Mookerjee and Caspersz, JJ.
1. This appeal is directed against an order by which the Court below has refused an application, under Section 39 of the Guardians and Wards Act, 1890, for removal of the respondent, a Hindu lady, from the guardianship of the person and property of her infant sons on the ground that she has re-married after the death of her first husband.' The circumstances, under which the application was made are not disputed. One Mahabir Pershad died about the year 1900. He left a widow, now respondent before us, and three infant sons by her. On the 5th December, 1904, the widow obtained a certificate of guardianship in respect of the person and property of her infant sons. On the 29th May, 1909, she married a second time in sagai form; it may be mentioned at this stage, that re-marriage in this form is recognised by the caste to which she belongs. On the 28th June, 1909, the appellant before us, who is the son of the paternal uncle of the father of the infants, applied to the Court for the removal of the widow from the office of guardian, on the ground that, in view of the provisions of Section 3 of the Hindu Widows' Re-marriage Act of 1856, she had, upon her second marriage, forfeited her right to act as guardian of the person and property of her infant sons by her first husband. The application was opposed by the widow, and it was contended that, in spite of her second marriage, she was a fit and proper person to continue as guardian of her minor children. Two of the children were examined by the Court: one of these supported the application made by his uncle, while the other distinctly stated his preference for his mother. The learned District Judge held that no ground had been made out for the removal of the guardian, and dismissed the application.
2. The uncle of the infants who was petitioner in the Court below, has now appealed to this Court, and on his behalf the decision of the District Judge has been assailed broadly on the ground that, under Section 3 of Act XV of 1856, the mother of the infants ceased to be their guardian immediately upon her marriage, and that, in any event, it would not be to the interest of the minors that they should continue to live under the guardianship of their mother after she had taken a second husband. In answer to this contention, it has been argued that the Hindu Widows' Re-marriage Act of 1856 has no application by reason of two circumstances, namely, first, that it applies only to cases where the re-marriage of the widow would have been invalid but for the provisions of the Act; and, secondly, that Section 3 of Act XV of 1856, even if it be held to be applicable, governs only cases of first appointment of a guardian, and notecases where, as here, a mother appointed guardian during hers widowhood is sought to be removed on the ground, of her re-marriage. It has further been contended; that if re-marriage does not operate as a ground of forfeiture of the office of guardian, and if the matter is in the discretion of the Court, no grounds have been established for the interference of the Court. The question raised is one of considerable importance and apparently of first impression in so far, at any rate, as this Court is concerned.
3. There is no Controversy in the case before us that the respondent was properly appointed guardian of the person and property of her infant children when the order was made in her favour in 1904, under Section 7 of the Guardians and Wards Act of 1890. Section 39 of that Act specifies the grounds for the removal of a guardian appointed by the Court. The first nine grounds mentioned in the section have obviously no application to the circumstances of this case. The tenth ground, upon which the application of the appellant is apparently based, provides that the Court may, oh the application of any person interested, or of its own motion, remove a guardian appointed by the Court by reason of the guardianship of the guardian ceasing or being liable to cease under the' law to which the minor is subject. In the present case, the minors are subject to Hindu Law, and the question therefore arises whether under that law the guardianship of their mother ceases of is liable to cease upon her re-marriage. Our attention, has not been drawn to any text of Hindu Law, which would support an affirmative answer to this question. Jagannath in his Digest (translated by Colebrooke, vol. IV, 1798, pages 242-44, texts 449-53) deals with the question of the protection of the property of infants. He first quotes a text of Mann to the effect that the King should guard the property, which descends to an infant by inheritance until he returns from the house of his preceptor or until he has passed his minority. To this is added an explanation from the Ratnacara, that wealth, which descends to an infant by inheritance and becomes, the property of the minor, let the King guard, that is let him protect it from the other heirs. The learned author adds his own comment that the King may commit the share of the minor, in, trust to anyone co-heir or other guardian. The texts subsequently quoted from Vishnu, Sancha and Lichita tend to the same conclusion, namely, that the King should guard the property of an infant, and protect it, as he is incapable from non-age of conducting his own affairs. Jagannath then comments on a text of Baudhayana that,, in respect of shares of infants, the King must himself, or through some person appointed by him, keep ,the share of the minor: the expenses .and other matters should be superintended...by, the King himself or by a person appointed by him: the property of a minor should be entrusted to heirs and the rest appointed with his concurrence, or, if the infant be absolutely, incapable of discretion with the consent of a near and unimpeachable friend, such as his mother and the rest: to which the learned author adds that, according to Katyayaiia kinsmen must guard the property of an infant. In the comments on text 453, Jagannath adds that in practice a mother is guardian of a minor and of his property; hut he; seems to hold that she may not always be skilled in the conduct of affairs, in which case the King, as the universal superintendent, may arrange to guard the property by every possible means. The substance of this discussion, treated as authoritative in Kristo Kisspr Neoghy v. Kader Moye (1878) 2 C.L.R. 583 which was accepted as good law in Bhikuo Koer v. Chamela Koer (1897) 2 C.W.N. 191, points to the conclusion, that the King, as the ultimate protector of the State, may give suitable directions for the protection of the estate of infants, and that the test td be applied is to determine what course is beneficial to the infant concerned. It cannot, therefore, be affirmed as an inflexible rule of Hindu Law, that a mother, upon her re-marriage, is disqualified to act as guardian of the person and property of her infant sons: indeed, the texts of Manu (IX 146, 190, 191) may militate against any such rule.
