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Mohideen Ibrahim Nachi v. L. Mahomed Ibrahim Sahib .
Factual and Procedural Background
This appeal challenges an order of the District Judge of Tinnevelly made under Section 25 of the Guardians and Wards Act directing that the minor Sheik Abdul Khadir, aged between 15 and 16 years, be returned to the custody of his father (the petitioner in the lower court). The appellant is the maternal grandmother of the minor (the mother of the deceased mother). The appeal raises objections to the District Judge's conclusions on the minor's welfare and on the applicability and interpretation of Section 25 of the Guardians and Wards Act, and invokes Mahomedan (Shafi) rules regarding the minor's choice of residence. The High Court heard the appeal and delivered reasons through Sadasiva Aiyar, J., with Napier, J. concurring; the appeal was dismissed.
Legal Issues Presented
- Whether it had been proved that it was for the welfare of the minor to be returned to the custody of his father (6th ground of appeal).
- Whether Section 25 of the Guardians and Wards Act applied to the case, particularly where the guardian (the grandmother/mother) had previously had actual custody under Mahomedan law and the father had not had actual physical custody (1st ground of appeal).
- Whether, under Shafi (Shafia) law and because the boy was about 15–16 years old, he had a legal discretion to reside with his mother, and in her absence with his grandmother (5th ground of appeal).
Arguments of the Parties
Appellant's Arguments (as presented in the opinion)
- The return of the minor to the father's custody had not been proved to be for the minor's welfare.
- Section 25 of the Guardians and Wards Act did not apply because, under Mahomedan law, the minor's maternal grandmother (or mother previously) was the lawful guardian of his person after the mother's death until he attained seven years; she remained in actual custody until that age and continued in custody thereafter, so the father never had actual custody from the time he became entitled to it and therefore the minor had not been "removed" from the father's custody within the meaning of S.25.
- Under Shafi (Shafia) law, a boy of the age in question has the choice of living with his mother (and in her absence with his grandmother) and thus the minor had a discretion to reside with the grandmother.
- As subsidiary arguments: reliance on English habeas corpus practice (argument that habeas corpus is the appropriate remedy and should be strictly limited) and reliance on Section 21 of the Guardians and Wards Act to argue anomalies in minor guardianship rules.
Respondent's Arguments
The opinion does not contain a detailed, separate account of the respondent's legal submissions in the form presented for the appellant. The record shows the respondent sought enforcement of custody under the Guardians and Wards Act and that the respondent (father) gave an undertaking not to conduct the minor's marriage until the minor attained 18 years of age.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mrs. Annie Besant v. Narayaniah (Privy Council) | Statement that "a suit inter partes is not the form of procedure prescribed by the Act for proceedings in a District Court touching the guardianship of infants." | The court noted this observation but held it did not definitively establish that the Guardians and Wards Act is exhaustive as to the removal of guardians; used to frame discussion on whether the Act supplies the exclusive remedy. |
| Sham Lal v. Bindo | Held that the Guardians and Wards Act was intended to be a complete code defining rights and remedies of guardians and wards and that no separate suit would lie by a Hindu father for custody; remedy under S.25 must be used. | The opinion relied on this authority to support the view that the Act is intended to be a complete code and that district courts use the statutory remedy (S.25) rather than separate suits. |
| Utma Kuar v. Bhagwanta (Utma Kuar v. Bhagivania Kuar in text) | Followed Sham Lal; overruled the contention that Section 2 (or S.2 as discussed) prevents the court from placing a child in the custody of a guardian who had not previously had actual custody — held S.12 and the concept of constructive custody permit such orders. | The court accepted the reasoning that S.25 can be applied even where the guardian had not previously had actual custody and that the guardian might be deemed to have constructive custody from appointment; this supported the present court's interpretation of S.25. |
