RAJAH OF VIZIANAGARAM Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE DISTRICT COLLECTOR

JUDGEMENT

(1.) By this petition the Rajah of Vizianagaram applies that the High Court may, in the exercise of its powers under the Letters Patent and such other powers it possesses, make an order restraining the Court of Wards from sending his minor children to Great Britain and if necessary, appointing some suitable person as their guardian. The circumstances in which this application came to be made, will appear from our preliminary order dated the 7 May, 1936, but for the sake of easy reference I shall briefly recapitulate them. Under Section 15 of the Court of Wards Act, the Local Government made a declaration that the petitioner was a disqualified proprietor and directed the Court of Wards to assume Superintendence both of his person and property. The Rajah immediately filed a suit in the Court of the Subordinate Judge of Vizagapatam, impeaching the validity of the order made by the Government and praying for a declaration that it is ultra vires and unauthorised. The petitioner, then learning that the Court of Wards was intending to send his minor children to England on the 9 May, 1936, forthwith applied to the Subordinate Judge for the issue of an injunction restraining it from doing so. It was towards the end of April, 1936, that this application was made, when the Court of the Subordinate Judge was about to close for the summer recess, and the Judge therefore made the following provisional order: It is desirable that the children should not be sent away from India without intimation to the plaintiff, who is their natural father.... I therefore direct the defendant to inform the plaintiff fifteen days in advance of their intended departure, so that if it is to happen in the summer recess of this Court, the plaintiff may move the High Court, if necessary, to grant an injunction....

(2.) The petitioner accordingly sought the protection of the High Court and Lakshmana Rao, J., who heard the application, dismissed it, observing shortly that the suit itself prima facie appears to be incompetent and no petition in such a suit, can lie. From this order the petitioner filed an appeal, which came up before us in May last, just before the long vacation. I must ob serve that one of the curious features of this case has been that the petitioner has argued his case in person with a view to demonstrate, I believe, that the imputation that he is mentally unsound, is wholly unfounded. Several questions were raised and strenuously argued and we found it necessary to adjourn the hearing to some date beyond the Court's recess. To this aspect we referred thus in our preliminary order already adverted to: We suggested that the case might He over and be disposed of by the Vacation Judges during the recess. But we are told that the minors passage has been booked and it is essential that they should be allowed to leave on the 9th. Consequently our suggestion that the Vacation Judges may dispose of the case cannot take effect.... Again, if the minors are to be sent out of the country as intended, they must, we understand, take train in an hour or two. T4ie question therefore is, does the balance of convenience require that the minors should be permitted to sail at once or their departure, granting that eventually the Court of Wards succeeds, should be postponed for the present?

(3.) The arguments covered much ground and in view of certain questions of, jurisdiction raised, the petitioner was allowed, in order to obviate any technical defect, to file a formal petition invoking our jurisdiction under the Letters Patent, and incidentally it may be observed, if necessary, that this Bench was specially constituted to deal with this matter. After the reopening, the Rajah has accordingly filed a petition, described to be both under the Letters Patent and the Guardian and Wards Act. The Court of Wards challenges the Rajah's right to file the petition, on the ground that under the Court of Wards Act, it has itself become the legal guardian of the minor children. It urges, in the alternative, that in regard to the four matters referred to in Section 23 of the Court of Wards Act, namely, "the custody, residence, education and marriage" of the minors, it is vested with a discretionary power, in the exercise of which it cannot be controlled by a Court of Law, unless it be shewn that it has acted mala fide, i.e., fraudulently, corruptly or maliciously. It is then maintained that the petition is barred in virtue of Section 50 of the Court of Wards Act. Finally, our jurisdiction is denied on the ground that the infants are residing at Vizagapatam, i.e., outside the local limits of the ordinary original civil jurisdiction of the High Court. With each of these matters I shall presently deal, but for the present it must be stated, that the Rajah vigorously contends that the proposed exercise of its discretion by the Court of Wards (granting that any such discretion is vested in it under the law) is capricious, unreasonable and oppressive. He maintains that he is an affectionate father, mentally quite sound, but that the action which the Court of Wards proposes to take is such as is likely to render a normal man insane. Referring to himself, he says that he was educated at Mayo College, Ajmere and obtained the Chiefs College Diploma, that he is a licensed Air Pilot, that he has extensively travelled throughout India and made short sojourns in England and on the Continent and that he has been permitted to possess modern firearms and ammunition and has obtained a motor car driving licence. He says further that two competent doctors, one of whom belongs to the Indian Medical Service and is the Principal of the Medical College, Vizagapatam, have certified that he is free from any mental disorder. He goes on to say that his children are of tender age, the girls being 14 and 10 years old and the boys being of the ages of 12 and 9. He asserts with emphasis that the removal of the children will greatly imperil their well-being and what he urges in this respect is as follows: Of the children, the two boys are being educated at school in Vizagapatam and each of them has a wholetime Graduate tutor and the two girls are being taught by Roman Catholic European Nuns, and I am enhancing the knowledge of the four to the extent I can. I see no sense in the children being separated from their countrymen and in their having no manner of education in their language. India is not a barbaric country; it has schools and colleges, some of which are as good as the best of them in England. Just as blade bears cannot survive in the Arctic regions and white bears can, my children may not be able to survive the severe cold of the winter in England, while English children are generally able to do so. The severeness of the English cold is such that a large number of English people leave England and go to the south of France in the winter. The percentage of Indians of British India going for school education as compared with those going for collegiate and post-school study, is almost nil.