Raghavan Nair v. Lekshmikutty Amma — 1960 DIGILAW 380 (KER)

Judgment :- 1. This is an appeal by the petitioner in O.P. No. 9 of 1958 of the court of the District Judge of Palghat. The petition was dismissed on the preliminary ground that it was not maintainable in view of the dismissal of an earlier petition filed by the petitioner, O.P. No. 9 of 1957. 2. Ext. B1 is the certified copy of that petition and Ext. B2 is the order thereon. They make it clear that O.P. No. 9 of 1957 was a petition for the appointment of the petitioner as the guardian of his minor son under S.7 of the Guardians and Wards Act, 1890. The present petition is essentially one for obtaining the custody of the boy under S.25 of that Act. Counsel for the petitioner submitted that in case aremand is ordered, his client will move for an amendment of the petition and place the matter beyond all controversy. 3. S.25 reads as follows: "(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 (X of 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". We find it impossible to agree with the court below that the present petition is barred by the dismissal of O.P. No. 9 of 1957. 4. At the time when the earlier petition was filed the mother of the minor whose marriage with the petitioner had been dissolved by the Alathur Munsiff Court in O.P. No. 52 of 1952 was his guardian under S.15 of the Madras Marumakkathayam Act, 1932, which provides that "the mother shall be the guardian of the person and property of her minor children if their father is dead or the marriage of their parents is dissolved". Subsequently there has been a change in the law as a result of S.6 of the Hindu Minority and Guardianship Act, 1956 (Central Act No. XXXII of 1956). S.6 reads as follows: "The natural guardian 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). Explanation - In this section, the expressions 'father' and 'mother' do not include a step-father and a step-mother". 5. S.5 of the Act ensures the over-riding, effect of the Hindu Minority and Guardianship Act, 1956. It says: "Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act". 6. The effect of this provision came up for consideration before Raman Nayar, J., in 1960 KLT.1227, a case governed by the Travancore Nayar Act II of 1100. He said: "The parents and the children are Nayar Hindus governed by the provisions of both Travancore Act II of 1100 and Central Act XXXII of 1956. Under S.10 (2) of the former Act, where the parents are divorced the mother shall be the guardian of both the person and property of the minor children. He said: "The parents and the children are Nayar Hindus governed by the provisions of both Travancore Act II of 1100 and Central Act XXXII of 1956. Under S.10 (2) of the former Act, where the parents are divorced the mother shall be the guardian of both the person and property of the minor children. But under S.6 (a) of Central Act XXXII of 1956 the father is the guardian. No exception or other special provision is made for the case of wards whose parents are divorced. S.6 (a) of the Central Act is therefore applicable whether or not the father is divorced from the mother and it therefore follows that S.10 (2) of Travancore Act II of 1100 is inconsistent with this provision. In the absence of anything express or implied restricting the application of S.6 [a] of Central Act XXXII of 1956 to children the marriage of whose parents is still subsisting, I cannot agree that that section provides only for such a case and is therefore not inconsistent with S.10 [2] of Travancore Act II of 1100 which provides for a case where the parents are divorced. The question then is which of these two inconsistent provisions is to prevail. Undoubtedly it must be S.6 (a) of Central Act XXXII of 1956 which is not merely the later law but which, by the reason of the overriding effect over previous inconsistent laws given by S.5 [b] of the said Act, has the effect of expressly repealing S.10 [2] of Travancore Act II of 1100". 7. There is a divergence of opinion as to whether a father can get himself appointed as a guardian under S.7 of Guardians and Wards Act, 1890, in view of the provisions of S.18 of that enactment. [See Guardians and Wards Act by Doraswamy Iyengar, 2nd Edn., Page 175]. There is no doubt, however, as regards his right to invoke S.25 of the Act provided the conditions of that section are satisfied. 8. It follows that the judgment of the lower court has to be reversed and the case remanded for fresh disposal according to law. Judgment accordingly, though in the circumstances of the case without any order as to costs. 9. The lower court is directed to dispose of the matter most expeditiously. The office will see to it that the records are sent down forthwith. 10. Judgment accordingly, though in the circumstances of the case without any order as to costs. 9. The lower court is directed to dispose of the matter most expeditiously. The office will see to it that the records are sent down forthwith. 10. Counsel for the respondent wanted us to make it quite clear that the remand entails no expression of opinion on the merits of the case. We do so. Allowed.