GOPAGUHA Vs. RATHIN GUHA

JUDGEMENT

(1.) THE respondent-husband has filed a petition purporting to be under the provisions of Section 6 read with Section 25 of the Guardian and Wards Act, 1890, against the appellant-wile for an appropriate order enabling the husband "to retain the custody" of their minor child aged about three years and for restraning the wife "from taking out the child forcibly or by any other means from the custody" of the husband. In aid of the reliefs so prayed, the husband also filed an application for temporary injunction under the provisions of Order 39, Rules 1 and 2 of the Code of Civil procedure whereupon the trial court granted an exparte interim injunction restraining the wife from removing or taking away the minor from the custody of the husband and after hearing the parties the trial court has made absolute the aforesaid order of interim injunction. Being aggrieved, the wife has filed this appeal along with an application "for injunction and/or stay of operation" of the impugned order. For expedition as well as to shorten litigation both the. appeal and the application have been heard together, a course to which the learned counsel for both the parties have readily agreed. We have derived very able and considerable assistance from the learned arguments advanced by Mr. Shakti Nath Mukherjee, the learned Counsel appearing for the appellant-wife and by Mr. Arun Prakash Chatterjee, the learned standing Counsel appearing for the respondent-husband and having given them our best consideration, we are satisfied that we must allow the appeal and set aside the impugned order of injunction or the reasons stated hereunder.

(2.) THE impugned order of temporary injunction having been passed as an interlocutory relief in respect of and with reference to the main petition under Section 6 read with Section 2) of the Guardian and wards Act, we may at once proceed to consider the provisions thereof. Section 6 of the Act provides that in the case of a minor nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property, or both, which is valid by the law to which the minor is subject and therefore these provisions can have no manner of application to a case where, as here, the father, who is indisputably the natural guardian and has also admittedly the actual custody of the minor has applied for an order enabling him to "retain the custody" of the minor and no question of appointment of a guardian is in issue. Section 25 (1) of the Guardian and Wards Act, which is material for the present purpose, may be re-produced for the facility of discussion which runs thus :-

(3.) THE expressions Ward Leaves or is removed from the custody of a guardian, ward to return to the custody of his guardian, an order for his return and ward to be arrested and to be delivered into the custody of the guardian, would prima facie give rise to the obvious impression that these provisions are to be invoked only when the ward is no longer in the custody of the guardian whether as a result of his voluntary abandonment or his removal by force or otherwise and would not apply to a case where, as here, the father-guardian having admittedly the actual custody of his ward, applies for an order enabling him to retain the custody and for restraining others from removing the ward from his custody. As observed by Sulaiman, A. C. J. , in the division Bench decision of The Allahabad High Court in Mt. Siddiqunnissa v. Nizamuddirt (A. I. R. 1932 Allahabad 215 at 216), the necessary condition for the exercise of the discretion given by Section 25 is that the ward should have left or have been removed from the custody of the guardian of his person and if the ward has not left or has not been removed from such custody, it is difficult to see how the section would apply.