1. This is an application under Section 491, Criminal Procedure Code, for a direction that a minor boy named Jayaram who is the petitioner's son be brought up before the Court to be dealt with according to law, and that the respondent be directed to restore the said Jayaram to the custody of the petitioner. At one stage it was agreed between the parties that the boy who is 13 years old should be put in the Sri Ramakrishna Mission High School Hostel, Thiagarayanagar, and the father was willing to bear all the expenses of the maintenance and education of the boy in that institution. After his admission in the hostel and the school, in spite of numerous attempts made by the warden, the boy played truant and was persistently running away to the respondent's place. Consequently the consent order was vacated on the 26th September, 1947 and the petition was heard on merits. It was, however, agreed that before passing the final order one further attempt should be made to put the boy in the hostel and in spite of the previous conduct of the boy, the warden was so good as to re-admit him but again on severaL occasions, the boy ran away and finally the respondent removed him from the hostel. We felt convinced that the truancy of the boy, his disinclination to study and his aversion to his father were the result of the prenicious influence of his maternal grand-parents. On the 20th November, 1947, we made the following order on the petition:
We think that the petitioner is entitled to the order he asks for in this petition. We direct that the boy Jayaram be handed over to his father, the petitioner, now in Court.
2. We notified when this order was passed that we would announce our reasons later and we proceed to do so now. The minor Jayaram was born on nth March, 1934. His mother Meenakshi-sundararhmal died in May 1942 and the petitioner married his second wife Saradambal in July, 1943, and has now two children by her. The respondent is the father of Meenakshisundarammal. The petitioner's father is alive and he lives in Aiyoor Agaram which is near Villupuram. The respondent's village Kandampakkam is four miles from Aiyoor Agaram. The petitioner's case is that he brought up the boy and educated him up to the third form in which class he was to join after the summer recess of 1947. The boy was sent as usual to Aiyoor Agaram to spend a portion of the vacation and from there he was to go with his step-mother to her father's place, Tiruvannamalai and return in time to rejoin the school. When he was at Aiyoor Agaram, the respondent approached the petitioner's father and asked him to -send the boy with him; but the latter said that the boy had to go to Tiruvannamalai for sometime and that after his return from that place, the boy could be taken by the respondent provided that he was sent back within a few days before the re-opening of the school. The respondent consented and took the boy, but in spite of the termination of the vacation, the boy was not sent. Messages from the petitioner proved of no avail and ultimately a lawyer's notice had to be sent. In the reply to the lawyer's notice allegations were made by the respondent of the ill-treatment of the boy by the petitioner and his second wife and of an attempted alienation by the petitioner and his father of properties alleged to belong to the joint family. There was also an averment that the petitioner had ill-treated the minor's mother during her lifetime.
3. While this correspondence was going on, the respondent tried to obtain a school transfer certificate from the authorities of the A.R.C. school where Jayaram Petition praying that in the circumstances stated in the affidavit filed therewith the High Court will be pleased to issue directions of the nature of a Habeas Corpus directing the respondent to bring up minor Jayaram before this Court for being dealt with according to law and for restoring him to the custody of the petitioner herein was studying. On their refusal to issue the certificate except with the permission of the father, the respondent had a notice sent through a lawyer to the authorities of the school threatening to take action against them. He also addressed petitions in that behalf to the District Educational Officer and to the Director of Public Instruction. In the letter written to the Headmaster of the school, the respondent stated that he wanted to get the boy admitted in a school in Kolar where his son is employed. It is urged by the petitioner that after having removed the boy on a false pretence that he would be sent back within ten days, attempts were made by the respondent to obtain a transfer certificate and to send him away to Mysore State in order to place him beyond the reach of this Court. In the reply affidavit filed by the petitioner, it is alleged that the boy has been illegally and improperly detained by the respondent in his custody without the consent of the father, that there is no secondary school at Kandampakkam where the boy could continue his studies and that the nearest school is at Villupuram which is about four miles away. It is further alleged inter alia that the respondent is a man of no means, that he is heavily indebted, that he even borrowed Rs. 400 from the petitioner in 1941 and repaid it in instalments up to 1944 only partially. The respondent is of a garrulous nature and got entangled in a criminal case and has been making desperate attempts to separate the petitioner from his father. As regards the charge of the respondent that the petitioner and his father are trying to alienate joint family properties to the detriment of the minor's interests, the petitioner says that the properties were acquired by his father and that he had no interest in them and that by setting up the false claim, the respondent was jeopardising the interests of the minor by alienating the sympathies of his paternal grandfather. With reference to the alleged ill-treatment by the petitioner and his second wife, the allegation has been emphatically denied and a number of affidavits have been filed in support of the denial. An officer who is holding the office of Huzur Sheris-tadar of the Collector's office, the petitioner, being the Collector's karnam, an opulent landlord belonging to the Beri Chetti caste and an aged Telugu Brahmin lady who is a neighbour, have testified to the fact that the boy was being well treated by his father and his step-mother. There is no evidence per contra on the respondent's side with regard to any of the matters averred by him in his counter-affidavit. We are on the whole inclined to accept the version of facts given by the petitioner with regard to all the matters referred to above. In the matter of the ill-treatment meted out by the petitioner to his deceased first wife, we accept the petitioner's denial. We wish to observe that even if true, that would be no valid ground for refusing custody to the natural guardian of his minor child.
