1. On 8th March 1943 a petition was presented before me by Mr. Barwell on behalf of one Clarice Grace Raha described therein as a single woman and a medical practitioner residing at No. 32/13A, Beadon Street in the town of Calcutta within the jurisdiction of this Court. By the petition the applicant prays for an Order appointing her the guardian of the persons of two minors Lovejoy Patell and Saleem Patell, alternatively for an Order giving her the custody of them till they shall respectively attain the age of 21 years and for certain other incidental reliefs. On Mr. Barwell's application made at the time of the presentation of this petition, I granted an ad interim injunction in terms of prayer (6) of the petition restraining Yacoob Patell and Zainab Patell the father and mother respectively of the minors from removing the minors from their present residence at No. 11/1, Circus Avenue, Calcutta and fixed 15th March 1943 for the hearing of the application and directed notice of the application to be given to the parents and also to the three relations of the minors named in para. 6 of the petition.
2. A notice has accordingly been issued by the Registrar and has been served on those persons. In the notice, however, the first prayer is for the appointment of the applicant as guardian of the persons of the minors. There is no alternative prayer for her appointment as keeper or custodian of the minors as in prayer (1) of the petition. There was subsequently an application for committal for alleged breach of the interim injunction. The alleged contemnors having explained the alleged breach and having undertaken to obey the interim Order I made no Order on that application. Yacoob Patell, the father and Zainab Patell, the mother of the minors have filed a joint warrant of attorney and have appeared by learned counsel and are opposing this application. Three affidavits in opposition were filed, two of them being affirmed by the father and mother respectively and the third being a joint affidavit affirmed by Yusoof Patell and Hashim Patell the paternal uncle and the paternal uncle's son of the minors. They, however, have not formally appeared on this application. An affidavit in reply was filed by the applicant herself, after taking an extension of time for filing the same.
3. The application came up for hearing before me on 16th March last and was partly opened by Mr. Barwell. On the next day, Mr. Banerjee learned counsel for the respondents stated that his clients had a very short time to prepare their affidavits in opposition and could not consequently place all the facts before the Court and further that the affidavit in reply contained new matters which his clients had no opportunity to deal with and asked for leave to file a further affidavit in opposition, which, he said, was ready. On a matter relating to minors, I did not consider it right to shut out any evidence and I gave leave to Mr. Banerjee's clients to file a further affidavit and also gave leave to Mr. Barwell's client to file a reply thereto if necessary. Accordingly, Mr. Banerjee has filed a further affidavit affirmed by Zainab Patell the mother of the minors and Mr. Barwell has filed a fur. ther reply affirmed by his client the applicant.
4. The matter has been argued before me with zeal, ability and thoroughness and I acknowledge my indebtedness to learned counsel on both sides for the very great assistance I have received from them. This matter, I confess, has caused a good deal of anxiety in my mind. While the argument was going on from day to day I took the opportunity of seeing and speaking to the minors separately in my chamber with a view to ascertain their respective wishes in the matter. I shall refer to my impressions in greater detail hereafter.
5. Mr. Banerjee has taken an objection as to the jurisdiction of this Court in entertaining this application. This objection is based on the fact that at the date of the presentation of the petition the minors were residing at premises No. 11/1, Circus Avenue, Calcutta, which is situate outside the ordinary original civil jurisdiction of this Court. Mr. Banerjee relied on the case in 21 Cal. 2061 where Sale J. refused to appoint a guardian of the person and property of an infant who was not a European British subject and who was living outside the limits of the ordinary original civil jurisdiction of this Court. Mr. Banerjee referred me to the judgment of Sale J. at p. 211 of the report where his Lordship observed that even if the Court were to act under the powers conferred by the Charter, still, in exercising those powers, it would not disregard, but as far as possible follow, the principles and procedure laid down in the Guardians and Wards Act. Mr. Banerjee pointed out that in the Guardians and Wards Act the expression 'District Court' includes 'High Court.' Mr. Barwell contended that under Section 9, Guardians and Wards Act, the application for appointment of guardian of the person is required to be made to the District Court having jurisdiction in the place where the minor ordinarily resides. He emphasised the words 'ordinarily resides' and contended that it is the ordinary place of residence of the minor which determines juris diction of the particular Court and that such jurisdiction cannot be taken away by temporary residence elsewhere at the date of the presentation of the petition. He cited the case in Mt. Lalita Twaif v. Paramatma Prosad : AIR1940All329 , in support of his contention.
6. Leaving aside for the moment all matters of controversy as to the person with whom the minors lived, there is no doubt that from 1938 to February 1942 the minors ordinarily resided and attended schools in the town of Calcutta within the jurisdiction of this Court. Then they were sent to Darjeeling for education. They lived there upto November 1942 when on account of the annual vacation they came down to the applicant's place of residence in Beadon Street which is within the jurisdiction of this Court. There they lived admittedly up to January 1948. I need not, at this stage, discuss what happened subsequently. These facts, to my mind, are sufficient to indicate that the minors ordinarily resided within the ordinary original civi jurisdiction of this Court and the case cited by Mr. Barwell is in point and I agree with the decision in that case.
