The Gaurdians And Wards Act,1890 And Certain Provisions Of The Hindu Minority And ...

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Law Commission Report

The Gaurdians And Wards Act,1890 And Certain Provisions Of The Hindu Minority And ...

LAW COMMISSION OF INDIA

EIGHTY - THIRD REPORT

THE GUARDIANS AND WARDS ACT, 1890
AND CERTAIN PROVISIONS OF THE HINDU
MINORITY AND GUARDIANSHIP ACT, 1956"

April, 1980.

Dated the 26th April, 1980.
My dear Minister, '

I am herewith l'or\.v:!rdiI1g the Flgillylhifd Report of the Law Commission
containing proposals for amendment ol" the Guardians and Wards Act, 1890, and
Section 6 of the Hindu dinority and Guardianship Act, 1956.

2. The Guardians and Wards Act. l890. was enacted 90 years back. At the
time of its enactment women had scarcely any rights: for them there was only
social and legal (iCgT€1(l'Ili'.\l'l, m{1lL'l'i;!l insecurity and other manifestation of
dominance and false superiority of men. The Act while providing the appointment
of the guardian kept in view the welfare of the minor but laid emphasis on the
superiority of the father or male member in the matter of appointment of
guardians of minors and their custody. '

3. In the social conditions that exist today, it is very necessary that parents
must regard as their foremost responsibility to bring up their children as healthy,
happy. and useful individuals of an all-round standard of education and as active
builders of society. The purpose, therefore, of the law of the guardianship should
be to ensure this development of the child and to safeguard its interests. This can
be done only if. in the appointment of the guardian of a minor, the welfare of
the minor is made the ﬁrst and paramount consideration, and no other considera-
tion, such as the superiority of the mother or father is taken into account. In
appointing a guardian the Court must also see which of the claimants is best
suited by his or her educational competence and inﬂuence, and by his own
example to provide the requisite care in upbringing the child. The Commission,
therefore. feels that it is 'tc'_'es9aI'y to overhaul and revise the existing Guardians
and Wards Act, l890, so as to embody the idea of the welfare of the minor being
the ﬁrst and paramount consideration in the appointment of a guardian and in
other related matters. Even as it is the working of the Act has revealed a
number of defects and deﬁciencies which hamper the administration of the Act.
Some of the legal provisions of the Act require elaboration and clariﬁcation,
while others require tightening up.

4. The Hindu Minority and Guardianship Act, 1956 recognising the
advancement in the status of women in all spheres gave them the right to be
appointed as guardians. It also made the welfare of the minor the paramount
consideration in the appointment of a guardian. Further while postponing the
mother as a natural guardian to the father. it laid down at the same time that
the custody of a minor who has not completed the age of live years shall ordi-
narily be with the mother. Section 6 of the Hindu Minority and Guardianship
Act. I956 requires to be altered so as to allow the mother the custody of a
minor till it completes the age of 12 years. lt is necessary to allow the mother to
have the custody of a child till it attains the age of l2 years in order to prevent
the father from using the child as a pawn for securing complete submission of
his wife. where the husband on the instigation of parents or sister or on his own
has adopted the 'pawn' method when the wife insists on the husband having his
own establishment which he can well afford or when a wife has not served well
the mother-in-law or when the wife has not brought a handsome dowry.

(ii

-.-«:11, ,

(ii)

5. The amendments suggested by the Commission seek to embody in the
Guardians and Wards Act, 1890, and Section 6 of the Hindu Minority and
Guardianship Act, 1956, all the ideas narrated earlier.

6. We are grateful to Shri P. M. Bakshi, Member Secretary. of the help

and assistance given to us in the preparation of this Report- We are also grateful
for the assistance given to us by Shri V. V. Vaze, Additional Secretary of the

Commission.

With regards.

Yours sincerely.
(Sd.) P. V. DIXIT
Shri P. Shiv Shankar
Minister of Law, Justice &
Company Affairs,
Government of India.
New Delhi-

CONTENTS

Chapter Topic

Chapter I - Jntroductory

Chaptcr 2~~Brief history

Chapter 3----l'resent law and scheme of the Act of 1890

Chapter 4 --~['i-oliminary provisions. including deﬁnitions: sections I to 4
Chapter -----Ignpowcnncnt of subordinate judicial oﬂiccrs: section 4A
(fliuptcr "v--~/\ppointment and dcclaxatioil of guardiansllip: sections 5 to I')
Chapter 7~ .l)utics. rights and liabilities of guardians: sections 20 to 37
Chapter 3- «Termination of guardianship: sections 38 to 42

Chapter ')»-- --Supplcmcntu| provisions: sections 43 to SI

Chapter l0.r---Sunmiary ol' rCc()In'llCl1d21ti()l1S

APPENDICES

Appendix 1-Position as to custody of children in personal law

Appendix 2----History of the law in India

App mdix 3--English law as to guardianship and its evolution

(iii)

Page

67
68
81

CHAPTER 1

INTRODUCTORY

l.l. 'lhis Report is concerned with the Guardians and Wards Act, l89().,
The sociological importance of such legislation and its relevance to the welfare
of children hardly need elaboration. l'urther. a number of provisions of the
Act have led to controversies in their interpretation and require clariﬁcation in
the interests ol',unil'orniit_v of law. The Commission has, therefore, as a part of
its function of revision of (fentral Acts of general importance, considered it desi-
rable to take it up for revision suo nioto. lt is also" proposed in this Report
to deal with certain analogous provisions of the Hindu Minority and Guardian-
ship Act, in which reform appears to be needed.

l.2. Although the Act was passed about a hundred years ago, no compre-
hensive revision of its provisions seems to have been undertaken since it was
passed. The Legislature, when it considered the law3 relating to maintenance
and guardianship applicable to Hindus had occasion to deal with some matters
germane to the law of guardianship. but there was no opportunity for consider-
ing reform of the Act of l890. Some of the provisions of the Act are in need
of reform in the light of present day conditions. A number of important ques-
tions arising from conflict of judicial decisions or from certain deﬁciencies in the
present expression of the law have also necessitated a review of the law. Clarity,
always desirable in legislation, is especially necessary in this field. As has been

said.' "The lives of the young are at stake ....... .. .

1.3. It is unnecessary to underscore the social signiﬁcance of legislation deal-
ing with children. It was Sophocles who said that children are the anchors that
hold a mother to life. This puts beautifully the elementary proposition that
the bond between the mother and a child of tender years is one that should be
Unfortunately. some of the provisions of the Act do

regarded as sacrosanct.
These provisions will therefore

not reﬂect this attitude to the fullest degree.
occupy our serious attention.

1.4. It is common-place that family life, when it is running a smooth silent
course. presents no serious legal problems. Small ripples that create transient
tensions. pass the parents by. But a major crisis in the family that causes emo-
tional conflict, sooner or later creates a rift which, in modern times. often reaches
the Courts. The Act with which we are concerned purports to deal with such
a crisis. in so far as the crisis may affect the lives of minor children. How far
the Act deals with the matter adequately by providing a sound legal framework
will be an important consideration in making our recommendations.

1.5. Children usually present two problems to a system of law. They must
be prevented from squandering away the property through inexperience: and if
either or both of their parents die or if the parents disagree in matters concerning
the children. provision must be made for their proper upbringing and for the

management of their property.

1 Brieﬂy. "the Act".

"- Chapter 6. infra. para 6.50.

" Hindu Minority and Guardianship Act. 1956-

" 1-'.A.l{. Bennion. "First consideration" (I975) 136 NCW LJ- '337-

Gencsis and
cope.

Need for
revision
of the Act.

The child
in society.

Crisis in
family life.

Problems
presented
by children.

Welfare.

She1ley's
Guardianship.

Various
competing
considerations

Cardozo's
views as to
"best inte-
rests theory".

1.6. As the welfare of the child is the paramount consideration, such wel-
fare would prevail over parental rights. Parental rights would enter into a con-
sideration, as one of the factors in considering the welfare of the child, but not
as a dominating factor, where they would conflict with the welfare of the child.
As Scrutton L.J. said' in his picturesque language, "proceedings for obtaining
custody are being used 'not for the body, but for the soul of the infant'."

1.7. This is the modern approach, though this position has been reached
after some struggle. For example, in England the two children of the poet
Shelley from Harriet were left in the care of a guardian other than himself?
by an order of the Court~though not without some diﬁiculty. To Shelley and
his friends, the decision appeared an example of the "tyranny of priests and
|aws"," impelling him to leave England permanently. But the Court had to pro-
nounce the decision because Shelley's moral and atheistic ideas were considered
a serious disqualification for exercising the rights of the father.

L8. lt would be pertinent to observe that a number of competing considera-
tions' has been mentioned by the Legislature or the judiciary in determining
questions of guardianship or custody or both. In the first place, there is the
criterion of personal law and the "right" of the father or (in some cases) of the
mother thereunder. In the second place, there is the question of the fitness (or
unﬁtness) of the person who is proposed to be appointed a guardian or to whom
custody of the child is proposed to be given. In the third place, there is the
question of consulting the wishes of the minor. Last, but not the least, is the
consideration of the welfare of the child--or, to put it in a dilferent phraseology
---"the best interests of the child". One or the other of these criteria has. in
the course of history, come into prominence and the other has shaded into com-
parative insigniﬁcanee.

Thus, the law relating to custody is still evolving. As Lord Upjohn ob-
served," the rules here "have developed, are developing and must, and no doubt
will, continue to develop by rcﬂeeting and adopting the changing views, as the
years go by, of reasonable men and women, the parents of children, on the pro-
per treatment and methods of bringing up children".

This is not to say that the concept of "welfare of the child" is totally new.
It is sometimes stated that in the historically famous dispute decided by King
Solomon. the matter was decided by way of rough and ready justice. or in a
crude manner. This, however. is not strictly accurate. The approach of the
King was based on a shrewd psychological judgment, which itself (rightly) assu-
med that the love of the mother would transcend any desire to assert "her right".
A question of fact (maternity), otherwise dilﬁcult to decide, was decided on the
basis of instinct.

1.9. As to the criterion to be adopted in such matters. Cardozo, siting as a
judge in the New York Court of Appeals," made the following observations perti-
nent to the "best interests" theory :--

"The Chancellor, in exercising his jurisdiction, does not proceed upon
the theory that the petitioner, whether father or mother, has a cause of

1 Re Carroll. (I93l)l KB. 317. 331.

' Shelley v. Westbrook. (1817) Jae. 260 and Shelley v. Westbrook, (1821) Jae. 266 followed
in Tlzmzms v. Roberts. (1850) 3 De G. & S. 758.

-" Chambers Eneyelopaedia. Vol. 12, page 471.

' See further para 6.37, infra (section 17).

5 J. v- C., (I970) A.C. 668, 722H-723A.

"' Finlay V. Finlay, (1925) I48 N.E. 624, 626 (N.Y.\-

action against the other, or indeed against anyone. He (the Chancellor)
acts as parens patriae to do what is best for the interest of the child. He is
not adjudicting a controversy between adversary parties, to compose their
private differences. He is not determining rights as between a parent and a
child, or as between one parent and another .......... ..Equity does not concern
itself with such disputes in their relationship to the disputants. Its concern
is for the child."

The concept of "welfare of the child" does lind a mention in the Act of
1890. However, it is like a thread that is visible at some places, but gets
blurred elsewhere by being entangled with others.' It needs now to be painted
in glowing colours.

l.l0. ilhe possible opposition of interests between parents and child is now
regarded as almost commonplace in domestic relations law and juvenile law.
it is illustrated by proceedings for paternity and child support, parental neglect
and abuse, brought against the parents for the welfare of the child. In fact, a
separate counsel for the child has been regarded as necessary "-3 in some coun-
tries.'

1.11. These aspects impose a particularly heavy burden on the Judge. Any
Judge with experience of dealing, at ﬁrst instance, with cases concerned with
the care and custody of children must be well aware of the necessity to treat the
matter with the utmost discretion and tact. Where there is a serious dispute
between the parties involved, it may on occasions be inevitable that an assess-
ment nas to be made of the character of one or more of them from the point
of view of suitability to have care of, or access to, a child. But such an assess-
ment can rarely be made satisfactorily by anyone who has not heard all relevant
evidence and, in particular, has not had the opportunity of observing the parties
in the witness box. The assessment should always be expressed in moderate
language, lest the dispute should be exacerbated and there should be impairment
of the prospects of securing that all concerned contribute as much as may be
within their power towards promoting the welfare of the child."

A Judge usually can decide with self-conﬁdence the legal and factual issues
in litigation over who should have the custody of a child. Where he needs help,
however, is in evaluating which of the available alternatives will best satisfy the
psychological needs of the child. Attempt to provide guidelines. based on
psychoanalytic theory, to govern the Judges decision in all types of child place-
ment cases would be futile. The attempt would be seductive, but impossible:
because the amalgams of factors to be appraised in custody contests are too
complex.

1.12. Students of family law are well aware of certain interesting develop-
ments in that sphere of law. Recognition of the peculiar nature of proceedings
involving disputes concerning the family,' and the emergence of a new set of values
with reference to the equality of status' of women along with increasing emphasis
on the rights of the child, have led to certain important developments in family

'See para 6.40, infra.
"Cf? Matter of Gaulr, (1963) 387 U.S. l, 27. 34-42.

