SARASWATHI AMMA Vs. BHASKARA MENON

JUDGEMENT

(1.) I think that the court below was quite right in holding that the question whether the father or the mother was the lawful guardian of the person of the minor children in question fell to be determined under S. 6 of the Hindu Minority and Guardianship Act (Central Act 32 of 1956) and not under S. 10(2) of the Travancore Nayar Act (Travancore Act II of 1100) and that consequently the father's application for an order (under S. 7 (1) [b] of the Guardian & Wards Act - Central Act VIII of 1890) declaring him to be the personal guardian, and [under S. 25 of the same Act] giving him custody of the children from the hands of the mother had to be decided on the merits and could not be summarily dismissed [as prayed for by the mother, who is the petitioner before me] merely because, subsequent to the initiation of the proceedings, the parents had become divorced.

(2.) THE parents and the children are Nayar Hindus governed by the provisions of both Travancore Act II of 1100 and Central Act 32 of 1956. Under S. 10 [2] of the former Act, where the parents are divorced the mother shall be the guardian of both the person and property of the minor children. If this were the law applicable, the father's application would not be maintainable if it were to be viewed merely as an application under S. 25 of the Guardian & Wards Act as both parties seem to have viewed it. [Actually, however, the application is primarily one under S. 7 and the relief claimed under S. 25 is only a consequential relief; and once a competent court appoints or declares the father to be the guardian, the mother's guardianship under S. 10[2] of Travancore Act II of 1100 would automatically cease so that there would be no impediment for an order of custody under S. 25 of the Guardian & Wards Act in favour of the father, if the court considered that to be for the welfare of the children]. But under S. 6(a) of Central Act 32 of 1956 the father is the guardian. No exception or other special provision is made for the case of wards whose parents are divorced. S. 6[a] of the Central Act is therefore applicable whether or not the father is divorced from the mother, and it therefore follows that S. 10[2] of Travancore Act II of 1100 is inconsistent with this provision. In the absence of anything express or implied restricting the application of S. 6[a] of Central Act 32 of 1956 to children the marriage of whose parents is still subsisting, I cannot agree that that section provides only for such a case and is therefore not inconsistent with S. 10[2] of Travancore Act II of 1100 which provides for a case where the parents are divorced.

(3.) IT follows that even if the father's application is to be regarded as one solely under S. 25 of the Guardian and Wards Act [as it well might be if S. 19 of that Act is read as precluding a father from applying under S. 7) the subsequent divorce cannot affect it since he would still remain the lawful guardian of the wards under S. 6(a) of Central Act 32 of 1956. His application cannot be summarily dismissed but will have to be decided having regard to the considerations in S. 25 of the Guardian and Wards Act, as also the provision in S. 6(a) of Central Act 32 of 1956 that the custody of a minor who has not completed the age of five-and of the two minors concerned in this case, only one has attained that age-shall ordinarily be with the mother.