7. Further, Section 3, Guardians and Wards Act, expressly preserves the power of the High Courts, established under the statute 24 and 25 vie, chap. 104. Section 9 of that statute which established the High Courts provided that each of the High Courts should have and exercise all such civil, criminal, admiralty and vice-admiralty, testamentary, intestate and matrimonial jurisdiction, original and appellate, and all such powers and authority for and in relation to the administration of justice in the Presidency for which it is established, as Her Majesty, by such Letters Patent as aforesaid, grant and direct. It will appear from the Letters Patent of 1865 that different jurisdictions are conferred on the High Court by different Clause s. In some of the Clauses the jurisdiction is limited to a particular territory while in others it is extended beyond those limits. Thus ordinary original civil jurisdiction is conferred on the High Court by Clause 11 and 12, Letters Patent, but this is limited within a certain territorial limit. But the jurisdiction in testamentary matters which is conferred on it by Clause 34, Letters Patent, is not limited to the territory to which the exercise of ordinary original civil jurisdiction is limited. There is no reason to hold that ol. 34, Letters Patent, is controlled by Clause 11. Likewise, Clause 17, Letters Patent, confers on the High Court such power and authority with respect to the persons and estates of infants, idiots and lunatics within the Bengal Division of the Presidency of Port William as that which was vested in the said High Court immediately before the publication of these presents. It will be noticed that this Clause does not in terms limit this jurisdiction to any particular part of the Presidency, as does Clause 11 with regard to ordinary original civil jurisdiction. This jurisdiction over infants is operative and is to be exercised on the person and estate of all infants within the Bengal Division of the Presidency. The power and authority, however, are the same as those which were vested in the High Court immediately before the publication of these Letters Patent. This takes us back to the Letters Patent of 1862 which prescribed the jurisdiction of the High Courts immediately before the publication of the Letters Patent of 1865. Clause 16, Letters Patent of 1862 ordained that the High Court shall have the like jurisdiction as to infants and lunatics as that now vested in the Supreme Court. The Supreme Court was established in Port William in Bengal in 1774 by Charter issued pursuant to the authority conferred by Section 13, Regulating Act, 1773 (stat. 13 Geo. III, Cap. 63). Clause 25 of this Charter of 1774 authorised and empowered the Supreme Court to appoint guardians and keepers for infants and their estates, according to the Order and course observed in that part of Sreat Britain called England. It will be noticed that in Clause 25 of the Charter of 1774 no territorial limit was prescribed for the exercise of this jurisdiction. It was for these reasons that Lort-Williams J. in ('30) In re Taruchandra Ghose. : AIR1930Cal598 , held that this Court had jurisdiction to appoint a guardian of the person and estate of an infant residing outside the ordinary original civil jurisdiction of this Court.
8. The case in In the matter of Srish Chander Singh ('94) 21 Cal. 206, was concerned mainly with the question of appointment of guardian of the estate of a minor. There were testamentary guardians of the infant in that case. The terms of the Letters Patent were not construed and Sale J. declined to exercise jurisdiction under the Letters Patent mainly on the ground that there was no precedent for such exercise of jurisdiction.
9. The question of construction of Clause 17, Letters Patent of 1865 again came up before this Court in a lunacy case reported under the heading: In the matter of Phanindra Chandra, : AIR1932Cal91 . Panckridge J. after referring to the terms of Clause 17, Letters Patent of 1865, Clause 16, Letters Patent of 1862 and Clause 25 of the Charter of 1774 finally referred to Section 14, Regulating Act, 1773 (13 Geo. III, Cap. 63). The section provided that the new Charter which His Majesty was empowered to grant and the jurisdiction, powers and authorities to be thereby established should and might ex tend to all British subjects who shall reside in the kingdom or the Provinces of Bengal, Bihar and Orissa or any of them. Panck-ridge J. was of opinion that Section 14, Regulating Act, 1773, had the effect of confining the jurisdiction conferred on the Supreme Court by Clause 25 of the Charter of 1774, beyond the limits of Calcutta, to 'British subjects' only which expression at that time meant a subject of the 'King of British birth. Accordingly Panckridge J. held that the original side of the Calcutta High Court had no jurisdiction to direct an inquisition or appoint a guardian of a person alleged to be a lunatic, if such a person was not a resident of Calcutta. This reasoning, with all respect to the learned Judge, does not appear to me to conclude the matter. Assuming that in the early statutes relating to India including the Regulating Act of 1773 the expression 'British subject' meant a subject of the King of British birth, it does not follow that in 1862 the expression 'British subject' continued to be confined to a subject of the King of British birth. Indeed after the assumption of direct control by the Crown under statutes, 21 and 22 Vict., Cap. 106 every native of British India became ipso facto a 'British subject' and from that time onwards nothing could hinder the Supreme Court from exercising jurisdiction over native Indian infants in the moffusil of the presidency. The meaning of the expression 'British subject' being thus enlarged the jurisdiction of the Supreme Court, since 1858, must be taken to have been enlarged so as to bring within its ambit all native Indian infants in the moffusil, who prior to 1858 may not have come within the meaning of that expression. The import. ant question really is whether a particular person at the material time is a British sub jeet or not. The matter will be found discussed at great length in the very learned judgments delivered by a Bench of the Madras High Court in Raja of Vizianagaram v. Secy, of State ('37) 24 A.I.R. 1937 Mad. 51,
10. The same question was also considered by a Special Bench of the Bombay High Court in In re Ratanji Ramji ('41) 28 A.I.R. 1941 Bom. 397, Bom. 39 (S.B.), where it has been held that the jurisdiction vested in the High Court of Bombay under Clause 17, Letters Patent of 1865, is jurisdiction to exercise the power derived from the prerogative of the Crown as parens patrica to protect those who cannot protect themselves, that it is not restricted to such persons and estates within the town and island of Bombay and that outside that area, but within the Province of Bombay, it also extends to persons under such disability pro vided they are the subjects of the British Crown. I respectfully agree with the reasons given in the Madras case and the Bombay case to which I have just referred. The aspect of the matter discussed in those two cases was not apparently adverted to by Panckridge J. With great respect to Sale and Panckridge JJ. I prefer to follow the decision of Lort-Wil liams J. in ('30) In re Taruchandra Ghose.17 A.I.R. 1930 Cal.598, and the decisions of the Madras High Court and the Bombay High Court in the two cases I have just men. tioned. Even if it be accepted that the power of this High Court was formerly limited only to a part of the Presidency, I would be prepared to hold, following the opinion of the learned Chief Justice of Bombay in the Special Bench case in In re Ratanji Ramji ('41) 28 A.I.R. 1941 Bom. 397, Bom. 39 (S.B.), that Clause 17, Letters Patent of 1865, read with Clause 16, Letters Patent of 1862, by conferring on this Court power and authority with respect to the persons and estates of infants, idiots and lunatics within the Bengal Division of the Presidency of Fort-William conferred upon the High Court a jurisdiction more extensive, in the territorial sense, than that which the Supreme Court had possessed.
