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Miscellaneous Application No. 33 of 1951, decided in 1952.
, S. 25‑Word "custody"‑Whether means "actual custody" only or includes "constructive custody" as well ‑Word "guardian"‑Meaning of---- Mother seeking custody of minor children from Muhammadan father‑Whether "guardian" within meaning of section.
Custody does not mean merely actual custody but include constructive custody as. well. When a person who has the actual custody of a minor refuses to hand over the said minor to the person who has the constructive custody and the lawful right to actual custody, then there is a "removal" within the meaning of the section 25 of the Guardian and Wards Act.
The word "guardian" in section 25 of the Guardian and Wards Act includes a mother seeking custody of minor children from a Muhammadan father. But the section is concerned merely with the custody, and the word "guardian" in section 25 therefore does not mean anything more than a person entitled to custody.
Sheo Kumari v. Mathur Ram A I R 1936 All. 267, Annie Besant v. Narayanniah I L R 38 Mad. 807, McSweeney v. Arbuthnot A I R 1931 Cal. 563 and Imambandi and others v. Mutsaddi and others 45 I A 73 ref.
Zulfikarali C. Valiani for Appellant.
Riaz Ahmed for Opponent.
---‑The applicant Noorjehan was married to the opponent Mufti Muhammad Sami in India and had by him three daughters, Najma, Naghat and Parwin. They left India in 1949 for Karachi and stayed till about June 1950, in the dispensary of Dr. Adil, who is married to Naima, the sister of Mufti Muhammad Sami. They then shifted to a quarter in Pir Ilahi Bus Colony, and soon thereafter Noorjehan separated from her husband, according to him of her own accord because she refused to live with her mother‑in‑law, and according to Noorjehan because she was driven out by her husband largely at the instigation of her mother‑in‑law.
Admittedly when this separation took place she went to live with her brother, taking only the middle daughter Naghat and leaving behind the eldest daughter Najma aged about seven and the youngest daughter Parwin alias Panni aged about 2 or 3. Najma is admittedly living with her father together with his mother and his youngest sister, Talat. This sister is a B. Sc. and is in the Daw, Madical College studying to become a doctor. She has Rs. 32,000 in the bank and has property bringing her in about Rs. 200 to Rs. 300 per month. Najma is looked after by her grandmother and by her aunt Talat, who is paying for her education.
The youngest daughter Panni, according to Noorjehan, was handed over after separation to Najma. According to Muhammad Sami she had been given before separation in quasi adoption to. Naima and her husband, who are childless after ten years of marriage, to be brought up by them as if their own daughter with the consent both of himself and of his wife Noorjehan. The doctor earns Rs. 600 to Rs. 700 per month and his wife Naima has a bank balance of about Rs. 12,000. From Exh. 13, an undated letter admittedly written by Noor jehan to Naima, it is clear that Panni was living with Naima while Noorjehan was still at her husband's house ; for in this letter Noorjehan states that her mother‑in‑law was annoyed because Naima had sent Parwin to their house and took Parwin away from the arms of Noorjehan and sent her back to Naima. She complains of being oppressed and boycotted. Then there is a sentence ; "I am very glad that your daughter Panni is happy". Then she says that she has been longing for Panni and asks Najma to send "your daughter" for an hour. There is then another sentence : "I am very glad that Panni has gone to a place where she will have peace. Here I used to beat her a lot on being enraged." While it is true that Parwin must have been entrusted to Naima before the separation according to this letter, it is not so clear that entrustment had been with the full consent of Noorjehan, since not only this letter but Exh. 4 contains a request that Panni should be sent to her, but on the whole the language of Exh. 13 shows that the applicant thought it in the interests of Parwin that she should be looked after by Naima.
A preliminary objection has been raised by Mr. Riaz Ahmad that this application under section 25 is incompetent on two grounds :‑
(1) That no removal from the custody of Noorjehan has taken place
(2) That Noorjehan is not the guardian of the minors Najma and Parwin.
