1. This is an appeal from an order of the District Judge of Gorkhpur who made an order with reference to a young girl, named Mt. Rajeshri, that she should be removed from the custody of one Ram prasad, her uncle, and placed in the care of Miss Booth of the Zenana Bible and Medical Mission, Gorakhpur. Ram Prasad appeals from that part of the order which removed the young girl from his custody. He does not appeal from that part of the order which put her property in the safe keeping of a vakil of this Province. The little girl is the daughter of one Mt. Zagmag, who died in November 1909 when Mt. Rajeshri was about 9 months old. The mother was a prostitute and Ram Prasad himself, according to the evidence, is the son of a prostitute, and according to the evidence also, he was beginning to have this child taught singing and dancing with a view, no doubt, to her ultimately adopting the profession of a dancing girl, with all that implies. The learned Judge exercised a very wise discretion in ordering that the uncle should cease to be guardian of her person. He has appealed from that order and he is evidently and as he considers naturally aggrieved at having to part with this child whom he had designed to be a dancing girl and prostitute. His income, all told, is Rs. 40 per mensem, and having regard to his dealings with her property, it is clear that the appeal is made in the hope that this Court will, by setting aside the order of the Court below, enable him in the near future to live on the anticipated earnings of this young girl, now aged about 12 years. There is nothing in the case to show that he has any desire for her to remain chaste; the evidence is in fact to the contrary. His appeal is therefore dismissed.
2. The question now arises as to who is to have the custody of Mt. Rajeshri. The guiding principle in cases of this kind has been laid down through a long series of English decisions, and these are also contained and summarized in S. 17, Act 8 of 1890. The English Court of Chancery originally exercised this jurisdiction exclusively, and the duty of all Courts now is to consider what is best for the welfare of the child and that, of course, means material and spiritual welfare.
3. We must regard both of them. This is a jurisdiction in a sense paternal and thus there is a duty upon us to look at the matter from a broad point of view and to treat it as if it were a matter directly affecting one of our own flesh and blood. There are alternatives as regards the disposal of this young child. Miss Booth is a lady who is well known and very highly respected throughout this Province, and there is no doubt that the work that she does is a labour of love and is a work well done, but she is a Christian and unconsciously it must be that the daily teaching in her institution has a tendency to remove the early traces of the religion, Hindu or Mahomedan, from the minds of children who are in her care and to instil into them the principles of the Christian religion. We do not for a moment suggest that this is done by way of proselytizing. We have been told that part of the teaching in her institution consists of Bible stories. A child's mind being very impressionable, those stories told beautifully and with feeling must sink into the mind and are likely to bear fruit. When this little child has reached an age when she can make a decision for herself, it is very likely that the decision would be a decision to embrace the Christian faith. That would be specially the case if, as we believe, the children under Miss Booth are treated with loving kindness and are happy with her. Now there has come forward a Hindu gentleman by the name of Avadh Behari Saran, who has had the charge of this child for the last two months. He is a vakil practising in Gorakhpur. He suffers from the disadvantage of being Ram Prasad's vakil. He has however given evidence before us, and we believe that he is quite genuine when he tells us that he is willing to continue the custody of this child in order that she may be brought up in the religion of her people and he has given the Court an assurance, which we may shortly describe as being an assurance that he will in all respects act towards her as a good father should Mr. Avadh Behari Saran is vouched for a gentleman of position and respectability and he seems to be fond of the child.
4. We have had the advantage of seeing Mt. Rajeshri in chambers. She was brought to the Chief Justice's room by Mr. Avadh Behari Saran, and Banerji, J., asked her questions as to her life during the time that she was at Miss Booth's institution and during the time she has been with Mr. Avadh Behari Saran. She was thoroughly self possessed and very intelligent. She told us what was the most important thing, that she was happy where she was, i.e, with Mr. Avadh Behari Saran. We have no reason to doubt at all that had she been with Booth she would have been equally happy, but the matter which decides us is the fact that Mr. Avadh Behari Saran will bring her up in the Hindu faith. We therefore make the order that he is to be the guardian of the person of Mt. Rajeshri and that he is every six months to send a written report to the Court, addressed to the Registrar for communication to us and in which he is to tell us how the little girl is getting on and to bring to our notice at that time any circumstance of importance which he thinks this Court ought to know. If it should happen at any time that any contingency arises upon which Mr. Avadh Behari Saran would like to have the opinion and protection of the Court, he is to be at liberty to apply to this Court. Also in the event of his contemplating the arrangement of a marriage of the young girl, which he has intimated is probable, he must obtain the approval of the Court. In the result therefore we dismiss the appeal of Ram Prasad and we appoint in his place as/guardian of the person of Mt. Rajeshri Mr. Avadh Behari Saran. We make no order as to costs.
V.B/R.K
5. Appeal dismissed.