11. The result is that, in my opinion, this Court has jurisdiction, both under Section 9, Guar dians and Wards Act, and under Clause 17, Let ters Patent of 1865, to entertain the present application and that in exercise of the juris. diction under Clause 17 Letters Patent of 1865, this Court should 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, Guardians and Wards Act of 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 Chancer in England used to act. Where the Act is Sent 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.
12. It is common ground that neither of the minors has any property. Both the father and the mother of the minors are alive and are opposing this application. They are Mahome dan by religion. They are British subjects. According to the indigenous Mussalman law the mother is entitled to the custody of her male child until he has completed the age of seven years and of her female child until she has attained puberty. Failing the mother, the custody of a boy under the age of seven years and of a girl who has not attained puberty belongs to certain female relations in preference to the father. The father is entitled to the custody of a boy over seven years and of an unmarried girl who has attained puberty.
13. It should be remembered, however, that according to the Mussalman law the minority of a male or female terminates when he or she attains puberty. Puberty and majority, in the Mussalman law, are one and the same: see Hed. 529 (Book 35, Chap, II) Translator's foot-note. Among the Hanafis and the Shias puberty is presumed on the completion of the 15th year. In default of evidence as to puberty la minor of either sex is considered adult on the completion of his or her 15th year. Under the Mussalman law any person who has attain led puberty is entitled to act in all matters I affecting his or her status or his or her property. This indigenous Mussalman law has been materially altered by the Indian Majority Act and the only matters in which a Mahomedan is now entitled to act on attainment of puberty are (1) marriage; (2) dower; and (3) divorce. In all other matters his minority continues until the completion of 18 years.
14. In the case now before me both the minors have completed the age of 14 years. The female minor has admittedly attained puberty. Therefore according to Mussalman law the female minor has attained majority. Though under the Indian Majority Act she is still a minor, her capacity to act in the matter of marriage, dower and divorce is not affected by anything contained in that Act: see Section 2, Indian Majority Act. Prom what I have stated above it is dear that under the Mussalman law the mother of the two minors cannot claim the custody of either of,the two minor children. Indeed in the affidavits in opposition no claim has been put forward on behalf of the mother. In fact the mother has sworn two affidavits, which have been filed herein, in which, while repudiating the necessity for the Appointment of any guardian at all, she insists on her husband, the father of the minors, being appointed their guardian if this Court is minded to appoint any guardian of the persons of the minors. In this application, however, I shall consider the claim of the father and the mother according to the principles laid down in the Guardians and Wards Act and according to the principles on which the Court of Chancery in England would consider such claim.
15. According to the law of England, the father has the control over the person, education and conduct of his children until they are 21 years of age. If a child is taken away from the father or if a child leaves the father the father has the right to come to Court and ask for return of the child to him. The question mainly arose in cases where the father sued out a writ of habeas corpus. At Common law the right of the father and of the mother, as guardian for nurture, after the death of the father, there being no testamentary guardian, was treated as paramount and could be enforced by writ of habeas corpus. In those cases if the child was a male child above 14 years or if the child was a female child above 16 years the Court would consult their wishes and if the Court was satisfied that such a child desired to be where it was, then the Court would not make any Order in favour of the parent; because in those circumstances the very ground of an application for a habeas corpus, namely, that the child was in illegal custody without his consent, did not subsist. If, however, the child was below the age, viz., below 14 years in the ease of a male child and below 16 years in the case of a female child, the Common Law Court had no jurisdiction to refuse the prayer of the parent, unless cruelty or contamination from gross immorality of the parent or guardian was to be apprehen. ded. The principle on which the Common Law Court acted was that the parents, as against other persons, generally had an absolute right to the custody of the children unless he or she had forfeited it by some gross misconduct. This absolute right of the parents was recognized because such a right was necessary for preserving the natural Order and course of the family life which is the foundation of society and the Court of Common Law did not inter, fere with parents except upon grave occasions or for reasons of urgency. The law recognized the natural rights of the parents because it recognized the natural duties of the parents. It is the natural affection of the parents for the child which is the security for the performance of the duties towards the child and the performance of the duties alone qualifies the parents to claim the absolute right. It is the natural affection which makes them the natural guardians. The rights of the parents are sacred rights and their duties are also sacred duties. Cruelty and gross immorality render the parents unfit to perform the sacred duties and therefore on proof of such misconduct they cannot be allowed to claim the sacred rights. Parents guilty of gross misconduct become unnatural parents and cease to be natural guardians and when they cease to be natural guardians they cannot legitimately claim the rights of a natural guardian. This is the principle on which, I apprehend, the Court of Common law in England acted.
