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Samitran Devi v. Suba Ram
Opinion Summary: Shamshher Bahadur, J.
Factual and Procedural Background
The present appeal concerns custody of a minor, Kanti Devi alias Tripta Devi (about 9 years old). The father, Suba Ram (respondent), filed an application under Section 25 of the Guardians and Wards Act on 28 October 1958 seeking appointment as guardian. The learned District Judge of Gurdaspur granted the father's prayer. The mother, Mst. Samitran Devi (appellant), who has remarried and wishes the child's maternal grandparents to be responsible for her upbringing, preferred this appeal to the High Court. The minor has been living in the house of her maternal grandparents since birth; the parents separated after the minor's birth and each has remarried.
Legal Issues Presented
- Whether an application under Section 25 of the Guardians and Wards Act is competent where the ward has never been in the physical custody of the guardian (i.e., whether "custody" in Section 25 includes constructive or legal custody as well as actual physical custody).
- Whether the words "left" or "was removed" in Section 25 must be interpreted to require actual physical removal from a guardian's custody, or whether constructive removal falls within Section 25.
Arguments of the Parties
Appellant's Arguments (Samitran Devi / Mr. Shambu Lal Puri)
- The Section 25 application is not competent because the ward neither "left nor was removed" from the father's custody — the minor never lived with the father, so she cannot be said to have left or been removed from his custody.
- Given that the minor is a girl and the father has taken a second wife, it would be in the child's interest and welfare to remain with the maternal grandparents rather than be placed in the father's custody.
Respondent's Position (Suba Ram)
- The father, as the natural guardian, sought guardianship under Section 25; there was no evidence that he was unfitted to be guardian. The mere presence of a stepmother is not a ground to deny a father his right of custody.
- The father has persistently sought custody and the District Judge accepted his application; the father contended that the mother's prior undertaking to hand over the child to him should be honored.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mrs. Annie Besant v. Narayaniah, ILR 38 Mad 807 : AIR 1914 PC 41 | That a guardian's remedy is under the Guardians and Wards Act and a regular suit by the guardian is incompetent; the guardian should invoke the Act's jurisdiction. | Used to support the proposition that the remedy of a guardian who is denied custody must be found within the Guardians and Wards Act. |
| Sathi v. Ramandi Pandaram, ILR 42 Mad 647 : AIR 1920 Mad 937 | Similar observations to the Privy Council decision regarding the appropriate remedy under the Act. | Referenced to reinforce that guardians must look to the Guardians and Wards Act for redress. |
| Jwala Prosad Saha v. Bachu Lal Gupta, AIR 1942 Cal 215 | The word "custody" in Section 25 refers to actual as well as constructive or legal custody; constructive removal falls within the section when those in actual possession repudiate the guardian's right. | The Court expressed respectful agreement with this reasoning and applied it to the present facts. |
| Noshirwan Manekshaw v. Sharoshbanu Noshirwan, ILR 58 Bom 724 : AIR 1934 Bom 311 | The term "guardian" includes natural or de facto guardians; "custody" includes actual as well as constructive custody and Section 25 is not limited to extreme cases of actual leaving or removal. | Cited to support the broad construction of "guardian" and "custody" in Section 25. |
| Ulfat Bibi v. Bafati, ILR 49 All 773 : AIR 1927 All 581 | The expression "guardian" in Section 25 is not confined to statutory guardians; "custody" includes both constructive as well as actual custody. | Invoked to show consistent High Court authority for including constructive custody within Section 25. |
| Siddiq-un-Nissa Bibi v. Nizam-Uddin Khan, ILR 54 All 128 : AIR 1932 All 215 | Affirmed that the meaning of "custody" in Section 25 is not restricted to actual physical custody of the guardian. | Used to reinforce the interpretation that constructive custody falls within Section 25. |
| Mt. Basant Kaur v. Gian Singh, AIR 1939 Lah 359 | Statement that "the father has an inalienable right to the custody of his children and he cannot be deprived of it except for strong reasons." | Cited to support the general principle favouring paternal custody absent strong reasons to the contrary; noted that custody was given to the father in that case. |
| Mohideen Ibrahim Nachi v. Mahomed Ibrahim Sahib, ILR 39 Mad 608 : AIR 1917 Mad 612 | A father can apply under Section 25 even though the minor had always been in the custody of the grandmother and never in the father's custody; "custody" includes actual and constructive custody. | Cited as supporting authority for allowing Section 25 applications by fathers where the child never lived with them physically. |
