1. This is an application by a father, originally of the Hindu persuasion, but now a Christian, to have himself appointed guardian of his infant son, a boy of about 12 years old. The real object of the application is to obtain the custody of the minor. There is virtually no dispute as to the facts. The father in April 1893 embraced Christianity, and then, if he did not actually abandon, at any rate left his child under the care and custody of his grandfather, who was a Hindu, and after his death he remained, as he still is, in the care of his uncle, who is also a Hindu. The boy, hitherto, has been brought up in the Hindu religion, surrounded by Hindu relations. There is no suggestion, least of all any well-founded suggestion, that the child is not being well cared for, or that he is unhappy. No considerations of that nature arise. The father is about 33 years old: he is not well off, his monthly income being some 15 rupees. He apparently lives at a Christian Mission House at Hooghly, and is paid his salary by the Mission. The mother of the child is dead, and the father has recently married a young Christian girl. A somewhat loose suggestion of immorality is made against the father, but I attach no importance to this. After he left his child, the father contributed nothing to his support, has attempted but once to see him; and, beyond that, has taken no notice of him whatsoever. The present application is dated the 9th July 1896. The circumstances of the boy's Hindu relations appear to be good. The District Judge of Nuddea refused the application: hence the present appeal.
2. I do not think there is any substantial difference in the law applicable to a case such as this, between the law of England and the law of India, except so far as the Guardians and Wards Act (VIII of 1890) may create any difference. That Act is mainly, if not entirely, based upon the principles of English law. The English authorities establish that, even as against the prima facie legal right of the father to the custody and control of the education of his child, the real object to be considered is the welfare of the child, and under Section 17 of the Guardians and Wards Act the Court has to be guided by what, consistently with the law to which the minor is subject, appears under the circumstances to be for his welfare. The boy has been examined, and has expressed a preference to remain with his Hindu uncle, and to continue in the Hindu religion, and not to become a Christian; and though, having regard to his age, and to the possibility that this expression of his wishes may have been suggested to him by his Hindu relations, too much importance must not be attached to what he says, it is a feature in the case which ought not to be left entirely out of consideration. There is no doubt that under the Hindu law, as under the English, the father is prima facie entitled to the custody and control of his infant child, and it is for those who maintain the contrary to show that, under the particular circumstances of the particular case, he ought to be deprived of such initial parental right. That he can and may be so deprived if the circumstances justify it, is well established by many cases in the English Courts, one of the most recent being that of Inre Newton, L. R. (1896), Ch. D., Vol. I, 740, and also in the Indian Courts [see In the matter of Saithri, (1891) I.L.R. 16 Bom., 307, and the recent case in this Court before Mr. Justice Sale of In re Joshy Assam, (1895) I.L.R. 23 Cal. 290]. In the above case in the Bombay High Court, Mr. Justice Bayley very carefully reviewed all the authorities, English and Indian, upon the point.
3. There are some matters incident to this question,---and one can scarcely avoid, if not concluding, at any rate suspecting, that the real question in this litigation is as to whether this child is to be brought up as a Christian or as a Hindu,---which to my mind are fairly well established. The authorities appear to me to establish that prima facie the father is entitled to say in what religion his infant child should be brought up, but, at the same time, that, in a proper case, there is undoubted jurisdiction in the Court to disregard those wishes. But the circumstances must be at least unusual to justify the Court in so acting.
4. As was said by Lord Justice Lindley in the case of In re Newton, L. R. (1896), Ch. D., Vol. I., 740: 'But as a legal proposition, it is clear that the Court has jurisdiction in a proper case to deprive a father of the custody of his children, and it also has jurisdiction to decline to change the religion in which the children have been brought up.' Oar attention has not been drawn to anything showing, nor has it been argued, that this statement of the law does not apply equally to a Hindu father and child as to an English father and child.
5. Then we have to consider what is really for the welfare of this minor, using the term 'welfare' in its widest sense, and looking, not only to the question of money and comfort, but to the moral and religious welfare of the child and to the ties of affection. I need scarcely point out, as has been stated by Judges in the Courts of England, that the Court, judicially administering the law, cannot say that one religion is better than another. As I have indicated above, the Guardians and Wards Act says, we must look to the welfare of the child. Those being the principles of law applicable to the present case, and bearing in mind those principles and the initial right of the father to the custody of his infant child and to control its religious education, we must consider whether it is for his welfare that the child should be handed over to the father, and brought up, as the father states is his intention, in the Christian faith. Looking to the fact that when the father embraced Christianity in 1893 he was of, and the child had been brought up in, the Hindu religion, that in 1893 he left the child with his own father who was a Hindu, that on the latter's death he tacitly permitted the child to be taken care of by his maternal uncle, who was also a. Hindu, that since April 1893 he has not contributed anything towards his child's maintenance or education, that virtually he has not attempted to recover the custody of his child until he instituted these proceedings, and, practically, has only seen him once, to the fact that (as is sworn to by his brother the witness Nabadwip Chunder Singh) he said 'when he was going to become, a Christian that he did not want his son, nor his father, nor his brother nor anybody' (a by-no-means improbable statement in his then mood), to the fact that the child, with the father's assent, has been brought up as a Hindu, that he (the child) respects the Hindu gods and goddesses, and that he has himself, a boy of 12 or 13 years old, expressed a preference not to become a Christian: looking, I say, to all the circumstances, not separately, but collectively, I am of opinion that the District Judge was justified in his conclusion that It was not for the child's welfare that he should be handed over to the costody of his father. In arriving at this conclusion, one must not lose sight of the circumstances that if the child become a Christian, he becomes an outcast from his old religion, and if when he attains his majority he desires to return to that religion and method of life, he will only, if at all, be able to do so upon performing strict and possibly costly expiatory ceremonials. For some years this child has been allowed by his father to remain with his Hindu relations, who are willing to educate and take care of him, and who have, in fact, maintained and educated him for some years at their own cost, and has been permitted by his father to be brought up according to the rites of the Hindu religion, the tenets of which, having regard to his age, are not improbably impressed to some extent upon his mind and understanding; and if now he be handed over to his father, such a course must necessarily result in breaking the ties of affection and destroying the associations connected with his life with his Hindu relations. I cannot bring my mind to think that this can really be for the child's welfare. Jealous as the Court is and ought to be in interfering with the legal right of the father as regards the custody and religious training of his child, I consider that, under the circumstances of this case, the father must be regarded as having abdicated his strict legal parental rights, and that it would be (as has been said by a most learned and distinguished Judge) a capricious, if not a cruel, resumption of his paternal authority, if he could now compel his child to be brought up henceforth as a Christian, which admittedly would be the result of handing over the child to the custody of his father. Looking at all the circumstances of the case, I think the Court below was justified in its conclusion, and that this appeal must be dismissed. We, however, give no costs.
6. I am entirely of the same opinion and have nothing to add to the judgment of the learned Chief Justice.