16. There was, however, another jurisdiction which has been exercised by the Court of Chancery from time immemorial. It was what has been called the paternal jurisdiction derived from the prerogative of the Crown as 'parenspatrics. Lord Cottenham L.C., observed in the case in In re Spence (1847) 2 Ph. 247, as follows:
I have no doubt about the jurisdiction. The cases in which this Court interferes on behalf of infants are not confined to those in which there is property. Courts of law interfere by habeas for the protection of the person of anybody who is suggested to be improperly detained. This Court interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patrice, and the exercise of which is delegated to the great seal.
Lindlay L. J. observed in In re McGrath (1893) 1 Ch. 143,
The duty of the Court is, in our judgment, to leave the child alone unless the Court is satisfied that it is for the welfare of the child that some other course should be taken. The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor by physical comfort only. The word 'welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.
17. Attempt has been made in arguments in various cases to induce the Court of Chancery to hold that in the exercise of this jurisdiction the Court of Chancery was bound to give the custody of the child to the parents unless the parents had been guilty of misconduct to the extent which would in a Common Law Court have destroyed the prima facie absolute right of the parents but such attempt has at all times been resisted by the Court of Chancery, The Court of Chancery has never disregarded the ties of affection or the prima facie right I of the parents over the person, education and conduct of child. The Court of Chancery has recognized that generally speaking the best place for a child is with its parents. The Court of Chancery has never said merely because the parents are poor and the person who seeks to have the custody of the child as against the parents is rich, that without regard to the natural rights and feelings of the parents the child ought to be taken away from its parents merely because its pecuniary position will be thereby bettered. On the other hand when the welfare of the child has demanded it the Court of Chancery has never hesitated to exercise its jurisdiction nor has it consented to limit its jurisdiction to interfere with the parental rights only to gross misconduct of the kind such as the Common Law Court would consi-der sufficient to destroy the prima facie rights of the parents. Accordingly the Court of Chancery even on applications by the parents by habeas corpus has interfered and deprived the parents of the custody of the child when it has been satisfied that it is clearly right for the welfare of the child in some very serious and important respects that parents' rights should be suspended or superseded although the parents have not been guilty of any mis conduct which alone would disentitle them to the custody of the child in Common law. The case in The Queen v. Gyngall (1893) 2 Q.B. 232, is a typical example of the exercise of this paternal jurisdiction. The grounds on which the Court of Chancery has interfered with the parents' rights are, classified in Part 11.chap. 7, Section 5 pages 106-112 of Simpson on the Law of Infants, End. 4 under five heads, viz. (1) unfitness in character and conduct, e. g., that the parents have been guilty of cruelty or immorality; (2) unfitness in external circumstances, e. g., poverty combined with other reasons; (3) waiver of their rights, e. g., allowing the child to be brought up in a higher social position; (4) agreement between husband and wife on marriage or on separation or agreement by father with a third party where the agreement has been acted upon, so that a revocation of it would injuriously affect the child; and (5) where the father is or intends to go out of the jurisdiction. These principles have been recognized and acted upon by Courts in this country. Thus Sale J. in In the matter of Joshy Assam ('96) 23 Cal. 290, at page 298 observed that
the Court will not allow parents, who have abandoned the custody of their child to third persons, to attempt capriciously to re-assert their rights, without showing that the welfare of the child warrants and requires such action on their part.
18. The same principle is recognized by the Judicial Committee in the well-known case in Annie Besant v. Narayaniah ('14) 1 A.I.R. 1914 P.C. 41, and the following passage at page 320 is in point:
There is no difference in this respect between English and Hindu law. As in this country so among the Hindus, the father is the natural guardian of his children during their minorities, but this guardianship is in the nature of a sacred trust, and he cannot therefore during his lifetime substitute another person to be guardian in his place. He may, it is true, in the exercise of his discretion as guardian, entrust the custody and education of his children to another, but the authority he thus confers is essentially a revocable authority, and if the welfare of his children require it, he can, notwithstanding any contract to the contrary take such custody and education once more into his own hands. If, however, the authority has been acted upon in such a way as, in the opinion of the Court exercising the jurisdiction of the Crown over infants, to create associations or give rise to expectations on the part of the infants which it would be undesirable in their interests to disturb or disappoint, such Court will interfere to prevent its revocation: Lyons v. Blenkin (1821) Jacob 245.