| Venkatarama Ayyangar v. Thulasi Ammal, AIR 1950 Mad 320 | Held that Section 25 is not limited to cases where there is actual leaving or removal of the ward from the guardian. | Used to reinforce the Court's conclusion that Section 25 covers more than actual physical removal. |
| Achratlal Jekisan Das v. Chimanlal Parbhudas, ILR 40 Bom 600 : AIR 1916 Bom 129 | Representative of the view that "custody" in Section 25 means actual custody and a guardian who never had actual custody cannot apply under Section 25. | Not followed by the Court; noted as part of the opposite view taken by some benches (Bombay, Nagpur, Rangoon). |
| Shivawwa v. Chenbasappagowda, AIR 1941 Bom 344 | Representative authority holding that "custody" means actual custody and Section 25 cannot be used by a guardian who never had actual custody. | Listed among authorities taking the opposite view and not adopted by the Court. |
| Dhan Kumari Devi v. Mahendra Singh, AIR 1923 Nag 199 | Authority from Nagpur endorsing the narrower view that Section 25 requires actual custody to have existed. | Not followed; set out as part of the contrasting line of authority. |
| Manoo Ali v. Hawabi, AIR 1938 Rang 63 | Representative of the Rangoon view that a guardian who never had actual custody cannot apply under Section 25. | Not followed; recorded as taking the narrower view that the Court did not adopt. |
Court's Reasoning and Analysis
The Court began by describing the factual matrix: the child was born while the parents lived together but thereafter remained with the maternal grandparents; both parents subsequently remarried. The District Judge had accepted the father's Section 25 application and the mother appealed.
The main legal objection raised on appeal was that Section 25 is not competent where the ward never "left nor was removed" from the father's custody because the child never lived with the father. The Court analysed this objection by surveying conflicting judicial authorities.
The Court observed that there is a preponderance of authority favouring a broad construction of "custody" in Section 25 to include both actual and constructive (legal) custody. It relied on decisions of the Privy Council and multiple High Courts which:
- establish that a guardian's remedy must be pursued under the Guardians and Wards Act (not by ordinary suit),
- recognize that "custody" may be constructive or legal as well as actual physical custody, and
- hold that constructive removal (repudiation by those in actual possession of the guardian's rights) falls within the word "removal" in Section 25.
The Court expressly quoted and adopted reasoning from several precedents (including Jwala Prosad Saha v. Bachu Lal Gupta and the Calcutta, Madras and Allahabad authorities) that the father, as natural guardian, retains legal custody where the child is kept with relatives, and that refusal by those in actual possession to hand over the child amounts to removal from the guardian's constructive custody.
The Court considered the contrary view (adopted by some Bombay, Nagpur and Rangoon benches) which interprets "custody" as requiring actual physical custody and found that interpretation unduly restrictive and inconsistent with the objects of the Act. The Court concluded that excluding constructive custody would leave guardians without remedy in many real situations and would be an intolerable result.
Applying this reasoning to the facts, the Court found no evidence that the father was unfit to be guardian; the District Judge had found that the mother had made and breached an earlier undertaking to hand over the child to the father. On that basis, the Court agreed with the District Judge that the father's Section 25 application was maintainable and rightly allowed.
Holding and Implications
Holding: This appeal fails and is dismissed.
Consequences for the parties:
- The District Judge's order granting the father's application under Section 25 of the Guardians and Wards Act is upheld.
- The father's appointment as guardian (as ordered by the District Judge) stands, subject to the terms of that order (the opinion records that the District Judge allowed the respondent the guardianship of his minor daughter and this Court agreed).
Broader legal implication articulated by the Court:
- The Court held that the words "custody" and "removal" in Section 25 should be given a liberal construction: "custody" includes both actual and constructive custody, and "removal" includes constructive removal. The Court explained that this construction is necessary to enable courts to entertain applications by guardians unjustifiably deprived of custody.
The opinion records that a debatable point of law was raised and that the judge would "make DO order as to costs of this appeal" (as stated in the text). No further order on costs is detailed in the opinion.
SHAMSHER BAHADUR, J.
