SUKHDEO RAI Vs. RAM CHANDAR RAI

JUDGEMENT

(1.) This is an appeal from a refusal to appoint a guardian. The whole thing appears to have been misunderstood by everybody from beginning to end. Irrespective of the merits, which will hereafter have to be inquired into, the simple facts are that the minor is a girl, who is unmarried, and who was born in August, 1916, and is, therefore, rising eight years old. She has lost her mother, and her father applied to the District Judge to be appointed guardian. That application in itself was a fallacy. You cannot appoint a father guardian under the Guardians and Wards Act. He is the natural lawful guardian already of his own minor children, and nothing can take that from him. As the Privy Council have said: "It is a sacred duty of which he cannot divest himself, if he wishes." He can delegate the performance of the daily duty of looking after the child and for that purpose place the child in the custody of somebody else. If he does so, it then becomes a question, under Section 25 of the Guardians and Wards Act, for the court to decide, when he applies for the restoration of the custody, whether it is for the welfare of the minor. The court has made no inquiry of any kind in this matter, and the defendants have resisted the application of the father to be appointedguardian, with all the enthusiasm possible for a litigant to show against an order which a court can entertain. But of course all this powder is misapplied, because an application to the court for the appointment of a guardian is outside what is reasonably possible in contemplation of the law. The matter will, therefore, have to go back to the learned District Judge, to be treated after hearing the evidence as an application under Section 25 by the father for the return of the custody of the child to himself. The court will do well, after hearing.the merits of this application and the evidence which either side may tender, to consider the following passage of the Privy Council in the well known case of Annie Besant v. Narayaniah (1914) I.L.R. 38 Mad. 807. The father is the natural guardian of his children. This guardianship is in the nature of a sacred trust, and he cannot, therefore, during his life- time, substitute another person to be guardian in his place. He may, it is true, in the exercise of his discretion as guardian, entrust the custody and education of his children to another, but the authority he thus confers is essentially a revocable authority, and if the welfare of his children require it, he can, notwithstanding any contract to the contrary, take such custody and education once more into his own hands.

(2.) In certain cases, however, courts will interfere to prevent the revocation of the authority. That is what is meant by Section 25. The court ought to be satisfied that it is for the child's welfare. But a court dealing with such a matter ought to acquaint itself with the fundamental principles at stake. It is not true to say that a father is liable to be deprived of the society of his child, or the control of his child, because he quarrelled with the mother or distrusted the mother's moral character. It would not be true to say so of a father who was leading an immoral life. An immoral father has just as good a right to his own children as a moral man, and in many cases he is just as likely to see that his children are properly brought up even if he himself does not live properly. The mere fact that a father left an infant girl in the charge of two of the mother's family relatives is no ground for depriving him of the custody of the child, if he wishes it restored to him. It would be an inhuman principle to lay down. The first seven years of a girl's life are just the time when a man may reasonably think that it would be better to have nothing to do with the child and to leave it with the female relatives. But when a girl is approaching a marriageable age, in India as well as in England, it is not only natural, but right, that the father should desire to have the child in his own custody. He may think that 7 years is long enough to have been separated from his child, and that if he does not exercise his parental right, the child will never come to his side or show any filial affection for him. All these matters the learned Judge will have to take into consideration, but he must not allow himself--as the defendants seem inclined to ask him to do--to try the character of the father, but rather to consider what is his right over the child, having regard to the fundamental rights of a father, and to give due consideration to the particular characteristics of this particular father. The case in which the Privy Council refused to allow a father to revoke his authority, was an exceptional case, and if I am not very much mistaken, is the only case known in the whole of the Law Reports in either England or India. There a certain lady, belonging to a religious society, had taken away the boys, with the father's consent, to educate them in England and bring them up in a University. They had nearly grown to man's estate when the father wanted to put an end to the arrangement. They appeared themselves before the Privy Council by counsel and alleged that they desired to remain in England for the purpose of continuing their university education, and it was under these circumstances that the Privy Council held that it was right to refuse the father the claim which he made.

(3.) The appeal must be allowed, and the whole matter remitted to the District Judge to dispose of it, having regard to the directions which we have attempted to lay down. Costs will follow the result.