4. Reliance, however, has been placed by the learned vakil for the appellant upon the case of Baee Sheo v. Ruttonjee Nuthoo (1851) Morris. Bom. S.D. 103, as an authority for the proposition, that a Hindu mother loses her right to act as guardian of her children by reason of her re-marriage. The case mentioned, however, is not an authority for any such comprehensive proposition. In that case, upon the re-marriage of a Hindu widow by name Sheo, Kuttonjee Nuthoo, the grandfather of her child, commenced an action for possession of the child on the ground that as she had contracted a second marriage, by the custom of the caste, the plaintiff as the paternal grandfather, had a right to the child. In so far as we can gather from the meagre statement in the report, it was not contested by the widow that there was' such a custom; but she resisted the claim on the ground that, so long as the infant was at the breast, the mother had the best right to it. The Court of first instance dismissed the suit, as the Sastri of the Surat Adalat declared the plea of the mother to be good in law. On appeal the Zilla Judge found that the decision was opposed to the rules of the caste, and that as the mother at the time of the original trial was seven months gone with child, the plea set up in defence, which alone, according to the exposition of the Sastri, constituted her right to retain possession of the child, no longer held good. The decree of the original Court was, therefore, reversed and the possession of the child awarded to the grandfather. The mother of the child then appealed to the Bombay Sudder Court, and a Full Bench (Warden, Grant and Larken, J.J.), held, that the view of the Zilla Judge was correct; and that the pregnancy of the mother by a second marriage had divested her of the right she would otherwise have to the charge of a child of tender years by a first marriage. It is manifest, therefore, the decision was founded on the custom of the caste to which the widow belonged. It was alleged by her father-in-law, and not disputed by her, that according to such custom she had forfeited her right to the guardianship of her son as soon as she contracted a second marriage. The case cannot consequently be treated as an authority for the broad proposition that a Hindu mother loses her right of guardianship of her infant children by a second marriage. It may be added that the case of Muhtaboo v. Gunesh Lal (1854) Beng. S.D.A. 329, where a mother was superseded from the office of guardian by reason of loss of caste, can have no application in view of the provisions of the Hindu Widows' Re-marriage Act, 1856.
5. It has next been argued by the learned vakil for the appellant that by Section 3 of Act XV of 1856, a Hindu widow on her re-marriage, loses the right of guardianship of her children by her deceased husband. That section provides as follows:
On the re-marriage of a Hindu widow, if neither the widow nor any other person has been expressly constituted by the will or testamentary disposition of the deceased husband, the guardian of his children, the father or paternal grandfather or the mother or paternal grandmother of the deceased husband, or any male relative of the deceased husband, may petition the highest Court, having original jurisdiction in civil cases in the place where the deceased husband was domiciled at the time of his death, for the appointment of some proper person to be guardian of the said children, and thereupon it shall be lawful for the said Court if it shall think fit to appoint such guardian, who when appointed shall be entitled to have the care and custody of the said children or of any of them during their minority in the place of their mother and in making such appointment the Court shall be guided, so far as may be, by the laws and rules in force touching the guardianship of children who have neither father nor mother: Provided that, when the said children have not property of their own, sufficient for their support and proper education whilst minors, no such appointment shall be made otherwise than with the consent of the mother, unless the proposed guardian shall have given security for the support and proper education of the children whilst minors.
