Srimati Kamini Mayi Debi vs Bhusan Chandra Ghose (23/02/1926)

Section 48 in The Guardians and Wards Act, 1890

48. Finality of other orders.—Save as provided by the last foregoing section and by section 622 of the Code of Civil Proce­dure, 1882 (14 of 1882)1, an order made under this Act shall be final, and shall not be liable to be contested by suit or other­wise.

The sections of the Guardians and Wards Act are 7, 17, 19 and 35. Chapter II comprises Section 5 to Section 19 they relate to the appointment and declaration of guardians, Section 7 of the Act reads thus :

 7 (1) Where the Court is satisfied that it is for the welfare of a minor that order should be made

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian, the Court may make an order accordingly.

The Court by this section is empowered to appoint a guardian or to declare a person to be such a guardian, if it is satisfied that it is for the welfare of a minor. Section 17 runs as follows:

17. (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject-appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

Section 19 (b) of the Act runs as follows:

Nothing in this chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint and declare a guardian of the person of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or….

This section does not authorise the Court to appoint or declare a guardian of the person of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor. The requirements of the provisions of Sections 7, 17, and 19 of the Act will have to be borne in mind by a Court before appointing or declaring a guardian of the person of the minor. Chapter III of the Act deals with the duties, rights and liabilities of guardians. Section 25 (1) of the Act runs as follows:

If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the Custody of the guardian.

This sub-section enables the Court to cause the ward to be arrested and delivered into the custody of the guardian, if the ward leaves or is removed from the custody of the guardian of his person, and if the Court is of opinion that it will be for the welfare of the ward to return to the custody of his guardian. Before a petition under Section 25 of the Act could be maintained, the person applying for relief should be the guardian of the person of the minor who has been removed. If the petition under Section 25 of the Act proceeded on the basis that the petitioner was the guardian and relief as to custody of the minor was denied to him, even though he was a guardian, a fresh petition for his being declared as the guardian under Section 7 of the Act and for custody would not be maintainable, for the relief as to custody of the minor would have been considered only on the basis that he was the guardian. Therefore, generally speaking, when custody of the minors had been denied to the father presuming him to be the guardian, a fresh petition by him for declaring him as the guardian and thereafter praying for custody of the minors as a guardian would not be maintainable.

Annie Besant v. Narayaniah I.L.R.

A decision of the Privy Council in Annie Besant v. Narayaniah I.L.R. (1915) 38 Mad. 807 : 27 M.L.J. 30 : 41 I.A. 314 : A.I.R. 1914 P.C. 41, was cited before the Bench in support of the proposition that the father cannot maintain a petition for being declared as a guardian. The observation relied on runs as follows:

And further no order declaring a guardian should by reason of the 19th section of the 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.

The Privy Council was not dealing with the propriety of the order appointing the plaintiff as the guardian. The observation in the circumstances was held by Venkatasubba Rao, J. as obiter and in the absence of any indication in the judgment that their Lordships of the Privy Council gave a considered opinion on the question, the learned Judge was not prepared to hold that they intended to decide finally the meaning of Section 19. Scrutinising the observation of the Privy Council, we are unable to construe it as laying down that the father cannot maintain a petition for being appointed as a guardian. What it says is that under Section 19 no order declaring a guardian should be made during the respondent’s lifetime (father’s lifetime) unless in the opinion of the Court he was unfit to be the guardian which was clearly not the case. This in our view would only mean that all that the Privy Council did was to paraphrase Section 19 but did not purport to lay down that the father cannot maintain an application. Jackson, J., who was the other learned Judge in Raghavaiva v. Lakshmiah 48 M.L.J. 179 : 86 I.C. 640 : A.I.R. 1925 Mad. 398, expressed a contrary view in the following terms:

Whether the dictum in Besant v. Narayaniah 27 M.L.J. 30 : I.L.R. (1915) 38 Mad. 807 : 41 I.A. 314 : A.I.R. 1914 P.C. 41, is obiter or otherwise I think it expresses the plain meaning of the statute and under Section 19 the Court is not authorised to declare anybody not even the father as guardian of the person of a minor whose father is living and in the opinion of the Court is not unfit. Whether this was the intention of the legislature or whether a contrary intention has been defeated by defective drafting, I am not prepared to say.

Neither the section (section 19) nor the passage referred to in the decision of the Privy Council states that the Court is not authorised to declare anybody as guardian not even the father. The construction that not even the father can be appointed is not warranted either under the section or on the wording of the judgment of the Privy Council. We are in respectful agreement with the view taken by Venkatasubba Rao, J. and are of the opinion that the father could maintain a petition under Section 7 for his being declared as the guardian.

Muhammadan father applied for an order appointing him the guardian of his children

In Abubacker v. Mariyamma (1945) 2 M.L.J. 463 : 58 L.W. 587 : 223 I.C. 464 : A.I.R. 1946 Mad. 110,  a Muhammadan father applied for an order appointing him the guardian of his children by the respondent. Subsequently the amended the petition and asked for an order of the Court requiring the respondent to return the children to his custody. The District Judge dismissed the petition. On appeal the Bench observed that a Muhammadan father being the lawful guardian of his minor children does not require an order of the Court to support his right to act as their guardian and in fact an application under the Guardians and Wards Act for an order appointing him guardian does not lie. The petition which the Bench was dealing with was one under Section 25 of the Act and the observation that a petition under the Guardians and Wards Act by the father for appointing him as the guardian does not lie, was not necessary for the disposal of the petition before the Court.