The case reported in Ponniah Asari v. Subbiah Asari ('35) 22 A.I.R. 1935 Mad. 363, proceeds on the same principle. It is not necessary nor profitable to multiply instances. The same principle, to my mind, is laid down and or implicit in Sections 17 and 19, Guardians and Wards Act. Keeping the above principles in view, I now turn to the facts of this case. Yacoob Patell, the father of the minors comes of a Muslim family of Surat. Zainab Patell, the mother of the minors is a Jewess by birth. It is stated that she embraced Islam when she was three years old. It does not appear where she was born or brought up. Yacoob Patell married Zainab Patell in or about 1910 when she was a girl of 12 years of age. It does not appear from the affidavits where they were married. Yacoob Patell carried on business with his brothers in Rangoon as hardware merchant. The business was started some time in 1916. In 1928 they came to know the applicant in Rangoon where the latter was practising as a Medical Practitioner. The applicant was then married to a Jewish gentleman of the name of Mr. Elias Solomon, who was a Professor in the University College in Rangoon. On 3rd March 1929 Zainab Patell gave birth to twins, a boy and a girl, being the two minors now before me. The applicant was the medical attendant of the said Zainab Patell prior to, at and after the birth of the twins. It is common ground that the applicant and her husband were on very friendly social terms with the parents of the minors and from papers now before me it is quite evident that this friendly social intercourse continued for over 14 years right up to Febru ry 1943. The relationship between the two families may well be described in the language of Yacoob Patell himself which is as follows:
After that we became very friendly with the petitioner and her husband Mr. Solomon who waa a Professor in the University College of Eangoon. My wife became so friendly with the petitioner that they used to look upon each other as sisters and my wife used to visit the petitioner at her house in Rangoon in the same way the petitioner also used to visit my wife at our place. In fact friendship was so great that we thought the petitioner and her husband as our own people just as the petitioner and her husband thought us to belong to them.
19. This relationship, to my mind, serves as the real background against which one may have a vivid perspective of the events that followed the birth of the twins. I propose now to deal with this application in so far as it concerns the male child Saleem Patell. It is common ground that after the birth of the twins the male child remained with the parents until about November 1937 or middle of 1938 when the applicant agreed to take over the custody and care of the boy and to educate the boy. It appears that the boy was admitted to St. Mark's School and from there transferred to St. Xavier's College, Calcutta in January 1939. Prom the form of application for admission which is annexed to the affidavit in reply, it appears that the boy was admitted into the school under the name of Saleem Solomon, his religion was declared as Muslim and the nationality of his parents was stated to be Indian. The applicant was described as his guardian. The applicant states that she maintained and educated the boy from the end of 1937 up to January 1939 entirely at her own expense. The applicant, however, admits that from January 1939 up to October 1941 Yacoob Patell paid to the applicant Rs. 150 per month for about two months and thereafter Rs. 100 per month upto October 1941.
20. Yacoob Patell and Zainab Patell in their affidavits have stated that in 1938 there was a serious riot in Rangoon and the boy with his mother came over to Calcutta and thereafter he was put into a school in Calcutta and the father bore all the educational expenses. It is said that from January 1939 upto October 1941 the sum of Rs. 3500 had been paid by the father and Rs. 500 by Mr. Hassim Patell on behalf of the father and that between November 1941 to January 1942 Zainab Patell herself paid Rs. 500. Yacoob Patell also stated that when the boy was sent to Darjeeling in 1942 he paid for his maintenance and education expenses for May, June and July 1942. It is admitted by him that since July 1942 he has not been able to make any further payment owing to financial difficulties brought about by the present emergent state of affairs. It is very difficult for me, on the affidavits to ascertain precisely the amounts paid by the father for the maintenance and education of the boy. It is, however, clear to my mind that the father considered it to be his duty to pay for the maintenance and education of the boy and recognised that he was responsible therefor. In the case of this boy I do not feel that the father has failed or neglected to discharge his natural duties towards the boy to such an extent as would disqualify him from asserting his natural rights as the father of the child. In other words, I do not find in the case of the boy any abdication of the rights of the father and this being so, the question of capricious re-asser. tion of the parental right does not arise. On the evidence before me, I cannot say that the father ever intended to relinquish his rights over his only boy. Mr. Barwell has strongly relied on the fact that the boy was admitted into the school under the name of Solomon, the fact that there is no evidence of what he called 'contact' between the parent and the boy or of interest taken by the father in the education and upbringing of the boy. He insists on these facts as evidence of abandonment of the parental rights. While I agree with Mr. Barwell that Yacoob Patell has not perhaps acted towards the boy as an ideal father would do towards his boy I cannot go any further with him. I cannot overlook the fact that the boy was maintained and brought up by the father for the first 8 years of his life, that the father was busy with his business which kept him at Rangoon, that he had to send his wife and the child over to Calcutta on account of the exigencies of the situation brought about by riots in Rangoon, that the mother has been in Calcutta and above all that the father has to the best of his ability been defraying the expenses of the mainten. ance and education of the boy in Calcutta. In these circumstances I cannot say that in my opinion the father is unfit to be guardian of the person of the boy either within the meaning of Section 19, Guardians and Wards Act, or according to the principles on which the Court of Chancery in England would interfere with the rights of the father.
