Jwala Prosad Saha v. Bachu Lal Gupta .

1. (F.M.A. No. 164 of 1940) - This appeal is directed against an order of the District Judge, Birbhum, dated 28th May 1940, passed under Section 25, Guardian and Wards Act, directing that the minor, Chittaranjan Gupta should be returned to the custody of his father Bechu Lal Gupta, the respondent-petitioner. The infant is a boy aged only eight years and a few months. He was born in December 1932 at Suri in the house of his maternal grandfather, Jwala Prosad Saha, who is the appellant before us. His mother died only six days after his birth, and it is not disputed that he has been in the house of his maternal grand parents since then and brought up by them as their own son. It was on 27th March 1940 that Bechu Lal Gupta, the father of the minor, made this application as his natural guardian, under Section 25, Guardian and Wards Act, praying that the child might be restored to his custody. The application was opposed by his maternal grandfather Jwala Prosad Saha on several grounds. It was said, in the first place, that the application was not a bona fide one and that the petitioner had never cared to look after his infant son ever since his birth, and neither he nor the other members of his family had paid any visit to the child except on rare occasions. The petitioner, it was said, made a proposal to marry the second daughter of the opposite party and as the latter refused to accept his proposal, he became angry, and with a view to wreak vengeance on the opposite party and his wife who were very much attached to the child, sent a pleader's letter demanding that the child should be returned to him. It was contended further that it would not be conducive to the welfare and happiness of the child if he was removed at this age to new and unfamiliar surroundings and estrangement from the opposite party and his wife whom he looked upon as his own. parents might seriously affect his health.

2. The District Judge considered all these matters and came to the conclusion that although the child was well looked after and tended by the maternal grand parents, it would be after all to his interest to return to his father and live with him. As a sudden separation from his maternal grand parents might affect the health of the child, the District Judge directed that the boy should remain with the opposite party till the Christmas holidays of 1941. During this period the father would be entitled to the company of his son during the holidays and on ceremonial occasions, and would be at liberty to take him away from Suri at life expense. From the Christmas holidays of 1941 the minor would remain permanently with his father. It was further directed that if the wife of the opposite party died within this period, the child should be returned to his father. It is the propriety of this order that has been challenged before us in this appeal. Mr. Das who appears for the appellant has contended in the first place, that the order of the District Judge is not war-ranted by law, inasmuch as Section 25, Guardian and Wards Act, has no application to the facts of this case. He has contended, in the second place, that in the circumstances of the present ease the welfare and happiness of the child demand that the present custody and control should not be interfered with.

3. So far as the first point is concerned, Mr. Das argues that Section 25, Guardian and Wards Act, contemplates a case where a ward leaves. or is removed from the custody of his guardian. As in the present ease, the minor was never in the custody of his father and lived all along with his maternal grand parents, that section could not possibly apply. The language of the section is undoubtedly not very clear, but we think that the word "custody" as used in the section refers not only to actual but also to constructive or legal custody. When the father of a child is alive and has not abandoned his right, the maternal grand-father or for the matter of that any other relation who has the actual custody of the boy must be deemed to have that custody with the knowledge and consent of the father. Legally, it is the father who has the custody of the child in such circumstances, and the child can be deemed, Within the meaning of the section to be removed from such legal custody, when the person in whose actual possession he is, repudiates to the guardian's knowledge the right of the latter to the actual or legal custody of the minor. This was the view taken by the Madras High Court in Mohideen Ibrahim Nachi v. L. Mahomed Ibrahim Sahib ('17) 4 A.I.R. 1917 Mad. 612 and in our opinion it would be a sound view to take. To hold otherwise, would be to admit that there is no provision in the Guardian and Wards Act under which a guardian, even if he is appointed by a Court, can apply for having the custody of the minor who had never been in his custody before. As was pointed out by the Allahabad High Court in Utma Kuar v. Bhagwant Kuara ('15) 2 A.I.R. 1915 All. 199 guardian may in such cases be said to have got legal custody from the very moment of his appointment as a guardian and can make an application under Section 25, Guardian and Wards Act. The first contention of Mr. Das is, therefore, overruled. Coming now to the merits of the ease, it is not disputed that the father, as the natural guardian, has the legal right to the custody of his child and the Court would not interfere with his right, except when the safety or the welfare of the child requires such interference. It cannot be said in the present case that the father had abandoned the custody of his child to his maternal grandfather and is now capriciously reasserting his rights. The father could not reasonably have demanded the return of the child so long as it was very young and required the actual nursing of his grand-mother. There is no allegation of misconduct on the part of the father, or any moral unfitness which would disentitle him to. the custody of his son. We are not satisfied that the present case was the outcome of any bitterness of feeling that came into existence on account of the refusal of the opposite party to marry his second daughter to the petitioner.

4. It is perfectly true that the rights of parents regarding the custody and control of their children are to be exercised, not in the interest and for the benefit of the parents, but in the interest and for the welfare of the children themselves: In the matter of Joshy Assam ('96) 23 Cal. 290. The Court would be perfectly justified in imposing limits upon the father's right of custody, if the exercise of such rights would materially interfere with the health and happiness of the minor. In the present case the only thing that could be said on behalf of the opposite party is that the minor is still very young, that he has been born and brought up under particular environments, and it may tell upon his health if he is removed from his present surroundings and compelled to live amongst people whom he cannot but regard as strangers. We think that the direction given by the District Judge that the child should remain with the maternal grandparents for some time more and in the meantime he should be given opportunity of being familiar with his father was a very proper one. Speaking for ourselves, we might be inclined to put off the time for final separation to a later date. But as we find the boy had stayed with the father during this as well as the previous summer vacation and has become familiar with his new surroundings, it will hot be proper in our opinion to alter the directions given by the District Judge in this respect. The result is that this appeal is dismissed. We make no order as to costs.