"Nanette Dembitz. "The Good of the Child v. The Rights of the Parent"
Science Quarterly. 38'). 395.

'See also para 1 . I5. infra.

"B. V. W.. (August 17, 1979, Part 3l). l W.L.R. at I053.
'Para 1 .l 1, supra.

7Para 1 .18. infra.

(I961) Vol. 86. Pol.

Clash of
interests
between
parent and
child.

Role of
Judge,

Legislative
trends in
family law
and in regard
to children.

Legislative
trends,

«Triiiiinal lnw.

Developments
in procedure-
Experts to

assist the

Court.

law. So far as the subject of guardianship and custody of children is concerned,
the trend of legislative and judicial attitudes in recent times may be brieﬂy ad-
verted to.

1.13. in the lirst place, there has been an increasing einpliasls on giving the
mother, the right to apply for custody. In tzngland, this trend took the shape
of legislation passed in 1829, lts/5 and i925, giving increasing recognition to
the nioihcr's right and culniinating in the statutory provision now to be found
in the /\Cf. of I973,' which spceilically protides that 'in relation to the custody
or upbringing of a ininoi' and U1 relation to the administration of any property
belonging to or held in trust for a minor' '(or the application of income of any
such property, a mother shall have the same rights and authority as the law
allows to a father, and the rights and authority of mother and father shall be
equal and exercisable by either without the other. If they disagree, either may
apply to a court for its discretion".

this is certainly a far cry from the nineteenth century attitude when Courts
were persuaded only with some diﬂiculty to decline to enforce the father's claim
to custody.

the second trend,- which was a logical consequence of the increasing
powers which the Courts had come to acquire,----was the evolution of a princi-
ple upon which to adjudicate such disputes. Here we have the principle of the
child's welfare which, in the course of time, was held to override considerations
such as the father's "right". Thus, equality was created between the two parents
and the welfare of the child was placed in the forefront.

lhirdly, with increasing complexity in family relations, it has become neces-
sary in certain countries to give persons and bodies outside the family unit
powers to intervene in the interests of the children. In the competition between
parents and non--parcnts, again,'-' the welfare of the child is the ﬁrst and para-
mount consideration.

Fourthly, we come across legislation vesting in local authorities certain func-
tions in relation to the care of children. Such authorities may be ordered by
the Court to care for, or supervise, a child whose home circumstances, upbring-
ing, education or behaviour have been found unsatisfactory. Such provisions.
while appearing to be qualilications and restrictions on the rights of the parent,
really act as a useful inducement for the observance of parental responsibilities.

l.l4. While these topics belong to the field of civil law, the criminal law has
also kept pace with the times in order to protect children from a wide variety
of evils----such as, employment in hazardous occupations, purchase of dangerous
substances. sexual exploitation and so on. More direct are the provisions design-
ed to protect children from various forms of neglect or ill-treatment at the
hands of their parents.

1.15. These developments in the substantive sphere have been matched by
the evolution of certain procedural devices which are mainly intended to ensure
that the guiding principle that the welfare of the child is paramount, is properly
applied and adequately implemented in practice. To some such belief may be
attributed the movement for the appointment of experts to assist the Court in
assessing the welfare of the child and the movement for appointing a child ad-
vocate."

'Section 1(1), Guardianship Act. 1973. See futther Chapter 6. infra and Aphéndix 3-
'-'Cf. J. v. C.. (1969) I All ER. 788 (House of Lords).
"See also para I .10, supra.

In England, for ex-atnple. all courts have power to call for an independent
report on matters relevant to the welfare of the child. This service is provided
311 the High Court and the divorce court by the welfare ollicer, who is generally
the principal probation oﬂicer for the area. Although the service is utilised
mostly in proceedings ancillary to divorce, it is not so eontined.

l.l6. As to the seperate representation of children. there is vast and expan-
ding scholarly material in the United States calling for the appointment of a
child advocate or eounsei tor the child in contested eases.'-". Separate legal re-
presentation of ehiltlren has been suggested' on the ground that the earlier the
attorney is appointed in a eciiteslctl custody case where a real dispute is appa-
rent. the inorc ellcctively can the principles be put into practice.

Recently. in lingland, in regard to certain "care procee(lings","' the ('ourt has
been given a power to appoint a person to represent the interests of a child."

l.l7. 'thus. over a period of years there can be discerned a steady trend
which reﬂects the view of successive generations. as to what the public interest
demands in this particular ticld of law. Development of legislation in this field
in India ought to proceed upon a parallel. rather than on a diverging, course.

1.18. Finally, it may he mentioned that the need for equality of treatment
as between the sexes nas been stressed not only by international bodies concerned
with the status ot' women7 but also in India.'

1.19. The U.l\J. Declaration on Rights of the Child enuneiates this principle?

"The child, for the full and harmonious development of his personality,
needs love and uiidei'strinJing_ He shall, wherever possible, grow up in
the care and under the responsibility of his parents. and. in any case, in an
atmosphere of alleetion and of moral and material security: a child of tender
years shall not. save in exceptional circumstances. be separated from his
mother. Society and the public authorities shall have the duty to "extend
particular care to children without a family and to those without adequate

means of support. Payment of State and other assistance towards the
maintenance of children of large families is desirable."
L20. Recent legislation in England also emphasis in positive terms the

equal 'iositions o!' each parcnt."' In France." the former "paternal power" (puis-
sauce patcrnellc) has been replaced by the new "parental authority" (authorite
l7'1!'Cl'liaiC).

1Goldstein and others. "Beyond the best interests of the child" (1973). page 66.
°-'Note "L'tx\'y'Cl'll1_[!_ for the child" (I978 May) 87 Yale Law Journal 1 I26.

iistatutory references collected in Note "Lawyering for the child" (1978 May) 87 Yale Law
Journal 1126 footnote 8 (I9 iurisdictions using the term "attorney or counsel for the child"
and 5 jurisdictions using the term "guardian ad litem").

'Note "Lawycring for the child" (1978 May) 87 Yale Law Journal I126.

5S3ction 64 Children Act l975 inserting section 32A in the Children and Young Persons
Act 1964.

"See also Alec §:t'nu-:ls "C'iildr::n's Adv->::tte" (I977). N.L.J. 133.
7U.N. Con'intission on Status of Women. 20th Session (I967).

"('o~~imit1ee on Status ol' Women (lrttliro Report (W74). pages l36--l3R paragraphs 4.143
and 4 M4.

"t,l.N. Declaration of Rights ol' the ('hild, 'Principle (x.

1"Guardianship of Minors Act 197i and Guardianship Act, 1973.

"Law of 4th June, i970 (France) as brieﬂy summarised in Alexandre.
(I973) 20 American Journal of Comparative Law 647, 65!.

"Women in France"

independent
legal repre-
\Cl1i2lllVc.

Steady trend,

Equality
of sexes.

U.N. Dec-
laration.

Position in
elsewhere
and on the
continent.

Treatment by
society of
its children.

Relevance
of survey.

The modern approach is also illustrated by the position as it prevails in
Sweden.' The parents are joint guardians of the children of the marriage, and, on
the death of the one parent the other becomes the sole guardian. During separation
or after divorce, the parent with custody is the sole guradian. Of illegitimate child-
ren, the mother is the solc guardian unless she is unsuited to act on behalf of the
child. Until the twentieth birthday. a child remains in the custody of the parent or
the guardian. During the cohabitation of the parents. parental custody is joint. In
the event of separation or divorce, the Court determines which parent shall be the
custodian. In practice, the mother is often preferred when the child is of tender
age, while there is a preference of the father in the case of teenage sons.

l.2l. In liiiglantl. the philosophy underlying the Children Act, I975 was thus
sumniarised by David Own MP."

"A nation"s children represent a natioifs future. How society treats
its own children is a good rellcction of the overall health and stability of
that society."

1.22. Opinions differ as to the etlicacy of the various legislative and other
measures. But this brief survey is relevant to show that the legal relationship
between parents and children cannot be quite like that between adults. because
here we are concerned with the upbringing of someone who is too young to
bring himself up and too young to force others to do it for him.

1Wal1in, "Women in Sweden" (1972) 20 American Journal of Comparative Law, 622, 626.
"David Owen M.P.

CHAPTER 2

BRIEF HISTORY

2.1. The historical evolution of the law in India may be brieﬂy dealt with.' Introduction.

Before the Act of 1890, while the law relating to age of majority was codiﬁed.'
there was no all-India Act dealing with the guardianship of minors. The matter.

in so far as the law was codiﬁed, was governed by certain Acts or Regulations
in force in certain local areas and there were also in operation certain uncodiﬁed
rules of personal law dealing with guardianship.

2.2. Brieﬂy speaking, the statutory law before I890 on the subject of guar- Statutory
dianship (apart from legislation relating to Courts of Wards), consisted of Acts "'"'-
separately in force in the three Presidencies, certain Regulations in force in the
Presidency of Madras, one fragmentary legislation (Act 9 of 1861) amending
the law relating to minors and the European British Minors Act (13 of I874)
which provided for the guardianship of European British minors.

2.3. The general law of guardianship, however, remained unaffected, in so Uncodif-'led
far as the legislation referred to above did not, except as regards European law
British subjects. purport to deal with natural guardians, their rights and duties.

These matters were left to be dealt with by uncodiﬁed rules in the sphere of
personal law. So also was the subject of testamentary guardianship, as regards
Hindus and Muslims.

2.4. Of the Acts in force before 1890, one----the Bombay Minors Act, 1864'/2:"t8i(')1f"1f890
whad caused serious difficulties in practice. This was the immediate factor that '

induced the Government of the day to take up the question of enacting suitable
legislation on the subject of guardianship. However, it was felt that there was
need for an all-India law on the subject."

2.5. It was in this background that the draft Bill was drafted, circulated for
comments, revised and introduced and further processed. Details of the rele-
vant discussions will be found in an Appendix.

'For a detailed historical discussion, see Appendix 2.
3The Indian Majority Act. I873.

"See Appendix 2 (Historical discussion).

' Appendix 2.

Scope.

Minority.

Litigation.

Testamentary
<_zuard1anshrp_

CHAPTER 3

l'l{l<'.Sl{N'5' l..\"' »\\'l) S('IIli'.\Il*'. OF Tllll'. .\("|' 0|? I890

3.1. We propose to deal in this Chapter in brief with the present law on

the subject of guardianship in India as contained in the Act of 1890 and cer-
tain allied Acts.

3.2. titlimliarisztip. us envisaged by the Act. is a concept integrally linked
with the legal concept of "minority". At the outset, therefore, the position as to
minority may be brielly adverted to. The principal enactment on the subject is
the Indian Majority Act. 1875.

In Indian law, in the main, three periods of guardianship of minors with
reference to the age of the minor fall to be considered. In the ﬁrst place, a minor
is a person under the speciﬁed age in regard to matters falling within personal
law. This age varies. but in the case of Hindus (under the uncodiﬁed law), it
was 15 years or I6 years (according to the school by which the minor was gov-
erncd). According to Muslim law. minority extends upto the age of 15 years.

For Hindus, by statute,' it is now 18 years.

In the second place, a person is a minor in matters governed by the Indian
Majority Act'-' till he attains the age of 18 years. That Act does not extend to
the capacity of any person to act in certain speciﬁed matters.----mainly. marriage,
dower, divorce and adoption and matters governed by the religion or religious
ritesiand usages of any class of persons.

In the third place, in the case of a person who has a guardian appointed
by the Court or who is under the superintendence of the Court of Wards, mi-
nority extends upto the age of 21 years."

The statutory minimum age of marriage is now 21 years for males and 18
years for females.' However, marriage in contravention of the prescribed age is
not void for the purposes of civil law. though it may attract criminal liability.

3.3. Guardianship of a minor for the purpose of litigation is dealt with in
the Code of Civil Procedurcf'

3.4. Testamentary guardianship is regulated hy certain statutory provisions"-'
and (as regards Muslims) by the Muslim law.

'Section 4(a). Hindu Minority and Guardiansliip Act. 1956.
"The Indian Majority Act. 1875.

"The Indian Majority Act. 1875.

'Child Marriage Restraint Act. 1920 as amended.

50. 32. Code of Civil Procedure, 1908.

" a) Section 9. Hindu Minority and Guardianship Act, 1°56.

(bisection 60. Indian Succession Act, 1925.
7See para 345. infra.

3.5. The statutory law of guardianship in India is to be found principally
but not exclusively--~in the Guardians and Wards Act, l890 (I8 of 1890) and in
the Hindu Minority and Guardianship Act. 1956 (32 of 1956). Besides these, the
Chartered High Courts' have special iurisdiction conferred on them by their res-
pective Chzuters or Letters Patent. Courts of Wards---- principally concerned with
Revenue paying estates are governed by State Acts wherever such legislation
still exists. Testamentary guardians can be appointed under the Succession Act'
or under the Hindu Minority and Guardianship Act."-'

3.6. The Act of I890 does not deal with the entire law relating to guardian-
ship. It does not. for example. contain provisions as to who are to be the natural
guardians ol' minors. The Act. in the first place. deals with the iurisdiction of
Courts in regard to guardianship. such as--

(i) appointment and declaration of guardians.
(iil removal of guardians.
(iii) control of guardians by the Court. and
(iv) orders as to custody.

Secondly. it deals with the duties and liabilities of guardians of all classes.