| Jagannadha Rao v. Kamaraju | Interpreted the phrase "taking out of the keeping of the lawful guardian" (in S.363 IPC) to include cases where actual keeping was by a person who was not the lawful guardian but who had custody with the guardian's knowledge and consent. | The court used this authority to support the proposition that actual custody with the guardian's consent yields a form of constructive custody for purposes of S.25; thus the father could be deemed to have been in custody through consent. |
| Reade v. Krishna | Held that the Majority Act of 1875 (Section 3) continued minority till 18 and thereby extended the father's right to custody until age 18 (in the Hindu law context); treated as binding regarding application of Majority Act to personal custody. | The court accepted (without dissent) the result in Reade v. Krishna and applied its principle analogously to the Mussalman (Shafi) boy: notwithstanding Shafi personal emancipation earlier, the Majority Act's continuation of minority to 18 meant custody could extend to 18. |
| In the matter of Saithri | Considered proceedings of the nature of habeas corpus under Section 191 CrPC; English habeas corpus principles discussed. | The court held this case was not an authority for limiting the scope of S.25; distinguished habeas corpus proceedings from S.25 applications and rejected the submission that S.25 remedies are to be strictly limited as if they were habeas corpus. |
Court's Reasoning and Analysis
The court's reasoning proceeds in stages addressing the three principal contentions and subsidiary points. Two judges gave concurring judgments (Sadasiva Aiyar, J., delivering the primary opinion, and Napier, J., concurring).
1. Welfare of the Minor (first contention)
- The court affirmed the District Judge's conclusion that it was for the welfare of the minor to be returned to the father's custody. The court emphasized that, for a minor over 14, the minor's wishes should be consulted and are an important factor but are not conclusive.
- The minor's stated reason for preferring his grandmother — familiarity and lack of contact with his father — was considered by the District Judge to be "not unnatural" but "can hardly be deemed intelligent"; the High Court found no error in that assessment and rejected the contention that welfare had not been established.
2. Applicability and interpretation of Section 25 (second contention)
- The appellant argued that because the grandmother (or mother earlier) had lawful custody under Mahomedan law after the mother's death and because the father never had actual custody, S.25 (which speaks of a ward being "removed from the custody of a guardian of his person") could not apply.
- The court reviewed the Guardians and Wards Act as intended to be a consolidating, largely complete code and examined precedents (Sham Lal; Utma Kuar) which supported the view that statutory remedies under the Act are generally exclusive and that S.25 is to be used rather than a separate suit.
- Although the court felt some linguistic strain was required, it accepted the reasoning in Utma Kuar that S.25 can be applied in cases where the guardian had not previously had actual custody because:
- the court may place a minor in temporary custody under S.12 (though the primary judge expressed doubt about the applicability of S.12 in the present context); and
- a guardian may be deemed to have constructive or "technical" custody from the time of appointment, so that an order for "return" to custody under S.25 can lawfully be made even if actual custody had been with another person by consent.
- To support the notion of constructive custody, the court cited Jagannadha Rao v. Kamaraju, which held that "taking out of the keeping of the lawful guardian" can include removal from custody that was actually with a third person who held it with the guardian's knowledge and consent.
- The court concluded that where the grandmother had the boy's actual custody with the father's knowledge and consent after the seventh year, the father could be deemed to have constructive custody under the meaning of S.25 and that an order for return to the father's custody fell within S.25's language.
- Both judges emphasized the object and policy of Sections 24 and 25 — to declare and provide machinery for enforcing a guardian's right to continuous custody — and held that the section should be read so as to effectuate that object rather than to produce anomalous gaps that would leave certain situations without statutory remedy.
3. Shafi law, age of majority and the Majority Act (third contention)
- The appellant relied on Shafi school doctrine that the boy may choose at age 7 to live with either parent until puberty and that personal emancipation (and cessation of guardian's custody) may occur at puberty or by age 15 under Shafi rules.
