Bhola Nath v. Sharda Devi

Sinha, J.

1. This appeal by the father has arisen out of an order of Mr. P.K. Nag, District Judge of Shahabad, allowing the application of the mother for the guardianship of her minor son.

2. Appellant Bhola Nath was married to the respondent Sharda Devi some time in 1949, and she gave birth to a male child on 13-4-1951, at Buxar, which is her mothers place. According to her, the appellant, who is a resident of Banaras, was not a man of good morals, he was given to drinking also and she was illtreated by him. She was sent to Buxar by the husband to deliver the child, and, after the child was born, she went to her husbands place at Banaras for a few months. She was again illtreated, and she came back to her mothers place at Buxar with the baby. Some time later, the appellant came to Buxar to take her back to Banaras, but she refused to go there because of her illtreatment.

A few days before the present application was filed, her husband stealthily took away the child from Buxar to Banaras. Various efforts were made on behalf of the mother to get back the child, but the child was not returned. The application was made on 6-6-1952, when the child was a little over a year old. The application was opposed by the appellant on the ground that the Shahabad District Judges Court had no jurisdiction, and that the appellant, as father, was entitled, in law, to the guardianship of the child. The appellant repudiated the allegation of the mother that he had stealthily taken away the child from Buxar to Banaras. His case on that point was that the mother of the child, along with the baby, was living with him at Banaras, and that one day the mother left the child at Banaras and came away to Buxar taking some ornaments with her.

3. The learned Judge in the Court below has held that the Court had complete jurisdiction, that the appellant had forfeited his right to be the guardian of the minor child, that the allegation that the mother left the child at Banaras and came away to Buxar was entirely false and that the mothers version that the appellant stealthily took away the child from Buxar to Banaras was established. On these findings, the order in question was made.

4. All the points taken in the Court below have been taken in this Court also. The question of jurisdiction turns upon the interpretation of subsection (1) of Section 9, Guardians and Wards Act, 1890, which runs as follows:

"If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides."

5. The answer to the contention depends upon the meaning of the expression "the place where the minor ordinarily resides." If it is held that the minor ordinarily resided at Buxar, the District Court of Shahabad will have undoubted jurisdiction. If, on the other hand, it is held that the minor ordinarily resided at Banaras, that Court will have no jurisdiction. A number of authorities have been cited at the bar for the elucidation of the meaning of that expression. The point at issue in the present case was not decided in -- Chimanlal Ganpat v. Rajaram Maganctiand : AIR 1937 Bom 158 [LQ/BomHC/1936/143] (A) as there was

"no dispute on this point (regarding the ordinary residence of the minor) either in the District Court or before Divatia, J., it being common ground apparently that the minor must be taken to be ordinarily resident in Poona".

In the matter of -- Lovejoy Patell : AIR 1944 Cal 433 [LQ/CalHC/1943/54] (B), the applicant resided in Beadon Street, in the town of Calcutta, and she wanted to be appointed guardian of two minor children of Yacoob Fatell and zainab Patell (father and mother, respectively, of the minors) who lived in Circus Avenue, Calcutta. The application for guardianship was made in the Calcutta High Court on its original side. The objection on behalf of the parents was to the jurisdiction of that Court on the ground that Circus Avenue, Calcutta, where the minors resided at the time when the petition was presented, was situated outside the ordinary civil jurisdiction of the High Court.

The fact about the residence of the minors, as appears from the judgment, was that from 1938 to February, 1942, the minors ordinarily resided and attended schools in the town of Calcutta within the jurisdiction of the Calcutta High Court, and then they had been sent to Darjeeling for education. They lived there up to November, 1942, when, on account of the annual vacation, they came down to the applicants place of residence in Beadon Street, which was within the jurisdiction of the Calcutta High Court on its original side. There they lived up to January, 1943. Upon those facts, it was held that the minors ordinarily resided within the ordinary original civil jurisdiction of the Calcutta High Court.

This case, therefore, in my opinion, does not support the contention of the appellant. The question as to what would be considered to be the ordinary residence of a minor has to be decided on the peculiar and particular facts of each case. Although in this case, at the time when the application was presented, the minors lived at Circus Avenue, outside the jurisdiction of the Calcutta High Court on its original side, it was held, taking further facts into consideration, that the minors ordinarily resided within the jurisdiction of that Court.