21. I have taken the opportunity to see and speak to the boy who is just over 14 years of ago with a view to ascertain his wishes in the matter. It appeared to me that while the boy was quite affectionate towards the applicant as his letters to the applicant clearly indicate, he had similar affection for his parents. He said that he preferred to remain with them. It may be that recent close association even for the short period of a month has revived the affection he had imbibed for his parents during the first 8 years of his life. It may also be, as I gathered from one or two remarks let fall by him, that this revival of affection was helped and accelerated by a promise of the parents to keep him on in the same school at Dar jeeling or to put him in an equally good school in Bombay, but the general impression I got was that the boy preferred to remain with his parents. At one time I thought that it would be right for me to insist on an undertaking from the parents as to the mode of his education and general upbringing, but after hearing Mr. Banerjee I have come to the conclusion that, as I do not consider the father to be an unnatural or unfit father, it would not be right for me to impose any restriction on the discretion of the father in matters of education and conduct of the boy. The result is that I do not feel called upon or entitled to make any Order with regard to the boy and I make no Order on this application in so far as it concerns the boy, Saleem Patell.
22. I now come to deal with this application in so far as the female minor is concerned. The applicant's case is that prior to the birth of the minors the applicant's diagnosis was that Zainab Patell would in due course give birth to twins and the said Zainab Patell and her husband Yacoob Patell then and there promised that if twins were in fact born to them, then and in that case, one of the twins would be given to the applicant to rear up and care for as her own child and that the parents would thereafter make no claim to the guardianship or custody of the child so given to the applicant. This alleged promise is denied by both the parents in their respective affidavits. It seems to me that a promise of this description by itself has no legal effect as an agreement, for no Court of Chancery would specifically enforce such agreement and thereby compel the parents to abdicate their sacred duties and rights as such parents. The parents can at any time before such a promise has been acted upon revoke and repudiate such promise. Such a promise, to my mind, is of importance only as a matter of inducement, a starting point, to explain the subsequent events and the conduct of the parties which I shall therefore have to examine. If the subsequent events amount to a renunciation of the parental rights such renunciation must be referable to some agreement express or implied. For the purpose of this application it will make no difference whether such renunciation had its origin in this promise alleged by the applicant or to any subsequent promise express or implied. This alleged promise, therefore, has some value as a stage in the history of this case and as a fact explaining subsequent events and I attach no other value to it. I need mention, however, that I see no inherent improbability in the story of the applicant., It will be remembered that the mother of the minors was a Jewess by birth. The applicant had married a Jewish gentleman. The two families were on very friendly social terms. The mother of the minors was in delicate health and one may easily understand that she would find it difficult to rear up two children at the same time. The applicant was the medical attendant of the mother. She and her husband were in fairly affluent circumstances and without any child and conse quently it may well be that the parents of the twins would give one of them, particularly the female child, to the applicant to be reared up and cared for. In the circumstances it is only natural that the parents would retain the male child and make over the female child to the applicant. The question of importance is whether such making over was a temporary measure or intended to be a permanent arrangement so far as the female child is concerned. The subsequent events will show the real intention of the parties.
23. The applicant's case is that pursuant to the said promise when Zainab Patell gave birth to twins in one and the same accouchement, the parents gave to the applicant the custody and care of the female child and for the next 14 years, save for a period of five months in 1938 the said female child has lived and remained with the applicant who has brought her up with the utmost care and affection, has maintained her entirely at her own charges and has educated her as if the female child were the applicant's own child. The female child used all along to call the applicant 'Mummy' and the applicant's husband 'Daddy.' When the child grew up the applicant put her into the Convent School in Rangoon. In 1932 the applicant took her to Kashmere for a change of air. In December 1933 the child had an attack of Broncho-pneumonia and the applicant took her to Switzerland for her convalescence in the beginning of 1934. After returning from Rurope, the applicant returned to Rangoon with the child and shortly thereafter left Rangoon and came to Calcutta. In December 1936 she took the child on a motor tour to Agra. In April 1937 she again proceeded to England with the child and returned to India towards the end of 1937. The child and the applicant went to Delhi and the child was put into a school at Delhi, where she stayed until about March 1938. From March 1938 up to the beginning of September 1938 the child. lived with the mother partly in Calcutta and partly in Rangoon. During this period, the applicant met with a serious motor accident a.nd also became seriously ill. In September 1938 the child came back to the applicant and since then stayed with her. In October 1938 the applicant had the girl admitted into Loretto School, Calcutta under the name of Lovejoy Solomon. That the applicant bore all the educational expenses of the child will appear from the receipts and certificates granted by the school authorities. In Febru. with and March 1941 the female child travelled with the applicant to Bhopal, Gwalior, In dore, Ajmer and other places. Apart from the education in school, the female child was given lessons in music by a music teacher at the applicant's place of residence at different places in Calcutta as will appear from the music teacher's letter set out in para. 6 of the applicant's affidavit affirmed on 26th March 1943. In February 1942 the female child was sent to the Loretto Convent, Darjeeling, when there was a general exodus from this town. The applicant also took a small flat at Dar jeeling so that she can reach her whenever it becomes necessary. That she paid the school fees and other expenses at Darjeeling will appear from the receipts of the school authorities which have been annexed to her affidavit affirmed on 15th March 1943. In November 1942 the school closed for the an nual vacation and the female child came down to Calcutta and lived with the applicant at her Beadon Street residence until February 1943. Such is the time table showing the movement of the female child for 14 years as given by the applicant in her two affidavits affirmed on 15th and 20th March 1943, respectively.
