I. D. Dua, J.
1. This judgment will dispose of three connected Letters Patent Appeals Nos. 46, 50 and 78 of 1956. The facts, out of which the present controversy has arisen, lie in a narrow compass and may be briefly stated.
2. Captain Rattan Amol Singh and Shrimati Kamaljit Kaur were married sometime in 1943, and by December 1948 four children were born from this wedlock, the first three children being daughters and the youngest one a son called 'Baby Buria'. In September 1949 Shrimati Kamaliit Kaur is said to have left Buria, with the youngest child, to go and live in Patiala with her parents; the three daughters remaining with the father at Buria. On the 2nd of December 1952 an application was filed by the lady in the Court of the District Judge at Ambala under Section 7 of the Guardians and Wards Act, praying that she be appointed a guardian of the. persons of the three minor daughters and declared guardian of the person of her minor son. The prayer was made substantially on the following grounds:--
The applicant is the mother of the minors and it is in the interest of both the minors and their mother that the minor children should live with their mother, who, considering the tender ages of all the children and female character of the three elder ones, is the best suited guardian. It was alleged not to be in the interest of the minor daughters to be in the custody of their father because he was not taking proper care of their education; since the relations between the mother and the father are not cordial and the mother is living separately from her husband, with her parents at Patiala, the daughters, being away from their mother, are not being properly looked after and educated.
The son, who was about three years old at the time of the application, was alleged to be much better behaved than his elder sisters. These, in brief, are the main allegations on which this application for appointment o the guardian of the persons of the minor daughters and declaration of her being guardian of the person of the minor son was made.
3. This petition was resisted by Captain Rattan Amol Singh on various grounds. With respect to the minor son, it was alleged that he was not residing in 'Malwa House', Patiala, with the parents of Shrimati Kamaliit Kaur, who was herself residing in 'Moti Bagh' Palace at Patiala or in Ranvir Villa at Chail, belonging to the Rajpramukh of Pepsu, and the minor was, therefore, virtually in the custody of the Rajpramukh. Being the natural guardian of his son, he claimed his custody which was alleged to be in the minor's welfare.
It was averred that the welfare of the minor children does not lie in their mother being appointed or declared as their guardian. It was also asserted that the daughters were being properly educated and well looked after according to the tradition and status of the family. In the additional pleas it was stated that in September 1949, when Tikka Rattan Amol Singh was bedridden as a result of a serious injury on his foot, his wife left him without his permission and against his wishes, taking away the minor sort with her, and, in spite of his best efforts to bring her back, she persistently refused to return.
4. During the pendency of these proceedings, sometime in December 1953, an application under Section 25, read with Section 12, of the Guardians and Wards Act was filed by Captain Rattan Amol Singh, praying that he may be given the custody of the minor son who was said to be grown up enough to have paternal interest and care, being at that time more than four years old. The hearing of both these petitions proceeded in the Court of the Senior Subordinate Judge, Ambala, till the 19th November 1954, when they were withdrawn by Harnam Singh to the records of this Court for further proceedings. This was done on the application of Captain Rattan Amol Singh under Clause 9 of the Letters Patent, there being no opposition on behalf of Shrimati Kamaliit Kaur.
5. Harnam Singh J. formally consolidated the two cases on 20th February 1956, and, after recording the evidence and hearing the parties, on 2nd March 1956 dismissed the application of Shrimati Kamaljit Kaur with respect to the guardianship of the three daughters but declared her to be the guardian of the person of the minor son Baby Buria. As a result of this order, the application of Captain Rattan Amol Singh was obviously dismissed, the learned Judge holding that his application under Section 25 of the Guardians and Wards Act had been made as a counterblast to the application of the mother under Section 7 of the Act.
6. Aggrieved by this order both parties have preferred appeals to this Court. Shrimati Kamaljit Kaur has assailed the order of the learned Single Judge with respect to the guardianship of the persons of the three minor daughters, and Captain Rattan Amol Singh has filed two appeals, one against the order dismissing his application under Section 25 of the Guardians and Wards Act and the other against the order appointing Shrimati Kamaljit Kaur as the guardian of the minor son.
7. It may at the outset be mentioned that the learned counsel for Shrimati Kamaljit Kaur frankly stated before us that it was not possible for his client to properly educate and maintain the three minor daughters out of her own resources and that, if she were to be appointed their guardian, she would have to ask for maintenance from Captain Rattan, Amol Singh. It was, therefore, submitted on her behalf that she would be satisfied if the father were to give an assurance to this Court that the three minor girls would be properly educated.
