BAI TARA Vs. MOHANLAL LALLUBHAI

JUDGEMENT

(1.) The petitioner filed this application under the Guardians and Wards Act to be appointed guardian of the person of his minor son, who was living with his mother opponent No. 4 and his maternal grandfather opponent No. 5. I may point out at once that the application ought to have been dismissed, because such an application by a Hindu father under the Guardians and Wards Act, presumably under Section 19, is not competent, and a considerable amount of confusion has arisen in the course of the argument from neglecting to recognise that fact. The application should have been made under Section 25 of the Guardians and Wards Act because it is admitted that under Hindu law the father is the natural guardian of his minor son, and he can apply to the Court, if his ward loaves or is removed from his custody, for an order for the minor's return, and the Court will, if it is of opinion that it will be for the welfare of the ward to return to his guardian, make such an order.

(2.) The facts of this case make it perfectly clear that it is not to the interests of the minor that the Court should make such an order. Unfortunately there have been disagreements between the petitioner and his first wife, with the result that for some years she has been living separate with her father and has had the custody of the boy. The petitioner has married again, and it is obvious that the boy, who was only seven years old at the time this application was made, will be much better off living with his mother than with his father. No suggestion whatever has been made as to the character of the mother, which would be good ground for taking away the boy from her tender care and handing him over to the father who would be a perfect stranger to him. The step-mother cannot be expected to be very much interested in his welfare, and the uncles and any members of the prior generation who may be living in the house will also not be likely to give this small boy the attention and sympathy which he naturally requires.

(3.) Once it is recognised that the application should have been made under Section 25 of the Act, and not under Section 19, which has nothing whatever to do with the case, a decision can easily be arrived at. We have nothing to do with the question whether the father is unfit to be the guardian of the person of the minor. That would only be at issue if there was an application by another person to have a guardian appointed other than the father; and we have to accept the facts as we find them, that this small boy has been living with his mother for the last five years, and apparently the father has acquiesced in that. As my learned brother has pointed out, it is really a question what is the proper time for the father to make an application to the Court to obtain the custody of his son, and that question must depend entirely upon the further question when will it bo for the interests and welfare of the minor to return to the custody of his father.