1. This appeal is against an order appointing Ernest Henry Shave and his wife Ethel Mary Shave joint guardians: of a minor named John Christopher Peterson--under Act VIII of 1890. Mrs. Shave is the aunt (mother's sister) of the minor. The application of Mrs. Shave and her husband was opposed by Fanny Emmeliue Peterson, the mother of the infant. The infant is the posthumous son of Alfred Peterson, who died by an accident on the 15th January 1911, and was born on the 25th August 1911 at Darjeeling. He was, therefore, about 71/2 years of age at the time when the application was made and is about 8 1/2 years now. Mr. Peterson at the time of his death was the manager of a sugar factory earning Rs. 375 a month and commission, and on his death Mrs. Peterson was left in a destitute condition. She had four other children whom she placed in charitable institutions, two of (he boys went to La Martiniere, the elder being now an apprentice in the Lilooah Workshops. The third boy is at Kalimnong and the daughter is on the Bruce Foundation at Muasourie.
2. When the infant was between two and three months old, Mrs. Peterson brought him to her lister Mrs. Shave in Calcutta and made him over to her as she was going to be trained as a nurse. In so doing she acted very properly and she at once went through a course of training as a nurse so that she might earn her own livelihood, and be in a position to maintain her children.
3. The respondent's case is, that the child was made over to her absolutely to be brought, up as her own. Mrs. Peterson, on the other hand, says that she never agreed that the child should stay permanently with the Shaves and did not part with him for good. It appears, however, from Exhibit 1, a 'Progress Book' in the handwriting of Mrs. Peterson, that the ' baby was made over to my sister, his aunt, to bring up as her own.' It also appears from the evidence that in 1914, Mrs. Paterson and Mrs. Shave went to the Rev. Mr. Henderson with a project of re-christening the child. It further appears that the infant calls Mrs. Shave his mother, and Mrs. Peterson aunt Emmy. ' There is no doubt;, therefore, that the child was made over to Mrs. Shave to be brought up as her own. There is also no doubt the evidence that Mrs. Shave and her husband are very fond of the child and have treated him like their own child. The boy was at school at Allahabad at the time when the application for guardianship was made; bat is now, we are told, at school at Kurseong.
4. Mrs. Peterson, after being trained as a nurse, joined the Cambell Hospital and also had private practice and in January 1919 got an appointment at Darjeeling as Sister in-charge of the Victoria Hospital. There her pay is Rs. 160 a month with a free famished house and permission to have private practice, which is worth Ha. 60 Co Rs. 80. She wants the minor, now that she is in a position to maintain and educate him. She says: 'I want the minor as he came after my husband's death and I am fonder of him than of the others. I propose to send him as a day-boy to the Diocesan School.'
5. The learned District Judge says: 'Upon the evidence I find that Mrs. Peterson re-signed all her rights over the child almost from the time of his birth, that she contributed nothing towards his maintenance, and that up till quite recently when she quarrelled with Mrs. Shave, she made no attempt to recover possession of him. I find, on the other hand, that the Shaves have supported the child uninterruptedly from the time be was made over to them up till the present time, that they are as fond of him as he is of them, and that he has been brought up to regard them as his parents. The question, therefore, for decision is whether Mrs. Peterson is now entitled to rescind her agreement of surrender and recover possession of the infant. It has always been a well established principle of the Court, when the natural guardian has permitted another person to maintain and educate his child, not to permit him arbitrarily or capriciously to alter the mode of its maintenance and education, or to take it from the custody in which he has allowed it to remain,' and referring to the observations of Cotton, L, J., Agar Eulis, In Re: Agar Ellis v. Lascelles (1883) 24 Ch. D. 317 : 53 L.J. Ch. 10 : 50 L.T. 161 : 32 W.R. 1. held that Mrs. Peterson cannot successfully maintain her claim. He accordingly declared Mrs. Shave and her husband joint guardians of the minor. Mrs. Peterson has appealed to this Court.
6. We do not think that the mere fact that the child was made over by the anther to Mrs. Shave to be brought up by her as her own, or even a definite agreement never to claim it bask, would preclude her from having the custody of her own child. It is well settled that the mother cannot be deprived of her natural right of absolute control over her own child by any such agreement. But there may be circumstances in a particular case, which would render it undesirable in the interests of the infant that she should resume her rights when she has once made over the child to another,, and associations or expectations have been created on the part of the infant.
