1. The appellant, Victor Justin Walter, is the husband of the respondent 1, Marie Josephine Walter. They are European British subjects within the meaning of the Guardians and Wards Act 8 of 1890, and are Roman Catholics by religion. They were married in 1921 and the child, Leon Walter, born on 27th September 1923, is the only issue of that marriage.
2. On 16th June 1926, respondent 1 applied to be appointed guardian of the person of the child under circumstances which have been set out in detail in the order from which this appeal has been preferred. This application was opposed by the appellant. The Second Additional District Judge, by an order dated 17th January 1927, allowed the application of respondent 1 with costs and also made an order on the appellant to pay a sum of Rs. 100 a month to respondent 1 for the maintenance of the child. Hence this appeal.
3. The marriage, it seems, has not been quite a happy one. The appellant is a purser in the employ of the British India Steam Navigation Company drawing a pay of Rs. 250 or so. His duties keep him away from his home for nearly nine months in the year, if not more, and he can only be at home for a few days at the end of every two months or so. Respondent 1 suffers badly from severe filarial troubles and, as far as we can gather, is a young woman somewhat sick of her environments, with a feeling of deep-rooted disgust for what she considers to be neglect on the part of her husband; and a vein of utter dissatisfaction runs through all her utterances, which sometimes border on hysterics. For a few months after the marriage, she she was left by the appellant with his sister with whom she could not agree and thereafter she returned to her mother, Mrs. Bridget Katherin Antonio, to Lucknow, where the latter lived at the time. The mother is a trained nurse, and husband is fairly well off and in service.
4. When respondent 1 thus went to Lucknow, the appellant issued an advertisement in the Statesman that she had left his protection. About the end of 1922 a reconciliation was brought about by the parish priest. Respondent 1 remained in Calcutta or at Lucknow from time to time. The child was born in Calcutta and, when it was about five weeks old, she again went to Lucknow to her mother, as the child was ill. When the child was about 18 months old she came down to Calcutta with the child and Mrs. Antonio at the appellant's request. This was in February 1925. A temporary lull was sought to be brought about by an agreement (Ex. D) which she executed or was made to execute. The two essential condition in this agreement were that she was to look after the home and the child for a round sum of Rs. 170 a month and that if she again left her husband she was to leave the child with the husband's sister-in-law and waive all claims for maintenance and support. We do not think much of this agreement and shall not refer to it again beyond stating that, apart from the circumstances under which it was executed and which would make us hesitate to act on it, it is somewhat like an agreement by a father to give up entirely the custody and control of his child to the mother and is therefore opposed to public policy : Hope v. Hope  8 De. G.M. & G. 731, St. John v. St. John  11 Ves. 531. A house, 16 Crooked Lane, was taken on rent, and this was shared by the appellant and his wife and child, and by the appellant's brother and sister-in-law. On 1st June 1925- the wife was obliged to go to the Medical College Hospital on account of filarial troubles. She returned home on 16th June but found that the child had disappeared. The appellant had in the meantime put it into St. Vincent's Home at Kidderpore. He tried to make her believe that it had been sent to Rangoon as he apprehended that if she knew that it had been put into the Home, she would go and worry the nuns there. He tried to send her again to the hospital, but either she was refused admission or she refused to be admitted and remained at 16 Crooked Lane. At the end of the year Mrs. Antonio was able to discover where the child was. Owing to the strict injunctions of the appellant, respondent 1 was allowed to see the child at the Home only once in January and again in May 1926. Thereafter, the present proceedings were commenced, on the application of respondent 1, filed on 16th June 1926. Since the order of the learned Judge passed on 17th January 1927, the child was taken from the Home to Lucknow. The mother and the child lived with Mrs. Antonio at Lucknow for some time. Since some date in April, they were putting up at Nainital. The appellant, respondent 1, the child and Mrs. Antonio were present in Court when this appeal was heard. During the hearing of the appeal an endeavour was made to arrive at a satisfactory arrangement with the mutual consent of the parties. It was all but concluded when it failed. We are nevertheless thankful to Mr. Barwell and Mr. Chippendale for the generous assistance we received from them in this respect.