3.7. The Act is divided into four chapters. The ﬁrst chapter (sections l to 4A)
deals with certain preliminary matters. such as title. extent and commencement.
savings. deﬁnitions and power to confer jurisdiction on subordinate judicial officers
and to transfer proceedings to such oﬂicers.

Chapter 2 (sections 5 to 19) deals with the appointment and declaration of
guardians. A pretty large number of questions has arisen with reference to
certain provisions contained in this Chapter. particularly, sections 7, l7 and I9.
Section 5 which dealt with guardianship by will or other instrument in the case
of European British subjects. has been repealed." The power to appoint a
guardian in other cases is saved by section 6, which now applies to all persons.
Section 7 is the operative provision in this Chapter. dealing as it does with the
power of the Court to appoint the guardian of the person or property or both.
Sections 8 to 16 mostly deal with procedural or other minor matters, but section
I7 is of great importance. It is concerned with the matters to be considered by
the Court in appointing a guardian. Section 18 provides that a Collector, if
appointed or declared a guardian. is so appointed by virtue of his office. Section
19 prohibits the appointment of a guardian in certain cases. Although negative
in form, this section has given rise to a number of problems in interpretation
and to the question of the interrelationship between section l7 and section l9.
We shall deal with this question at the appropriate place.

3.8. Chapter 3 (sections 20 to 42>. which is the longest Chapter in the Act, is
concerned with the duties. rights and liabilities of guardians. The ﬁrst four
sections (sections 20 to 2% deal with matters of a general character. such as the
ﬁduciary relationship of guardian to his ward, the capacity of minors to act as
guardians. the remuneration of guardians, and control of the Collector when he
is appointed as the guardian. Guardianship of the person is dealt with in sections
24 to 26. of which the most important is section 25 dealing with restoration of

1(a) In re Darrarraya. l.L.R. S8 Bom. 519.

("bl Mahndcn Krishna. A.l.R. I937 Bom. 1932.
'Section 60. Indian Succession Act. 1925.
3Section 9. Hindu Minority and Guardianship Act. 1956.
'See para 3 .4. supra.
-'Section 5 followed the European British Minors Act (13 of I874'.

Statutory
provisions.

Act not

evchaustive.

Scheme of the

Act 01'

I890.

~-~--q-nu-.o--..

Sections
considered_

the custody of the ward to the guardian. This is the section most frequently
resorted to in practice, and as may be expected, case law on this section is proliﬁc.

Guardianship of the property is the subject matter of sections 27 to 37.

With sections 38 to 42. the Act again reverts to matters of a general character,
namely, survivorship amongst joint guardians, removal of a guardian, discharge
of a guardian, cessation of the authority of a guardian, and appointment of a
successor to a guardian who is dead. discharged or removed.

These operative provisions of the Act are supplemented by Chapter 4
(sections 43 to 51), which are primarily concerned with matters in the nature of
enforcement. appeal. costs, rules and other topics of a miscellaneous or residuary
character.

3.9. After these general observations, we proceed to consider the Act section
by section.

CHAPTER 4

PRELIWRNARY F'ROV'iSIONS: SECTIONS 1 T0 4

4.1. Sections 1 to 3 /lcstf with ccrtiin preliminary rratters and do not, in gene-- §°h";;fte':f
V - . . 1 ' . - k" '
an; raise any serious controversies. Tue cnanges requnred are minor.
Section 2 has been :'epea'.ed.. Section 2.

4.3. '§e:tion 3 saves the jurisdiction of Courts of Wards and High Courts. Section '3.
Court of Wards are now regulated mostly by provincial or State legislation.
wherever such legislation still exists. The need for saving the jurisdiction of High
Courts arose from the fact that the letters patent or charter of certain High
Courts confers special jurisdiction on those High Courts in regard to guardian-
ship. This jurisdiction is not exercisable by other High Courts. We shall have
occasion to deal. wit": this i .risr3'r~."t?o.r*- det9.i7. at '92:: appropriate place.' It may
incidentally be mentioned that the jurisdiction of High Courts has been speciﬁ-
cally saved by a provision of the i'ii;':dU Minority and Guardianship Act also."

4.4. Some instzmccs of the power of the High Court which is saved by section Section 3-
, O - u__ Instances of
3 may be mcntxoneo -- High .Co.lm.s
(21) special power to appoint a guardian for an infant or his "estate"---- l'-""3d'°"°"-

which includes a minor's interest in undivided property?

(b) power to appoint a guardian even where there is no property, if a
proper case in made out For such an appointment' and

45. Section 4 contains deﬁnitions of certain expressions, namely, 'minor', Section 4-
'guardian', 'ward', 'district'. 'the court', 'Collector', and 'prescribed'. Igaggef'

Following current legislative practice. the deﬁnition should be re-arranged
in the alphabetical order. We recommend accordingly.

4.6. The deﬁnition of 'minor' in section 4(1) adopts by reference that in the Section 4(1)
Indian Majority Act, 1875. However, that Act is conﬁned to persons domiciled 'M"'°"'
in India. As regards persons not so domiciled, the matter would presumably be
governed by rules of private international law as applied in India.

in this connection, we may refer to the position as to capacity to contract.
The Indian Contract Act' provides as follows:--

"Every person is competent to contract, who is of the age of majority
according to the law to which he is subject and who is of sound mind and
is not disqualiﬁed from contracting by any law to which he 1S subject."

'Sec discussion relating to st ction 7, i;y'ra (para 5.12).

2Sei.:tio;1 12. proviso. Hindu Minority and Guardianship Act. 1956.
3(3) In re Lovejoy. A.I.R. I94-'i Cal. 433.

(b) In re Vrzsudavan, A.I.R. I949 Mad. 2-30.
'In re Jzrgzmmzth Ramji, (1893) I.L.R. 19 Burn. 90. 98 (Starling J.).

5In re the Estate of HG. Mcakin, I.L.R. 2] Bom. 137 (minor residing in England). Contr:-st
Jairam Luxmm. l.L.R. 16 Bom. 634.

"Section 1 1 Indian Contract Act. 1872.

2-~-2 M ofL & J/CAINDI80

Section 4(2)---

Whether
justistic
Derson can
be 'guardian'.

Section 4(2)
applicable to
all guardians.

De facto
guardian.

Section 4 of
Act of 1956
and its inter-
relationship
with Act of
l890.

The words "law to which he is subject" leave the ﬁeld open for applying a
rule of foreign law, if our court so decides as a matter of private international

law. In other words, the age of majority would be_ determined by resort to that
system 01 law which the Indian rules of private international law recognise as

relevant in the particular ﬁeld of law in regard to which the controversy arises.
The matter 1S (as regards some ﬁelds of law) regulated by statute,' but in other

ﬁelds not so regulated. It is unnecessary to go into this vexed question. For

example, contractual capacity.ii_i regard_to persons not domiciled in India is
governed by the law of domicile according to one VlCW,2 but by lex loci con-
tractus according to another Vl6W.3

4.7. Comments in somewhat greater detail are needed in section 4(2). which
deﬁnes "guardian" as a person having the care of the persons of a minor or of
his property or of both his person and property. The question has arisen whe-
ther one other than a natural person can be appointed as a guardian. The Cal-
cutta view on the subject is that a charitable society cannot be appointed as a
guardian.' According to this view, the deﬁnition of "person" in section 3(42) of
the General Clauses Act, 1897 becomes inapplicable in View of certain provisions
of the Act of 1890--such as. sections 43 and 45.

The Calcutta case has been dissented from by one Court.5

We are of the view that the Court should have a power to appoint a juristic
person as a guardian subject to certain safeguards. The point is proposed to be
considered further' in a subsequent Chapter.

4.8. It is now fairly well settled' that the deﬁnition of "guardian" is applicable
to guardians of all classes--natu'al testamentary and certiﬁcated. though, of
course. the deﬁnition does not include a guardian for marriage (wherever such

guardianship continues under personal law), or a guardian ad litem. This much
is clear from the present wording of the deﬁnition, since it is requisite in the

deﬁnition that a person, in order to be a "guardian", must have the "care" of the
person or proporty of the minor. The emphasis placed on "care" seems to have
been derived from the original. Anglo-Saxon word "weardian" (to watch or to
guard).

4.9. Text book writers, when dealing generally with personal law. discuss the
"de facto guardian". In regard to the Act of 1890. much of the controversy that
has arisen relates to persons who, by legal right, claim guardianship or custody
of a minor." It is, however. necessary to consider the position as to de facto
guardians as applicable to Hindus after the Act of 1956.

4.10. In the Act of 1956. section 4(hi deﬁnes a guardian as under:
"4. ln this Act.--

(b) 'guardian' means a person having care of the person of a minor or of
his property or of both his person and property. and includes--

'E.g. as to negotiable instruments. see Law Commission of India. llth Report (Negotiable
Instruments). Daragraphs 27 and 29.

5(a) Kashiba v. Sripat, I.L.R. 19 Born. 697 (Law of domicile).

(b) Rohilkhand and Kumaun Bank Ltd. V. Row, (1885) I.L.R- 7 All- 490.

3(a) T.N.S. Firm V. Mohammad Hussain, A.I.R. 1933 Mad. 756.

(b) Haindail v. Baindail. (1946) 1 All E.R. 342, 346.
'(a) Smr. Ashalata v. Society for Protection of Children in India. A.l.R. 1930 Cal. 397.
(b) M.C. Sweoney v. Arhithnot, A.l.R. 1931 Cal. 563.

5Lakshman Singh v. State. A.l.R. 1955 V.P. 3, 4, para 5 (Jagat Narayan J.C-) (Rﬁgistﬁfﬁd
society).

'See discussion relating to section 18A, infra.
"Ratan v. Bisharz. A.l.R. 1978 Bom. 190 (Chapter 6).
'Para 7.14, infra

"(ii a natural guardian;

(ii) a guardian appointed by the will of the minor's father or mother;
(iii) a guardian appointed or declared by a court; and

(iv) a person empowered to act as such by or under any enactment relating
to any court of wards:

It will be noticed that the Act of 1956 does not speciﬁcally include a de
facto guardian in section 4(b) quoted above, though the words "having the care"
seem to cover de facro guardians. A controversy has arisen as to whether, as
regards Hindus. the deﬁnition in section 4(2) of the Act of 7890' would cover
de faczo guardians. The Bombay High Court has answered the question in the
aﬁirmativt? The Kerala High Court" however, takes a different view.

4.11. The position obviously needs clariﬁcation. The concept of "de facto
guardian" has been discussed at length in a judgment of the Federal Court where
Kania C. J. observedt'

"There can only be a de facto manager, although the expression 'de
facto guardian' has been used in text books and some judgments of Courts.
If that description is adopted (and I consider it to be the correct description

of a person generally managing the estate of a minor without having any
legal title to do so) the powers of a natural guardian are not brought into

consideration in deﬁning the position of such a manager."

4.12. The concept of de facto guardian5 is not peculiar to Hindus. It is familiar
to Muslim law as administered in India,' though the powers of de facto guardians
as regards the disposition of property of Muslim minors are narrower than those
that were recognised by Hindu law before the Act of 1956. In fact, the concept is
born out of necessity, and necessity knows no boundaries of race or religion.

Nor is the concept conﬁned to civil law. For example, the Explanation to
section 361 of the Indian Penal Code also gives a wide meaning to "lawful

guardian". and runs as follows?'

"The words 'lawful guardian' in this section include any person lawfully
entrusted with the care or custody of such minor or other person ....... .."

This shows that the concept of a person acting de facto is not new. The
above deﬁnition, it may be noted, is inclusive.

4.13. In this position, and on a consideration of all aspects of the problem, we
recommend that the law should be clariﬁed by adding, below section 4(2) of the
Act of 1890. a suitable Explanation which would make it clear that a de facto
guardian is included within the deﬁnition of "guardian".

We do not propose to deﬁne a "de facto" guardian. In a Bombay case'
Crump J. said :--

"I must admit that I am not precisely enamoured of the term 'de facto

guardian'. because it appears to me to be debatable in the extreme, and

incapable of exact deﬁnition. "I take it to mean, so far as it can be defined,
a person who, being neither a legal guardian nor a guardian appointed by

'Para 4.7, Supra.

'Ratan v. Bishan A.I.R. 1978 Born. 190 (PS. Shah J.)

3Ramc-Imndra v. Amtapurm' Ammal. A.I.R. 1964 Ker. 269.
'Sriramulu v. Pundarikakshayya. A.I.R. 1949 F.C. 218, 22], para 13.
'Musa Miyrr v. Kadar Bux, (1928) 55 I.A. 171, 179 (P.C.).
'Section 361. Indian Penal Code.

"Hari/al v. Gnvardhan. (1927) I.L.R. 51 Born. 1040, 1047.

The concept
De facto
guardian.

Cencept of
de facto
guardian
recognised
in various
branches of
law.

Recommendation
to amend sec-
tion 4(2) to

add de facto
guardian_

Element of
"care" in
other statutory
provisions.

Deﬁnition in
other Acts_

English
deﬁnition.

Effect of the
expression
"having the
care".

court, takes it upon himself to assume the management of the property of

the minor as though he were a guardian. But if that be the real meaning of the
term, I agree with the learned Chief Justice that it implies some continuity

of conduct, some management of the property beyond the isolated act of
sale which comes into question in this suit."

The same idea can be expressed more brieﬂy by stating that a de facto
guardian" means a person who, as a matter of fact, has custody and care of the
person of a minor or of his property.