24. In the first affidavit in opposition of the father Yacoob Patell affirmed on 13th March 1943 the father has also set out a time table showing the movement of the female child. This time table is indeed scrapy and many of the important events in the life of this female child do not find a place therein, a fact which, to my mind, indicates want of knowledge due perhaps to want of interest in the child. It is only when the applicant set out a detailed time table in her first affidavit in reply that a second affidavit in opposition was put in practically adopting the same and explaining the residence and movements of the child with the applicant as being under express consent given on each occasion. It is neither profitable nor necessary to go into details. Suffice it to say that on a perusal of the different affidavits I have definitely come to the conclusion that the story of the applicant is generally correct and true. It is also clear to me that the applicant has respected the sentiments of the mother by allowing the mother to stay with her and also by allowing the child occasionally to stay with the mother. I find it difficult to believe the story of express permission said to have been given by the parents to the applicant each time the latter took the child with her to any place. I have no doubt that this story has been put forward, if possible, to establish the retention of parental rights over the female child.
25. Apart from a bare statement there is no tangible evidence that the parents ever paid a single pie towards the maintenance and education of the female child. The only evidence of payment is of the aggregate sum of Rs. 3500 to Rs. 4000 between January 1939 and October 1941. I accept the statement of the applicant that these payments were made specifically towards the cost of maintenance and education of the male child. If the parents made any payment to the school authorities in Delhi, Calcutta or Darjeeling on account of the female child it should have been easy for them to produce the receipts or even duplicates thereof or even a certificate from the school authorities but none is forthcoming. I have no hesitation in holding that the female child has all along been maintained and educated by the applicant at her own cost.
26. There is no tangible evidence before me that the parents or either of them took any interest whatever in the female child in the matter of her education, secular or religious or in her general up-bringing. They were never in touch with the school authorities and never called for any progress report. There is no evidence that they ever made any present of clothes, books, toys or trinkets to the girl. There are letters written by the female child to the applicant in which the applicant is addressed as 'Mamy Darling' whereas her own mother is referred to by her name. There is a letter from the mother to the female child in which she blessed the applicant for all that she had been doing for the child. There is another letter from the maternal-grandmother in the same strain expressing gratitude towards the applicant. The child's letters show that she is taking a keen interest in her study, forming new friendships and that she is perfectly happy in her new environment where she has been receiving proper education.
27. There is no allegation in any of the affidavits in opposition that there has been any attempt at proselytising. There is no suggestion in the affidavits that the education which the girl is receiving is not suitable to her or is in any way opposed to the tenets of Islam. It is not suggested that the family to which the parents belong is an orthodox Mahomedan family. On the contrary I find that two of the small boys of this family are nicknamed Tinker and Bunny and are being educated in a European school at Darjeeling. The letter of the mother and the cousin Hassim written on 7th April 1942, and the letter of Hassim to the female child dated 16th October 1942, and the letter of Hassim to the applicant show that they are perfectly well satisfied with the education that was being imparted to the female child.
28. On the evidence before me I am satisfied that the parents voluntarily made over the female child to the applicant not as a temporary measure, but with a view to make a permanent arrangement for her future life and this long-continued acquiescence has given rise to associations and expectations in the mind of the female child that she would be continued to be brought up in the way she has been brought up so far and it will be unkind now to abruptly disappoint or frustrate this expectation. I have no doubt in my mind that the parents in doing what they have done, were actuated by the best of motives towards the child. But by this long acquiescence and through no other fault or misconduct of their own, they have placed themselves in such a position with regard to this female child that they have forfeited their natural rights and in my opinion have rendered themselves unfit to be the guardians of this female child. The sudden change of mind appears to me to be a capricious reassertion of their parental rights which they have voluntarily relinquished. It does not appear to me that the welfare of the child requires that they should be permitted at this stage to re-assert their original sacred rights. Admittedly the father ia now in financial difficulties. In his affidavit he has given me no indication of his means. He has not shown what programme he wants to follow in the matter of the education and up-bringing of the child. Mr. Banerjee has referred me to the case in In re Agar-Ellis (1883) 24 Ch. D. 317, and In re Thain; Thain v. Taylor (1926) 1 Ch. D. 676, Both the cases are distinguishable on facts, as in neither of them was there any failure on the part of the father to main tain the child and the question of abandonment of parental rights was not in issue. Even in In re Agar-Ellis (1883) 24 Ch. D. 317, it was recognised that the father may loose his rights by conduct amounting to abdication of paternal authority. Mr. Banerjee referred me to the report of Be-sant's case in Annie Besant v. Narayaniah ('14) 1 A.I.R. 1914 P.C. 41, at p. 810 where the letter of the father is set out and relied on the observations of their Lordships of the Judicial Committee at page 822 to the effect that
no Order declaring a guardian could by reason of Section 19, Guardians and Wards Act, 1890, be made during the respondent's life unless in the opinion of the Court he was unfit to be their guardian, which was clearly not the case.
Relying on this passage Mr. Banerjee argued that a contract relinquishing the parental rights even if acted upon did not make the father unfit to be the guardian of the person of his child. Mr. Banerjee overlooked the fact that the letter written by the father in Be-sant's case11 did contain several reservations of parental rights on several eventualities, whereas in the case now before me, I find no reservation contained in any letter or even in the present affidavits. Further in Annie Besant v. Narayaniah ('14) 1 A.I.R. 1914 P.C. 41, the father re-asserted his rights after a short time, whereas in this case there has been a continued waiver for 14 years. Mr. Banerjee relied on para. 2 (vi) of the applicant's first affidavit in reply as evidence of assertion of parental rights. It is curious, however, that such an important fact found no place in the respondent's own affidavits in opposition. Further the facts alleged in that paragraph do not necessarily amount to assertion of right or admission of any right. It should also be remembered that another period of six years of acquiescence on the part of the parents has elapsed since the said alleged re-assertion of right by them.
