ABDUL AZIZ KHAN Vs. NANHE KHAN

JUDGEMENT

(1.) IN our opinion this appeal must succeed. The Judge is right in saying that it is a matter for his discretion-but it must be a judicial discretion, exercised upon recognized principles. The recognized principle is that a father is not only the natural guardian but has an inalienable right unless there are overwhelming circumstances to the contrary. The report of the Tahsildar does him great credit. But it is distinguished rather for goodness of heart than of head. There is hardly a reason which can be considered adequate to overrule the right of the father.

(2.) IT so happens that an English Court of Appeal has recently decided the same point in almost precisely similar circumstances in Re Thain, Thain V/s. Taylor [1926] Ch. 676. The appeal must be allowed and the child restored to the custody of the father. We think it better to direct that he, if he can; should go personally to take delivery of the child after giving 24 hours notice of his intention to do so. If he is prevented by his duties, he can send one of his women folk with an order signed by him. The appeal is allowed and the appellant must have his costs.