5. One of the complaints made by the appellant against the order passed by the Judge is that the case was heard in his absence, no proper orders having been passed on the application for adjournment that was filed by him, asking the Court to fix a date on which he would be in a position to attend. The order fixing the date of hearing on receipt of this application does not appear to have taken due note of the appellant's difficulties, but as no further representation was made to the Judge when the case was taken up for hearing, we are not inclined to hold that the appellant really desired to be present. On the merits the validity of the order has been assailed or sought to be supported by the parties before us, much on the same lines on which the proceedings were fought out in the Court below. The appellant has sought to make out, that respondent 1, by reason of her lack of education, and her temperament, mental faculties and conduct, is unfit to look after the child, that she has on occasions showed symptoms of insanity, more particularly in threatening to destroy her own life and that of the child, also that she is not likely to be helped by her parents who are dissatisfied with her and that her mother had already expressed much dissatisfaction on more occasions than one. On his own behalf, he says he has done nothing which can justify the removal of the child to the custody of somebody else, that he has provided his wife with Rs. 170 out of his pay of Rs. 250 and that it is beyond his means to do anything more, and that he removed the child to St. Vincent's Home at Kidderpore with the very best of motives. Respondent 1, on the other hand, charges the appellant with callousness and neglect, nay even cruelty and ill-treatment, in respect of herself, and also drunkenness and incapacity to take care of himself and far greater incapacity to look after the child. We have heard all that has been argued at the Bar on. their respective cases thus presented by the parties and we have taken into consideration all the materials that are on the record as bearing on these matters. It will serve no useful purpose discussing these materials. It is sufficient to say that the charges levelled against respondent 1 are baseless and the explanation that has been offered on her behalf as to her conduct or utterances fits in with the probabilities and we agree generally in the estimate that the learned Judge has formed of her. With regard to the opinion that the learned Judge appears to have formed of the appellant himself as regards his character and the sufficiency of his resources, we may say we are not quite in agreement with him. The learned Judge on this question observes thus in his judgment:
Objector (meaning the appellant) is a purser on board a steamer living free and practically free of cost and even if his income be limited to his pay it cannot be denied that under the circumstances he took a considerable share of it for himself. His wife had to pay rent, servant and maintenance for two or roughly double what her husband kept back for his luxuries. From the evidence of his own witnesses it is clear that he always had money for drink and this probably accounts for his. neglect to provide his wife with proper medical attention.
6. We do not think that the evidence quite supports this conclusion and this appraisement of the appellant's conduct, in our opinion, is somewhat harsh. There is very little to suggest that the appellant is given to luxuries and the evidence that he is a habitual drunkard is not very convincing. Bearing the conclusions of the learned Judge in mind and also the dissent we have expressed above, it has to be considered whether the appointment of respondent 1 as guardian of the child is one that should be disturbed.
7. The parties are European British subjects within the meaning of the Act. Clause (4), Section 17 of the Act provides that as between parents who are European British subjects adversely claiming the guardianship of the person neither parent is entitled to it as a right, but other things being equal, if the minor is a male of tender years, or a female, the minor should be given to the mother, and if the minor is a male of an age to require education and preparation for labour and business, then to the father. According to this principle, if other things were equal, the child in the present case should be given to the mother. But are other things equal? In considering the matter from the point of view of the welfare of the minor, as we must under general principles, as also in view of the express provisions of Section 17, Clause (1), read with the other clauses of the section, we may with advantage look to the circumstances which may possibly stand in the way of the child being properly looked after. The first and paramount matter for the consideration of the Court is the welfare of the child, which is not to be measured by money only or by physical comfort only, but is to be taken in its widest sense. The moral and religious welfare of the child must be considered, as well as its physical well-being, nor are the ties of affection to be disregarded, though they are not conclusive (Eversley on Domestic Relations, 4th edn, at p. 638). So far as respondent 1 is concerned we cannot help thinking that the learned Judge ignored the disadvantages that she will experience in discharging her duties as guardian and has overestimated her qualifications by putting to her credit the fitness of Mrs. Antonio to look after her and her child He says that Mrs. Antonio is a fit and proper person for mother and child to live with. Coupled with the condition that respondent 1 with her child will be able to live with Mrs. Antonio, she, in the opinion of the learned Judge, is a proper guardian. In this view we entirely agree. Mrs. Antonio, as far as can be made out, did not approve of the marriage and she was for some time very cross with her daughter for having contracted this marriage against her wishes. But there is no question that she has centred all her affections on the child since it was born and it is apparent that she will take every care of her. Other matters, however, have to be considered and they will be referred to presently.
