CHANDRAPAL Vs. MUNGIA

JUDGEMENT

(1.) This is an appeal against an order passed by the learned District Judge of Bijnor under Section 25 of the Guardians and Wards Act, 1890, directing that the custody of a girl called Bhagwati should be given to her sister Smt. Mungia, who is the respondent in this appeal. The appellant Chandrapal claims to be the husband of the girl. Bhagwati is admittedly an orphan having lost both her parents in her early infancy. She was living with a woman called Ramo when she is alleged to have been married to Chandra Pal. There is a dispute about her age, the appellant Chandrapal alleging that she was born on 10-2-1941 and her sister saying that she was born on 10-3-1943. On 4-4-57 this sister, Smt. Mungia, made an application under Section 7 of the Guardians and Wards Act for being appointed as a guardian of the girl and also asked for custody of her property which was substantial in value. On 24-4-1957 she made another application for an injunction restraining Smt. Ramo and her son Ram Swarup from marrying off the girl during the pendency of her application. The court issued an ex-parte order of injunction. On 6-5-1957 she applied for a direction to Smt. Ramo to produce the girl in court. On 18-5-1957 both Smt. Ramo and her son Ram Swarup, with whom the girl had admittedly been living, made a formal appearance in the proceedings. On 23-5-1957 they made a statement in writing that the girl Bhagwati had been married to a man called Chandrapal (the present appellant) on 25-3-1957 and consequently she was no longer in their custody. On 25-5-1957 the learned Judge allowed Smt. Mungia's application and appointed her as the guardian of the girl. Three days later, on 28-5-1957, the guardian made an application under Section 25 of the Act praying that the girl be caused to be arrested by a warrant and restored to her custody. In this application it was alleged that the girl was in the possession of the appellant Chandrapal. The application was allowed on 29-5-1957 when the learned Judge directed the issue of a warrant under Section 100 Cr. P. C. read with Section 25 of the Guardians and Wards Act for the production of the minor girl before him by the 15th of June, 1957. He held that the return of the. minor to the custody of the guardian was for her welfare. It appears that this warrant could not be executed. On 11-9-1957 the guardian Smt. Mungia filed an application in this Court under Article 226 of the Constitution for a writ of habeas-corpus directing the appellant Chandrapal and the woman Smt. Ramo to produce the girl in Court. On 26-11-1957 this Court dismissed the petition on the ground that the petitioner had made out no case for holding that the respondents were illegally or improperly detaining the girl Bhagwati and that the petition did not mention any fact to prove that the custody of the respondents was illegal. The Court observed that the case of Smt. Mungia was founded on her appointment as a guardian, but before her appointment the girl had been in the custody of the respondents who were not a party to the guardianship proceedings. On 16-12-1957 Smt. Mungia made another application before the learned Judge praying for an order directing the appellant Chandrapal to produce the girl Bhagwati. She alleged that Bhagwati was in his custody. This application was rejected on the ground that Chandrapal had not been a party to the guardianship proceedings, and therefore no order could be issued to him. On 18-1-1958 Smt. Mungia filed an application under Section 25 asking for the arrest of the minor from the house of Chandrapal and for her return to the guardian. On 15-3-1958 the application was allowed by the learned Judge, who directed a warrant to be issued as prayed. On 29-3-1958 the girl Bhagwati was arrested in the village of Chandrapal and produced before the learned Judge at his residence on the same date. The girl Bhagwati made a statement before him that she had never been married to the appellant Chandrapal but had been forcibly given to him. The learned Judge, in that very sitting, passed the order (which is under appeal) directing the girl to be returned to the custody of the respondent Smt. Mungia. He further directed that "the rest of the matter" relating to the alleged marriage of the girl would be taken up in court. He also directed the guardian to produce the girl in court on 31-3-1958. On that date the appellant Chandrapal appeared and made an application giving his version of the controversy. He alleged that he had been lawfully married to the girl. The application was not supported by any affidavit. The girl however made a statement in the presence of Chandrapal that she had never been married to him and did not want to live with him. The learned Judge directed that Chandrapal's application be listed before him for hearing on the 2nd April 1958, and also directed the guardian to produce the girl in court on that date. On 31-3-1958, however, the girl was not produced and the guardian Smt. Mungia made a statement in writing, through her husband, explaining that it was not possible to take the girl to court as there was danger of her being kidnapped by the appellant Chandrapal and his associates. The learned Judge rejected Chandrapal's application for the custody of the girl. Before passing the order of rejection he again called the girl and asked her whether she wanted to go with Chandrapal but the girl refused to do so. Needless to say, the order under Section 25 handing over the girl to the guardian remained intact. Chandrapal has come to this Court in appeal against it.

(2.) Mr. Shanti Bhushan, learned counsel for the appellant, who argued this case with ability, confined himself to one argument. He contended that the impugned order is without jurisdiction. According to him, Section 25 of the Guardians and Wards Act did not apply to the present case, as the minor had never left the custody of the guardian nor was she ever in her constructive custody and therefore there was no question of her being returned to the custody of her guardian, Learned counsel cited a large number of authorities in support of his contention that Section 25 confers jurisdiction on the Court only when the ward leaves or is removed from the custody, actual or constructive, of the guardian and the court is of the opinion that it will be for the ward's welfare to return to that custody. On behalf of the respondent guardian, Mr. R. P. Singh, who also argued this case with ability and commendable brevity, cited a number of authorities in support of his contention that the word 'custody' is not confined to actual or constructive custody but includes legal or formal custody.

(3.) There is no doubt that the words of Section 25, if narrowly and literally interpreted, would tend to support the case of the appellant. The relevant parts of this section says,