- The court examined authorities (Ameer Ali; Minhaj-et-Talibin) that describe Shafi principles (age of majority often fixed at 15 unless puberty earlier shown, but not earlier than 9; intelligence relevant to capacity for property management). The court acknowledged these rules but addressed statutory overlay.
- The court invoked Reade v. Krishna and the Majority Act of 1875 (Section 3 and Section 2(c)) holding that the Majority Act continues minority until 18 and thereby affects capacity; the court accepted the effect that, notwithstanding Shafi personal emancipation earlier, a boy subject to the Majority Act remains under minority until 18 for many legal purposes, thereby permitting custody to extend until 18.
- The court therefore rejected the contention that the minor's Shafi-derived personal emancipation or choice operated to defeat the father's statutory rights under the Guardians and Wards Act read in light of the Majority Act.
4. Subsidiary arguments
- Habeas corpus/English practice: The court rejected the submission that proceedings under S.25 are to be equated with habeas corpus and strictly limited accordingly. The court distinguished the Saithri decision (habeas corpus under CrPC) and held that S.25 does not turn on illegal restraint but on the statutory right of a guardian; thus S.25 orders go to the minor and are independent of the question of consent or alleged restraint by the person with whom the minor resides.
- Section 21 (minor as guardian): The court discussed potential anomalies in S.21 (which contemplates a minor as guardian of his wife and child or as managing member of an undivided Hindu family) and expressed doubt about the coherence of some of its consequences, but held that S.21 cannot be read to derogate from the rights of the legal guardian of a minor's own person. The judge suggested legislative amendment to clarify S.21's scope but did not base the decision on S.21.
Holding and Implications
Holding: APPEAL DISMISSED.
Implications and direct effects:
- The District Court's order directing that the minor Sheik Abdul Khadir be returned to the custody of his father is upheld.
- The High Court extended the time for compliance with the District Court's order until the expiry of two weeks from the date of the High Court judgment.
- The respondent (father) gave an undertaking not to conduct the marriage of the minor until the minor attains 18 years of age; the court records that undertaking.
- The court construed Section 25 of the Guardians and Wards Act to include situations of constructive or technical custody (where actual custody was with a third person by the guardian's consent) so that the statutory remedy under S.25 could be invoked to place a ward in the guardian's custody even where the guardian had not previously had literal physical custody.
The opinion does not purport to announce a novel legal principle beyond its applied interpretations of existing authorities; it affirms prior lines of authority (notably Sham Lal, Utma Kuar and Reade v. Krishna) and recommends legislative clarification of Section 21's anomalies but does not expressly state the creation of new precedent beyond applying and reconciling earlier decisions.
Sadasiva Aiyar, J.:— This appeal is against the order of the District Judge of Tinnevelly passed under Section 25 of the Guardians and Wards Act, directing that the minor Sheik Abdul Khadir, who is between 15 and 16 years old, be returned to the custody of his father, the petitioner. The appellant is the petitioner's mother-in-law (the mother of the deceased mother of the minor Sheik Abdul Khadir). The contentions in appeal are (1):
“that it has no been proved to be for the welfare of the minor to be returned to the custody of the father (6th ground of appeal). (2) The District Judge erred in holding that B. 25, Guardians and Wards Act, applied to the case (1st ground of appeal). (3) The parties being Shafia and the boy being 16, (he) has a discretion in law to reside with his mother and in her absence with his grandmother (5th ground of appeal).”
2. As regards the first of these contentions, the District Judge's conclusion that it is for the welfare of the minor that he should return to the father has not been shown to be erroneous. On the question as to welfare, the wishes of the minor who is over 14 should no doubt be consulted, not as conclusive on the matter but as an important factor to be taken Into account in arriving at a conclusion. The minor was examined as the appellant's second witness and he says:
“I know my grandmother well and I have not seen my father for several years. That is the only reason why I say I want to live with my grandmother.”