8. Respondent 1 has no home or means of her own, and the child has no property. The Judge has made an order on the appellant to pay Rs. 100 monthly to her for the maintenance of the child. This order is sought to be supported by reference to Section 22, Clause (1) of the Act, but it is plain that that clause is of No. assistance; it provides for an allowance for the guardian for his care and pains in the execution of his duty. Under Act 40 of 1858, a guardian of the person could only be appointed in the case of a certificate to manage the minor's property being granted : see Section 7 and 11 of that Act and also Act 20 of 1864. The older English cases show that the Court of Chancery could not exercise its jurisdiction except where the minor had property but latterly the case has been different : Barnarda v. McHugh  A.C. 388 and In re McGrath  I. Ch. 143. The same power is exerciseable by the High Court : Re Jagannath Ramji  19 Bom. 96. Act 8 of 1890 is clear and shows that the Court can exercise its jurisdiction to appoint a guardian of the person of the minor even if he is possessed of no property. It is the duty of the father to maintain and educate his children who are incapable of supporting themselves and although the law has always recognized this duty, the civil Courts have no direct means of enforcing this obligation, so as to compel him to maintain them out of property in which they have no interest. Lord Eldon, L.C., in Wellesley v. Duke of Beaufort  2 Russ. 1, remarked:
You may go to the Court of King's Bench for a habeas corpus to restore the child to the father; but when you have restored the child to the father, can you go to the Court of King's Bench to compel that father to subscribe even to the amount of five shillings a year for the maintenance of that child? A Magistrate may compel a trifling allowance, but I cannot believe that there was ever a mandamus from the Court of King's Bench upon the subject. Wherever the power of the law rests with respect to the protection of children, it is clear that it ought to exist somewhere; if it be not in this Court where does it exist?.... The Courts of law can enforce the rights of the father, but they are not equal to the office of enforcing the duties of the father. Those duties have been acknowledged in His Majesty's Courts for centuries past.
9. There can be no doubt as to the full jurisdiction of the Court in all questions relating to maintenance; it is a jurisdiction that can only be exercised where there is some property belonging to the infant: Simpson on Infants, fourth edition, p. 189; Macpherson on Infants, p. 24. Lord Eldon in Wellesley v. Beauford  2 Russ. 1, remarked:
It is not, however, from any want of jurisdiction that it does not act, but from a want of means to exercise that jurisdiction; because the Court cannot take on itself the maintenance of all the children in the kingdom. It can exercise the jurisdiction usefully and practically only when it has the means of doing so; that is to say, by its having the means of applying property for the use and maintenance of the infants.
10. The act is silent in this respect. The Code of Criminal Procedure provides a mode of compelling a father to maintain his infant children, but under that Act he cannot be compelled to educate them or even to support them according to his own position. It is true that where there is no specific provision in the statute the Court has to act in accordance with the principles of justice, equity and good conscience, and the rules of the Court of Chancery in England may form a safe and useful guide; but the power of allowing maintenance to minors such as is exercised by the Court of Chancery in England is exercised upon certain well-settled rules, and an order cannot be made unless the minor possesses a clear fund or income applicable to the purpose; the minor must have a vested interest in the fund : see Trevelyan on Minors, edn. 5 p. 216. The broad proposition that under general principles the father of a child is bound to provide for its maintenance such as was suggested in the case of Ghana Kanta v. Gereli  32 Cal. 479 has hardly any foundation.