In -- Vimalabai v. Baburao Shamrao AIR 1951 Nag 179 (C), the mother filed an application for her appointment as guardian of her minor daughter, Sudha, who was born at Nagpur on 26-4-1945. The application was filed before the District Court at Nagpur on the allegation that the ordinary place of residence of the minor was at Nagpur. According to the applicant, on 16-4-1948, the grand mother of Sudha took the minor to her own house in Dharampeth for a short stay, promising to bring her back again to the applicant. The grand mother, however, did not keep her promise but instead took Sudha to Amraoti where the applicants husband, the father of the minor, was serving as lecturer in some Mahavidyalaya. The applicant and her husband lived together at Nagpur for several years after they got married.

According to the applicant, she and her children were driven out of his house in December, 1947, which allegation was disputed by the husband. It was contended before the High Court that the Nagpur Court had no jurisdiction because the minor was actually living at Amraoti since 16-4-1948, and the father being the natural guardian of the minor daughter, she must be deemed to reside where he lived. Mudholkar, J., after dealing with some of the cases cited before him, made the following observation:

"Under the Hindu Law, the father is the natural guardian of his children and his children must be deemed to reside where he resides".

His Lordship, ultimately, held that the child must be taken to reside ordinarily at Amraoti, and so the District Court at Nagpur had no jurisdiction to entertain the application. It is upon this observation of his Lordship that reliance has been placed on behalf of the appellant in the present case. Under the Hindu law, the father is the natural guardian of his minor children, and this position of the father is affirmed by the provisions of the Guardians and Wards Act also. But, under Section 9(1) of the Act, it is the ordinary residence of the minor that determines the forum, and there is no provision of law or any authority for the proposition that a child must be deemed to reside where the father resides, and I would respectfully differ from the view taken by his Lordship in AIR 1951 Nag 179 (C). If the child was deemed to ordinarily reside with the father, then the language of Section 9, Guardians and Wards Act ought to have been different. The case of -- Annie Besant v. G. Narayaniah : AIR 1914 PC 41 (D) was also cited before us. It was held in that case that infants who had left India months before with a view to be educated in England and going to the University of Oxford could not be said to be ordinary residents in the district of Chingleput in India. This observation, however, was made on appeal in a suit in which the plaintiff had claimed declaration that he was entitled to the guardianship of the minors and other reliefs.

In -- Sheikh Mahomed Hossein v. Akbur Hossein 17 WR 275 (E), the Court was called upon to decide the meaning of the word "residence" under the previous Act, namely, Act 40 of 1858. Section 5 of that Act used the word "residence" only. Loch, J. no doubt, held that the word "residence" is not the place where the minor may be dwelling at or about the time when, the application was made, but it meant to be the paternal family house or the family residence of the minor in which every member of the family had an interest and in which they usually resided. But Ainslie, J., though agreeing with the order proposed, was of the opinion that, though ordinarily that might be taken to be the meaning of the word "residence", still he was "not prepared to say that circumstances might not arise in which it might be taken to mean otherwise". That case, therefore, is not of much help.

The case of the -- Empress v. Prankrishna Surma 8 Cal 989 (F) was also placed before us, but it was a case of kidnapping by the mother, and the expression "ordinary residence" was not the subject-matter of interpretation in that case. Anilabala Choudrani v. Dhirendra Nath Saha : AIR 1921 Cal 309 [LQ/CalHC/1920/444] (G) was a case under the Indian Lunacy Act, in which it was held that it is possible for a person to have two residences. Mr. Varma, on the other hand, cited the case of --Rev. Robert Ward v. Velchand Umedchand, 34 Bom 121 [LQ/BomHC/1909/98] (H),

In this case, the question was whether the ordinary residence of the minor was in the district of Ahmedabad or in Baroda. Their Lordships found that the minor had lived at Baroda for three years with the exception of 28 days in the district of Ahmedabad, and it was held that the ordinary residence of the minor must be taken to be Baroda within the meaning of Section 9, Guardians and Wards Act. Another case relied upon by Mr. Varma was that of -- Maung Bathein v. Ma Than Km AIR 1929 Rang 129 (1) (I).