4. There are two legal objections stressed on behalf of the respondent. The first is that the procedure under Section 491, Criminal Procedure Code, is not applicable as there is no illegal detention in this case and a writ of the nature of habeas corpus can only be issued where there is some illegal restraint. It is argued that the boy went to the respondent's house of his own accord and is not only staying there out of his own free will but is obstinately averse to his going back to, his father. The sole consideration in such matters being the welfare of the minor, the boy who is sufficiently old and capable of forming an intelligent preference should not be compelled to live in a custody which is not to his liking. The second contention is that it is open to the petitioner to apply for being appointed as guardian of the person of the minor under the Guardians and Wards Act and so long as such a remedy is available, Section 491, Criminal Procedure Code, is not a proper remedy to be invoked. We find no substance in any of these contentions.
5. Judging the matter entirely from the point of view of the welfare of the minor, it is manifest that during the short time that the minor has been with the respondent, he has completely lost his aptitude for study and has been playing a truant although just prior to that he was making good progress in the school. As we have stated, there is no secondary school at Kandampakkam where he can continue his further studies. There is the further fact that, as we have noticed ourselves, the boy is being brought up in an atmosphere of utter estrangement, if not enmity, towards his father and father's father. The utter lack of bona fides on the part of the respondent is evident from a number of factors. The respondent admits in his counter-affidavit that for some four or five years previously the boy had not been sent to him during the summer vacation. It is therefore exceedingly probable that he-made a false promise to the petitioner's father that he would send the boy back within a few days and thus removed him by a ruse and thereafter he was preparing to go to the length of taking him away altogether out of the jurisdiction of this Court. That he did not do so with the best of intentions is evident from the fact that he-set up a claim for property on behalf of the minor. The contention that his purpose in obtaining unlawful custody of the boy was to exploit this claim seems to be well-founded. Undoubtedly the minor, after his short stay with his grandfather, has expressed a preference to remain there and his unwillingness to go back to his. father. But that we cannot say is*an intelligent preference because the boy is under 14 years and as it has been repeatedly held, a child of that tender age cannot be said to be able to form an intelligent preference particularly in a matter relating to his custody as against the wishes of his natural parents. As early as Reade v. Krishna I.L.R. (1886) Mad. 391 Muttusami Ayyar and Brandt, JJ., held that there could be no doubt that a minor under 14 years of age has no will of his own, or that his detention against his father's will is unlawful. The learned Judges after referring to several English cases said this:
As observed by Lord Campbell in the Queen v. Clarke (1857) 7 E. & B. 186 : 119 E.R. 1217 the guardian for nurture has by law a right to the custody of the child and may maintain an action of trespass against a stranger who takes the child. With reference to such child brought up on a writ of habeas corpus, the learned Chief Justice said: 'the child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian, and when it is delivered to him the child is supposed to be set at liberty.' He deprecates the contention, that the capacity of the child to make a choice for itself should be tested by the Judges, and observes that ' the consequences which would follow from allowing such choice would be most alarming.' Nor is there room for doubt that when the father is entitled to the custody of the child, the proper mode of enforcing his right consists in a decree for its delivery The order usually made on a habeas corpus, when the child is too young to elect its own custody, is a direction that the child be delivered to its lawful guardian.
6. In the King v. Greenhill (1836) 4 A. & E. 624: 111 E.R. 922 Coleridge, J., said:
A habeas corpus proceeds on the fact of an illegal restraint. When the writ if obeyed, and the party brought up is capable of using a discretion, the rule is simple, viz., the individual who has been under the restraint is declared at liberty, and the Court will even direct that the party shall be attended home by an officer to make the order effectual. But where the person is too young to have a choice, we must refer to legal principles to see who is entitled to the custody, because the law presumes that where the legal custody is, no restraint exists; and where the child is in the hands of a third person, that presumption is in favour of the father.
7. Similar observations from a number of other cases have been collected in Reade v. Krishna I.L.R. (1886) Mad. 391 and the conclusion is set out in these words:
The result then of the examination of the authorities to which we were referred is, that according to the latest decision in this Presidency and Bombay, a minor though over 14 is not at liberty to choose his own custody as against the father, even when brought up on' the writ of habeas corpus, that the decisions to the contrary proceed on the view that the writ is not the appropriate remedy prescribed for enforcing the authority of the father over his son, and that when the son is over 14 and competent to make a choice, its purpose is satisfied by allowing him to choose his own custody, and leaving it to the father to vindicate his right by a Civil Suit. It follows then that the contention that according to general principles the father's guardianship ceases (quoad his right to custody) when the son completes his 14th year, cannot be supported.