11. Respondent 1 has no house of her own and the place where she is expected to take the minor to is Lucknow or some other place where Mrs. Antonio may be putting up. Mrs. Antonio's evidence, upon which the learned Judge has relied is that she is willing to have respondent 1 and the child and look after them. The learned Judge says:
If this were not so it does not appear to be likely that she would have spent a year in Calcutta with her daughter trying to get the custody of the child.
12. So far so it is all right, but is this not a precarious assurance? Complaint has been made before us that the child has been removed from the limits of the Court's jurisdiction without its leave and reference has been made to Section 31 of the Act. It may be said in answer, and has been so said, that though there is no express leave, the learned Judge was perfectly aware of the fact that in all probability, the child will be taken to the place where Mrs. Antonio might be living, and that was what was intended by the order of the learned Judge. The section is based upon the English law. Under the law in England where the persons of infants are, by due and proper course of law, brought before the Court, it will take special care that they remain within its jurisdiction, and obey its directions therein, and will not in general, whether they be actual wards or not, be permitted to be taken or to go out. Under special circumstances, the Court has permitted infants to go out of the jurisdiction for the purpose of temporary or even permanent residence there, or when already abroad, to remain there under restrictions whereby their property and their education and marriage will remain within its control, and this must be on the ground of advantage to the infants (Daniell's Chancery Practice, 8th Edn., p. 982). While, therefore, leave for permanent residence outside the jurisdiction of the Court may be granted for good and sufficient; grounds and under sufficient; safeguards, leave for the permanent residence of the child abroad and out of the Court's jurisdiction is not permitted except where it is manifestly advantageous to the child as regards health and the like Eversely on Domestic Relations, 4th Edn., p. 639. It may be doubted whether the present case fulfils these requirements, as it is merely because Mrs. Antonio is willing to let respondent 1 and the child to remain with them that the order should be taken to have been made, if it can be said to have been made at all. Respondent 1 herself is in indifferent health and it may be necessary for her to go to other places or to hospital. How then should she be able to look after the child?
13. If for the above reasons the respondent 1 be not considered a suitable person to act as guardian of the person of the child, the appellant may say that he should be declared guardian in view of the provisions of Section 17, Clause (4) of the Act. Story in his Equity Jurisprudence, 14th edn., Section 1757, says:
Although in general parents are entrusted with the custody and education of their children, yet this is done upon the natural presumption that the children will be properly taken care of, and will be brought up with a due education in literature and morals and religion and that they will be treated with kindness and affection. But whenever the presumption is removed, whenever (for example) it is found that a father is guilty of gross ill-treatment or cruelty towards his infant children; or that he is in constant habit of drunkenness and blasphemy or low and gross debauchery; or that he professes atheistical or irreligious principles; or that his domestic associations are such as tend to the corruption and contamination of his children; or that he otherwise acts in a manner injurious to the morals or interests of his children; in every such case the Court of Chancery will interfere and deprive him of the custody of his children and appoint a suitable person to act as guardian and take care of them and to superintend their education.
14. The appellant may not have lost his right, but the fact that he remains away from home for nine months in the year or more and will be able to look after the child personally for a few days only at the end of every two or three months cannot be lost sight of in considering the question of the child's welfare. The fact that he sent the child to the Home makes him stand self-condemned in this respect. The Home is an excellent institution but the care of the nuns is a poor substitute for parental affection.
15. From what has been stated above it will appear that, in cur opinion, neither the father nor the mother by himself or herself, is, in view of the circumstances to which we have referred, fit to be entrusted with the guardianship of the child and that a decidedly better arrangement will be to appoint the grandmother as its guardian should she consent to be appointed as such in view of those circumstances. We shall certainly have to pass such final orders as we consider suitable and proper in the circumstances, but before we proceed to do so we hope the parties interested in the welfare of the child will enable us to make the very best arrangement that we can think of. We accordingly defer passing final orders, till the 13th June 1927. In the meantime we give Mr. and Mrs. Walter another chance to make an application to be appointed joint guardians of their child on such terms, if any, as they may be able to arrange between them amicably. We also give leave to Mrs. Antonio to make an application, if she so desires, for her own appointment as such guardian, on the understanding that any allowance for the maintenance, etc., of the child, cannot be made in these proceedings, and that for that purpose she or Mrs. Walter have to look to such other remedy or remedies as may be available to them under the law.