(1.) It is an unfortunate case from the point of view of the minor Kanti Devi alias Tripta Devi whose custody has been claimed by both her parents, each of whom has remarried. The application out of which this appeal arises was presented by the father of the minor, Suba Ram (respondent), under Section 25 of the Guardians and Wards Act, on 28th of October, 1958. The prayer made in the application has been acceded to by the learned District Judge of Gurdaspur and Mst. Samitran Devi, the mother of the minor Kanti Devi, has preferred an appeal to this Court.
(2.) The minor, who is about 9 years old, was admittedly born when the parties were living together as busband and wife. The parties were married to each other about 11-12 years ago. The minor, Kanti Devi alias Tripta Devi, was Horn before the parties started living separately. Their relations thereafter became strained. Ultimately Samitran Devi married Kundan Lal while Suba has remarried Raj Kumari. The minor who was born in the house of the maternal grandparents is living there. Suba Ram has been quite persistent in his efforts to obtain the custody of the minor. At first, the appellant Samitran Devi took proceedings for the custody of the child in 1955 and made a statement before the District Judge on 1st of August, 1955 that the minor would be handed over to the father after two years. The minor was handed over to Samitran Devi and the father has now presented the present application for appointment as a guardian. Samitran Devi does not intend to keep the child with herself. She has desired that her parents should be made responsible for her upbringing. There is no evidence to show that the father who is the natural guardian has unfitted himself in any way to be a guardian of his daughter. It may be that he has taken another wife but the mere presence of the stepmother is no ground to deny a father his undoubted right of custody of his child. Mr. Shambu Lal Puri, the learned counsel for the appellant has urged that the minor being a girl and the father having taken a second wife, it would be in her interest and welfare if she were permitted to remain with the maternal grand-parents, in whose house she was born and is being maintained. Samitran Devi has denied that she ever made a statement before the District Judge that she would hand over the custody of the child to Suba Ram. It has been found by the learned District Judge that she has told a falsehood in this respect. In the opinion of the learned District Judge the undertaking which had been given by Samitran Devi should be honoured in its observance and not the breach. I agree with the reasons which have prompted the learned District Judge to allow Suba Ram the guardianship of his minor daughter.
(3.) Mr. Puri has raised a legal objection that the application under Section 25 of the Guardians and Wards Act is not competent as the ward neither "left nor was removed" from the father's custody. The minor never having lived with her father (Suba Ram) it is contended that it could not be said by any stretch of the language that she either left or was removed from his custody. There is a conflict of judicial authority on this point but there is preponderance in favour of the view that the custody need not be physical or actual but may be constructive. It is to be borne in mind that if a minor is effectively kept away from his guardian, the latter may never be able to get the custody of the ward under Section 25 of the Guardians and Wards Act. Admittedly, there is no provision of law in the Guardians and Wards Act to provide Suitable redress in such cases. It was held by their Lordships of the Privy Council in Mrs. Annie Besant v. Narayaniah, ILR 38 Mad 807 : (AIR 1914 PC 41), that
"a regular suit by the guardian is incompetent and he should invoke the jurisdiction of the Court under the provisions of the Guardians and Wards Act."
Similar observations were made by a Full Bench of the Madras High Court in Sathi v. Ramandi Pandaram, ILR 42 Mad 647 : (AIR 1920 Mad 937). It follows therefore that the remedy of a guardian who has been denied the custody of his child from its very birth must be found within the four corners of the Guardians and Wards Act. If the contention of Mr. Puri is accepted, Suba Ram as the father of his minor daughter would never be able to obtain the custody of his child. This would be an intolerable situation and a strained interpretation of the word "custody" must therefore be avoided. It was held by a Division Bench of the Calcutta High Court (B.K. Mukherjea and Biswas, JJ.) in Jwala Prosad Saha v. Bachu Lal Gupta, AIR 1942 Cal 215, that
"the word 'custody' as used in Section 25 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 grandfather 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."