3. The learned District Judge has considered this preference, which in the words of the District Judge “is not unnatural but which can hardly be deemed intelligent.” I would therefore repel the first contention. As regards the second contention, Section 25, Clause 1 of the Guardians and Wards Act, is 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.”
4. The appellant's learned vakil argued that as the minor's maternal grandmother was the lawful guardian of his person under the Mahomedan law after the mother's death and till he attained the 7th year of his age and she was in custody of the minor's person till that age and that as she was only continued in the custody of the person of the minor till now the father never had the actual custody of the boy's person from when the father (respondent) became entitled to such custody and hence the minor did not live. In the custody of the father at any time, nor was he removed from the father's custody and therefore no order for his return to such custody can be made under S. 25. In Mrs. Annie Besant v. Narayaniah(1) their Lordships of the Privy Council say at p. 35, that
“a suit Inter partes is not the form of procedure prescribed by the Act for proceedings in a District Court touching the guardianship of infants.”
5. This observation does not however definitely lay down that the Act is exhaustive as to the removal of guardians. The preamble of the Act (8 of 1890) is: “whereas it is expedient to consolidate and amend the law relating to guardian and ward.” In Sham Lal v. Bindo(2) Blair and Banerjee, JJ., held that the Guardians and Wards Act was intended by the legislature to be a complete code defining the rights and remedies of guardians and wards, that no separate suit would lie by a Hindu father for the custody of his child and that he must resort to the remedy given by S. 25 of the Act. In the very recant case reported as Utma Kuar v. Bhagwanta Kuar(3) Chamier and Piggott, JJ., follow Sham Lal v. Bindo and hold that a guardian appointed under the Act was only entitled to apply under the Act for the custody of the ward and could not bring a separate suit. In this case of Utma Kuar v. Bhagivania Kuar a very similar argument to that put forward in the case before us was urged before the learned Judges, namely that as the mother was not in custody of the child when she was appointed guardian of the person, S. 2 which mentions “order for return to her custody” cannot confer jurisdiction on the Court to pass an order for placing the minor for the first time in the custody of the guardian. The learned Judges overruled this contention on two grounds: (a) that the Court had power under S. 12 of the Act to place the minor in the temporary custody of the appointed guardian notwithstanding that the application of the guardian or her appointment as such had been granted already; and (b) that S. 25 can be availed of by the guardian even though she had not been in the actual custody of the minor at the time of her appointment as such, as she might be deemed to have got custody “techically” from when her appointment was made and that an order to place the boy in her custody can therefore be brought under the words “order for return to custody” used in S. 25. While I feel doubtful (with the greatest respect) as regards the applicability of S. 12, I have after anxious consideration arrived at the opinion that though some straining of the language of S. 25 has to be resorted to, the clear intention of the legislature will be carried out by the interpretation placed by the Allahabad High Court on that section. I do not think it all likely that the legislature intended to omit to provide for the grant of a power to the District Court to entertain an application by a guardian for the custody of his ward for the first time, even where the District Court had itself appointed him as such guardian, in a case where the ward had never before been in his custody, while the Act has been anxious to enact that orders for temporary custody of the ward could be made even before the appointment of the guardian. Nor is it likely that a remedy by a separate suit in such cases was in tended by the legislature. In Jagannadha Rao v. Kamaraju(4), the words “taking out of the keeping of the lawful guardian of such minor” found in S. 363, I.P.C, were held to include cages where the actual “keeping,” out of which the minor was taken, had been in a person who was not the lawful guardian but in a third person who had obtained the custody of the minor with the guardian's knowledge and consent. In the present case, it seems to me clear from the evidence that the grandmother had the custody of the boy with the knowledge and consent of the father after the boy attained the 7th year of his age and the father himself might be deemed to have been in “custody” of the boy under such circumstances within the meaning of S. 25, and an order to the appellant to put the boy in the custody of the father can be passed under S. 25 as falling within the expression “order for the return” to the custody found in that section. A ward who was never in the actual custody of his legal guardian but was in his legal custody (the actual custody being with the guardian's consent with another) might be deemed to be removed; from the custody of the guardian when; the person in actual possession repudiates to the guardian a knowledge the right of the guardian to the actual or legal custody: of the minor. An order of return to the custody will be effectuated by putting the minor either in the guardian's actual custody or even by putting the minor in the actual custody of some other person delegated by the father (like a schoolmaster or a friend) to obtain that custody from the wrongdoer. To treat the were “custody” as including both actual and constructive custody in all the three places where that word, occurs in S. 25(1) does not seem to me to be too violent a stretch of the language of the section. I would therefore reject this second contention also.