8. The same view was adopted in this Court in Subbuswami Goundan v. Hemaksm Ammal : AIR1929Mad834 by Beasley, C.J. and Ananthakrishna Aiyar, J. There the minor was a girl of 13 and the contest with regard to her custody was between her husband who was the petitioner and her mother and step-brother who were the respondents. It was alleged that the young girl was extremely self-willed and under no circum-stances would she ever think of or be willing to return to her husband, the reason being that she feared a further outbreak of ill-treatment. It was, on this ground, contended that there was no detention. On the contrary the respondents were too willing that she should return to her husband and her stay with the respondents was out of her own free will. Upon the facts that transpired before them the learned Judges found that that attitude of the girl was not genuine but was induced by her mother and her step-brother. Nevertheless they considered what the effect of her declaration was and said:
If, however, this declaration of the wife that she was not willing to return to her husband were true, then we would have to consider what the duty of the Court is. Whilst it is quite unnecessary in our view of the circumstances, to consider that position, we must state that we consider that in the case of a girl of only 13 years of age, her consent or otherwise is quite immaterial. What we would have to consider would be the welfare of the minor wife and in doing so the fact that she prefers to reside elsewhere than with her husband, although, had she been old enough to form a good opinion, this would have been a very important circumstance for consideration, would not in pur view be entitled to very much or any weight at all.
9. In the present case also we are definitely of the opinion that the present attitude of the boy is induced by his maternal grandfather. But even otherwise we agree with great respect with the learned Judges who decided the two cases cited above-that the minor's opinion in circumstances such as are found in this case is not entitled to any weight at all. When thus the so-called consent of the minor has become ineffective, his detention even if he remains in the respondent's custody of his free will must be deemed to be illegal as against a person who is better entitled in law to have his custody and who is desirous to take the minor into his custody (see Abraham v. Mahtabo I.L.R. (1889) Cal. 487 and Subbuswami Goundan v. Kamakshi Ammal : AIR1929Mad834 ).
10. Turning to the second contention it may be remarked that this argument was also raised in Subbuswami Goundan v. Kamakshi Ammal : AIR1929Mad834 but negatived on the ground that so long as the remedy under Section 491, Criminal Procedure Code, is one which is open to the petitioner, the respondents cannot be heard to say that, where there is a remedy provided by law, that remedy should not be resorted to merely because there is another remedy which is less expensive and less threatening. Bacon, V.C., in Byrant v. Bull (1879) 10 Ch.D. 155 said when he had to deal with a similar argument, that it did not matter how many remedies were open to a person--there might be 5,000--he was entitled to avail himself of any one of them and that what had to be shown was that the remedy that he did avail himself of was not open to him.
11. Before concluding we would refer to a case which upon its facts comes nearest to the present case. In Atchayya v. Kosaraju Narahari A.I.R. 1929 Mad. 81 on a contest for the custody of a male infant between the father and the maternal grandfather, the contention was raised of ill-treatment of the child's mother who was the first wife of the petitioner and it was urged that the child preferred the custody of the grandmother having lived with her almost from its birth. There were however some compli-cations in that case about a partition suit that was filed against the father on behalf of the minor. Madhavan Nair and Thiruvenkatachariar, JJ., referred to the rights and duties of the guardian of the person of an infant under the Hindu law and pointed out that the guardian has a prima facie right to the possession of the infant and he cannot be deprived of it even by the desire of the minor himself except upon sufficient grounds. His guardianship is in the nature of a sacred trust and if he entrusts it to the custody of anybody that authority is essentially a revo-cable authority. With reference to the other objections raised therein, the learned Judges said:
It cannot in our opinion be successfully contended that either by his marrying a second wife who is now living with him or by his having ill-treated the child's mother during her lifetime (even assuming the ill-treatment to be true), he has rendered himself unfit to have the custody of his child.... On this point we agree with the decision of Seshagiri Aiyar and Napier, JJ., in Audiappa Pillai v. Nallendrani Pillai : AIR1916Mad605 which dissents from Bindo v. Sham Lal I.L.R. (1907) All. 210. The case in Sukhadeo Rai v. Ramachandra Rai I.L.R. (1924) All. 706 is also in support of the same view.
12. In Audiappa Pillai v. Nallendrani Pillai : AIR1916Mad605 it was pointed out that
A distinction exists between the legal rights of husband and parents on the one side and those of the other near relations on the other. In the first class of cases, it must be established that any act or conduct of the husband or father renders him unfit for guardianship; the fact that the child may be happier and more comfortable with other relations is not sufficient to deprive the two relations referred to of their right and duty. The same sanctity does not attach to the rights claimed by the other relations.
13. No doubt that was a case that arose under Section 19 of the Guardians and Wards Act but the principle upon which it is based is, in our opinion, equally applicable to proceedings under Section 491, Criminal Procedure Code.
14. For these reasons we hold that the petitioner is entitled to the custody of his son Jayaram and we have consequently directed that the respondent should deliver him to the petitioner's custody.