We were, thereupon, told by Captain Rattan Amol Singh that the minor girls were being properly educated, and that two of them were going to sit for the coming Matriculation Examination next year and they would obviously be then sent to some college; the third daughter would also in due course take her Matriculation Examination and then pursue further studies. We saw the minor girls in the presence of their parents and were satisfied that they were being properly looked after and their, education was not being in any manner neglected. So, the question regarding the appointment of guardian of the three minor daughters need not detain us and we thus disallow Shrimati Kamaljit Kaur's appeal and affirm the order of the learned Single Judge in this connection.
8. The main controversy, however, is centred round the custody of the minor son. He is being educated in Modern School, New Delhi, and we also saw and interrogated him in the presence of his parents. The boy struck us to be an intelligent and smart child and seemed to be very well-behaved and to be progressing normally. We discussed with his parents the question of his education, and Shrimati Kamaljit Kaur, with whom the child is at present living, herself expressed her keenness to send him to some good boarding-house, though not immediately, because in her opinion, he is, at the present moment, too young and rather in delicate health, and therefore not stout enough to withstand the tough life of a boarding-house.
9. At this stage I may notice an application made on behalf of Captain Rattan Amol Singh for leading additional evidence in this Court in the form of some photographs in order to show that the atmosphere, in which the child was living at Delhi, is not congenial for his welfare. The evidence sought to be led is calculated to re-open the whole case on entirely new lines. After hearing the parties, we are definitely of the opinion that no sufficient ground has been made out for permitting the proposed additional evidence, and, indeed, on the existing pleadings it is doubtful if such evidence is even relevant to the case as tried in the Court below and as contained in the memorandum of appeal.
10. Both parties have cited authorities in support of their respective contentions. Mr. Sikri has done so in support of the proposition that during the lifetime of the father, unless the Court comes to a positive conclusion that he is unfit to be the guardian of his minor children, it is not right to deprive him of their custody, and Mr. Shastri in support of the proposition that the dominant consideration with the Court must be that of the welfare of the minor and the father cannot claim an absolute right to the custody of his minor children. He has also emphasized that Captain Rattan Amol Singh married a second wife sometime in 1955, and that it is difficult to expect the minor son to be treated by his step-mother with the same affection and care as he would get from his natural mother. Mr. Sikri has principally relied on Section 19(b) of the Guardians and Wards Act which, so far as is relevant for our purposes, is in the following terms :
'19. Guardian not to be appointed by the Court in certain cases.--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 or declare a guardian of the person --
(a) * * *(b) 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(c) * * *'
He has also sought to seek support for his contentionfrom Annie Besant v. Narayaniah, ILR 38 Mad 807:(AIR 1914 PC 41), a decision by the Privy Council,and Fakhr-ud-Din Khan alias Harbans Rai v. Mst.Biro, AIR 1926 Lah. 393, a decision by a SingleJudge of the Lahore High Court, and Smt. ShantiDevi v. Gian Chand, (1956) 58 Punj LR 496; (AIR1956 Punf 234) a decision of Bishan Narain J. Theproposition canvassed by Mr. Sikri is that the fatheris the natural guardian under Hindu Law and underthe Guardians and Wards Act and, therefore, hasthe right to their custody unless the Court comesto the conclusion that he is unfit to have that custodyand that it is not for the welfare of the minor thatthe father should be allowed to exercise this right.The counsel has also placed reliance on Sections 7 and17 of the Guardians and Wards Act in support ofhis contention.
11. Mr. Shastri has, on the other hand, laid stress on the fact that Captain Rattan Amol Singh had sought relief under Section 25 of the Guardians and Wards Act and the Court should only order return of the custody of the child to the applicant if in its opinion the welfare of the ward so demands. The counsel has also in this connection referred us to the provisions of the Hindu Minority and Guardianship Act. Particular emphasis has been laid on Sections 5 and 13 of this enactment, which are in the following terms :
'5. Overriding effect of Act, -- Save as otherwise expressly provided in this Act,--
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
13. Welfare of minor to be paramount consideration:
(1) In the appointment Or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provision of this Act or of any law relating to guardianship in marriage amount Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor.'
Our attention was in this connection also drawn to Bai Tara v. Mohanlal Lallubhai, AIR 1922 Bom. 405, in which a Divisional Bench of the Bombay High Court laid down that in an application by a father to obtain custody of his minor son, the only question to be considered is whether it will be in the interests and welfare of the minor to return to the custody of the father. In the reported case the father's prayer was disallowed. The minor there was seven years old at the time of the father's application, and the Court thought that he would be much better off living with his mother than with his father. Saraswatibai Shripad v. Shripad Vasanti, AIR 1941 Bom. 103 is also an authority for the view that the paramount consideration in the matter of custody of a minor of tender years is the interest of the child rather than the rights of the parents.