29. Mr. Banerjee contended that in this case there was no question of raising any expectation in the mind of the child because the ap plicant has not settled any property on the child. Mr. Banerjee's argument is that the expectation referred to in the eases must be financial expectation. The cases however show, and the ease, The Queen v. Gyngall (1893) 2 Q.B. 232, is only an example that financial expectation is not necessarily the only expectation which the Court of Chancery has declined to frustrate or disappoint. It has not been alleged, far less proved, that the applicant has not done her duty towards the female child. She has brought her up from her infancy when she was weak and delicate and now she is a bright and sprightly child. The applicant is a person who has been properly meeting all the expenses of the child and is willing to continue to do so. In answer to one of my questions, her counsel readily agreed to furnish security for payment of proper maintenance and education of this child until she attains majority, in case any untoward event happens to the applicant in future by death or otherwise. This certainly relieved me of good deal of anxiety that I felt in the beginning as to what would happen to the child on a premature death of the applicant.
30. At one time Mr. Barwell stated that his client would be content if she were appointed only as the keeper or custodian of the child instead of being appointed as her full-fledged guardian. No case has been cited before me in which the Court of Chancery has, on the application of a stranger, appointed such stranger as mere keeper or custodian as against the parent. At one time I thought that under Section 25, Guardians and Wards Act, read with Section 4 (ii) I could make an Order for return of the female child to the custody of the applicant. The matter is not free from doubt and there is a case where it has been held that a person who is not the natural guardian cannot come and ask for custody without being first appointed guardian: see Mt. Chandra Kuar v. Chotey Lal , Further such a limited Order will, I apprehend, give rise to complications which in the best interests of the child should be avoided.
31. In the facts and circumstances of this case I have come the conclusion that the parents have relinquished their natural rights in regard to the female child and that by such conduct they have rendered themselves unfit to be a guardian of the person of the female child and there is no impediment in the way of my appointing a guardian of the person of the female child. I desire to make it clear that I do not find or hold that the parents have been guilty of any misconduct or moral delinquency such as at Common law would disentitle them from asserting their rights but I do find and hold that they have by their own conduct placed themselves in such a position that they cannot be permitted to reassert their parental rights. I am not satisfied that it would be for the welfare of the child to revert back to her parents. I find no explanation for this sudden change of mind on the part of parents. Mr. Banerjee strenuously argued that the parents do not desire that their female child should become a Doctor of Philosophy or a Doctor of Medicine or a modern girl, but that she should be a good wife and a good mother. If that be the notion of the parents, they should not have allowed this child to receive such education for these five years. Nor do I see that the education that the girl is receiving will render her in any way unfit to be a good wife or a good mother. There is no suggestion whatever in the affidavits that this girl was becoming a 'modern girl' in the sense in which that expression has been used by learned counsel. It is stated in the first affidavit in opposition that it is usual for the girls of this family to be married when they are between the ages of 16 and 20. I see no impediment in the way of her marriage within this age if she be so minded. I need only remind the parents that under the Mussalman law the girl having attained puberty has attained majority and is entitled to all according to her will in matters of marriage and dower. Section 2, Indian Majority Act, expressly reserves this capacity.
32. I have seen the female child and spoken to her although she is below the age of 16 years. I think I am right in doing so on good autho rity: Saraswathi Ammal v. Dhanakoti Ammal ('24) 11 A.I.R. 1924 Mad. 873, and Ponniah Asari v. Subbiah Asari ('35) 22 A.I.R. 1935 Mad. 363, The girl is a bright and intelligent girl. I am satisfied that she will be happy if she is permitted to live with the applicant. The fact of her living with the parents for a month has in no way impaired her affection for the applicant which is disclosed in every one of her letters. I am indeed relieved to find that her wishes coincide with what, in the circumstances, I conceive to be the requirement of the law. She has no fancy for getting married at this early age and having regard to the opinion, she expressed before me against early marriage and to what I have stated about her capacity under the Mussalman law and even under the Indian Majority Act in matters of marriage, dower and divorce it would not be right for me to do anything which may possibly expose her to undue pressure from her parents and thereby affect or impair her capacity to decide for herself the matter of her own marriage.
33. I desire to make it clear that I do not consider that the applicant has any independent right of her own. I am appointing her as the guardian of the person of the female child not because the applicant has any right to be so appointed or that I can take note of her sentiments but because the welfare of the female child demands it. The result is that I make the following Order that upon the applicant undertaking to pay month by' month and until the female child attains majority all the costs of maintenance and education of the female child in Loretto Convent, Darjee ling or any other school elsewhere of equal standing and upon her furnishing security in the shape of Government securities or otherwise to the satisfaction of the Registrar for such payment and upon her undertaking to give reasonable opportunities to the parents to see the female child I appoint the applicant as the guardian of the person of the female child Lovejoy Patell. I make no Order as to costs of this application or of the con tempt application.