KAMALAKSHI AMMA SARASWATI AMMA Vs. K 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 Section 6 of the Hindu Minority and Guardianship Act (Central Act 32 of 1956) and not under Section 10 (2) of the Travancore Nayar Act (Tra-vancore Act of 1100) and that consequently the father's application for an order (under Section 7(l)(b) of the Guardians and Wards Act--Central Act VIII of 1890) declaring him to be the personal guardian find (under Section 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 Section 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 fathers application would not be maintainable if it were to be viewed merely as an application under Section 25 of the Guardians and Wards Act as both parties seem to have viewed it. (Actually, however, the application is primarily one under Section 7 and the relief claimed under Section 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 Section 10 (2) of Travancore Act II of 1100 would automatically ceaso so that there would be no impediment for an order of custody under Section 25 of the Guardians and Wards Act in favour of the father if the Court considered that to be for the welfare of the children). But under Section 6 (a) of Central Act 32 of 1956 the father is the guardian. No exception or other special provision is made for the ease of wards whose parents are divorced. Section 6 (a) of the Central Act is therefore applicable whether or not the father is divorced from the mother, and it therefore follows that Section 10(2) of Travancore Act II of 1100 is inconsistent with tin's provision. In the absence of anything express Or implied restricting the application of Section 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 Section 10 (2) of Travancore Act II of 1100 which provides for a case where the parents are divorced.

(3.) The question then is which of these two inconsistent provisions is to prevail. Undoubtedly it must be Section 6 (a) of Central Act 32 of 1956 which is not merely the later law but which, by the reason of the overriding effect over previous inconsistent laws given by Section 5(b) of the said Act, has the effect of expressly repealing Section 10 (2) of Travancore Act of 1100.