6. The learned vakil for the respondent has argued, that the application of this section to the case before us. is excluded by reason of two circumstances, namely, first that the section applies only to cases of first appointment of a guardian of an infant, and secondly, that it applies only to cases in which the validity of re-marriage of a. widow is not recognised by the caste to which she belongs, and reliance has to be placed upon the provisions of the Act to legalise it. He has further contended, that upon a true construction of the section itself, even if it be assumed to be applicable, the Courts competent to appoint the mother, who has re-married, as guardian of her infant children, not in her capacity as mother, but as a person otherwise suitable for the purpose. In so far as the first reason assigned by the learned vakil for the respondent for exclusion of the application of the section is concerned, we are not impressed by it as well founded. It is an elementary principle, that if a person is appointed guardian of an infant, and events subsequently happen which, if they had existed at the time of the original appointment, would have been sufficient to disqualify him from appointment as guardian, such disqualifying circumstances, when they come into existence, justify the removal of the guardian. This principle is recognised by Domat in his Treatise on Civil Laws (Ed. Cushing, vol. I, paras. 1380 and 1397). In so far, however, as the second reason urged by the learned vakil for the respondent with a view to exclude the operation bf Section 3, is concerned, it is in bur opinion, more substantial. The view was maintained by Sir Charles Sargent, C.J., in Parekh Ranchor v. Bai Vakhat (1886) I.L.R. 11 Bom. 119, 130, that the provisions of; Section 3 of Act XV of 1856 have no application to a case where the widow belongs to a caste in which re-marriage is permitted in other words, as the object of the Statute was to enable widows, who were unable to marry previously, to re-marry, the Statute ought to be considered as a whole, and such of its provisions as impose a disability ought not to be applied to case's where it is needless for the parties to seek the benefit of the provisions which recognise the right of a widow to re-marry. In this view, Section 3 would have no application to the case before us. But it is worthy of note that this doctrine may, and has been carried too far. As was pointed out by this Court in the case of Nitya Madhab v. Srinath Chandra (1907) 8 C.L.J. 542, the principle of which we recognise as well founded, the learned Judges of the Allahabad High Court in Khuddo v. Durga Prasad (1906) I.L.R. 29 All. 122, Ranjit v. Rddha Rani (1895) I.L.R. 20 All. 476, Harsaran v. Nandi (1889) I.L.R. 11 All. 330, and Dharam v. Nand Lal (1889) 9 All. W.N. 78, appear to have held that because Section 2 of Act XV of 1856 did not apply to a case in which the re-marriage of a widow was recognised by the caste, it followed that the interest of the widow in the estate of her husband did not cease on such re-marriage. It seems to have been overlooked, however, that although Section 2 might not apply, the same result might follow from an application of the fundamental rules of Hindu Law, as pointed out in the case of Matungini Gupta v. Ram Rutton Roy (1891) I.L.R. 19 Calc. 289, Murugayi v. Viramakali (1877) I.L.R. 1 Mad. 226, Rasul Jehan Begum v. Ram Surun Singh (1898) I.L.R. 22 Calc. 589, Vithu v. Govinda (1896) I.L.R. 22 Bom. 321, and Panchappa y. Sanganbasawa (1899) I.L. 24 Bom. 89. In fact in such cases, as was clearly recognised in Putla Bai v. Mahadu (1908) I.L.R. 33 Bom. 107, two questions arise for consideration, namely, first, whether the provisions of the Statute apply; and, secondly, if they do not, what is the effect of the application of the general principles of Hindu Law? This latter standpoint appears to have been overlooked by the learned. Judges of the Allahabad High Court in the four cases just mentioned, as Was plainly indicated by Mr. Justice Banerji in Gajadhar v. Kaunsilla (1908) I.L.R. 31 All. 161. Consequently, in the case before us, if we adopt the view taken by Sir Charles Sargent, Section 3 has no application, because it is not disputed that the widow belongs to a caste in which re-marriage is recognised as valid by custom. Apart from this ground, however, we are decidedly of opinion that the second contention of the learned vakil for the respondent is well founded, namely, that upon a true interpretation of Section 3, the Court is not bound to remove the mother, who has been previously appointed guardian, from her office merely by reason of her re-marriage. That section, no doubt, provides that it shall be a lawful for the Court upon such re-marriage to appoint some proper person to be guardian of the children in the place of the mother: and that in making such appointment the Court shall be guided, so far as may be, by the laws and rules in force touching the guardianship of children who have neither father nor mother. The law clearly contemplates that the widow upon re-marriage ceases to be the widow of her first husband. She consequently loses her preferential right to act as guardian of her children by her first marriage. But although such re-marriage is equivalent to a civil death in respect of her first husband and his children by her so far as their guardianship is concerned, she is not physically dead. This is manifest from the proviso to Section 3, which contemplates that when the children have not property of their own sufficient for their support and proper education, no guardian shall be appointed otherwise than with the consent of the mother, unless the proposed guardian gives security. It has even been held (see Section 5) that such a re-married widow may succeed to the estate of her son by her former marriage: Akora Suth v. Boreani (1868) 2 B.L.R. 199 : 11 W.R. 82, Chamar Haru Dalmel v. Kashi (1902) I.L.R. 26 Bom. 388, Basappa v. Rayava (1904) I.L.R. 29 Bom. 91. To put the matter briefly, the legislature recognises that such re-marriage not only does not operate as a physical death of the widow, but it does not operate even as a civil death for ail purposes. Under such circumstances it is impossible for us to hold that the Court may not appoint the mother as guardian of her children by her first marriage notwithstanding the provisions of Section 3 of the Hindu Widows' Re-marriage Act. The only effect of the section is that the preferential right to the appointment she would otherwise have Macnaghten's Considerations on Hindu Law, p. 25; Macnaghten on Hindu Law, vol. I, p. 103; Oorahee Kowur v. Rajbunsee (1847) Beng. S.D.A. 557, is destroyed, and if she is appointed; she must be appointed as a stranger Khushali v. Rani (1882) I.L.R. 4 All. 195; in other words, the Court has a discretion in the matter, though ordinarily, unless good cause were shown to the contrary, the Court would appoint a relation as guardian under Section 3 in place of the mother.