Section 4 defines guardian as meaning :‑
"In this Act, unless there is something repugnant in the subject or context, a person having the care of the person of a minor."
Chapter II deals with the appointment and declaration of guardians.
The following sections in that chapter are relevant:‑
"17 (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
17 (4) As between parents who are European British subjects adversely claiming the guardianship of the person, neither parent is entitled to it as of right, but other things being equal, if the minor is a male of tender years or a female, the minor should be given to the mother, and, if the minor is a male of an age to require education and preparation for labour and business, then to the father.
19. Nothing in this chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person.
19 (b) subject to the provisions of this Act with respect to European British subjects, of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor."
Chapter III is entitled : "Duties, Rights and Liabilities of Guardians". The sub‑chapter entitled "Guardian of the Person" contains sections 24, 25 and 26 as follows:‑
"24. A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.
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.
25 (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1898.
25 (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.
26 (1) A guardian of the person appointed or declared by the Court, unless he is the Collector or is a guardian ap pointed by will or other instrument, shall not, without the leave of the Court by which he was appointed or declared, remove the ward from, the limits of its jurisdiction except for such purposes as may be prescribed.
26 (2) The leaves granted by the Court under subsection (1) may be special or general, and may be defined by the order granting it."
As regards the first ground taken by Mr. Riaz Ahmad there is a conflict of rulings whether "the custody" referred to in section 25, means "actual custody" only and does not include "constructive custody". It appears to me that the better opinion is as expressed in Sheokumari v. Mathura Ram ((1936) A I R All. 267), that "when a person who has the actual custody of a minor refuses to hand over the said minor to the person whop has the constructive custody and the lawful right to actual a custody, then there is a "removal" within the meaning of the section". This interpretation would appear consistent with the general law laid down by the Privy Council in Besant's case (38 Mad. 807).
A guardian may entrust the custody and education of his children to another ; but the authority he thus confers is essentially a revocable authority and if the welfare of his children require it, he can, notwithstanding any contract to the contrary, take such custody and education once more into his own hands.
As regards the second ground Mr. Riaz Ahmad argued that none but a guardian appointed by the Court is entitled to apply under this section. The doubt expressed upon this point in McSweeney v. Arbuthnot (A I R 1931 Cal. 563) does not seem to have been shared by, any other Court, and it is to be observed that in this sub‑chapter of Chapter III sections 24, and 25 refer to a guardian of the person, whereas section 26 refers to the guardian of the person appointed or declared by the Court.
The further contention of Mr. Riaz Ahmad regarding the second ground is that under Muhammadan Law the father is the natural guardian while the mother is only entitled to custody of infants upto a certain age according to their sex. This has been laid down by the Privy Council in Imambandi's case (45 I A 37). It is, however, to be noted that that case was con cerned with the power of a mother to deal with the property of her minor children : as Mr. Ameer Ali said :‑
The mother has no larger powers to deal with her minor child's property than any outsider or non‑relative who happens to have charge for the time being of the infant. The term "de facto guardian" that has been applied to these persons is misleading: it connotes the idea that people in charge of a child are by virtue of that fact invested with certain powers over the infant's property. This idea is quite erroneous.
Their Lordships in this case were not concerned with the question whether a mother under Muhammadan Law has a right to secure custody of her infant children from the father.
Mr. Valiani relied on the definition of a guardian as the person having the care of the person: in its context in section 25 the meaning must be "a person having the right to the care of the person of a minor". Accordingly since custody of a mother means looking after the child in sickness and health and giving it all those personal attentions which a young child requires; it is argued that the word "guardian" in section 25 means, with reference to a young Muhammadan child, its mother. It is true that the father may be the guardian, but in the sense that he is entitled to the care of the person when the child attains the necessary age. It was pointed out by Mr. Valiani that the Guardians and Wards Act in section 17 directs that attention is to be paid to the personal law of the minor, and he argued that the prohibition in section 19 against the appointment of the guardian of the person of a Muhammadan minor whose father is living and is not unfit to be guardian of the person does not exclude the mother's right to custody of a young child.
