MT ULFAT BIBI Vs. BAFATI

JUDGEMENT

(1.) This case is a little difficult to deal with because everybody seems to have done everything he possibly could do in the matter except the right thing, but it is obvious that in this appeal we ought to try and do the right thing. There is no question of law involved so far as we can understand it, and still less is there any question of fact. A further difficulty arises as to a considerable doubt in our mind as to whether the appellant has any locus standi at all. But we are prepared to brush aside all fine points and try and put the matter straight. The position is that the minor has both parents living. They are Muhammadans, and by the Muhammadan Law the father is the natural lawful guardian until by some order of a competent Court he is deprived of his rights as such, and is automatically entitled to exercise the right of a guardian without any order of a Court appointing him, and it is correct to say, although it is irrelevant in this case, that an order appointing a person who is already by law a guardian, is an order without jurisdiction. But it is one of those orders without jurisdiction which if it does no good certainly does no harm, and, therefore, is not in itself a reason for interference by a Court of appeal. Side by side with the right of the father as the lawful guardian, exists the recognized right of the mother by Muhammadan Law to have the custody of the child up to the age of seven. This question has already been considered and decided by the District Judge of the lower Court, namely, by an order of the 26 of September 1924. In that decision the District Judge said that the only matter was one of age and he found that the boy was still six years of age and that, therefore, the mother was entitled to the custody. He went further and he fixed the date when that custody ceased by law. He found that the child would be six years old at the end of the then calendar year and that, therefore, the father had to wait till the end of the next calendar year until he was seven. That would be the 31 December 1925.

(2.) We are of opinion that the learned Judge could have treated this application as an application to enforce the order of his predecessor, namely, that the custody of the child passed to the father on the 31 December 1925. Unfortunately in ignorance apparently of the fundamental law, an ignorance which may be pardoned because we think it is very common, the pleader for the father, undoubtedly intending to act on the previous order of Mr. Harper, applied under S 10 of the Guardians and Wards Act for the appointment of the guardian. It is obvious that be knew nothing about the dictum of the Privy Council, or of the case which has been cited to us from Oudh which we propose to follow, and that he really meant that the order of Mr. Harper should be complied with, namely, that the custody of the child should be handed over to the father. In his very natural ignorance on the subject it would be quite the usual thing to apply for the appointment of a guardian as a preliminary step to the next step of obtaining an order for the custody. No objection was raised by anybody according to the Judge's order. That was a serious error, according to Mr. Das, on the part of his client. She ought, being a person interested in the proper exercise of the jurisdiction of the Court below, to have appeared and pointed out to the learned Judge that he had no jurisdiction to make this order. But unfortunately nobody was present to point this out.

(3.) The learned Judge fell into the mistake that the pleader had originated. That is also not unnatural. These applications are dealt with, as everybody knows, summarily, and, one may say, somewhat expeditiously on Saturday morning, when something like a hundred of one sort or another are rushed through with very little time to devote to them, certainly, not the time which we have already devoted to this appeal. But the learned Judge obviously intended to follow his predecessor's order. He says so, and he falls into a technical trap of passing an order which, strictly speaking, he had no jurisdiction to pass, namely, to appoint the applicant guardian, because the boy was then over seven years of age. What he ought to have done was to have said that the mother was no longer entitled to the custody and that the father was, and if necessary, have called the mother before him and ordered her personally to hand over the boy. That is really the only way in which these orders can be carried out because if the person who has the custody of the child disobeys that order, he or she can be punished for disobedience of order. We do not see any difficulty in the framing of the Act in making such an order, for example, the father might have applied, as he did apply, to the learned Judge under Section 10 to be appointed guardian, and the Judge might have said: I cannot do that because I have no jurisdiction to appoint you guardian as you are already guardian, but I will make an order under Section 12 which the Act enables me to do for the temporary custody of the person of the minor, and I will hand him over to you and then if anybody wants to deprive you of the custody of the boy in future time, he will have to appear before me and show good cause.