6. As regards the third contention, Ameer Ali, Vol. 2, p. 290 says that
“the Shafia and Hanbalia allow the boy at the age of 7 the choice of living with either of his parents. Should he prefer to continue with his mother, he is allowed to do so until he attains the age of puberty, when he has no option and his guardianship devolves on the father. In practice however the father's right to the custody of the boy's person terminates with his puberty, for be is then personally emancipated from the patria patestas.”
7. In a book called Minhaj-et-Talibin (a manual of Mahomedan law according to school of Shafi), it is said, at p. 67 to 69
“the Incapacity of a minor ceases at puberty, only if his intelligence is sufficiently developed to allow of his being entrusted with the administration of his property. The minor who, haring attained the age of puberty has an intelligence insufficiently developed to be entrusted With the management of his property, remains in a state of incapacity, otherwise his incapacity ceases ipso facto on his attaining majority.”
8. The Shafi law also seams to fix the age of 15 as the age of majority unless signs of puberty have shown themselves earlier (but not earlier than 9). In Reade v. Krishna(5) it was held that though under Hindu law the father is not entitled to the custody of the person of his son after the boy attained 16 years of age, the passing of the (Section 3) of the Majority Act of 1875, by continuing the minority of the boy till he completed the 18th year of his age, extended the right of the father to the custody of the boy's person till such age of 18. Notwithstanding the able arguments of Mr. Sainivasa Aiyangar that decision is unsound so far as it deals with the right of a Hindu son to personal emancipation from the patria potastas after he attains his 16th year, I am not prepared to dissent from that decision, especially as Section 2, Clause (c) of the Majority Act, impliedly affects the “capacity” in all ways of any person who had not attained majority under the law applicable to him before 2nd March 1875, other than in respect of the matters excepted in the section. If notwithstanding the personal emancipation under Hindu law, a Hindu boy continues under the custody of his father till 18, a Mussalman hoy also is bound to remain in the custody of his guardian till he attains 18 not withstanding that under the Shafi law to which he is subject, his personal emancipation would have taken place when he attained the age of 15 or when he attained puberty between the ages of 9 and 15. I would therefore reject this third contention also. It only remains to notice two minor arguments advanced for the appellant.
