Decided on January 15,1963



- (1.)THIS petition is to revise the finding of maintainability of an application, for the custody of a minor Hindu girl aged 7 years, moved by the mother against the father.
(2.)THE facts are thus: THE parents with their children were living together in Palghat till March 21, 1960, when the mother left the father taking with her the girl who is their last child. In April 1960, the father shifted his residence to Madras taking with him the other children. THE mother returned to Palghat thereafter, and the girl resumed school-going. On September 14, 1960, the father came down to Palghat and took the girl from the school to Madras. On September 22, 1960 the mother moved the instant application, under S. 25 of the Guardian and Wards Act, 1890, praying,
"THE Honourable court be pleased (a) to direct the respondent to produce the minor girl before this court and to order that the girl be restored to the custody of the petitioner; (b) to order the respondent to pay the petitioner her costs in this proceedings; and (c) to grant all other just and incidental reliefs as the court deems fit and proper."
An objection as to the maintainability of the application having been raised by the father, the District Judge decided it as a preliminary issue in the case and found for the applicant. He held the mother 'a guardian' of the child and therefore entitled to move the application; and his reasoning ran thus: "Guardian" is defined in the Guardian and Wards Act as follows: 'Guardian' means a person having the care of the person of a minor or of his property, or of both his person and property.' From the allegations in the petition it is clear that the petitioner will be a guardian as defined in S. 4 (2) of the Guardian and Wards Act. In the Hindu Minority and Guardianship Act, 1956, 'guardian' is defined as follows:- "Guardian" means a person having the care of the person of a minor or of his property or of both his person and property, and includes-(1) a natural guardian, (ii) a guardian appointed by the will of the minor's father or mother, (iii) a guardian appointed or declared by a court and (iv) a person empowered to act as such by or under any enactment relating to any Court of Wards." Natural guardian is defined in S. 6 and it reads at follows:- 'THE natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother: Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father; (c)in the case of a married girl-the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-(a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi ). Thus it will be seen that even under the Hindu Minority and Guardianship Act, a person having the care of the minor is also a guardian. In order to file a petition under S. 25 the person who applies under the Act should be a guardian and that any person who can be considered to be a guardian as defined in S. 4 (2) Guardian and Wards Act can file a petition. (Mt. Parem Kaur Banarsi Das - AIR. 1934 Lah. 1003; Venkatarama Ayyangar v. Thulasi Ammal AIR. 1950 Mad. 320 and Jiban Krishna v. Sailendra Nath AIR. 1946 Cal. 272 were cited, and then he continued) Thus it will be seen that the petitioner is a 'guardian' of the ward as defined in the Guardian and Wards Act and the Hindu Minority and Guardianship Act."

The learned Advocate General appearing for the revision-petitioner contended that an application for custody of a seven year old Hindu child cannot be maintained by the mother against the father unless she has been appointed guardian of the child by the Court. S. 25 of the Guardian and Wards Act, 1890, under which the application has been moved, relates to the "Title of guardian to custody of ward" and reads thus:

"25. (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. (2) For the purpose of arresting the ward, the court may exercise the power conferred on a Magistrate of the first class by S. 100 of the Code of Criminal Procedure, 1882. (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."
The District Judge has rightly held: "In order to file a petition under S. 25 the person who applies should be a guardian"; but erred in holding that the applicant is 'a guardian' of the minor concerned.
After the enactment of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the Act), no one can be found to be the guardian of a Hindu minor unless one satisfies the definition in the Act. S. 5 of the Act shows that the Act has overriding effect and superseded all existing laws on the matters dealt with in the Act. The definition of 'guardian' is quoted fully in the order of the District Judge. (See supra). It enumerates four classes of persons as guardians of a Hindu minor. Of course the word used in the definition is 'includes' which is ordinarily a term of enlargement; but words do not, like mathematical symbols, connote the same meaning or shade of meaning in every context. See 1962 KLT. 725 where an additive power is held not to be a necessary attribute of the word 'including'. In the context of S. 4 of the Act the word 'includes' is used only to enumerate the different classes of persons coming within the definition. After the Act a person cannot claim to be the legal guardian of a Hindu minor unless he or she comes within one of the four classes of persons enumerated in its S. 4 clause (b). It is not pretended that the applicant, the mother, comes under any of the three classes, other than natural guardians specified in the section. In enumerating the natural guardians of a Hindu minor, S. 6 of Act (quoted by the District Judge in the passage cited supra) specifies that the father is the natural guardian of a child and it is only after him, that is to say after his death or removal by court, can the mother be its natural guardian. It then follows that in the present case the mother is not the guardian of the minor concerned, but the father is.

(3.)COUNSEL for the mother in the Court below contended that the mother, having had the custody and care of the minor before her removal by the father, was the de facto guardian of the minor and in that capacity is entitled to move the application under S. 25 of the Guardian and Wards Act. The short answer to that argument is that a de facto guardian is one who has no legal authority to guardianship and therefore cannot claim any right in regard to the person or property of a minor as against a de jure guardian who has the legal authority with him.
"In law there is nothing like a de facto guardian. There can only be a de facto manager, although the expression 'de facto guardian' has been used in text books and some judgments of court (to denote) a person generally managing the estate of a minor without any legal title to do so."
observed Kania, C.J. in Kondamudi Sriramulu v. Myneni Pundarihakshayya (AIR. 1949 F.C. 218). Whatever might have been the position before 1956 when the law of natural guardianship of Hindu minors was not under statutory regulation, there is no scope after the legislation of the Act, 32 of 1956, for any person acting as de facto guardian of a Hindu minor. S. 11 of the Act is only a provision ex abundanti cautela, not a recognition of their legal existence. The contention based on certain judicial observations made before the Act can be no guide when the legislature has spoken with definiteness on the matter.
It is however pertinent to note here that even before the Act it has been ruled,

"S. 25 of that (the Guardian & Wards) Act empowers the court to make an order for restoring the minor to the custody of the guardian. The expression 'guardian' in S. 25 is to be read in the light of the definition of that expression in S. 4 (2) of the Act and the mother, unless appointed guardian by the Court, cannot claim, in the lifetime of the father, to be the natural guardian of the child so as to be within that definition and, therefore, no order for custody can be made in this case under S. 25 in favour of the mother unless she is appointed a guardian by the Court." (In the matter of Kamal Rudra, a minor, ILR. 1949, 2 Calcutta 374, 385). Earlier it has been ruled in Mt. Chandra Kumar v. Chotey Lal (AIR. 1925 Oudh 282): "There is, therefore, no guardian appointed of the child. The father is the natural guardian and has at present the custody of the child. I do not see how the appellant without being appointed guardian by the District Judge can obtain custody of the child. If she wants custody of the child the proper procedure for her would be to apply to the Court of the District Judge for certificate of guardianship. If she does obtain a certificate she will then be entitled to claim the custody under S. 25. At present as the proceedings stand neither the District Judge nor this Court has any authority to remove the minor from the custody of his natural guardian even if that natural guardian is unfit. As I observed the fitness or unfitness of the respondent to be guardian does not arise in the proceedings. There is no other guardian to take charge of the boy and no one has taken proceedings to be appointed guardian by reason of the unfitness of the father, the natural guardian of the child, to hold that post of responsibility. This is, therefore, not the occasion to inquire into the character and the capacity of the respondent whether he is fit to be guardian of the child or not."
I am in respectful agreement with the views expressed in the above two rulings and hold them still good law as they are in tune with the Hindu Minority and Guardianship Act.

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