4.14. Reverting to the present definition of "guardian". it would be interest to
note that the same element of "care" as is emphasised in the Act of 1890 is also

emphasised in the Medical Termination of Pregnancy1 Act, which deﬁnes a
guardian as meaning "a person having the care of the person of a minor or a

lunatic" and (though in somewhat wider phraseology in the Children Act} which
provides that "guardian" in relation to a child, includes "any person who .... ..has
for the time being the actual charge of, or control over, that chz'la"'.

Under the Vaccination Act." section 2(3), "guardian" includes any person
who has accepted or assumed the care or custody of any child.

Under section 2 of the Children (Pledging of Labour) Act, 1933, "guardian"
includes any person having legal custody of or control over a child.

4.15. We need not multiply precedents. but we may mention that the following
Central Acts contain (or contained) deﬁnitions of the expression "gua.rdian":----

(a) European British Minors Act (13 of 1874) (repealed).
(b) Vaccination Act (13 of 1880, section 2(3).'
(C) Children (Pledging of Labour Act (32 of 1933). section 2:'

((1) Section 9, Explanation (ia), Hindu Adoptions and Maintenance Act,
1956 (inserted by Act 45 of 1962), which reads-

"(ia) 'guardian' means a person having the care of the person of a

child or of both his person and property and includes--(a) a guardian
appointed by the will of the child's father 0: mother, and (b) a guardian

appointed or declared by a court;"
(e) Hindu Minority and Guardianship Act (32 of 1956), section 4:'
(f) Children Act (60 of 1960), section 2."

(g) Medical Termination of Pregnancy Act (34 of 1971), section 2."

4.16. In one of the statutory deﬁnitions in England, "guardian", in relation to
any child or young person, has been deﬁned as meaning the person having the
legal right to the guardianship of the person of that child or young person.' In
another statutory deﬁnition in England, 'guardian" has been deﬁned as including
anybody who has for the time being charge of or control over a person.'

4.17. An important question arises from the expression "having the care"
used in the deﬁnition. Does it mean that if a person, though legally vested
with guardianship, never actually had the care of a minor, he cannot take pro-
ceedings under the Act? This question becomes of practical importance with
reference to section 25, and will be considered thereunder."

'Section 2(a). Medical Termination of Pregnancy Act (34 of 1971).
'Section 2(k). Children Act (60 of 1960).

"Section 2(3). Vaccination Act, 1880.

'Para 4. 14, supra.

~"Para 4.14, supra.

'Para 4.10. wpra.

7Section 106(4) Education Act 1944 (Eng.)

"Section 126 Magistrate's Courts Act 1952 (Eng.)

"See dircnssion relating to section 25 (para 7.14, infra).

CHAPTER 5

EMPLOYMENT OF SUBORDINATE JUDICIAL OFFICERS: SECTION 4A

5.1. While jurisdiction under the Act is in the ﬁrst instance vested in the
District Judge, section 4A(l) empowers the High Court to confer such jurisdic-
tion on "any oflicer exercising original civil jurisdiction subordinate to a District
Court". The object of the provision is to reduce the load on the District Judge.
The section was inserted in pursuance of a recommendation of the Civil Justice
Committee.'

5.2. The section seems to require modiﬁcation in one respect. The exercise
of juristlittiori under the Act----particularly, in adjudicating questions of custody-
requires mature judgment and often involves the balancing of delicate considera-
tions. lt is t|1.crcl'orc desirable that the powers should be vested only in senior
judicial ollicers. As the nomenclature of the subordinate judiciary varies from
State to State. it is not possible to make a provision conﬁning it to judicial
oﬁicers of a /)(Il'ft'-L'r'l](lI' (/r'.signati()I1. but it would be appropriate if the jurisdiction
is conﬁned to judicial otlicers who exercise unlimited original civil jurisdiction.
Such unlimited jurisdiction is in all States exercised only by senior judicial
oﬁicers. Accordingly. we recommend that in section 4A, in sub--section (1), for
the words "exercising original civil jurisdiction". the words exercising unlimited
original civil jurisdiction" should be substituted.

'Statement of Objects and Reasons, Gazette of India (1926), Part V, pages 11-12.

Section 4A.

Amendment
recommended
in section 4A.

Scope.

Section 5--
Powers of
parents to
appoint in
case of
European Bri-
tish subjects

t Repealed).

Section 6.

Section 7(1)'-
Criteria for
exercise of
the power.

CHAPTER 6

APPOINTMENT AND DECLARATION OF GUARDIANSHIP: SECTIONS
5 TO 19.

1. Introductory

6.1. The appointment and declaration of guardians is a subject spread over
ﬁfteen sections (sections 5-19). Of these, at least three sections--sections 7, 17
and l9--have raised important questions of principle or detail.

6.2. The ﬁrst section in this group, though repealed, is of interest. It read
as follows:--

"5. (1) Where a minor is an European British subject, a guardian or
guardians of his person or property, or both, may be appointed by will
or other instrument to take effect on the death of the person appointing,--

(a) by the father of the minor or,

(b) if the father is dead or incapable of acting, by the mother.

(2) Where guardians have been appointed under sub-section (i) by
both parents, they shall act jointly."

We are quoting this section as an interesting example of the legislative

attitude as to the equality of the parents of both sexes in regard to a certain
class of persons.

6.3 Section 6 provides that in the case of a minor nothing in this Act shall
be construed to take away or derogate from any power to appoint a guardian
of his person or property or both which is valid by the law to which the minor
is subject. The "power to appoint" which is saved by the section would, inter
alia. include the power to appoint a guardian by will.' This power has been

recognised by the Legislature' and the Courts in India on more than one
occasion.'

II. Appointment and' declaration of guardian

6.4. Section 7(1) empowers the Court to make an order as to guardianship,
and may be described as the pivotal section in the entire Act. The power is
to be exercised only for the welfare of the minor; for this reason, the introduc-
tory words of the section have been described as the key note of the Act.' The
Court must be "satisﬁed" that the order should be made for the welfare of the
minor. its satisfaction must be based on some material, and must not be
illusory. In making an appointment of a guardian under the section, the Court

'Cf. (a) Section 9, Hindu Minority and Guardianship Act, 1956.
(b) Section 60, Indian Succession Act, 1956.

'E.g. (a; Bengal Regulation 5 of 1799.
(13) Sections 18 and 19, Madras Regulation 5 of 1804.
(c) Section 8, Bombay Minors Act (20 of 1864).

'(a) Pirlhee La! v. Doarga Lal. (I867) 7 W.R.C.R. 74, 75.

(b) Alimadeed Moallen V. Syfoora Bibge (18/66) 16 W.R.M.R. 125.

will, of course. have to bear in mind the fact that the effect of an appointment
would be to extend the period of minority.'

6.5. "lhc power of the Court under sub-section (1) of section 7 is either Power to
to appoint a guardian or to declare a person to be a guardian. Such guardians fgfjgffl °r
are, in common parlance, called "certiﬁcated guardians". The power to declare guardian-
a person as a guardian possesses some utility----as, for example, in cases where gcfgltfdﬁl-gitfd
a guardian has been appointed under a testamentary instrument and the Court.

by a declaration, gives effect to the appointment.

Subsection (2) of section 7 sets out the consequences of the appointment
or declaration of a guardian by the Court. Without a formal order of removal.
such an order implies the removal of any guardian who has not been appointed
by will or other instrument or appointed or declared by the Court. The object
is in .i\{)l(i \'OiliilL'i. ol' authority between two or more guardians? The powers
of the certiﬁcated guardians are exclusive.

Subsection (3) of section 7 requires the Court to ensure that an order
under this section shall not be made where a guardian has been appointed by
will or other instrument or appointed or declared by the Court, until the powers
of such guardian have ceased.

6.6. We now proceed to deal with certain important points concerning sec- Questions to
tion 7. Broadly, these questions pertain to the following topics:-- l°v':t§°f:f'2r°e'lfgc
to section 7-

(a) the persons who can be appointed as guardians?

(b) the prop::r1_v in respect of which a guardian may be appointed;' and

, 'i 6.7. Commentaries on the Act discuss at some length the question whether Section 7

a person residing out of India can be appointed as a guardian. The general :';'S'§d1¥-'n"g"'(':$'_'
consensus at }')I'L'5~L'lll" scents to be that the matter is in the discretion of the side India.
Court .and it very rigid rule prohibiting the appointment of such a person would

not be recognised. Although many of the judicial decisions in this context relate

to an application for custody under section 25, the principle would presumably

be the same in relation to the' wider jurisdiction to appoint a guardian under

section 7. In this position, we do not consider it necessary to recommend any
amendment on the subject. As to the appointment of institutions, the point

will be considered later?

6.8. Coming to the points concerned with property for which a guardian Section '7 and
- - cc 9 ' ' ' h i
can be appointed, the expression property' in section 7 has created a certain 3pfo:e:,'t';,.
amount of controversy with reference to the question whether the hereditary
trusteesliip of a religious institution is "property" within the meaning of the
section.

'Sr.=ctimi 4(l). read with section 3 of the Indian Majority Act. 1875.
9/trgmtmt v. D:/raising. A.I.R. '.914 Mad. 648. 649-

3I':,:t'a 6.7, I'It[r'./.1.

'Para: 6.8 to 6. l 7, infra.

-"Para 6.18. infra.

"P. W3"/II'(Im.\' V. P.C. Jlfzzrlin, A.l.R. 1970 Matl. 427.

7Para 6.56. infra.

Conﬂict of
decisions as
to hereditary
trusteeship.

Recommendation
to insert an
Explanation
below section 7.

Section 7 and
interest in
undivided
property.

Jurisdiction
of High Courts_

Earlier law.

6.9. The Madras'
matter.

and the Patna" decisions take a restricted view of the

This view, however, has been dissented from in Andhra Pradesh in a Full
Bench decision," which holds that the word "property" in section 7 is com-
prehensive enough to take in all types of proprietary rights. The term "property"
is used in a generic sense. It has a wide connotation and is not restricted to
a kind of property in which the minor has a beneﬁcial enjoyment. The section,
according to the Andhra Pradesh view, contemplates the appointment of guar-
dians to minors in regard to all types of property. The hereditary trusteeship
of a religious iszitution ii1C'5C'iOi'6 cosstitntes "pi'ope:ty" within the ambit of
the section, according to the Andhra Pradesh view, and a Court is competent
to appoint a guardian to a minor in respect of trust properties of which the
minor happens to be a trustee. The Andhra Pradesh judgment points out that
the principic that '[56 office of itcrediiary trustccship follows the line of succession
has been embedded in Hindu law and judicially recognised. A reasonable inter
pretation has to be given to section 7, so as to harmonise it with the concepts
of Hindu law.

6.10. In our opinion, it is desirable to adopt the wider view by legislative
amendment. It is necessary that the expression "property", at least in an Act
vitally affecting personal law, should be given an interpretation that will be in
harmony with the concepts of personal law. Accordingly, we recommend that
an Explanation should be inserted below section 7, somewhat in these terms:

"Explanation.----The expression 'property' includes the hereditary trustee-
ship of a religious institution."

6.11. The next question--also relating to the scope of the expression "pro-
perty" in section 7--concerns the interest of a minor in undivided property of
a Hindu coparcermry.' Snc': an appointment is now restricted to Chartered
High Courts.

6.12. The Chartered High Courts have an independent power to appoint a
guardian--the power derived from the Charter of the Supreme Court5 (sections
41 and 42), which gave that Court the powers of the Court of Chancery; especially,
the power "to appoint guardians and keepers for infants and their estates".
Section 9 of the High Courts Act, 1861 continued this power of the Supreme
Court to the High Court. Sections 3 and 6 of the Act of 1890 preserved the
pre-existing powers of High Courts.'

6.13. Position under earlier legislation may be dealt with. In Soobane Singh
V. Juggeshur Koerf the High Court of Calcutta observe;l:~--

"It is not clear ............. .. that under Act XXXV of 1858 (the Bengal
Minors Act) a manager under no circumstances could be appointed if a
lunatic be a member of a joint Hindu family under the Mitakshara law
possessed of no separate property."

1(a) Alagappn v. Mangulhai, l.L.R. 40 Mad. 672.

(b) Venknrachalaparhi v. Thirugmzna, 33 M.L.J. 297;

"K. Sosfrmiu v. M. Venkaraswarv Rao. A.l.R. 1959 AP. 932 (F.B.).
'Section 12, Hindu i\linority and Guardianship Act, 1956.

"see para 6.12. supra.

°SeeH

(3) Rafa of l«'izanrr:I.':rcm1 V. .S'ecrerary of Stare, A.I.R. 1937 Mad. 51.
(b) Sham Kr.-at v. Mohanunda. (1392) l.L.R. 19 Cal. 301.

7Soob£mr2 Singh v. Jugflesliur Koer. 13 C.L.R. 86 (Cal). See Sham Kuar v. /'/Ia/zammda, (1892)
I.L.R. 19 Cal. 301, 307.

In B/zoopendra ."{araFn i'1'0y v. Greesh Namin Roy,' Pointfex, J., said,
with reference to this Act (the Bengal Minors Act 35 of 1858):---

"It appears to us that there may be cases where it is essentially neces-
sary that a guardian should be appointed for a member of a Mitakshara
family as much as for any other family."

