GANGA PERSHAD SAHU Vs. JHALO

JUDGEMENT

(1.) This appeal is directed against an order by which the Court below has refused an application, under Section 39 of the Guardians and Wards Act, 1890, for removal of the respondent, a Hindu lady, from the guardianship of the person and property of her infant sons on the ground that she has re-married after the death of her first husband. The circumstances, under which the application was made are not disputed. One Mahabir Pershad died about the year 1900. He left a widow, now respondent before us, and three infant sons by her. On the 5th December, 1904, the widow obtained a certificate of guardianship in respect of the person and property of her infant sons. On the 29th May, 1909, she married a second time in sagai form; it may be mentioned at this stage, that re-marriage in this form is recognised by the caste to which she belongs. On the 28th June, 1909, the appellant before us, who is the son of the paternal uncle of the father of the infants, applied to the Court for the removal of the widow from the office of guardian, on the ground that, in view of the provisions of Section 3 of the Hindu Widows Re-marriage Act of 1856, she had, upon her second marriage, forfeited her right to act as guardian of the person and property of her infant sons by her first husband. The application was opposed by the widow, and it was contended that, in spite of her second marriage, she was a fit and proper person to continue as guardian of her minor children. Two of the children were examined by the Court: one of these supported the application made by his uncle, while the other distinctly stated his preference for his mother. The learned District Judge held that no ground had been made out for the removal of the guardian, and dismissed the application.

(2.) The uncle of the infants who was petitioner in the Court below, has now appealed to this Court, and on his behalf the decision of the District Judge has been assailed broadly on the ground that, under Section 3 of Act XV of 1856, the mother of the infants ceased to be their guardian immediately upon her marriage, and that, in any event, it would not be to the interest of the minors that they should continue to live under the guardianship of their mother after she had taken a second husband. In answer to this contention, it has been argued that the Hindu Widows Re-marriage Act of 1856 has no application by reason of two circumstances, namely, first, that it applies only to cases where the re-marriage of the widow would have been invalid but for the provisions of the Act; and, secondly, that Section 3 of Act XV of 1856, even if it be held to be applicable, governs only cases of first appointment of a guardian, and notecases where, as here, a mother appointed guardian during hers widowhood is sought to be removed on the ground, of her re-marriage. It has further been contended; that if re- marriage does not operate as a ground of forfeiture of the office of guardian, and if the matter is in the discretion of the Court, no grounds have been established for the interference of the Court. The question raised is one of considerable importance and apparently of first impression in so far, at any rate, as this Court is concerned.

(3.) There is no Controversy in the case before us that the respondent was properly appointed guardian of the person and property of her infant children when the order was made in her favour in 1904, under Section 7 of the Guardians and Wards Act of 1890. Section 39 of that Act specifies the grounds for the removal of a guardian appointed by the Court. The first nine grounds mentioned in the section have obviously no application to the circumstances of this case. The tenth ground, upon which the application of the appellant is apparently based, provides that the Court may, oh the application of any person interested, or of its own motion, remove a guardian appointed by the Court by reason of the guardianship of the guardian ceasing or being liable to cease under the" law to which the minor is subject. In the present case, the minors are subject to Hindu Law, and the question therefore arises whether under that law the guardianship of their mother ceases of is liable to cease upon her re-marriage. Our attention, has not been drawn to any text of Hindu Law, which would support an affirmative answer to this question. Jagannath in his Digest (translated by Colebrooke, vol. IV, 1798, pages 242-44, texts 449-53) deals with the question of the protection of the property of infants. He first quotes a text of Mann to the effect that the King should guard the property, which descends to an infant by inheritance until he returns from the house of his preceptor or until he has passed his minority. To this is added an explanation from the Ratnacara, that wealth, which descends to an infant by inheritance and becomes, the property of the minor, let the King guard, that is let him protect it from the other heirs. The learned author adds his own comment that the King may commit the share of the minor, in, trust to anyone co-heir or other guardian. The texts subsequently quoted from Vishnu, Sancha and Lichita tend to the same conclusion, namely, that the King should guard the property of an infant, and protect it, as he is incapable from non-age of conducting his own affairs. Jagannath then comments on a text of Baudhayana that,, in respect of shares of infants, the King must himself, or through some person appointed by him, keep ,the share of the minor: the expenses .and other matters should be superintended...by, the King himself or by a person appointed by him: the property of a minor should be entrusted to heirs and the rest appointed with his concurrence, or, if the infant be absolutely, incapable of discretion with the consent of a near and unimpeachable friend, such as his mother and the rest: to which the learned author adds that, according to Katyayaiia kinsmen must guard the property of an infant. In the comments on text 453, Jagannath adds that in practice a mother is guardian of a minor and of his property; hut he; seems to hold that she may not always be skilled in the conduct of affairs, in which case the King, as the universal superintendent, may arrange to guard the property by every possible means. The substance of this discussion, treated as authoritative in Kristo Kisspr Neoghy v. Kader Moye (1878) 2 C.L.R. 583 which was accepted as good law in Bhikuo Koer v. Chamela Koer (1897) 2 C.W.N. 191, points to the conclusion, that the King, as the ultimate protector of the State, may give suitable directions for the protection of the estate of infants, and that the test td be applied is to determine what course is beneficial to the infant concerned. It cannot, therefore, be affirmed as an inflexible rule of Hindu Law, that a mother, upon her re-marriage, is disqualified to act as guardian of the person and property of her infant sons: indeed, the texts of Manu (IX 146, 190, 191) may militate against any such rule.