ASHA WADHWA Vs. PRITHVI RAJ WADHWA

JUDGEMENT

(1.) The petitioner (wife) had made an application against the respondent (husband) under section 12 oi the Guardians and Wards Act, 1890 seeking an order for the tem- porary custody and protection of the person or properly of the minor v^ho is a one and a half year old son of the parties The application was also to be considered under section 6 (a) of the Hindu Minority and Guardianship Act, 1956. The application was dismissed by the trial Court mainly on the ground that the minor was born when the mother was very ill and bad, therefore, to be brought up by the father with the effect that till now the minor does not ^now the mother at all. The trial Court, therefore, did BOt think it desirable to disturb the custody of the father over the child pending the decision of the main application t)y the wife under section 7 of the Guardians and Wards Act, 1890 for her appointment as the legal guardian as against her husband.

(2.) To succeed in a revision petition under section 115 Civil Procedure Code some jurisdictional defect against the impugned order has to be shown. Sbfi Daya Kishan learned counsel for the petitioner strongly relies upon the righl of the wife to the custody of the minor till (he minor attains the age of five years given to her for the first time by section 6(a) of the Hindu Minority and Guardianship Act, 1956. The question, therefore, arises as to whether the application made by the wife before the trial Court under section 12 of the Guardians and Wards Act, 1890 is strengthened by reference to section 6(a) of the Hindu Min- ority and Guardianship Act, 1956 To decide this question it is necss- sary to know the scope of section 7 of the Guardians and Wards Act, 1890 first.

(3.) When the Guardians and Wards Act was enacted in 1890 the Hindu Father was the legal guardian of his minor children. The right to guardianship included the right to the custody of the minors. Section 25 of the Guardians and Wards Act, 1890 is based on this presumption. Section 6 of the said Act expressly saves any power to appoint a guardian of the person or properly of 3 minor which is valid by the law to which the minor is subject. Tht, normal rule under the Guardians and Wards Act therefore, was that tba father was entitled to the guardianship and cosiody of his minor children. It is only if there were circumstances which made it undesirable for the father to be the guardian or the custodian of his minor children that the custody of the minor could be transferred to the mother or to some other person as the court may Order. The Scope of section 12 of the Guardians and Wards Act, 1890 was, thereFore, limited by the above circumstances. An application under section 12 could be made only 'for the temporary custody ar,d protection of the person or property of the minor . The language of section 12 implies that the application thereunder ihereunder would be made only if the minor was not in the custody of his legal guardian. If the legal guardian was not a desirable person then an application under Section 7 had to be made for his removal and appointment of a new guardian. Similarly, if the legal guardian was not a proper custodian of the minor childrean an applicalion under the uncodified Hindu Law had to be made for entrusting the custody of the minor to the mother for specil reasors. But to application could be made under section 12 for the entrsiment of the permanen of the permanent custody of the aminor to a person other than the legal gus dian