Under the Bombay 7*.z.'inors Azst of l86;' {C0 of liiéi), whi:h was similar in
its provisions to Act 40 of 1858, the Bombay High Court had held, apparently
on the authority of the Privy Council case of Durgapersad v. Kcshopvrsad Singh,'
that a certiﬁcate of administration may be granted for the share of a minor who
was a member of an undivided Hindu family? and the Allahabad High Court'
held that under Act 40 of 1858 a certificate may be granted in the lifetime
of the father.

6.15. So much as regards the earlier law and the present position. It is
now time to consider the question whether this jurisdiction should be extended
to oiher Courts.

6.16. in this context we have taken note of the following Jbservations made
in a Bo.-niaay a lew years «':ijgo:------

;-a tie"

»......--

"In my opinion earlier decisions of this Court establish clearly that
the Court has jurisdiction in a case of this sort to make the order asked
for. That jurisdiction was established deﬁnitely by a decision of a Full
Bench in 2:7 Born. '-vliich it was held that ;.nc§er its general jurisdic-
tion, and apart from the Guardians and Wards Act, the High Court has
powe' to aapoint Lt guardian of the property of a minor who is a member
of a joint Hindu family and where the minor's property is an undivided
share in the family property. The applicant in that case also sought sanc-
tion of the Court for a sale of the family property in which the minor "was
interested and that sanction was given. That decision conﬁrmed a practice
which had been adopted in previous cases: l6 Born. 6347 and if" Born.
90" and such practice has since been followed in this Court and by the
Calcutta High Court in 50 Cal. M19 and 55) Cal. S7(}.'"
"i~}o'-."c'»-'cr_ in the year W32. Vania, .l. in 34- ."~wrr.. E .P. 1156" stalczl
his view that although the Court had jurisdiction in a case of this sort
to make the order, the Court ought not to exercise that jurisdiction except
in very special circumstances. The learned Judge pointed out correctly that
the manager of a joint Hindu family has power to sell or mortgage for legal
necessity or for the beneﬁt of the estate, and that the burden is upon the
purchaser or mortgagee to prove that the sale or mcrtgage fulﬁls those
conditions and the lczarned Judge took the x-Sexy that the prr-sliaser or mort-
gagee had no right "to cast that obligation on the Court. 7. do not ﬁnd

'Bhoopmdra Naruin Roy v. Greesh Nurrrin Roy, (I 878) I.L.R. 6 C 9.1, 53').
'Dir:-gapcrsrrn' v. Keshopersad Singh. (18%!) l.L.R. 8 Cal. G55; L4-R' 'J :'.:\. 27 G'.C'.').
"Babaji v. S/zeshgiri. 1.L.R. 6 Born. 593.

4Dhi'rn'j Koer v. .--{dined/iya Bax Sr'n,-git. 3 M.W.P. (AIL), 9]. citczl in .S.'zr:rn K-'r.'r an ﬁ':0!'!.':'L'!lIl.'fd.
(I892) I.L.R. 19 Cal. 301. 303.

"1n re Mahrrdeo Xrfsh.r1r1 Rupji. A.I.R. 1937 Bom. 98. 99 (per E'eauino.*." ('.17.

"In re J/Imzilal Hurgnvair (l90l) I.L..R. 25 Born. 353; 3 Bom. LR. 4! 1 (_FB.).
Uairum Lwlnan, (1892) I.L.R. 16 Born. 634.

"Re Jrzgulmrlfh Rumjf. (1895) LLR. I9 B0111. 95-

9!" re Han' Naraiu Dds, A.I.R. 1923 Cal. 409; I.L.R. 50 Cal. 141.

"In r.' :'5':'_r'4y.'(icr1'm' Singh Burler. A.I.R. 193?. Cal. 502'. l.L.R. S9 (113. 570.

"In re .U.!uH.'i.ll'r.-I_'.£1 Govind. A.I.R. l932 Bom. 537; I.L.R- 56 Boat. 51').

Power of
:rll"CT Courts,

,','..tn') bay case.

No change
recommended
as to minor's
interest in
undivided
property.

Section 7 and
conditional
orders.

myself able to agree with that reasoning. The attitude of a purchaser or
a mortgagee is that unless he can get a good title, he is not going to enter
into a contract of purchase or mortgagee. He does not seek to cast any
burden upon the Court; he merely says that he is not going on with the
transaction unless he gets a good title. Now, it is very difficult in many
cases tor a purchaser or a mortgagee to satisfy himself as to the existence
of legal necessity, or beneﬁt of the estate. It is very diﬂicult for him to
check the truth of the story told to him which is alleged to give rise to such
necessity or beneﬁt, and not only has he to do that, but he has to preserve
evidence which will be available when the transaction may be attacked in
years to come by a minor son of the manager. Experience in appeals from
the mofussil has satisﬁed me that this burden which is cast on purchasers
and mortgagees is a very heavy and often an unreasonable one. A sale or
mortgage is often impeached some twenty years after the date of the trans-
action, and it is set aside because the purchaser or mortgagee, or those
claiming through him, cannot, at that distance "of time, when material
witnesses are no longer available, discharge the burden of satisfying the
Court of the existence of legal necessity or beneﬁt to the estate. I am not
at all surprised, therefore, that legal practitioners in Bombay decline to
advise their clients to enter into a transaction with the manager of a joint
Hindu family unless they get an order of the Court, binding minor mem-
bers, and it seems to me that as the Court has jurisdiction to make an order
L\'.':':l'?ll()£}lT'ug the transaction, it ought in a proper case to do so. Whether a
similar power ought not to be vested in mofussil courts is a matter which
might well engage the attention of the legislature.' The petition in this case
suggests that the money can be obtained on mortgage on much better terms
if an order of the Court is obtained, than would be the case if an order is
not obtained. Therefore the making of the order may well be for the beneﬁt
of the minors, and if the requisite facts are proved, in my opinion, the Judge
should not hesitate to make the order. But undoubtedly a Judge has to
exercise great care in seeing that the case is a proper one. "As Kania, J.

points out, the evidence of the manager himself is generally interested, and it may not always be easy to check; but if the Court is not satisﬁed that the transaction is really for the beneﬁt of the minor, it ought to refuse its assent."

6.17. No doubt, having regard to the object of guardianship proceedings, namely, to protect the child, there is something to be said in favour of a speciﬁc power to appoint a guardian of the interest of a minor in undivided property. However, it appears to us that the extension of the jurisdiction to all Courts may be fraught with certain risks. Appointment of a guardian for an interest in joint family property requires the delicate weighing of several factors. Preser- vation of the power of the High Court is regarded as beneﬁcial for all concerned

--the minor as well as the other sharers. as was observed in one of the Bombay cases.'-' Rut we are not inclined to confer a similar jurisdiction on other Courts, who niiiy not be able to bring to bear the mature judgment and delicate balancing of conflicting considerations which may be needed in such cases.

6.18. This disposes of the points concerning the "property" covered by sec- tion 7. As to the nature of the order to be passed under section 7, there seems to be some controversy on the question whether a conditional order for guardian» ship can passed. According to the Madras view." a conditional order to the effect that "upon petitioner furnishing security he is appointed guardian of 'Note the suggestion for law reform.

2Jairam Luxmon, (l892) I.L.R. 16 Bom. 634, 636.

'In re Nattia Vanketesa Perumal, A.l.R. 1927 Mad. 36(F-B.)-

minor's property" is bad from the very beginning, but according to the Bombay view,' this is permissible, and this also appears to be the Lahore view?

6.19. In the Madras case} where conditional orders were described as "sus- Obsfqrvgtions pensory" orders, the following observations were made:-- m 3 ms case' "The mischief of these suspensory orders, apart altogether from the question as to whether they are legal or invalid, is that the matter goes before the Judge who makes these suspensory orders and then the papers go into the ofﬁce "where it is nobody's business to see what is being done about it. The order is not complied with, and then somebody ﬁnds out that the minor, whom it was desired to protect, has attained his majority, and the Court is powerless because the guardian has failed to carry out its directions and the Court has kept no control over the matter by reason of the nature of the order so as to summon the guardian and ask him:

'Why have you not furnished the security'2'."

6.20. In the Bombay case' on the subject, on the other hand, the matter was Bombay view.

thus dealt with-

"ln all matters connected with the welfare of minors the predominant motive of the Court is to pursue a course of action which will be for the minor's beneﬁt, and the consideration of the appointment of the guardian of a minor's property is no exception to this rule. There are three alternatives as to security in relation to such appointments: (1) To make the appoint- ment without requiring the giving of any security; (2) To require the pros- pective guardian to enter upon security before coming to "the Court for his appointment; (3) To make a condition that upon security being given the appointment shall operate.

"I cannot think that the ﬁrst course is for the beneﬁt of the minor, and it would be wholly contrary to the practice of this country and to R. 5 of the Civil Manual mentioned above. The second course is hedged around with ditﬁculties, in that security would either have to be given conditionally upon the Court making the appointment, alternatively it would have to be actually given, with the consequential unnecessary expense of its vacation, should the Court for some reason decide against making a particular ap- pointment. The third course is the most practical and convenient one, namely, to make the appointment upon security being given. If security be given, a question may arise in some future case as to whether the appoint- ment relates back to the date when the original order was made, but that does not arise here, nor do we decide it. There being nothing wrong or invalid in my judgment in this form of order. the effect of it is, in my opinion not open to serious doubt; the Receiver has no right to take possession of the minor's movable property until security has been furnished; were it otherwise, the whole object of the Court giving directions for security might be defeated. It follows, in my judgment, that if security be never given, the order never becomes operative, so far as the appointment of the prospective guardian is concerned. In my opinion, such an order cannot be 'cancelled' by the Judge who made it. If it is desired to get rid of an order if security be not given, the order can take the form of requiring security to be given on or before a speciﬁed date, so that if the time runs out the order automatically lapses. That prevents the diﬂiculty envisaged by the learned Chief Justice Sir Murray Coutts Trotter in 49 Mad. 809 and would be in accordance with 'Jay Single v. Prnmp Singh, A.I.R. 1945 Born. 243, 245. 247 (reviews cases). "Sham Dos v. Umer Din, A.I.R. I930 Lah. 497 ('F.B.).

'In re Natha Venkaresa Perumal, A.I.R. 1927 Mad. 36, 37.

'Jay Singh v.Pratab Sittgh, A.I.R. 1945 Born. 243, 246, 247.

Need for amendment as to condi-

tional orders.

Section 8.

Recommenda-

tion to add clause (bb).

Section 8 (bb) to be inserted.

Recommendation.

R. 7 of the Civil Manual which appears to be honoured at present only in its breach."

6.21. It appears to us that practical considerations justify the adoption of the wider view in the matter of power to issue conditional orders. Accordingly, we recommend that a suitable provision in this regard should be made by amend- ing section 7.

In an appropriate case, the Court should have power to make an appoint- ment conditional on the performance of a condition by the guardian within a speciﬁed period. It should also be provided that the order shall not be opera- tive until the condition is satisﬁed.

We recommend that insertion of the following new sub-section in section 7, to achieve this object:---

"(4) In an appropriate case, the Court may make an appointment of a guardian conditional on the performance by the guardian of a speciﬁed condition within a speciﬁed period and where such an order is passed, the order shall not be operative unless the condition is performed by the guardian within the period [m'tiall_v specified by the Court or subseqztcvztly extended by the Court."

111. Application and steps to be taken thereon 6.22. This takes us to section 8, which provides that an order shall not be made under section 7, except on the application of the persons entitled to apply for an order, as enumerated in the section. These are, in brief, the person desirous of being or claiming to be the guardian. any relative or friend of the minor, the Collector of the district or the Collector having authority with respect to the class to which the minor belongs.

The expression "relative or friend" in section 8(b) really means a who, being a relative or friend, has a beneﬁcial interest in the minor.' person 6.23. The section does not, however, give the minor himself a right to apply to the Court. The general view" is that without an application under section 8 the Court cannot proceed in the matter. It may be noted that in England, a minor possessing property, if his parents are dead and if there is no testamen- tary guardian. may, after attaining the age of 14 years (male) or 12 years (female), himself "elect" a guardian?

6.24. Though we need not. in India, go to that length. yet it would be useful if the minor is at least given a right to apply for the appointment of a guardian, since it is not inconceivable that the minor may be seriously prejudic- ed if no third person takes an interest in his welfare.

6.25. On this reasoning. we recommend that the following clause should be inserted in section 8:-

"(bb) the minor. if, being a male, he has attained the age of fourteen years or, being a female, she has attained the age of twelve years."

'Thangapandiun V. K.B. Nafcker, A.I.R. 1965 Mad. 368. '(a)Sakina v. Mohorned, A.I.R. 1928 Lab. 456.

(b) Jaiwanti v. Gajadhar. (1921) I.L.R. 38 Cal. 783. 785.

3l-lalsbury, 4th Ed. Vol. 24, page 224, footnote 5. citing Ex parte Edwards r1747) 3 A. & E. 519, and Re Brawn's Will, (1881) 18 Ch. D. 61, 72, 76 (C.A.) and other cases.

6.26. Section 9 reads-- section 9_ . . . . . . C urt h ' "9. (I) If the application is with respect to the guardianship of the ;u','i,dic,§'2,",.'"' person of the minor. it shall be made to the District Court having jurisdic- ;'Lp°]'i1C':t";:;'_' tion in the place where the minor ordinarily resides.

(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.

