JWALA PROSAD SAHA Vs. BACHU LAL GUPTA

JUDGEMENT

(1.) (F.M.A. No. 164 of 1940) - This appeal is directed against an order of the District Judge, Birbhum, dated 28 May 1940, passed under Section 25, Guardian and Wards Act, directing that the minor, Chittaranjan Gupta should be returned to the custody of his father Bechu Lal Gupta, the respondent-petitioner. The infant is a boy aged only eight years and a few months. He was born in December 1932 at Suri in the house of his maternal grandfather, Jwala Prosad Saha, who is the appellant before us. His mother died only six days after his birth, and it is not disputed that he has been in the house of his maternal grand parents since then and brought up by them as their own son. It was on 27 March 1940 that Bechu Lal Gupta, the father of the minor, made this application as his natural guardian, under Section 25, Guardian and Wards Act, praying that the child might be restored to his custody. The application was opposed by his maternal grandfather Jwala Prosad Saha on several grounds. It was said, in the first place, that the application was not a bona fide one and that the petitioner had never cared to look after his infant son ever since his birth, and neither he nor the other members of his family had paid any visit to the child except on rare occasions. The petitioner, it was said, made a proposal to marry the second daughter of the opposite party and as the latter refused to accept his proposal, he became angry, and with a view to wreak vengeance on the opposite party and his wife who were very much attached to the child, sent a pleader's letter demanding that the child should be returned to him. It was contended further that it would not be conducive to the welfare and happiness of the child if he was removed at this age to new and unfamiliar surroundings and estrangement from the opposite party and his wife whom he looked upon as his own. parents might seriously affect his health.

(2.) The District Judge considered all these matters and came to the conclusion that although the child was well looked after and tended by the maternal grand parents, it would be after all to his interest to return to his father and live with him. As a sudden separation from his maternal grand parents might affect the health of the child, the District Judge directed that the boy should remain with the opposite party till the Christmas holidays of 1941. During this period the father would be entitled to the company of his son during the holidays and on ceremonial occasions, and would be at liberty to take him away from Suri at life expense. From the Christmas holidays of 1941 the minor would remain permanently with his father. It was further directed that if the wife of the opposite party died within this period, the child should be returned to his father. It is the propriety of this order that has been challenged before us in this appeal. Mr. Das who appears for the appellant has contended in the first place, that the order of the District Judge is not war-ranted by law, inasmuch as Section 25, Guardian and Wards Act, has no application to the facts of this case. He has contended, in the second place, that in the circumstances of the present ease the welfare and happiness of the child demand that the present custody and control should not be interfered with.

(3.) So far as the first point is concerned, Mr. Das argues that Section 25, Guardian and Wards Act, contemplates a case where a ward leaves. or is removed from the custody of his guardian. As in the present ease, the minor was never in the custody of his father and lived all along with his maternal grand parents, that section could not possibly apply. The language of the section is undoubtedly not very clear, but we think that the word "custody" as used in the section refers not only to actual but also to constructive or legal custody. When the father of a child is alive and has not abandoned his right, the maternal grand-father or for the matter of that any other relation who has the actual custody of the boy must be deemed to have that custody with the knowledge and consent of the father. Legally, it is the father who has the custody of the child in such circumstances, and the child can be deemed, Within the meaning of the section to be removed from such legal custody, when the person in whose actual possession he is, repudiates to the guardian's knowledge the right of the latter to the actual or legal custody of the minor. This was the view taken by the Madras High Court in Mohideen Ibrahim Nachi V/s. L. Mahomed Ibrahim Sahib ( 17) 4 A.I.R. 1917 Mad. 612 and in our opinion it would be a sound view to take. To hold otherwise, would be to admit that there is no provision in the Guardian and Wards Act under which a guardian, even if he is appointed by a Court, can apply for having the custody of the minor who had never been in his custody before. As was pointed out by the Allahabad High Court in Utma Kuar V/s. Bhagwant Kuara ( 15) 2 A.I.R. 1915 All. 199 guardian may in such cases be said to have got legal custody from the very moment of his appointment as a guardian and can make an application under Section 25, Guardian and Wards Act. The first contention of Mr. Das is, therefore, overruled. Coming now to the merits of the ease, it is not disputed that the father, as the natural guardian, has the legal right to the custody of his child and the Court would not interfere with his right, except when the safety or the welfare of the child requires such interference. It cannot be said in the present case that the father had abandoned the custody of his child to his maternal grandfather and is now capriciously reasserting his rights. The father could not reasonably have demanded the return of the child so long as it was very young and required the actual nursing of his grand- mother. There is no allegation of misconduct on the part of the father, or any moral unfitness which would disentitle him to. the custody of his son. We are not satisfied that the present case was the outcome of any bitterness of feeling that came into existence on account of the refusal of the opposite party to marry his second daughter to the petitioner.