Bombay High CourtBai Tara vs Mohanlal Lallubhai on 16 March,
1922Equivalent citations: (1922) 24 BOMLR 779Author: N
MacleodBench: N Macleod, Kt., Shah
JUDGMENT Norman Macleod, C.J.
1. The petitioner filed this application under the Guardians and
Wards Act to be appointed guardianof the person of his minor son,
who was living with his mother opponent No. 4 and his
maternalgrandfather opponent No. 5. I may point out at once that
the application ought to have beendismissed, because such an
application by a Hindu father under the Guardians and Wards
Act,presumably under Section 19, is not competent, and a
considerable amount of confusion has arisenin the course of the
argument from neglecting to recognise that fact. The application
should havebeen made under Section 25 of the Guardians and Wards
Act because it is admitted that underHindu law the father is the
natural guardian of his minor son, and he can apply to the Court,
if hisward loaves or is removed from his custody, for an order for
the minor's return, and the Court will, ifit is of opinion that it
will be for the welfare of the ward to return to his guardian, make
such anorder.
2. The facts of this case make it perfectly clear that it is not
to the interests of the minor that theCourt should make such an
order. Unfortunately there have been disagreements between
thepetitioner and his first wife, with the result that for some
years she has been living separate with herfather and has had the
custody of the boy. The petitioner has married again, and it is
obvious thatthe boy, who was only seven years old at the time this
application was made, will be much better offliving with his mother
than with his father. No suggestion whatever has been made as to
thecharacter of the mother, which would be good ground for taking
away the boy from her tender careand handing him over to the father
who would be a perfect stranger to him. The step-mother cannotbe
expected to be very much interested in his welfare, and the uncles
and any members of the priorgeneration who may be living in the
house will also not be likely to give this small boy the
attentionand sympathy which he naturally requires.
3. Once it is recognised that the application should have been
made under Section 25 of the Act, andnot under Section 19, which
has nothing whatever to do with the case, a decision can easily
bearrived at. We have nothing to do with the question whether the
father is unfit to be the guardian ofthe person of the minor. That
would only be at issue if there was an application by another
person tohave a guardian appointed other than the father; and we
have to accept the facts as we find them,that this small boy has
been living with his mother for the last five years, and apparently
the fatherhas acquiesced in that. As my learned brother has pointed
out, it is really a question what is theproper time for the father
to make an application to the Court to obtain the custody of his
son, andthat question must depend entirely upon the further
question when will it bo for the interests andwelfare of the minor
to return to the custody of his father.
Bai Tara vs Mohanlal Lallubhai on 16 March, 1922
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4. We were referred to the case of Annie Besant v. Narayaniah
(1914) 16 Bom L.R. 625, P.C. as beingin favour of the respondents,
but when that case is read, it will be found that it is entirely in
favourof the appellant in this case. The father there had accepted
an offer made by the defendant to takecharge of hie two sons for
educating them in England. He was dissatisfied later on with
thatarrangement, so he wanted to get back the custody of his
children. Their Lordships said at p. 634:
The real question was whether he (the father) was still entitled
bo exercise the functions of guardianand resume the custody of his
sons and alter the scheme which had been formulated for
theireducation...The real question was whether in the events which
had happened the plaintiff was atliberty to revoke it (the
authority given by the said letter.) Both questions fell to be
determinedhaving regard to the interests and welfare of the
infants, bearing in mind, of course, their parentageand religion,
and could only be decided by a Court exercising the jurisdiction of
the Crown overinfants, and in their presence.
5. Therefore treating it as an application under Section 25 of
the Guardians and Wards Act askingthe Court to direct the return of
the boy to the father, I think myself it is distinctly to the
interestsand welfare of the boy to remain with his mother. That of
course will not prevent the father frommaking a further application
at any later date when he may be able to satisfy the Court that it
willthen be to the interests and welfare of the minor that he
should leave his mother's care and live withhis father. The appeal
must be allowed and the application dismissed with costs
throughout. Thecross-objections are dismissed with costs.
Shah, J.
6. I concur in the order proposed by the Chief Justice. I desire
to add that this order is made on thefooting that the application
made to the District Court by the father is one under Section 25 of
theGuardians and Wards Act for the custody of the minor. It is not
necessary for the purposes of thisappeal to decide the question as
to whether a father can properly make an application under
theGuardians and Wards Act to be formally appointed the guardian of
his minor son. That wasevidently not necessary in the present case;
and though the application is in form for such anappointment, it is
in substance an application for the custody of the minor and must
be treated anddisposed of as such. On that footing the only
question is whether it is for the welfare of the minorthat the
existing custody of the mother should be disturbed. It is
unfortunate that owing to thedifferences between the father and the
mother it has become necessary to consider this question;and it is
still possible that in future these differences may be made up and
that the interests of theminor may be advanced by the cooperation
of the father and the mother in that respect. But atpresent it
seems to me fairly clear that it is not desirable for the welfare
of the minor that thecustody should be changed. The boy is of
tender age and I think that at present the personal care ofthe
mother is a paramount consideration. On that ground I agree that
the present application of thefather for the custody of his minor
son should be dismissed.
Bai Tara vs Mohanlal Lallubhai on 16 March, 1922
Indian Kanoon - http://indiankanoon.org/doc/1651398/ 2
Bai Tara vs Mohanlal Lallubhai on 16 March, 1922
