- (1.) THIS is an appeal under Section 47 of the Guardians and Wards Act against an order of the Dis trict Judge of Unnao passed on an ap plication purporting to be one under Section 10 of that Act. Section 10 of that Act only describes the form of an application and it is not correct to treat an application given in that form to be an application under Section 10. In fact the application is one under Section 7 of the Act. Section 7 provides that where the court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property or both or de claring a person to be such a guardian, the court may make an order according ly. The application was made by the father of the minor and it was contested by the mother in whose custody the minor was living. The application was contested on the ground that the minor was born in the month of Bhadon and in the community to which the parties belong a son born in the month of Bhadon is born under inauspicious stars and he brings destruc tion to the family. It is on this ground that it was said by the mother that the father would kill the boy if he is given in his custody and he is appointed as his guardian. It may here also be point ed out that the mother with whom the minor was living has been divorced by the father and as such the father claim ed it would be in the interest and for the welfare of the minor to appoint the father as the guardian of the person of the minor. The application was accord ingly moved by the father for the ap pointment of the guardian of the person of the minor.
(2.) THE learned District Judge came to the conclusion that the belief on which the defence is founded, namely, a boy born in the month of Bhadon brings destruction to the family had not been established. The court then went to decide that it would be for the wel fare of the minor to appoint the father as the guardian, the age of the minor being nine years, and the ultimate order of the court passed reads as follows:-' "Having regard to the circumstances of the case I am satisfied that it would be for the welfare of the minor that the applicant is given his custody. The ap plication is allowed with costs. The ap plicant Dilawar is appointed guardian of the person of Usman minor. His custody shall be handed over to the applicant by Smt. Rasulan within fifteen days from today." The first point that has been urged and which in fact is the only point in the case, is that no application was maintainable for the appointment of the father as the guardian of the minor as the father is the natural guardian of the minor and no question of appointment arises in such a case. There is, how ever, a different provision, namely, 25 relating to the custody of the minor and if the father wanted the custody of the son, the proper procedure to be follow ed by him should have been to move an application under that provision of the Act. This section provides that 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 would be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, on an application being moved under the sec tion. But if an application is moved by the father under Section 10 it was not maintainable and should be dismissed. The trial Judge also seems to have rea lised this difficulty and so he passed a mixed order, namely, the appointment of the father as guardian of the minor and also an order regarding the hand ing over of the custody of the minor to the father.
(3.) WE have, therefore, to see in the circumstances as to whether the ap plication should have been dismissed.;