In this case, soon after the birth of the minor in question, the parties were divorced by mutual consent of the wife and the husband, and the minor was living with the mother since then. When the minor was about seven years of age, the application under the Guardians and Wards Act was filed. All this time, the minor was with the mother either at Mandalay or Sagaing. The application under Section 25 of the Act was made in the District Court of Henzada, and it was held that the word "Court" under Section 4(5) of the Act, which used the expression "for the time being ordinarily resides", must mean either the District Court of Mandalay or the District Court of Sagaing and that the District Court of Henzada had no jurisdiction.

6. From a review of the cases mentioned above, it appears that the question as to the ordinary residence of the minor must be decided on the facts of each particular case and that, generally, the length of residence at a particular place determines the question. The expression "the place where the minor ordinarily resides", in my opinion, means the place where the minor generally resides and would be expected to reside but for a special circumstance.

In the present case, according to the case of the mother, which has been accepted by the Court below from which I see no reason to differ, the child, during the short period of his life, lived mostly at Buxar within the jurisdiction of the District Court of Shahabad; and, if the child had not been stealthily taken away by the father, he was expected to reside with the mother at Buxar. In this view of the matter, the contention of the appellant in regard to the want of jurisdiction of the District Court of Shahabad must be repelled, and I hold that the District Judge of Shahabad had complete jurisdiction in the matter.

7. The next question is as to whether the mother should be appointed guardian in preference to the father, who, under the law, is entitled to the guardianship of the minor. I have already mentioned that, under the Hindu Law, the father is the legal guardian of the minor child and under the Guardians and Wards Act also he is so. But the most important consideration which must always weigh with the Court in making orders for appointment of guardians of minors is the walfare of the minor, and, in that view of the matter, the legal rights of the father must be understood subject to the provisions of Section 17 of the Act. Under Section 17 of the Act, the Court should be guided by the sole consideration of the welfare of the minor, and what would be "for the welfare of the minor" must necessarily depend upon the facts and circumstances of each particular case.

In the present case, the minor was about 15 months old when the application was made by the mother for the minors guardianship. The lather committed the most cruel act in taking away the child stealthily from the care of the mother and putting him on cows milk, and the Court below has rightly said that depriving the child of such a tender age of his mothers milk was an act of positive cruelty. Viewed in these circumstances, in my judgment, it is a fit case in which the minor should be kept with the mother until the minor grows up and the mother must be appointed guardian of the person of the minor.

In -- Bai Tara v. Moaanial Lallubhai : AIR 1922 Bom 405 [LQ/BomHC/1922/73] (J), the mother was preferred to the father as the guardian although, the minor was seven years of age, and it was hold that it was for the welfare of the minor that the minor should remain in the custody of the mother, especially when the father had taken a second wife. This case was followed in -- Saraswathibai Shripad v. Shripad Vasanji : AIR 1941 Bom 103 [LQ/BomHC/1940/119] (K), In this ease, the child was two years of age. The mother, after the child-birth, suffered from tuberculosis and had to go away for treatment, and the child was kept by the father at his mothers house.

When the mother of the child was discharged from the sanatorium, she came back to Bombay. One day, when the child was out with a servant, he was taken to the house of the mother, and the child, since then, remained with the mother. According to the father, the child had been kidnapped, and, in the circumstances, the father made an application to have the child returned to him under Section 25, Guardians and Wards Act. It also appeared that the father in the meantime, had contracted a second marriage, and Wadia, J., agreeing with the learned Chief Justice, who delivered the main judgment, says as follows:

"The father of the minor had married again. That in itself may not be a ground for depriving him of his minor child. But the Court has got to consider all the Circumstances of the case, and taking human nature as the same here as elsewhere, a step-mother cannot be expected to be very much interested in the welfare of a minor step-son, nor likely to give him the attention, love and simpathy which the child naturally requires. It is no I the welfare of the father, nor the welfare of the mother that is the paramount consideration for the Court. It is the welfare of the minor and the minor alone which is the paramount consideration;....."

In the present case, although the child has got no step-mother in my opinion, the attention, love and sympathy which the child requires cannot be given by the father in the same measure as can be given by the mother, especially when the child is aged only about two years or a little more. (His Lordship after considering some of the points dismissed the appeal).

Ramaswami, J.

8. I agree: