appointed as guardian of the minor so as to enable her to obtain custody of her minor child from the respondent under Section 25 of the Guardians and Wards Act, 1890.
16. Then arises the question whether, independent of the provisions contained in the Guardians and Wards Act, 1890, this Court is competent to grant the prayer of the petitioner. No doubt Clause 17 of the Letters Patent preserves the jurisdiction of this Court over infants which it had inherited from the Supreme Court at Madras and Section 3 of the Guardians and Wards Act, itself preserves that jurisdiction. Even though the petition itself does not invoke Clause 17 of the Letters Patent of this Court for the purpose of getting the relief it prays, Mr. K. S. Varadachari, learned Counsel for the respondent, fairly stated that he is not standing on any technicalities and contended that even on tie basis of Clause 17 of the Letters Patent, the petitioner is not entitled to any relief. Das, J., in the matter of Lovejoy Patel : AIR1944Cal433 , has stated--
'That in exercise of the Jurisdiction under Clause 17 Letters Patent of 1865, this Court shall follow the principles adopted by the Court of Chancery in England and that this jurisdiction of the High Courts has been expressly preserved by Section 3 of the Guardians and Wards Act, 1890. This does not, however, mean that I should ignore the principles embodied in the last mentioned Act. To my mind, the provisions of that Act in effect adopt the cardinal principles upon which the Court of Chancery in England used to act. Where the Act is silent or the provisions thereof are contrary to or inconsistent with the principles of the Court of Chancery, this Court in appropriate cases will act on the principles on which the Court of Chancery in England would act in similar circumstances'.
Venkataramana Kap, J., in Raja of Vizia-nagarani v. Secretary of State for India, ILR 1937 Mad 383 : AIR 1937 Mad 51 , has pointed out that it has been held by the High Courts of Bombay, Calcutta and Allahabad that apart from the Guardians and Wards Act, die High Court has Jurisdiction to appoint a guardian for the minor and referred to the decisions of those Courts at pages 457-459. Even with reference to these pronouncements, the argument of Mr. K. S. Varadachari is that there has not been any decision by the Court of Chancery appointing a guardian so as to enable him to take away the minor outside the jurisdiction of the Court. In this context, he relied on the statement contained in Simpson on 'A treatise on the law and practice relating to infants' 4th Edn. pages 102 to 112 summarised by Das, J. in In the matter of Lovejoy Patel : AIR1944Cal433 already referred to. The statement contained in that book may be summarised thus--
'The grounds on which the High Court, exercising the Jurisdiction and following the practice of the Court of Chancery, will interfere with the rights of a father to the custody of his children may be conveniently considered under several beads, though in most cases there has been more than one reason for the Court to interfere; the object of the interference being of course the benefit of the children; not the punishment of the father.
First, the father may be interfered with on the ground of unfitness in character and conduct.
Secondly, on the ground of unfitness in external circumstances.
Thirdly, on the ground of waiver of his rights.
Fourthly, on the ground of agreement. Fifthly, where the father is, or intends to go, out of the jurisdiction'.
It is on the last ground Mr. K. S. Varadachari, learned Counsel for the respondent, strongly reh'ed and also invited my attention to the observations of Venkataramana Rao, J., in ILR 1937 Mad 383, already referred to. The learned Judge stated in that case--
'It is a recognised principle of English Courts that an infant should not be sent out of their jurisdiction. Of course, it is not an inflexible rule and there are exceptions to it. But it is an invariable rule; Vide Mount-stuart v. Mounistuart, 1801 6 Ves Jun 363: 31 ER 1095. In Campbell v. Mackay, 1837 2 My & Cr. 31; 40 ER 552, Lord Cottenham, L. C., delivered himself to the same effect at page 553 (40 ER).
In the case of 1801 6 Vec Jun 363, Lord Eldon appears to have said that the Court never makes an order for taking the infant out of the Jurisdiction. Subsequent decisions show that exceptions are sometimes made to the rule, but such exceptions are and ought to be very rare. Since I have held that Great Seal I have had reason to lament that the rule has not been more stricty adhered to''.
17. Bearing these principles in mind, I must now consider whether any exceptional circumstances have been brought to my notice so as to justify the appointment of the petitioner as guardian of the person of the minor in question enabling her to take away the child to England, In her evidence, the petitioner merely explains what she has already stated in her petition as a justification for her prayer for the return of the custody of the child to her. She stated in her evidence that the minor is living in a very unhealthy surrounding that she has no discipline, that she did not have any regard for the petitioner or for her mother, that the respondent drinks alcohol and when he drinks he gets into a temper and he used to beat the petitioner and ill-treat her and all that that she herself left India only for the welfare of her child and during the four and odd years she had been away, she had been making herself secure financially so that she could provide a comfortable home for the minor and that she wanted to do what she had not been able to do for her all these years. I have observed the petitioner in the box and watched her demeanour. I cannot accept her statements about the conduct and behaviour of the respondent as true or constituting her genuine opinion about him. I must say that she is extremely fickle-minded and her judgment of men and things fluctuates widely and wildly. She is highly unstable in her attitude and approach to men and matters. The various statements made by her in the petition as well as in her evidence before the Court regarding the character and conduct of the respondent are completely falsified and negatived by a letter written by her to the respondent on 3-2-1968, from England, which has been marked as Ex. R.I. The said letter was produced by the learned Counsel for the respondent, when the respondent, was in the box. Since the examination of the petitioner was already over and she would not have any opportunity to explain anything contained in that letter, I asked the learned Counsel for the petitioner whether she had any objection to the production of the letter at that stage and whether the petitioner admits having written that letter. After getting instructions from the petitioner, the learned Counsel represented to me that the petitioner admitted having written such a letter and she has no objection to the letter being produced and marked at that stage. As a matter of fact, with reference to this letter, the learned Counsel for the petitioner put the following question to the respondent in his cross-examination and the respondent gave the following answer:--
'Q: The letter written to you on 3-2-1968 by the petitioner is full of affection and it was written because she wanted to cajole you to get the minor and she tried all her best?
A: The letter will speak for itself, and it will speak that 1 am an innocent man willing to give the child and in spite of that 1 am troubled'.
18. I must straightway mention at this stage that notwithstanding the points of law raised by the learned Counsel for the respondent in the course of his arguments, in his evidence, the respondent stated that he had no objection to hand over the child to the petitioner, but the child is not willing to go with the petitioner to England and he could not force or compel the child to go with the petitioner. I may also point out straightway that the suggestion contained in the question of the learned Counsel for the petitioner that the letter was written in the particular manner so as to cajole the respondent to get the minor is utterly untenable. The petitioner who came to India in December 1967 and returned to England in January 1968 went back with the assurance of the respondent that he would send the minor to England for a holiday and the petitioner herself admitted that before the child could obtain the passport and complete the other emigration formalities for going to England, she must obtain a declaration of sponsorship in England and send it to the respondent herein. I have already mentioned the fact that the declaration of sponsor-ship is dated 31-1-1968, and it is clear from Ex. R.I. that on 3-2-1968, when that letter was written, the declaration had not been sent by the petitioner to the respondent, since the letter states that she would be 'sending it by register'. Thus, on 3-2-1968, there is nothing to show that the respondent went back on his previous agreement to send the child to England for a holiday and therefore he needed any cajoling from the petitioner. Hence, I must conclude that the letter Ex. R.I was written by the petitioner to the respondent expressing her normal and natural feelings. Having said so much, I must now point out what that letter, Ex. R.I, contains. As I pointed out already, it is a letter addressed by the petitioner to the respondent and it states inter alia--
'You know I am anxious to hear from you. Have you forgotten me so soon? I miss you a lot and am terribly fretting over leaving you and Noonu (Noonu is a pet name of the minor in question). Life seems to be so empty now and nothing seems to be alright now. I was so happy while in India and treasure every minute I was with you. I only wish I had spent more time with you and did not worry about what anyone said or thought. I feel so terribly bitter at being married and wish I had not, because it did not make me happier at all I know I was hasty at times with you although I knew I would not be with you long, but hope you understand, when I was hasty tempered at times. Marriage does not seem to matter now but only the one you loved and still love. I feel responsible for all your troubles and unhappiness and also for your health, since it is because I left you so you became uninterested in life, and I really do not like to say it, Why is life so bitter to us some times? I wish and pray I could see you and be with you again at least sometimes. Pear Pat try not to feel too much and please do not drink too heavily, but remember what I told you to look after your health. I would not wish to see you looking ill, but really good. Oh dear, I wish we can be like before I so much love to be with you again. I hope and pray you come here but I do not know how to get you here. I feel so unhappy ever after seeing you again. It seems silfy me writing this but my feelings for you have returned and I feel the same way, I suppose I never did stop loving you. It is wrong to say this but it was too long I was with you for me to forget you completely. I hope you forgive me writing all this. I am heart-broken now and do not want to go on living. Do try and come here as you will make me happier. I hope to die as I feel so terribly hurt and Unhappy.'
As the respondent has stated in his evidence, the letter speaks for itself. This letter may be contrasted with her deposition before this Court, where she said so many bad things about the respondent, and certain statements contained in the letters written by her from England to her mother and other relations wherein she has stated that the wretched and miserable past still haunted her.
The learned Counsel for the petitioner sought to impress upon me the fact that the respondent is used to drinking, that notwithstanding the receipt of salary of Rs. 800/-p, m. he was adjudged an insolvent in I. P. 43 of 1966, though as per order dated 26-6-1967, he has been discharged absolutely, and that in Ex. P. 8, letter dated 18-2-1967, the respondent's wife had written to the petitioner about their poor financial circumstances, even going to the extent of stating that she could not write earlier, since she could not get even the stamps and on the other hand, the petitioner was earning about 17-15, a week and she could afford to look after her child well. With regard to the various allegations made against the respondent I am of the view that they did not make out sufficient ground to justify this Court appointing the petitioner as guardian to enable her to take away the minor child to England. It is nothing unusual that the respondent belonging as he does to the Anglo-Indian community drinks and he frankly stated in his evidence 'I do drink sometimes. We Anglo-Indians do drink.' The minor from the date of birth has been living with the respondent, his wife and their son and is being maintained by the respondent and taking into account the fact that the respondent and his wife have no daughter of their own, I am not inclined to accept the allegation of the petitioner that the minor is not properly looked after and treated well in the home of the respondent and is not being shown any affection by the respondent, his wife or his son. It appears that the minor had some trouble with her tooth and the respondent took her to a dentist for attending to it and the learned Counsel in the course of the cross-examination of the respondent wanted to make much out of it, suggesting that the trouble in the tooth was due to the neglect on the part of the respondent. I do not consider that this allegation deserves any consideration whatever. The respondent has explained as to how he came to be adjudged an insolvent and his wife has explained the circumstances under which she came to write the letter in question to the petitioner. That the respondent is earning Rs. 800/- p. m. was not disputed before me. Taking all these circumstances into account, including the fact that the parties belong to the Anglo-Indian community and the attitude and nature of the petitioner, as revealed by Ex. R.I and the other evidence, I do not consider that the present is a case which can be said to constitute an exception to the rule that an infant should not be allowed to be taken out of the jurisdiction of the Court and I am not satisfied that it will be in the interest and for the welfare of the minor to appoint the petitioner as the guardian of the person of the minor to enable her to take away the minor to England.
19. I may here mention one further and important fact. The minor has completed the age of 13 years and I examined her in my Chambers in the presence of the parties and their respective counsel. She frankly told me that she does not want to go with the petitioner and that too to England and prefers to live with the respondent and his family. I do not consider that the minor was tutored to say any such thing. It is natural for a child who has been brought up for a period of 13 years by the respondent and his wife in their residence to be unwilling to cut off completely all her association and connection with them and from that home and to go to a foreign country along with the petitioner, who had been away from her for the last five years. If she grows up further, she may be in a position to make up her mind more intelligently, boldly and competently whether it would be to her benefit to go to England and stay with the petitioner and any unwillingness on her part at this stage to leave the home where she was born and brought up so long and to go to a foreign country is easily understandable. I am of opinion that it will not do any good to the minor to compel her at this stage to go with the petitioner to England,
20. One other fact also may be mentioned here. Because the petitioner gave birth to the child, when she was a spinster as a result of illicit connection with the respondent, she naturally did not want the child to address her as 'mummy' and the child has all along been addressing only the wife of the respondent as 'mummy' and this itself must have created a somewhat significant impression on the mind of the child with reference to her attitude towards the wife of the respondent as well as the mother and the child herself gave expression to the same before me. Though I do not consider this fact as disqualifying the petitioner from claiming any right in respect of custody of the child, I cannot ignore this fact in understanding the attitude of the minor herself.
21. Taking all these circumstances into account, I am of opinion, that no case has been made out for appointing or declaring the petitioner as the guardian of her minor illegitimate child and for directing the respondent to hand over custody of the child to the petitioner so as to enable her to take away the child to England. Hence, the petition fails and is dismissed. There will be no order as to costs.