(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdic- tion in the place where the minor ordinarily resides, the Court may return the "appli;ation if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction."

The "ordinary place of residence" of a minor is a pure question of fact. Notions of constructive or legal residence do not enter into the picture at all. There is no presumption that the residence of the guardian is the residence of the minor. although usually that may happen to be the case.' The matter being one of fact, the case law on the expression "ordinarilly resides". though abundant. does not appear to necessitate any change in the section.

6.27. Section 10 deals with the form of application for guardianship and Section 10, needs no change.

6.28. Section II deals with the procedure on admission of an application for section 11, guardianship, and does not need any change.

6.29. Section l2 reads-- Section 2_ Power to make "I2. (1) The Court may direct that the person, if any, having the inW10°"t01'Y custody of the minor shall produce him or cause him to be produced at such .','f,'l§,'o,f°f,f"',,'§;,,o, place and time and before such person as it appoints, and may make such andt i"t'.°"im f order for the temporary custody and protection of the person or property £;?s§f,K;I,11d° of the minor as it thinks proper. P"°P°"Ye (2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to he produced in accordance with the customs and manners of the country.

(3) Nothing in this section shall authorise-

(a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband. unless she is already in his custody with the consent of parents, if any. or

(b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property."

1(a) Choudhury V. Choudhury, (1974-75) '/9 C.W.N. 784 (rﬂicwl oases).

(b) Harihar V. Suresh, A.I.R. I978 A.P. 12, 18, para 6.

Section 12- lnterim orders in cases under section 25- Recommendation.

Section 13.

Consultation with child welfare experts.

Section 14- Recommendation to revise sub-

section (3).

630. Where the proceeding is not for the appointment or declaration of a .£'lI(H'diIi!I. but for Custody under section 25- there is some uncertainty on the qucsti'r': '.i'§;et'*;cr t'==* interim orders for the protection of minor and interim order for protection of person and property described in section 12 can be legally made. Section 1.'. hy its terms, is conﬁned to the pendency of "guardianship" proceeding. according to one view} but according to another viewf it is not so conﬁned. One of the High Courts" has, in order to advance the cause of justice, found out a via media by resorting to the inherent juridiction of the Court.

In our opinion. it is desirable to make an express provision, in section 12, recognising. such a power (that is, a power of the nature provided for in section l2). in regard to proceedings under section 25.

We recommend accordingly.

6.3!. Section 13 provides that on the day ﬁxed for the hearing of the ap- plication or as soon afterwards as may be, the Court shall hear such evidence as may he adduced in support of. or in opposition to, the application.

The section does not, of course, rule out the taking of evidence by the Court. ln this connection it is to he noted that the Law Commission has, in its Report on the Code of Civil Procedure, emphasised' the need for an enquiry by the Court in matters concerning the family. The amended Civil Procedure Code' pTO\'l£lt?S that in suits or proceedings relating to matters concerning the family.

"it shall he the duty of the Court to enquire, so far as it reasonably can. into the facts alleged hy the plaintiff and into facts alleged by the defendant".

6.32. The Act does not, at present, contain provisions empowering the Court to consult Child Welfare Ofﬁeers before appointing a guardian. But such a provision" has been made in the Code of Civil Procedure.

6.33. Section 14 deals with simultaneous proceedings in different courts. It may be noted that the section applies also to an application for appointment of guardian of the property of a minor.' Sub-section (3) of the section. dealing with the case where the Courts are not subordinate to the same High Court, provides that the Court shall report the case to and he guided by such orders as they may receive from their respec- tive State Governments. The conferment of this power on the State Govern- ment is not in harmony with the independence of the judiciary and, in fact, later legislative practice in India indicates a different approach" in regard to analogous situations. It would be more appropriate if the power is given to the High Court within the local limits of whose jurisdiction the court in which the earlier pro- ccedings were taken is situated. We. therefore. recommend that section 14(3) should be revised as under:--

"(3) In any other case in which proceedings are stayed under sub-sec-

tion (l). the Courts shall report the case to the High Court, and the High

-Wrzrler Sing)': v. Karmr, A.I.R. 1929 Iah. 487, 488.

20957') MP Cases 202; (1957) Iabalpur Law Journal, 336, relying on Nazfr Begum V. Ga/am Qzlmlir. .'\.l.R. I936 Lah. 313.

"RuXmaniben V. Nrlrmuz/a. A.l.R. 1962 Guj. 227. 228. paragraphs 5. 6 (Bhagwati 3.). "Law Commission of India, 54th Report, Chapter 32A.

"Order VIA. Rule 5(4). Code of Civil Procedure, 1908.

"Compare Order 32A, Code of Civil Procedure, 1908.

7P. Pulluma v. M. Venkatasubbaiah, A.I.R. 1963 A.P. 93 "See section 23(3), Code of Civil Procedure. 1908.

Couvt within thw local limits of whose jurisdiction the Court in which the proceedings were first taken is Aituate shall determine in which of the Courts the pr()ceedir1.QS with respect to the appointment or declaration of a guardian of the minor shall be bad."

IV. Separate guardians 6.34. Section 15 deals with the appointment or declaration of separate Section 15.

guardians. Sub--section (ll authorises the appointment of two or more guardians if permitted by the personal law, while sub-section (4) itself empowers the Court to appoint or declare separate guardians of person and property. Sub- section (5) further empowers the Court, if the minor has several properties. to appoint a separate guardian for any one or more of the properties.

6.35. In this context. it is of interest to note that it has been held' that there S¢¢ti0P 15-10511' is nothing in the Hindu law which prevents the Court from appointing more guardians' persons than one as guardians of the person of a minor. On this principle. in a Calcutta ca~«.:.' the Court appointed a joint guardian in order to ensure that the undertaking taken from one guardian (mother) to bring up the children in the Hindu faith was properly carried out?

It is not clear whether any provision of the Act of 1890 expressly provides now for joint guardians. However, joint guardians may conceivably come into existence under an appointment made under a will.

In a recent English case.' it was laid down that where there were two un- impeachable parents who could be reasonably contemplated as capable of co- operating sensibly with each other over the children whom they both love. it would be in the interests of the children that a joint custody order be made.

We have no change to recommend in section 15.

6.35. Section 16 deals with the appointment or declaration of a guardian for 3°°ti°" 15~ the children that a joint custody order be made property beyond the jurisdiction of the Court. In such a case the Court having jurisdiction in the place where the property is situated shall. on production of a certiﬁed copy of the order, accept the person appointed as duly appointed and give eliect to the order.

The section needs no change.

V. Consideration to be taken into account in appointing a guardian under section 17 and under the Act of 1956 and the English law.

Section 17- . . . . M tt t b 6.37. We now come to a section of the Act which is perhaps the most im- coi',S§,'§,e§ bye portant provision in the Act~section 17. The section deals with the matters thé C°t*!1'1in to be considered by the Court in appointing a guardian. g3:,°(j?a,l,'_'g a The subject matter has assumed greater importance because of the modern debate as to the relative importance' to be attributed to each of the various factors that come up for consideration---the welfare of the minor, his or her personal law and rights of the guardian thereunder and the fitness of the parent or other person claiming to be the guardian. Certain aspects of the matter are dealt with in section 19 also.

'Chiranji V. Prmam Chand. 48 Indian Cases 75 (Nag).

'Dwijapaa'a v. Baileau. 20 Calcutta Weekly Notes 608, 620.

"'KonrlmIuthammal v. Rangaswami Pillai. A.I.R. 1924 Mad. 327.

'Jussn ~/. Jussa. (I972) 2 All ER. 600, 603-604, 695, following W (JC). (1963) 3 All ER. 459 'Para 1 .8, supra.

Need for harmony_ Section 17--Mattt.-rs to be Considered by the Court in appointing guar-

dian.

It should also he noted that legislation passed in 1956 and applicable to Hindus on the subject of guardianship has a provision indicating a slightly dilferent approach in this context} Even that legislation, as viewed in the light of current notions, seems to be inadequate in certain respects."

6.38. In order that the Indian 1ega1system---in regard to statutory rules relating to the criteria for guardianship----may reﬂect an approach which is sound on the merits, adequate in its coverage and integrated and harmonious in its structure, it is necessary that the matter may be examined in some depth. Ac- cordingly. in the present discussion, while concentrating on section 17 of the Act oi 1890. we shall also have occasion to consider section 19 of the same Act and analogrous provisions of the Act of 1956..

'."«./'0 first quote section 17 of the Act of 1890.

"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 consistent- ly with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religionof the minor, the character and capacity of the proposed guardian and his neamess of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

:1: at * 3|! (5) The Court shall not appoint or declare any person to be a guardian against his will."

Section 19 of the Act of 1890 is as follows 2--

"l9. 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--

(a) Of a minor who is a married female and whose husband is not, in the opinion of the Court, unﬁt to be guardian of her person, or

(b) 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, or

(c) Of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person ofqthe minor."

Under section 6 of the Hindu Minority and Guardianship Act of 1956, the father is the natural guardian of a minor. but section 13 of that Act expressly provides that while appointing or declaring any person as guardian by a Court, the welfare of the minor shall be the paramount consideration.

1Section 13, Hindu Minority and Guardianship Act, 1956 (para 6-42, iﬂf"!1)-

"Para 6.50, infra (section 6).

Section 13 is quoted belowz' "Welfare of minor to be paramount consideration.

13. (1) In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the para- mount consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, of the Court is of opinion that his or her guardianship will not be for the welfare of the minor."

Some ditliculty is." no cannot, caused by section 2 of the Act of 1956, which provides that the provisions of the Act shall be "in arldition to those of" the Act of 1890. The General view, however. is that the provision of section 19 of the Act of 1890 and those of section 6 of the Act of 1956 should be construed together?

Questions for 6.39. This is an outline of the statutory provisions that will fall for consi- Consideration deration in the course of our inquiry into the need for reform of the law relating to adjudications on guardianship in the context of section 17.

The questions that we propose to consider in Connection with section 17 and allied statutory provisions mentioned above may now be mentioned--

(1) appointment of guardian -- the relative importance to be attribut- ed to the concept of "welfare of the minor" and other considerations men- tioned in the various provisions:' (2) welfare of the minor -- elaboration of this expression, as employ- ed in the two Acts. so as to reflect the modern concept of the welfare of the child;5 (3) procedure -----vesting of a power in the Court to call for reports from the guardian or person vested with custody.' (4) custody ~-- the age upto which the custody of the minor should re- main with the mother. in so far as the matter is regulated by a speciﬁc statu- tory provision.' 6.40. As to the first question posed above." it is proper to note the <;ombin-- Effect of ed effect of sections l7 and l9 of the Act of 1890.9 Consistent with the law to Sficéloﬁ, ltziken which the minor is subject .( section 17). the welfare of the minor should be taken totzelher. into account in appointing a guardian (section 17). However, according to the text of the Act. ---- section l9(a) and l9/b) --- the preferential right of the husband or father cannot be ignored unless, the opinion of the Court, the husband or father is unﬁt to be the guardian.

'Section 13. Hindu Minority and Guardianship Act. 1956. '('ﬁ Rafan. v. Bishan, A.I.R. 1978 Bom. 190.

"Lain: Prasad V. Gtmga Sahaii, A.I.R. 1973 Raj. 95. 'Paragraphs 6.40 and 6.48. infra.

5Paragraphs 6.41 to 6.48, infra.

"Para 6.50. infra.

7Para 6 .49, infra.

"Para 6.39. supra.

"Para 6.38. supra.

3 --- 2 M ofLI&.CAINDI80 lznglish law.

It should be noted that Courts have taken a liberal view in the matter. For example, the Supreme Court in a recent case,' keeping in view the welfare of a male child of eleven years, declared the mother as his guardian. In this case, there was nothing against the father to disentitle him to be a guardian. but the Court felt that the "child's welfare is ﬁnancially and affectionately safe in the hands of the mother". There are other judicial decisions following the same approach and thus advancing the cause of justice. In this position, it is appro- priate that the text of the law should be amended by ensuring that the considera- tion of the welfare of the minor shall be paramount.

Such an amendment will settle the position for all times to come, eliminating the possibility of any arguments'; being taken to the effect that the father must be appoint if he is not "unﬁt"?

6.4]. In this context, we may refer to the English law on the subject of guardianship and custody of "minors" ---- an expression now used in place of the earlier expression "infants"? The principal legislative measure on the subject is the Guardianship of Minors Act, 1971 supplemented by the Guardianship Act. 1973. Besides these Acts, elaborate legislation relating to children has been passed in recent times, particularly the Children's Act, 1975.

The principle on which questions relating to custody, upbringing etc. of minors are to be decided, is thus laid down in the English Act of 1971,' appli- cable to judicial proceedings:--

"1. Where in any proceedings before any court' (Whether or not a Court as deﬁned in section 15 of this Act)----

(a) the custody or upbringing of a minor; or

(b) the administration of any property belonging to or held on trust for a minor, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the minor as the ﬁrst and paramount consideration. and shall not take into consi-

deration whether, from any other point of view, the claim of the father. or any right at common law possessed by the father, in respect of such custody, upbring- ing, "administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father."

The Act of 1973' provides for the equality of parental these f6I'ITlSI----

rights in "l.---(1) In relation to the custody or upbringing of a minor. and in relation to the administration of any property belonging to or held in trust for a minor or the application of income of any such property, a mother shall have the same rights and authority as the law allows a to father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other."