It was further laid down in this authority that orders as to the custody of a child are always of a temporary nature and those interested in the minor are at liberty to apply to the Court at any time for the change of his custody. Without noticing in detail each one of the other authorities cited by Mr. Shastri, I need only give their references as under :
Muthuveerappa Chetti v. Ponnuswami Cherry, 13 Ind, Cas 16 (Mad); Bhola Nath v. Sharda Devi, AIR 1954 Patna 489; Samuel Stephen Richard V. Stella Richard, (S) AIR 1955 Mad. 451; Ponniah Asari v. Suppiah Asari, AIR 1935 Mad. 363; and Gangarapu Chinna Sambayya v. Polepalli Rudrappa, AIR 1935 Mad. 568.
The counsel has also submitted that the father's application has not been inspired by considerations of the welfare of the minor. Developing his argument Mr. Shastri has submitted that the mother has been striving every nerve to get the minor son educated in a very good school in Delhi where he can have both proper education and proper home atmosphere, although the father has not cared to send a single pie either for the child or for the mother ever since September, 1949, when she was virtually made to go and stay with her parents.
It has in this connection also been contended that the lady's parents and brothers are fairly well-placed and indeed the minor child is being properly looked after. Shrimati Kamaljit Kaur is also in service since 1958 in the Rehabilitation Department where she has fairly good prospect of further promotion. It has further been contended that litigation with respect to setting aside certain alienations is also pending in which the minor son ts a plaintiff. There being no serious allegation, and far less any proof, of the boy's education being neglected, Mr. Shastri contends that the minor's welfare demands that he should remain with his mother, from whom the child will get motherly affection which is most needed at his age.
12. Mr. Sikri has sought to distinguish the Bombay case, AIR 1922 Bom. 405 on the ground that the child there was far too young, and that in the case before us the minor is grown up enough to be handed over to the father. The counsel has also drawn our attention to Atchayya v. Kosaraju Narahari, AIR 1929 Mad. 81 for. the view that in an application under Section 25 of the Guardians and Wards Act the onus is not on the petitioner but on the opposite side to show that the father is not a fit person to claim the custody of his minor children.
13. In my opinion the Court must construe the provisions of the Guardians and Wards Act and of the Hindu Minority and Guardianship Act together, because they constitute parts of a single scheme or of the same legislative plan; their provisions must, therefore, be harmonised and read together, so that the real and true purpose and equity of the basic principles underlying the subject-matter of the legislative scheme or plan are effectively carried out. The Hindu Minority and Guardianship Act having been enacted to amend and codify Certain parts of the law relating to minority and guardianship among Hindus, it is incumbent on the Courts to give proper and due effect to the provisions of Section 13 of this enactment. Reading the relevant Sections of these two statutes, together, in my opinion, the benefit of the minor is the dominant and paramount consideration and, if the circumstances so warrant, the father's prayer under Section 25 of the Guardians and Wards Act can legitimately be disallowed in the better interests of the minor's welfare.
The father's right to the custody of his minor child is not absolute; nor is it indefeasible in law; it is circumscribed by the considerations of the benefit and welfare of the minor. I am conscious of the fact that this was the position even before the enactment of the Hindu Minority and Guardianship Act; but by enacting this provision the Parliament has, in my opinion, unambiguously indicated in the clearest language, by providing in the statute, that even in the appointment and declaration of the guardian of a minor the paramount consideration is the welfare of the minor concerned.
14. Considering the question from this point of view, we tried our best to see if some kind of workable settlement could be arrived at for the education of the children and also to ensure that the minor son does not grow up to dislike his father, though we found that it was hardly possible in the present mental state of both the husband and the wife to bring about any reconciliation between them at the present moment. After discussing the question of the children's future and education, we found that both the father and the mother were genuinely anxious to see that their children are properly brought up and that the bitterness between the husband and the wife does not seriously affect the children's future to their prejudice.
15. In our view, therefore, the interests of the minors would be best served if the minor daughters continue to remain with the father and as soon as they pass their matriculation examination they are sent to a good college. To this, as already observed, both the father and the mother were agreeable. With respect to the minor son also, in our view, for the present he should continue to remain with the mother as he is being properly and very well looked after and is studying in one of the best schools in Delhi.