I am in respectful agreement with the reasoning of the learned Judges of the Calcutta High Court and, in my opinion, it is fully applicable to the facts of the present case. A similar view was held by Mr. Justice Wadia of the Bombay High Court in Noshirwan Manekshaw v. Sharoshbanu Noshirwan, ILR 58 Bom 724 : (AIR 1934 Bom 311). In that case the minor had remained since his birth with his mother who had lived with her parents, and it was held that the term 'guardian' in Section 25 of the Guardians and Wards Act has been used in a wide sense. It does not necessarily mean a guardian duly appointed by the Court, but includes a natural guardian or a de facto guardian, and that the term 'custody' includes actual as well as constructive custody of a minor, and the section is not limited to enforcing the rights of a guardian in the extreme cases of an actual leaving or removal of the minor.
(4.) The view of the Allahabad High Court is also in consonance with this interpretation which, in my opinion, accords with common sense. In Ulfat Bibi v. Bafati, ILR 49 All 773 : (AIR 1927 All 581), it was held by a Division Bench of Sir Cecil Walsh and Banerji, JJ. That
"the expression 'guardian' used in Section 25 of the Guardians and Wards Act is not confined to statutory guardians, but includes the lawful guardian, such as the father, and the custody referred to in that section includes both constructive as well as actual custody".
This view was affirmed by a later Division Bench of the same Court consisting of Sir Shah Muhammad Sulaiman Acting C.J. and Sen, J., in Siddiq- un-Nissa Bibi v. Nizam-Uddin Khan, ILR 54 All 128 : (AIR 1932 All 215). It was held that
"the meaning of the word 'custody' in Section 25 of the Guardians and Wards Act is not restricted to the actual physical custody of the guardian."
The custody of the maternal grand-mother in this case was held to be constructive custody of the father and her refusal to hand over the child to the father amounted to a removal from the constructive custody of the father.
(5.) The view of the Punjab High Court is contained in the Single Bench judgment of Bhide, J. in Mt. Basant Kaur v. Gian Singh, AIR 1939 Lah 359. It was held by Bhide, J. that
"the father has an inalienable right to the custody of bis children and he cannot be deprived of it except for strong reasons."Though Bhide, J. did not definitely rule that a hither who never held the custody of the child could apply under Section 25, he gave custody to the father in that case.
(6.) The view of the Madras High Court has been expressed in a Division Bench judgment (Sadasiva Ayyar and Napier, JJ.) in Mohideen Ibrahim Nachi v. Mahomed Ibrahim Sahib, ILR 39 Mad 608 : (AIR 1917 Mad 612 (2)). It was held that
"a father can apply under Section 25 of the Guardians and Wards Act for the custody of his minor son though the minor had all along been in the custody of his grand-mother but never in the custody of his father." In the words of Sadasiva Ayyar, J.: "the word 'custody' in all the three places where that word occurs in Section 25 (1) includes both actual and constructive custody of a minor,"
The same view has been affirmed by Raghava Rao, J. in Venkatarama Ayyangar v. Thulasi Ammal, AIR 1950 Mad 320. It was held that "Section 25 is not limited to cases where there is actual leaving or removal of ward from guardian".
(7.) The opposite view which has been taken by the Bombay, Nagpur and Rangoon Courts adopts the reason that the word 'custody' aj used in Section 25 means actual custody and it cannot be said that a minor who has never been in the custody of his guardian, has either left or been removed from such custody. According to these authorities, a guardian who never had actual custody of the ward cannot make an application under Section 25 of the Guardians and Wards Act. The authorities are :
(1) Achratlal Jekisan Das v. Chimanlal Parbhudas, ILR 40 Bom 600 : (AIR 1916 Bom 129), (2) Shivawwa v. Chenbasappagowda, AIR 1941 Bom 344, (3) Dhan Kumari Devi v. Mahendra Singh, AIR 1923 Nag 199, and (4) Manoo Ali v. Hawabi, AIR 1938 Rang 63.
(8.) For the reasons which I have indicated aforesaid, I venture to think that custody means both actual and constructive custody. To exclude constructive custody would be to place a restriction which is not justified in the context of the Act Likewise, the word 'removal' has to be construed liberally. It is not limited to physical removal and constructive removal clearly falls within the ambit of this word. This construction alone will enable Courts to entertain applications of such guardians who have been unjustifiably deprived of the custody of their wards.
(9.) In my opinion, the application of the respondent was clearly maintainable and has been rightly decided by the learned District Judge. This appeal fails and is dismissed. As a debatable point of law has been raised by Mr. Shambu Lal Puri, I would make DO order as to costs of this appeal.
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