Then there is the inherent jurisdiction of the High Court in regard to Ward- ship.

1Smr. Mohim' V. Virender Kumar, A.I.R. 1977 S.C. 1359.

"Cf Snehlata v. Mahendra, A.I.R. 1979 Raj. 29, 34, para 10 (Feb.-March). "For detailed discussion of the English law and its evolution. see Arrrrendix 3- 'Section 1, Guardianship of Minors Act, 1971.

'Emphasis added.

Section 1(1), Guardianship Act, 1973.

Finally. the law relating to Habens Corpus, in so far as it deals with the recovery of I'1'1ll1OI'S below the age of discretion, is also relevant' Side by side with these legislative developments as to guardianship and custody. legislative measures for the welfare of children have come in quick succession. With the passage of the latest Act on the subject ---- Children Act, 1975 ---- this branch of the law has become a fairly complex one in England.

The object of legislation relating to children is to provide for the care, protec- tion, maintenance, welfare, training, education and rehabilitation of neglected and delinquent children and for the trial of the latter. Accordingly, the Children Acts initially made elaborate provisions for the establishment of a specialised machinery for dealing with such children.

However, the range and coverage of the legislation has now expanded. The Children Act, 1975 introduces certain provisions. One new concept concerns "custodianship". The Act provides a means whereby (as an alternative to adop- tion), relatives and others looking after children on a long-term basis can apply for, and obtain, the legal "custody" of the children. A "custodianship" order under the Act vests "legal custody" of the child in the applicant. who becomes known as the child's "custodian". A custodian appears to be in a similar posi-

tion to a parent having custody of his child, but is not called his "guardian".

"Custodianship" may be said to be a new form of guardianship, though giving less rights and powers than guardianship. and to be similar to. but not identical with, custody.

In England. Habeas Corpus has also long been used to gain the custody of infants. The writ is issued on the application of the party seeking custody and is directed against whoever has the control of the infant." Though, in theory, it still rests on the idea of relieving an illegal restraint, the ordinary rules of family law apply in custody cases, and the matter is heard in the Family Division (pre- viously, the Chancery Division). An application for custody is a proceeding which involves "not a question of liberty, but of nurture, control and educa-

993

tion .

6.42. This disposes of the ﬁrst question. As to the second question posed above' (welfare of the child). section 17(2) of the Act of 1890 states the matters to which the Court shall have regard in determining whether the appointment of a person as guardian would, or would not, be for the welfare of the minor. These matters are age, sex and religion of the minor and the existence of previous relations of the proposed guardian with the minor or his property. These are all matters personal to the minor. If the minor is old enough to form an intelli- gent preference, that preference may also be taken into account.

K/d.43. The Act of 1890 contains no separate provision as to preference to be given to any particular parent as to custody, although it does contain a provision' whereunder questions of custody may come up for adjudication.

In this context, the Hindu Minority and Guardianship Act, 1956, may be noted, since its provisions mark a departure in some respects. The Act is supple- mental to the Act of 1890, and save as expressly provided in the Act of 1956.

1see inﬁa.

'Sharpc, Law of Habeas Corpus (1976), pages 168, 169. uaamardo v. McHt:ge. (1891) 1 Q.B. 194, 203 (Lord Esher MR.)- 'Para 6.39. supra.

5Section 25.

Second question-

Elaboration of "welfare of the child".

Act of 1956 and its rela-

tionship to the Act of 1890.

Effect of sections 6 and 13. Act nf l956.

M odem sociological developments and their relevance.

is not in derogation thereof.' Where, therefore, the Act of 1956 is silent. the Act of 1890 operates. There are. however. some matters on which the Act of 1956 is not silent and makes a speciﬁc provision. Sections 6 and 13 of the Act of I956 are of particular relevance. Under section 6, the natural guardian of a Hindu minor is the father, and after him, the mother (The speciﬁc mention of the mother may be noted). The father's guardianship is subject to the provisio that the custody of a minor who has not completed the age of ﬁve years shall ordinarily be with the mother -- a provision very material to the third question' formulated by us.

Section 13. it may be recalled? provides that in the appointment of any person as guardian of a Hindu minor by a Court. the welfare of the minor shall be the paramount consideration. Here. it must be noted that section 17(1) of the Guardians and Wards Act, 1890, while speaking of "the welfare of the minor", does not make the welfare of the minor the paramount consideration in the appointment of any person as guardian.

\/96.44. If section 6 and 13 of the Act of 1956' are read together -- as they must be ----- then it wiil be seen that neither the father nor the mother can. as of a right, claim to be appointed by the Court as the guardian of a Hindu minor, un- less such appointment is for the welfare of the minor. The welfare of the minor is the paranmnnt cionsideration. So, in regard to being granted the custody of a minor by the Court, the mother cannot, as of right, claim it merely because a minor is below the age of ﬁve years. nor can the father get the custody as of right solc'y on the ground that the minor has completed the age of ﬁve years. This is plain from the fact that section 6 provides only that the custody of a minor who has not completed the age of ﬁve years shall ordinarily be with the mother and section 13. which relaxes the rigour of section 19 of the Act of 1890 in the interest of the minor's welfare, also makes the welfare of the minor the paramount consideration. The approach adopted by the Act of I956 is thus somewhat different from that adopted by the Act of 1890, which is tilted to some extent in favour of the father.

6.45. This difference in approach is understandable. The Guardians and Wards Act. 1890 was enacted 90 years ago. At the time of its enactment women had scarcely any rights for them; there were only social and legal degradation, material insecurity and other manifestations of the dominance and false superio- rity of man. That is why the Act of 1890 lays an emphasis on the preferential claims of the father or male member in the matter of appointment of guardian of minors? The Act of 1956 marks a distinct progress in this respect.

There is another matter in respect of which the Act of 1956 marks a pro- gress. Rccognising the advance in the status of women in all spheres and chan- ged concepts as to child Welfare, that Act has given women the right of guardian- ship (after the father} and also provided that the mother should ordinarily have the custody of the minor child till the age of ﬁve. More important is the pro- vision of the Act which has made the welfare of the minor the paramount consi- deration in the appointment of guardian." though it has kept intact the concept of "minor's welfare" as adumbrated in section 17 of the Act of I890. without spelling it out for its own purposes.

'Section .7. Act of 1956.

"Para 6. 3 9. supra.

"For the text of section l3, see supra.

'Para 6.42. supra.

'Section 19.

"Section 13. Hindu Minority and Guardianship Act, 1956.

6A6. ln so tar as the Act 01 l9So marks a progressive approach, it is wel- come. but certain lurtner comments would be in order. lhe social condi- tions existing today are altogether oiiierent trom those that prevailed in 1890 or even in 1930. 'lhe goal ot social justice envisages conditions conducive to free- ing family relations from distortions and deformations associated with the ex- ploitation of man and with the social and legal degradation of women and their material insecurity. Women have now a status of equality with men in all spheres of lite. lhe social signiﬁcance of the family is now being recognised. lt should develop into a unit supporting and promoting those talents and human qualities which foster the development of the individual. Parents must regard it as their foremost responsibility to bring up their children as healthy, happy and useful individuals and of an ail-.ound standard ol education, so as to enable them to blossom as active builders of society and the guardian must ensure this deve- lopment of the child and safeguard its interest. ln appointing a guardian for a child, the Court must determine which of the claimants is, by his or her educa- tional compctence and inllucnce and his or her own example, best suited to provide the requisite care in bringing up the child.

'Lit. Quite it part irom the considerations ol well being, wellaie, education and development ul. the child which wtilgll in tavour or allowing the mother a right to the custody or a child till he is at least twelve ytars ot age," it is neces- sary to give this right to the mother in order to prevent the father l'ron:i using the child as a pawn lor securing complete suomission or his wire, who may be inde- pendent and spirited, to his none too laudable plans. instances are common where the husband, either at the instigation or his parents or sisters or on own, has adopted "the pawn method", when the wife insists on the husband having his own estabiishnient which he can well aiiord, or when the wife has not served well the mother--in--law or has not brought a handsome dowry. in such cases the husband sends away his wife to her parents' house, keeping the custody of their child with him. Such instances occur frequently in the early years of marriage,' when generally there is a minor child. It is not unreasonable to predict that with the liberalisation of marriage and divorce laws and the enact- ment of anti-dowry measures, "the child pawn" weapon would be too often used by the husbands who have failed to make their marriage a success and who are out to exploit the situation and pursue their object at any cost.

All these considerations are very material to the questions that we have for- n1ulated."'.

6.48. ln view of what we have stated above, we recommend that sub-section (1) of section 17 should be replaced by the following sub-sections:----

"(1) In the appointment or declaration of the guardian of a minor, the welfare of the minor shall be the paramount consideration.

(IA) Subject to the provisions of sub-section (I), the Court shall, in appointing or declaring the guardian of a minor, have due regard to the law to which the minor is subject:

Provided that nothing in this snb--s'tr:tion shall al]rc't the provisions of section 13 of the Hindu Minority and Gnarclianship Act, i956"

Sub--section (2) of section l7 should be replaced by the following sub- sections:--' (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character "See further para 650. infra.

"Cf. the facts in Harihar Prasad V. Suresh, A.I.R. 1978 AP. I3.

"Para 6.39, supra Present conditions different from those existing in [890 or 1956.

Need to prevent father from using child 71S pawn.

E_{ecommendation tor amending the Act of 1890.

section 17.

Insertion of new sub-

section-

Periodical reports Recommendation for amending the Act of 1956.

section 6.

Need for amendment as to custody.

and capacity of the proposed guardian, his educatio capacity for making the minor a healthy, happy and a useful individual of an all-round standard of education and his nearness of kin to the minor and any existing or previous relations of the proposed guardian with the minor or its property nal competence and (2A) The wishes, if any, consideration, section (2)"

of a deceased parent may also be taken into "but not so as to subordinate the factors mentioned in sub-

6.49. We have so far covered of the questions formulated by us in con- nection with section l7. The third question' concerns a matter of procedure. In our opinion, there should be a provision empowering the Court to call for periodical reports from the guardian appointed by the Court about the health, education and welfare of the minor. The period for submission of the reports may be ﬁxed according to the circumstances of each case. To achieve this object, we recommend that two new sub-sections may be inserted in section 17 as follows2:--

"(6) The Court may require the person appointed or declared to be the guardian under this section or the person to whom custody of the minor is entrusted under this Act to furnish to the Court, at such intervals as the Court may, in the circumstances of the case, deem ﬁt, regarding the health and education of the "minor and s relating to his welfare as the Court may specify."

periodical reports uch other matters "(7) The Court, on receipt of the reports under sub-section (6), shall consider them as soon as possible and may issue such directions to the guar-

dian or other persons furnishing them as the Court may, in the interests of the minor, think ﬁt."

6.50. Taking up the fourth question, we are of the view that section 6 of the Hindu Minority and Guardianship Act, 1956 should also be amended' so as to allow the mother the custody of the minor, ordinarily till he or she completes the age of 12 years.' We may state in brief our reasons for this view. The period upto the age of twelve represents the formative years in the life of a child. It is in these formative years that a child develops such qualities as patience, modesty, honesty, readiness to help and respect for others. The education that the child receives in these years should be designed to make him or her a healthy individual of high intellectual and moral standard, capable of playing an active role in the development of the State and society. Now, it can- not be disputed that it is the mother's inﬂuence which moulds the character and qualities of a child. Men are what their mothers make them; no fondest father's fondest care can fashion the child's heart or shape his life. It was Napoleon who said "The future destiny of the child is always the work of the mother".

6.51. Legislative history of the provision' in the Act of 1956 relating to cus- tody is of interest. Though the mother, in regard to her position as a natural guardian, is postponed to the father, yet the Act lays down, as already stated, that 'Para 6 . 39. supra.

'If considered appropriate, the matter can_ be dealt with by a separate section to be inserted in the procedural provisions, say, as section 43A.

'To be carried out under section 6, Hindu Minority and Guardianship Act. 1956. 'See also para 6.47, supra.

'Para 6 .45 , supra.

the custody of a minor upto ﬁve years shall ordinarily be with the mother. In the original Bill, the age proposed was three years, but the Select Committee raised it to five years.' Even this enhancement did not satisfy all persons. Some Members of Parliament felt that the age should be further raised. A lady mem- ber' of the Select Committee wanted the custody of the minor to be with the mother till the minor attained majority. Another lady member wanted it to be raised to twelve. The two other male members wanted it to be raised to ten and thirteen respectively. Our proposal3 that 'he age of custody should be raised to twelve is, therefore, not new 6.52. Development in hnglaiid relative to the question may be noted. In Lngland, as tar back as 12539, the mother was given a right to the custody of her own children till they were seven years or age.' By subsequent legislation passed in the latter hall or iytii Century' (uuardianship oi Infants Act, 1886), she Obtalllctl the right to the custody till the children were sixteen years of age. Sec- tion l oi the Act of l92:'> extended the provisions of the Guardianship of Infants Act, lace and laid down that the rights of the mother in the matter of custody, care, guardianship etc. of the children shall be equal to that of the father; and that the welfare of the child should be the first and paramount consideration. It also provided that the Court shall not take into consideration whether, from any point of view other than the welfare of the infant, the claim of the father in respect of custody, upbringing etc. is superior to that of the mother or the claim of the mother is superior to that of the father. The Act of 1971 adopts the same principle. The Act of 1973 lays down complete equality of sexes as to matters concerning children.