9. One of them was based upon the practice of the English Courts in granting writs of habeas corpus. The principal cases relating to the English practice were considered in Reade v. Krishna and it was pointed out in that case that the writ of habeas corpus is not the appropriate remedy for enforcing the natural right of the father over the person of a son when such son is over 14 and that other appropriate legal remedies should be resorted to by the father for obtaining the custody of the person of such a boy. The second minor argument was based on Section 21 of the Guardians and Wards Act, which impliedly assumes that a minor is (a) competent to act as guardian of his wife and child, (b) that he is competent to be the “managing member of an undivided Hindu family” and that (c) he is as such manager competent to be the guardian of the wife or child of another minor member of that family. This final clause has got its own implication that while any other minor is competent to be guardian of his wife or child, a minor who is a junior member of an undivided Hindu family is not competent to be guardian even of his own wife or child. I am very doubtful whether a minori can at all be the managing member of a Hindu family, though he is the senior male member. “Guardian” in S. 21 is evidently intended to include the guardianship of both person and property. It does seam anomalous that a minor could be the guardian of the persons of his wife and children, that 1st entitled to the custody of their person and the management of their properties, while his own person is subject to the custody of the legal guardian of his person and his properties are under the management of the legal guardian of his properties. But this particular S. 21 cannot, in my opinion, be held to derogate from the rights of the legal guardian of a minor's own person. I might venture to suggest that the legislature should amend S. 21 by omitting the portion following “child or” and by confining the rights of a minor guardian over his wife and child to the control of their persons so far as it is necessary to exercise his conjugal right and the right of fondling his child, so that he might have no power to interfere with the management of their properties and so that the guardianship of their properties might be vested in the guardian of his own properties. We know of Hindu boys of five marrying girls of three and it does look absurd that a married boy of 10 should be competent to be the guardian of his wife's person and property and that if he happens to be the senior member in an undivided family consisting of himself and his two younger brothers aged (say) five and three respectively, he should be their guardian and the guardian of the wife of his brother aged five and the manager of her properties and of the undivided family properties of the three boys. In the result, I would dismiss the appeal with costs, extending the time for compliance with the District Court's order till the expiry of two weeks from this day. The respondent undertakes not to conduct the marriage of the minor till the latter attains the 18th year of his age.
Napier, J.:— I agree. I think that it is too late to re-consider the correctness of the decision in Reade v. Krishna applying the provisions of the Majority Act to the right of personal custody. On the construction of Section 25 of the Guardians and Wards Act, I have, like my learned brother, felt considerable difficulty. Undoubtedly on the strict letter of the section Mr. Srinivasa Aiyangar's contention should succeed. We have however to consider the object of the section read with the preceding section. We could not extend the powers but we can, I think, hold that the larger rights given by the section include lesser rights not specifically provided for. The object of Ss. 24 and 25 is to declare the right of the guardian of the person of a minor to the continuous custody of his person, and to provide a machinery for enforcing it. It can never have been intended to leave unprovided for a case where the right of a different guardianship had up to a certain period been vested in a different person, for the Act purports to be a consolidating Act. What has happened is that the legislature, in precribing the machinery for enforcing a guardian's rights and stating the limitations within which it is to be exercised, has used language for the circumstances in which the remedy is to be enforced in terms that strictly do not cover all the circumstances. It can never have been intended that a guardian should not be empowered to enforce his right of custody when it first arises, when he can enforce it, when the minor runs away or is forcibly removed. Mr. Srinivasa Aiyangar argued that these proceedings are in the nature of habeas corpus and must be strictly limited.
10. I am unable to agree with the view that they are of that character. The case relied on, In the matter of Saithri(6), is no authority for this contention. The proceedings there were of the nature of hebeas corpus under Section 191 of the Cr PC, directed against the person alleged to be detaining the minor. The learned Judge decided on the authority of the English cases that it was not a proper case for the issue of an order. The nature of the writ is stated by Coleridge, J., in a passage quoted on p. 312 of the above judgment: “Habeas corpus proceeds on the fact of an illegal restraint.” There is no question of restraint here, nor does the section deal with such a position. Under S. 25 of this Act the order goes to the minor, not to the person with whom he is residing and is independent of the question of consent or restraint. The right of a guardian to the custody of the person of a minor is clearly stated in S. 24. He is “charged with the custody of the ward and must look to his support, etc.” It is his statutory duty, and I cannot read S. 25, which follows, as limiting his powers of enforcing his right to the extreme cases of leaving or removal. In my mind those words must be read to include cases where the custody at law is in a certain person but the minor refuses to come or is detained. The cases where the Court has strained the language of a section to give effect to other provisions and the policy of the Act will be found in Maxwell on Interpretation of Statutes and Halsbury's Laws of England. In my opinion this is a case where it may properly be done.
S.N/R.K
11. Appeal dismissed.
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