To hand him over to the father at this stage would not be conducive to his welfare, and indeed the child's benefit demands that the status quo should be maintained at least for some time more. An attempt should, however, be made to secure admission for him in the Doon School or in some other good public school, so that as soon as he completes 12 years of age he is actually admitted there. It is suggested that with the influence of the parents it would not be difficult to get the child admitted into one of the really good public schools.
16. In the view that we have taken, the petition of Captain Rattan Amol Singh under Section 25 of the Guardians and Wards Act must be held to have been rightly dismissed and we have no hesitation in affirming the order of the learned Single Judge in this respect.
17. In so far as the question of declaring Shrimati Kamaljit Kaur as guardian of the minor son is concerned, again in view of our conclusion that the welfare of the minor demands maintenance of status quo for some time, the order of the learned Single Judge deserves to be upheld, and the appeal must be rejected. Reliance on Section 19 of the Guardians and Wards Act by Mr. Sikri in this connection is not of much avail to him. By virtue of Section 2 of the Hindu Minority and Guardianship Act we are obliged to read together and harmonise the provisions of Section 19 of the Guardians and Wards Act and of Section 13 of the Hindu Minority and Guardianship Act; construing them together the rigour of the prohibition contained in Clause (b) of Section 19 of the Guardians and Wards Act must be considered to have been relaxed to a great extent in the interest of the minor's welfare as laid down in Section 13 of the Hindu Minority and Guardianship Act.
The authorities cited by Mr. Sikri can, after the enactment of Section 13 of the Hindu Minority and Guardianship Act, no longer serve as useful guides in arriving at correct judgments. Truly speaking, the order disallowing this appeal makes little difference in substance, because, as observed in Saraswatibai Shripad Ved's case, AIR 1941 Bom 103 orders like the present one are always of a temporary nature and those genuinely interested in the minor's welfare are always free to apply to the Court any time, for change of custody or other directions if change of circumstances so requires in the interests and for the benefit of the ward.
18. In view of the foregoing discussion, this order of the learned Single Judge is also affirmed and, in consequence, all the three appeals stand dismissed.
19. But before parting with the case, we should like to express the hope that Captain Rattan Amol Singh and Shrimiti Kamaljit Kaur realised their responsibility towards their children and tried to pull together, so that the future of the children, in whom, we trust, they both must be feeling vitally interested, is not marred by their personal differences, however, serious they may consider them to be from their own strictly narrow personal points of view.
It would be desirable for them both not to try to poison the minds of their children against each other because thus and thus alone can the children have the affection of both of them and grow up in an atmosphere in which they can properly and fully develop their mental and physical faculties. They would be best discharging their parental duty towards their offspring by coming to some mutual amicable arrangement whereby the daughters get reasonable opportunity of the company and affection of their natural mother and the son that of his father.
It is equally desirable that the sisters and the brother also get reasonable opportunity of meeting each other and living together for at least some time, so that they may not become utter strangers to each other. If the problem is tackled in a practical manner, without bringing in the personal feelings of the mother and the father towards each other, then it may not be impossible or even very difficult for them to evolve some workable and practical formula which would ensure welfare and healthy growth of the children from every point of view. But then this is possible only if Captain Rattan Amol Singh and Shrimati Kamaljit Kaur can see their way to rise above their own personal feelings of prejudice towards each other, and earnestly try to find a satisfactary solution of the problem exclusively from the point of view of their children's benefit and welfare.
20. As stated above, all the appeals before us fail, but in the peculiar circumstances of the case there will be no order as to costs of these proceedings.
Dulat J.
21. I entirely agree that at present we should not disturb the custody of the minor children. The girls are living with the father quite happily and are being well educated. The son, being the youngest child, is living with the mother and is also being properly educated. When we saw the minors and discussed the whole question with the parents, we impressed on both the parents, the necessity of not permitting their personal differences to prejudice the welfare of the children, and I like to think that we were able to convince them both. We are, therefore, hoping for a certain measure of co-operation between the parents to ensure the welfare of their children, and, considering that the parents are intelligent, I have every expectation that our hope will come true as soon as the present bitter controversy between the parents dies down,
22. My only doubt was about the propriety of the order formally declaring the mother as the guardian of the minor son as that seemed to imply that the father was unfit to be the guardian, for which implication there was no proper justification in the evidence. My learned brother Dua has, however, placed the matter solely on the basis of the minor's welfare, and the particular implication, of which I was apprehensive, has therefore disappeared. It has also been made clear that any change in the present circumstances would entitle the father to approach this Court for a proper order. In these circumstances, I feel that it would be unwise to interfere with the order made by the learned Single Judge of this Court in that connection. I, therefore, agree that the three appeals before us be dismissed and the parties left to their own costs.