7. The question, which has been argued before us, has, it may be observed, been raised and decided in England. Under the law as it stood, before the Guardianship of Infants Act, 1886, it appears to have been repeatedly held that the second marriage of a widow does not operate as a necessary supersession from the guardianship of her infant children by her first marriage: Villareal v. Mellish (1737) 2 Swans. 533. In the case of In re Gornall (1839) 1 Beav. 347, the practice of the Court was stated to be upon the re-marriage of the widow, to direct a reference for the appointment of a new guardian and, under such reference, to continue her as guardian or re-appoint her with others: Anonymous (1837) 8 Simon 346, Jones v. Powell (1846) 9 Beav. 345, Potinger v. Wightman (1817) 3 Mer. 67. The matter in England is, as we have stated, now regulated by a Statute, and in X. v. Y. (1899) 1 Ch. 526, it was ruled, by the Court of Appeal that the mere fact of the second marriage of the mother to a husband of a different faith from that of the father of her children, was not a ground for interference by the Court for the purpose of adding a co-guardian with her. It is manifest, therefore, that in England, there is no inflexible rule that a mother, upon re-marriage, must necessarily be removed from the office of guardian of her infant children.
8. A similar view has been maintained in the American Courts, and it has been ruled that a woman may be appointed guardian of the person and property of her child by first marriage although she has married again and lives with her husband : In re Hermance (1884) 2 Dem. Sur. 1. In Louisiana, on the other hand, the re-married mother is allowed to act as guardian, only if the Court is advised of her fitness by what is called a family meeting: Robins v. Weeks (1827) 5 Martin N.S. 379, In re Mossy (1843) 3 Robinson 390, Jewell v. Deblanc (1903) 110 La. 810 : 34 Southern 787, Gaudeol v. Gauded (1859) 14 La. 112. We do not refer to these English or American cases as furnishing in any way authorities binding upon this Court in the decision of the matter, which must be determined on principles recognised by Hindu Law, under which system the conception of the marriage relationship is fundamentally different from what prevails in other systems of jurisprudence; but these cases serve to indicate that there is no foundation for the suggestion, made, by the learned vakil fore the appellant, that the view taken, by the Court below is manifestly unreasonable. It is also worthy of note, as pointed out by Domat (vol. I, Section 1378), that, although under the Civil Law, women could not be guardians they could be so to their own children. Mothers and grand mothers were qualified, because the authority which nature gives them over their children, and the affection which they have for their interest exempt them from the rule which excludes women from guardianship: and as the mother was capable of being guardian, the guardianship might be like wise committed to her second husband, who is described as the father-in-law to the minors: (see also Salkowski on Roman Private Law, p. 302).
9. On a review, then, of the principles and authorities, we have examined, the position may be summed up as follows. There is nothing in Hindu Law to make it obligatory upon the Court to remove the mother from the office of guardian of her infant children, merely because she has re-married: there is also nothing in the statutory provisions on the subject which compel the Court to direct her removal under similar circumstances; while, the fact that, in spite of her re-marriage, she is allowed to continue to act as guardian according to other civilised systems of jurisprudence plainly indicate that the appointment is not so contrary to dictates of humanity or principles of universal justice as the learned vakil for the appellant contended. In fact, in many instances, the inflexible rule suggested by the learned vakil for the appellant, if adopted; might lead to the serious injury of an infant offender years. We must hold, therefore, that although the Court has a discretion to remove a Hindu mother from the office of guardian of the children of her first marriage, when she has re-married, the exercise of such discretion must be regulated from the point of view of the welfare of the infant concerned. In the case before us, upon the facts disclosed in the evidence, there is no room for controversy as to the manner in which this discretion ought to be exercised. The first child has, no doubt, indicated his preference for his uncle; the second, however, has pronounced clearly in favour of the mother. The first child is stated to be half-witted, and there can be no doubt that the appellant has done his best to cause estrangement between the mother and the son. The charges of neglect have been proved to be wholly groundless. The learned District Judge therefore, rightly refused to remove the mother from the officer; of guardian.
10. The result is, that the order of the Court below is affirmed and this appeal is dismissed with costs.