7. In the case of Queen v. Barnarde, Jone's case (1891) 1 Q.B. 194 : 64 L.T. 72 : 39 W.R. 195 Lord Esher, M. ft., discussing one rights of the mother of a legitimate child, observed: 'What are the rights of the mother of a legitimate child? It is her undoubted right, if there is no father living, to have the company and care of and the control over her own child. That is the law of England founded on the law of nature. If that be the mother's right, it follows that with regard to the actual care of and control: over the child, she may nominate, some one else to have the same right as she has herself to take care of and hate the control over it. It cannot be denied that she may say to what school her child shall be sent or that she may choose its tutors or its governesses. She may say, 'I wish the child to be placed under the care and control of this or that person', and if there is no good reason to the contrary, the law will enforce her wish. In the present case, the child is in the actual care of Dr. Barnardo, being there of the mother's own free will. More than that, she has by an agreement undertaken not to take the child away. The law is perfectly clear that parents cannot bind themselves by any such agreement. No such agreement can deprive a parent of the right of absolute control over his or her own child. This applies precisely to the mother of an illegitimate child. She cannot by any agreement absolve herself from the duty of taking care of it. The existence of the agreement is, therefore, immaterial. Then comes the question--the child being in the actual care of Dr. Barnardo and the mother desiring to have it planed in the care of some one else--which of the two is it to be given to? The Court is bound to give effect to the wish of the mother even though the child be illegitimate, unless there is some good reason to the contrary. Is there in this case any reason to the contrary? She did right, in my opinion, in giving up the child to Dr. Batcando, being herself unable to take care of it. After leaving to him all the trouble and expense of taking care of it for 18 months, she comes forward and says, I want my child back ' ' After discussing the circumstances the learned Judge came to the conclusion that there was nothing to entitle the Court to say that she should not be allowed to exercise her natural and legal rights with respect to her child.
8. That was a case of an illegitimate child and yet the Court of Appeal held that in determining who is entitled to have the custody of and control over an illegitimate child, the Court will, in a proper case, give the same effect to the mother's wishes in respect of the care, maintenance and education of the child as it gives to the wishes of the father of a legitimates child in those respects.
9. In Agar Ellis, In re: Agar Ellis v. Latcelles (1883) 24 Ch. D. 317 : 53 L.J. Ch. 10 : 50 L.T. 161 : 32 W.R. 1., referred to above; the Court of Appeal held that a father has a legal right to control and direct the education and bringing up of his children until they attain the age of 21 years, even although they are Wards of Court, and the Court will not interfere with him in the exercise of his paternal authority except (1) where by his gross moral turpitude he forfeits his rights, or (2) where he has by his conduct abdicated his paternal authority, or (3) where he seeks to remove his children being Wards of Court out of the jurisdiction without the consent of the Court.
10. The observations of Cotton, L.J., relied on by the learned District Judge are as follows: ''The father, although not unfitted to discharge the duties of a father, may have acted in such a way as to preclude himself in a particular instance from insisting on rights he would otherwise have, as where a father has allowed, in consequence of money being left to a child, the child to live with a relative and be brought up in a way not suited to its former station in life or to the means of the father. There the Court says you have allowed that to be done, and to alter that would be such an injury to the child that you have precluded yourself from exercising your power as a father in that particular respect, and then the Court interferes to prevent the father from having the custody of the child, not because he is immoral or has forfeited all his rights,' but because in that particular instance he has so acted as to preclude himself from insisting on what otherwise would be his light.' The question whether there are any such circumstances in the present case, which would induce the Court to interfere to prevent Mrs. Peterson from having the custody of her child, will be considered later.
11. On behalf of the respondent reliance was placed upon the case of Annie Besant v. Narayaniah 24 Ind. Cas. 290 : 41 I.A. 314 at. p. 320 : 27 M.L.J. 30 : 18 M.W.N. 1089 : 1 L.W. 520 : (1914) M.W.N. 585 : 16 M.L.T. 165 : 20 C.L.J. 253 : 16 Bom. L.R. 625 : 12 A.L.J. 1155 : 38 M. 807 (P.C.). In that case, the Judicial Committee observed: '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 be 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 does confer is essentially a revocable authority and if the welfare of his children require it, he can, notwithstanding any contrast 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 : 37 E.R. 842 : 23 R.R. 38.
