SHANTABAI SONU BARATHE Vs. GAUTAM VISHNU SHELLAR

JUDGEMENT

(1.) THE petition filed by the respondent -father for the custody of his child, which has given rise to this appeal before us, has been labelled as one under Section 6 of the Hindu Minority and Guardianship Act. Section 6, however, only provides that in the case of a legitimate child, the father, and after him the mother, is the natural guardian, but that the custody of the minor child who has not completed the age of five years, shall ordinarily be with the mother. This section therefore, by itself, does not contemplate of any application by the father for the custody of a child against the mother or any other relation of the child. Such a petition by the father for the custody of the child in the Karnataka decision in A.V. Venkatakrishnaiah v. S.A. Sathyakumar AIR 1978 Karnataka 22, was labelled as one under Section 10 of the Guardian and Wards Act, 1890, and was disposed of accordingly. We, however, do not see how Section 10 of that Act also can have any application to a petition filed by a father for the custody of his minor child.

(2.) SECTION 10 only provides for the form of application under Section 7 of the Guardian and Wards Act for the appointment of or declaration in respect of a person to be the guardian of the person or property of the minor. Neither the case at hand before us is, nor the case before the Karnataka High Court was, in any way arising out of such an application for appointment or for declaration of a guardian. This aspect does not appear to have been adverted to by the Judge, Family Court, in the judgment under appeal.

(3.) EVEN though the expression 'may' has been used, we find no reason as to why the Court shall not order return 'if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian' and, in our view, therefore, the expression 'may' in the context of the words in italics hereinabove does not confer discretion but conveys only a mandate. But whether the jurisdiction of the Court under Section 25(1) is mandatory or discretionary, the Court can order return if, and only if, it is of opinion that such a return is for the welfare of the ward in the context of the facts and circumstances of the case.