5. Civil Revision Case No. 781 of 1941--It is necessary now to refer to a subsequent i order made by the District Judge in the course of the same proceeding on 10th June 1941, by which the previous order made on 28th May 1940 was modified. The modification was to the effect that the father would get immediate custody of the minor without waiting till the Christmas holidays of 1941. Against this order Civil Rule No. 781 of 1941 was issued by this Court, and it is necessary that this rule should be disposed of now. In our opinion, the order is bad in law inasmuch as it was made by the learned Judge in his Chamber without notice to the parties. However much reprehensible the con-duct of Jwala Prasad might have been, we do not think that the Judge was justified in making a judicial order behind the back of the party affected thereby without giving him an opportunity to say what he had to say on the point. We should have been in-clined, therefore, to set aside the order and send the case back in order that the matter might be reconsidered by the learned Judge after giving due notice to the parties. We are relieved, however, of taking this step by reason of certain events which happened in course of hearing of these appeals before us. We expressed our desire that the opposite party (the maternal grand-father) should have the custody of the child till the X'mas of 1941, in terms of the order of the District Judge dated 28th May 1940. We had the child actually brought before us, to be delivered over to the opposite party in our presence. We noticed that the child positively refused to leave his father, and go to his maternal grand-father. We are told that the opposite party subsequently met the child in the place of the petitioner's advocate, but even there all his persuasions failed, and the boy definitely refused to accompany him to Suri.

6. After hearing the parties further on this point, we are satisfied that the welfare of the child requires that he should be allowed to remain with his father permanently from now. We, therefore, affirm the order of the District Judge dated 10th June 1941, subject to this modification that the petitioner Bechu Lal should give all reasonable facilities to the opposite party and his wife to visit the child either in Calcutta or at Jaunpur, wherever the child might be at the time at such time as they consider proper, and that the opposite party Jwala Prasad will be at liberty to take the child down to his place and at his expense during the puja and summer vacations of the year 1942 and 1943, provided the child is willing to come and stay with him and his wife. Subject to these modifications the rule is discharged. There is no order as to costs.

7. F.M. Appeals Nos. 23 and 219 of 1941. -We now come to Appeals Nos. 28 and 219 of 1941. They arise out of two orders made by the District Judge on 18th December 1940 and 17th May 1941 in connexion with the same proceeding under the Guardians and Wards Act. In accordance with the order made on 28th May 1940, referred to above, the father was entitled to take back his child to his own place during the puja vacation of 1940. On the application of the father a notice was issued on 28 th September 1940, asking the grand-father to produce the child in Court. As the child was not produced, another order was passed on the same day asking Jwala Prasad to show cause why he should not be fined Rs. 100 for non-compliance with the Court's order. As a result of the enquiry made by the District Judge, it was found that Jwala Prasad disobeyed the order of the Court, and by his order dated 18th December 1940, Jwala Prosad was fined Rs. 100 under Section 25, Guardians and Wards Act. It is against this order that Appeal No. 23 of 1941 is directed.

8. As the child was not produced till 10th May 1941, the Judge by his order dated 17th May 1941, imposed upon Jwala Prosad a further fine of Rs. 500 under Section 25, Guardian and Wards Act. It is against this order that Appeal No. 219 of 1941 is directed. It seems to us on hearing the learned advocates on both sides that the learned Judge was not justified in the circumstances of the case to impose these fines under Section 25, Guardian and Wards Act. In the first place, we have very grave doubts as to whether the notice dated 28th September 1940, was actually served upon the appellant. A large number of witnesses have been examined on his behalf to show that he was not at Suri on that date. We do not find any sufficient reason as to why these witnesses should be disbelieved. In the second place, the learned Judge has not come to any finding as to whether the minor himself was at Suri on that date. Quite apart from this, we think that it cannot be said that the appellant was guilty of contumacious disregard of the Court's order. It is not disputed that the child was lying ill at. Monghyr. The officer who was deputed there to execute the search warrant actually bears witness to this fact. As to whether the illness was sufficiently serious to prevent the guardian from taking the child to the Court at Suri is a matter of opinion and the appellant can make a just grievance that he was not allowed to examine the Civil Surgeon of Monghyr and other persons whom he wanted to examine. We do not think that when the illness is not disputed it can be said that the maternal grand-father did deliberately flout the orders of the Court. As a matter of fact, the child was produced in May 1941 when he recovered from his illness. Taking all these facts into consideration, and Mr. Chakravarty who appears for the respondent has very frankly stated that he is not at all interested in these orders being upheld,-we are of opinion that these appeals should be allowed and the orders of the District Judge dated 18th December 1940 and 17th May 1941 set aside. The fines, if paid by the appellant, should be refunded. We further order that the proceedings which have been started against the sureties in connexion with the non-production of the child in Court should be dropped. We make no order as to costs.

Biswas, J.

9. I agree.