12. The question, therefore, is whether in the present case there are circumstances which preclude the mother from insisting on rights which she would otherwise have, or whether the mother has acted in such a way as to create associations or give rise to expectations on the part of the infant which it would be undesirable in his interests to disturb or disappoint. In Annie Besant's case 24 Ind. Cas. 290 : 41 I.A. 314 at. p. 320 : 27 M.L.J. 30 : 18 M.W.N. 1089 : 1 L.W. 520 : (1914) M.W.N. 585 : 16 M.L.T. 165 : 20 C.L.J. 253 : 16 Bom. L.R. 625 : 12 A.L.J. 1155 : 38 M. 807 (P.C.) the two boys were made over by their father to Mrs. Besant, who offered to take charge of them and defray the expense of their maintenance and education in England and at the University of Oxford, and by a letter affected to appoint Mrs. Besant to be guardian of their persons and authorised her to act as such from that time forward. The boys were, accordingly, sent to England by Mrs. Besant and they were prosecuting their studies at Oxford. One of them had nearly attained the age of majority. Both of them appeared by Counsel, who stated to the Court that the infants did not desire to return to India or to abandon their chance of obtaining a University education in Eng. land. The Judicial Committee pointed out. that the Court in India had no jurisdiction over the boys, as they were in England when the application was made. No proceedings were taken under the Guardians and Wards Act, a suit having been brought against Besant. It was further pointed out that the order directing Mrs. Besant to take the boys back to India could not; be lawfully carried out without their consent or without an order from the Court exercising the jurisdiction of the Crown over infants in England. Their Lordships, accordingly, dismissed the suit but without prejudice to any application the father of the bays might think fit to make to the High Court in England touching the guardianship, custody and maintenance of his children.
13. The facts in that case, therefore, are different from those of the present. Then the question is whether the Court would disappoint any expectations raised if the infant be taken away from the custody of Mrs. Shave. It appears that Mr. Shave is employed in a paulin factory at Dum Dum, his present salary being Rs. 550 per month. Besides this he earned a bonus of Rs. 3,000 last year. Bat he and Mrs. Shave have children of their own, a boy and a girl. It is true that they are fond ' of the infant and have hitherto brought him up comfortably and paid all his expenses. The boy also appears on the evidence to be attached to them. As stated above, he is now at school and they pay his expenses, which amount to Rs. 25 a month. If left to them, there is no doubt that they will educate him properly. But beyond that it does not appear that there is any question of any expectation. The appellant's position at Darjeeling now enables her to maintain and educate the child without difficulty, and in some respects compares favourably with that of the Shave who live at Dum Dum. She has a free furnished house at Darjeeling and can easily afford to send the boy to school as a day-boy. Mr. and Mrs. Shave reside at Dum Dum. In the usual course of things the boy would be at Kurseong for about eight months in the year and can only live with them during his holidays. On the other hand, he can live with his mother at Darjeeling. There is no suggestion whatever against her character or fitness to act as the guardian of her son. Her brother-in-law Mr. Peterson, examined by the respondent, said that she is a good and affectionate mother. It may be mentioned that even after the child was made over to Mrs. Shave, she often visited the child, and it is admitted that for sometime in the year 1914 both the sisters lived together in Calcutta and the infant lived with them. It does not appear, therefore, that her affection for the child has ceased. The evidence, however as to her having paid money to her sister for the maintenance of the infant is not satisfactory, and has been rightly rejected by the Court below.
14. It is said on behalf of the respondent that Mrs. Peterson has four other children in charitable institutions and that she should in the first place devote herself to their interests. One of them, as already stated, is now an apprentice in the Lilooah Workshop, and it appears that she has in fact had the others to stay with her in Darjeeling during their holidays. This infant is her last child and her desire that it should be restored to her is a natural one. We are not satisfied that the interests of the infant would naturally suffer if he were taken out of the custody of Mrs. Shave, nor do we think that 'the mode of the child's maintenance and education ' will be materially altered.
15. Mrs. Peterson through her Counsel has offered to send the boy to the Shaves to live with them for a month every year.
16. In all the circumstances of the case, we think that the order of the Court below should be set aside. The infant will be restored to the guardianship of his anther, Mrs. Peterson.
17. In the circumstances we direct that the parties do bear their own costs in both Courts.