16. Any such application, as aforesaid, will have to be filed by Wednesday next. Final orders in the ease will be passed on the 13th June 1927, when the parties, as well as the child, are expected to be present before us.
17. I agree with the order that my learned brother proposes to make-in this case. On the materials which have been placed before us I think it is clear that neither the appellant, the father of the minor, nor the respondent, the minor's mother, is a fit person to be appointed guardian of the minor. So far as the father is concerned nothing has in my opinion been satisfactorily proved which would in any way unfit him to be appointed the guardian of his son. No. substantive application has, however, been filed by the father to be appointed guardian. As a matter of fact he could not in any case be appointed as guardian inasmuch as he goes to sea and is absent from Calcutta for long periods and only occasionally comes into port. He could not therefore in the circumstances properly look after the minor. In the case of the mother the reasons why she is ineligible as guardian are quite different. The evidence shows that she is unbalanced, hysterical and wholly incompetent, and therefore the welfare of the minor would certainly not be secured by entrusting him to her charge. No one else has come forward to apply to be appointed as guardian although notices were issued. In the circumstances it is difficult to know what order the Court should make. The only course seems to be, as proposed by my learned brother, to allow the parties an opportunity either to submit a joint application for guardianship, or for the grandmother of the minor, Mrs. Antonio, to make such an application. (After an application was filed in pursuance of the judgment their Lordships delivered the following judgments.)
18. In pursuance of our order of the 2nd June 1927, an application has been filed for the guardianship of the child's person by Mrs. Bridget Katherin Antonio. There has been no joint application for such guardianship filed by Mrs. and Mr. Walter, but. Mr. Walter alone has filed an application for himself. He has also filed an affidavit objecting to the appointment of Mrs. Antonio.
19. We expected that good sense would prevail with the parties and the matter would be allowed to end in this Court for the benefit of all concerned, but evidently the parties are inclined to take a different view. Under the circumstances, we proceed to pass suitable orders.
20. In view of the remarks made by us in our judgments, dated the 2nd June 1927, the appeal must be allowed and the order passed by the Court below must be set aside, but there will be no order as to costs. For the reasons we have given in these judgments, we do not consider that the appointment of Mr. Walter will be for the welfare of the child and we, accordingly, reject his application filed before us since then and disallow the prayer contained therein. We send down the petition of Mrs. B. Antonio filed before us as aforesaid to the trial Court so that it may be registered as an application for her own appointment as such guardian. Mrs. B. Antonio was putting up at Nainital and she had to come down with the child for the purposes of these proceedings. It is, therefore, extremely important that the proceedings should be terminated as quickly as possible. As the learned vakil for Mrs. Walter does not object to and on the contrary supports Mrs. B. Antonio's application, it will be enough for the Court below to give notice of the proceedings to Mr. Walter alone.
21. The material question for the consideration of the Court below will be the truth or otherwise of the allegations of Mr. Walter in the affidavit that he has filed in this Court in opposition to Mrs. Antonio's appointment. The Court below will proceed to pass final orders on the application as soon as this investigation is finished.
22. As regards interim custody we direct that Mrs. B. Antonio do continue to be in custody of the child until final orders are passed on her application. She will be at liberty to keep the child anywhere she likes, the parents, of course, having liberty to see the child at such place where it may be kept. She will be at liberty to take the child to Nainital or any other place that she may desire during this period, and unless the Court below makes a specific order to the contrary it will not be necessary for her to produce the child before that Court during the continuance of the proceedings.
23. The records, together with the petition of Mrs. B. Antonio and the affidavit of Mr. Walter, will be sent down to the Court below (copies thereof being kept with the High Court file of this appeal) as early as possible.
24. I agree.