In other words guardian in section 19 has not the same meaning as in section 25.
On the other hand Mr. Riaz Ahmad points out that section 17 (4) expressly provides in the case of European British subjects that young children should be given to the mother, but if the minor is a male of an age to require educa tion and preparation for labour and business, then to the father. And he argues that if the Legislature had intended to maintain this rule in respect of Muhammadan also, it would have done so expressly as in the case of Europeans, and that the existing provisions of the Act (which overrides the Muhammadan Law wherever it is inconsistent with Muhammadan Law) are such that the Muhammadan rule of giving custody to the mother has been abrogated.
The question obviously is difficult. On the one hand it is apparently inconsistent that while none but the father can be appointed as guardian, yet it should be held that the word "guardian" in section 25 includes a mother seeking custody from a Muhammadan father. On the other hand the subject matter of section 25 is concerned merely with custody and I can see no reason why the word "guardian" in section 25' should mean anything more than a person entitled to custody. I am not prepared to hold that because the Legislature which directs attention to the personal law dealt expressly with European British subjects in section 17 (4), it intended that the analogous rule regarding Muhammadan children should be excluded a meaning not inconsistent with the definition in section 4 ; the reason for dealing expressly may have been to obviate the necessity of referring to English or Scotch authorities.
Accordingly I hold that this application under section 25 is competent.
As regards Parwin, as I have pointed out above, she was handed over to Naima and her husband Dr. Adil before sepa ration and there is no question that she is well looked after. Naima gave evidence and struck me as a person eminently suited to look after Parwin and as being obviously devoted to her: so also Dr. Adil. The child was in Court and was obvi ously happy with both Dr. Adil and Naima. She is however so young that she can readily adapt herself to another house hold, and hence the child's own attachment is not a serious factor, since there is no allegation that her mother also would not look after her well and would not skew her affection. Noorjehan, however, has no means of her own and is depen dent on the bounty of her two brothers, One is an Assistant in the Central Government, earning about Rs. 300 a month. He is married but at present without children. The other brother is absent in service at Jullundur earning about Rs. 250 a month. He is not married at present but is expected to marry. They have also to maintain their aged father and mother as well as Najma, the middle daughter. On the other hand Dr. Adil is earning between Rs. 600 to Rs. 700 a month and it is their intention to treat Parwin as their daughter and to give her a University education. While it is true that it is not within their sole power to gift more than one‑third of their property by will, yet I see no reason to doubt their intentions or capacity to provide for Parwin. Secondly it is admitted that in Noorjehan's family female education has been untraditional in the past, and though Naghat is now being sent to school the standard of culture in Noorjehan's household ap pears less than in that of Dr. Adil's. It is true that Parwin is not of an age to have developed associations or expectations which it would be undesirable to disturb, but considering that her prospects with Dr. and Mrs. Adil seem so much better, I think it would not be for her welfare to hand her over to mother Noorjehan.
As regards Najma, her education is being paid for by her aunt Talat; but Talat, one hopes, will herself marry as she is only twenty‑two. Muhammad Sami as a Sub‑Inspector, draws a total pay of Rs. 198 and it appears maintains his mother. From the material point of view there seems to be little superi ority on either side as regards Najma.
It was argued that the application was delayed after sepa ration and that it has been made as a mere counterblast to the divorce. It is difficult to say whether the application was made before or after knowledge of the divorce, as the divorce came to the hands of Noorjehan indirectly. I do not think, however, much importance attached to this. While matters were still resting at the stage of separation Noorjehan may have thought that reconciliation was possible and that she would then again obtain the society and custody of her children.
The result is therefore, that the minor Najma should be handed over to the custody of her mother Noorjehan, and that the application in respect of the minor Parwin is dismissed. There will be no order as to costs.
K. B. A. Application partly allowed
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