6.53. The child under twelve years of age needs a tender aﬂection, a caress- ing hand and the company of his mother, and neither the father nor his family relations, however close, well-meaning and affectionate towards the minor, can appropriately serve as a proper substitute for the minor's mother. It should also be borne in mind that physical needs and comforts alone are not enough for the proper and healthy development of a child. Parental affection is indis- pensable for this purpose and in the case of a conflict between the parents when the child is under twelve years of age, the mother should have a pl'€fC'C:'lll.'7l claim in regard to the child's custody. It is for these reasons that we have5 recommended an amendment of the Act of 1956 as to the age upto which custody should ordinarily be with the mother.

English law.

Need of mother's care for child of tender age.

6.54. l'Ol' the sake of convenient, we may at this stage record brieﬂy how Questions the recommendations made above dispose of the questions that we had formu- lated" while commencing our discussion of section 17 :-

(i) On the first question (relative importance of each consideration), we have preferred the progressive approach (minor's welfare to be paramount) and recommended its incorporation in the Act of 1890.

(ii) On the second question (elaboration of the concept of "welfare of the minor"). we have considered it proper to add to the content of section ljoint Corninittec on the Hindu Minority and Guardianship Bill (March. 1955) Report, clauses_ '=E.g. Shreemati Seeta Pramanand (List of amendments).

"Para 6.50, supra.

"See Appendix 3.

"Para 6.50. supra.

"Para 6.39, supra.

form ul ated at the outset how disposed of Section 18, Appointment of juristic persons as guardian.

Section }l9--~ Guardian not to be appointed by the Court in certain cases.

17 of the Act of 1890. (This amendment will presumably become applica- ble to the Act of 1956 also)' tiii) On the third question (procedure), we have recommended an im-

provement in the Act of 1890.

(iv) On the fourth question (custody), we have recommended an amend- ment in the Act of 1956, raising the age to 12 years.

6.55. This takes us to section 18 of the Act of 1890, which provides that where a Collector is appointed or declared by the Court by virtue of his oﬁce to the guardian of a minor, the order shall be deemed to authorise and require the person for the time being holding the office to act as guardian. In fact, this follows from the principle that the Collector is deemed to be appointed in his capacity as Collector.' The section may be retained as it is.

u..au. As to the persons who can be appointed as guardians, we have already referred' to the need for clarincation of the position in regard [O the appointment of juristic persons. A specmc provision on the subject is, in our view, needed. At the same time, certain safeguards are desirable in the interests of proper management 01' the property of the minor and proper care of his person. To achieve this object, we recommend that the rollowing new section should be inserted as section 18A :--

"lE5A. "Ute Court may, 1')' it is not practicable to appoint an individual as a guardian, appoint, as a guardian of the person or of the property or both of a minor, a person who is not an individual, provided that such per- son is an institution or organisation recognised for the purposes of this sec- tion by the State Government by notification in the Official Gazette, and is, by its constitution, empowered to undertake such guardianship."

"V1. Restrictions as to appointment of guardian.

0.57. While, in general, the power of the Court to appoint a guardianvwhere such an appointment is required for the welfare of the minor--ought not to be subject to any restriction, the Legislature has considered it proper to impose a prohibition against an appointment by the Court in certain special cases, enu- merated in section 19. In part, the section is intended to avoid a conﬂict bet- ween the general law relating to guardianship (the Act of 1890) and the special law relating to Court of Wards. The opening paragraph and clause (c) of the section can be explained on this basis. The other part of the section seems to be based on the assumption that by personal law. the husband of a minor married female and the father of a minor are vested with guardianship of the person of the minor, and the guardianship so vested ought not to be interfered with except where the guardian is unﬁt. Clauses (a) and (b) are based on some such assumption. How far the assumption as to the rule of personal law is ac- curate, and how far the hesitancy of the Legislature to interfere with such guar- dianship should be allowed to continue in the changed conditions, will be con- sidered in due course. It will be convenient to quote the section. Section 19 is in these teIms:~--

"I9. 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 1C}? section 2. Hindu Minority and Guardianship Act. 1956.

'Narasingrav Ray v. Luxmanrav Ray. 11 876) l.L.R. l Bom. 318, 320. (Dﬁcision undet sections 11-15. Bombay Minors Act, 1864).

"See para 5.6. stwra.

superintendence of a Court of Wards, or to appoint or declare a guardian of the person-

(a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or lb) of a minor whose father is living and is not, in the opinion of the Court, unlit to be guardian of the person of the minor, or (C) of a minor whose property is under the supcrintendence of a Court of Wards competent to appoint a guardian of the person of the minor."

6.58. It will be noticed that section 19 lays down restrictions as to---- Analysis of section 19.

(1) cases in which a guardian cannot be appointed of property, and (2) cases in which a guardian cannot be appointed of the person.

As to property, it bars the appointment or declaration of a guardian where the minor's property is under the superintentience of a Court of Wards. We have no particular comments on this part of the section.

As to the person of the minor, there are three restrictions contained in clauses (a) (b) and (c). Here again, clause (C) is conceincd Wtth a minor whose property is under the superintendence of a Court of Wards, and needs no comments. But clauses (a) and (b) require consideration. We shall ﬁrst deal with certain points that are relevant to the entire section or to a major part of it, and then proceed to discuss points conﬁned to particular clauses.

6.59. The first and most fundamental question to be considered is how section 19 to much of section 19 should be retained. in this connection, we would like to be "-uh"

. I . . . . , deleted or reiterate the approach which we have indicated--that the minors welfare ought to _be made to be the paramount consideration in proceedings for the appointment of a-Sub-'.°°' '° . . . . section 17.

guardian. Section 17, understood in the above light and particularly after the amendment recommended by us, is intended to leave the discretion of the Court untrammelled by any other considerati0n--or, at least, to make other considera- tions subordinate to the minor's welfare. In contrast, section 19 is intended to fetter the discretion of the Court in certain respects. The case where there is a Court of Wards may perhaps be regarded as a special one. But in other respects the restriction in section 19 needs modiﬁcation.

In this position, one alternative would be to delete section l9 altogether. But if that course is considered too radical or not acceptable for any other reason, certain modiﬁcations are required so as to ensure that section 19 is at least subject to section 17 and to effect certain other improvements which appear to be needed 6.60. One important modiﬁcation is required in the law in order to main- Section 19 tain harmony with section 25. The latter section, dealing with applications for gbtfeectmtaéic the custody of a minor, regards the welfare of the minor as the sole consideration. Section 25. Even now, this is mentioned in section 25 and we propose to emphasise this aspect in dealing with section 25.2 No doubt, it is true that section 19 is con- cerned with the appointment or declaration of guardianship«a wide area~--while section 25 deals with only one particular aspect of guardianship, namely, cus- tody. However, for the sake of clarity, it is desirable to ensure that the welfare of the minor is the paramount consideration.

'See discussion as to section 17, supra (paragraphs 6.40 to 6.48). 'See discussion as to section 25, paragraphs 7.16 to 7.19, infra.

Welfare paramount under section 25.

Section 13(2) of the Act of 1956.

Case law 36 6.61. It is not as though, in all cases where the father is not unﬁt, custody of the child should be left with the father.' It is the welfare of the child that is paramount."

The correct approach is that taken in a recent iierala case," in which it was held that the only consideration that was paramount was the welfare of the child and it could not be correct to talk or the "pre-eminent position" of the parents or their exclusive "right to the custody of the children when the future welfare of the children was being considered '1 he fact that the father was not found to be unlit to be a guardian did not necessarily mean that he was entitled to the custody of the child The position has been largely clarined by the Supreme Court' in a judgment to which we shall revert later also." '1 he Supreme Lourt observed:

"The father's fitness from the point of view just mentioned cannot over- ride cunst'deratt'ons of the welfare of the rumor c/'1ildren. No doubt the the father has been presumed by the statute generally to be better ﬁtted to look after the children----being normally the earning member and head of the family----but the Court has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and edu- cation. The family is normally the heart of our society and for a balanced and' healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home."

6.62. The Supreme Court was making these remarks in relating to a dis-

pute that arose between the father and the mother regarding the custody of their minor son.

Section 13 of the Hindu Minority and Guardianship Act, 1956 is more speciﬁc and has, in categorical terms, provided in sub-section (2) as follows:--

"(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor"

6.63. In Chandler Prablia V. Premnat/1," the Delhi High Court, while award- ing custody of a male child below five years to the mother, observed:----

"The child under ﬁve years of age, in our opinion, needs most the ten- der affection, the caressing hand and the company of his natural mother and neither the father nor his female relations, however close, wellmeaning and affectionate towards the minor, can appropriately serve as a proper substitute "for the minor's natural mother, ............... .....This is consistent with the role of nature and. in normal circumstances. deserves to be noted and acted upon"

Occasionally, however, section l9(b) does receive the construction that if the father is not unfit, he cannot be deprived of custody.7~"'For this reason, it is i desirable to amend section 25 as indicated above.

1Babubhui Pare] V. ,Madav1' Paféj, (I979) l M.L..l. 244, 250. para 13. 'Aimrm1r'.va V. Mukhmr Ahmad, A.l.R. 1975 All. 67 (reviews cases). 'Sebasria.-1 v. T/iomas, (I979) Kerala Law Times 536. 537 (30 Julv I979).

"Rosy Jacob v. Jacob. A.l.R. I973 S.C. 2090, 2100; (1973) l S.C.C. 840. 'Para 7.16. infra.

'Chander Prabha v. Premnrtrlz. AIR. T969 Delhi 283.

'Snelzlata Mathur v. Mahendra Narain. A.I;R. I979 Raj. 29.

"Reginald v. Sarojam, A.I.R. 1969 Mad. 365.

6.64. Apart from this, section 19 creates difﬁculties in the case of children Section 19 whose custody is, by personal law, entrusted not to the father, but to some other f;':,1in:r';§§:fg_ person~ for example, maternal relations as in the case of Muslims.' lng custody.

Though the father is the guardian even of a Muslim girl who has not attai- ned pubertyf it is the mother or mother's mother who is entitled to custody until puberty, amongst Hanaﬁ Muslim? This applies even to married girls, until puberty."

For this reason also, it is desirable to amend section 25 as stated above.

6.65. We now proceed to a consideration of points concerning particular section 19 and clauses of section 19. These clauses prohibit the appointment of a guardian in '°"3"?°"""Y specified circumstances. Such a prohibition may arise from other rules also. guardians' For example, where a testamentary guardian has been properly appointed under a will duly executed, an order appointing another guardian cannot be made5 until the powers of the guardian appointed under the will have ceased under the provisions of the Act.

6.66. lt may also be mentioned that in the case of Hindus, section l9(b) is Elle?' 0% controlled" by section 2 of the Hindu Minority and Guardianship Act, 1956. spifgijol? M',-norm, However, we are at the moment concerned only with the speciﬁc prohibitions in 33¢ Guardian-

s ip the section. Act' 6.67. Coming ﬁrst to ciauses (a) and (b), there is a controversy as to whether Section 19, the person to whom preference is given by clause (a) or clause (b) (husband or :1;'1'5ff))_(3)__ father, as the section stands at present) can himself apply for being appointed Application or declared as a guardian. Many judicial decisions have taken the view that by f""h°"

. . . h b d.

section 19 bars an application by such preferred persons. 5-" or Us an 6.68. Nevertheless, we see force in the View expressed in certain other judi- Obiect of cial decisions" to the effect that all that section 19 means is that if a third p-arty:1';°(}"i't'; 1p9m_ applies, he shall not be appointed or declared a guardian of the person of a minor Der scope. and that" the section does not restrict the right of the father or husband to be appointed as guardian, because such an appointment may confer on him higher rights than what he has as the natural guardian and because. in dealing with the 1(a) Fatima v. Shaikh Peda. A.i.R. 1941 Mad. 944 (mother's mother v. father).

(b)Nur Kadir v. Zuleikha. (I884) I.L.R. 11 Cal. 649 (mother's father v. husband) 2Fa!ima Bibi V. S/mik/2 Peda, A.I.R. l941 Mad. 944.

"See Md. Shrzﬁ v. Shami'/1 Banoo, A.I.R. 1979 Bom. 56, l59, 165 (May). 4Karbtm v. K.E., (I904) I.L.R. 32 Cal. 444, 446. 5Section 7(3).

'Lnlta Prasad V. Grmga Sakai', A.I.R. 1973 Raj. 93 (reviews cases).

7 (a) Sukhdev 17. Ram Chander, A.I.R. 1924 All. 622.

(b) Mt. Siddiq unriisa V. Nizanuddin. A.I.R. 1932 All. 2l5, 217. 5 Bat' Tara v. Mohanlal, A.I.R. 1922 Born. 405.

9 (a) Lakshamau v. Alla Vira, A.I.R. 1925 Mad. 1085 (Baneaan & Jackson J.l.).

(b) Re Dakshfnamurthi', (1969)1 M.L.J. 845.

1° Dlzan Kumari V. Mahendra, A.I.R. 1923 Nag. 1919,2100. 1' M1. Taj Begum V. Glmlam, Rasul, A.I.R., 1923 Lah. 250 (father cannot be appointed). 13 (a) Mr. Chandra Kaur V. ChoteyLal, A.I.R. 1925 Oudh 282 (father cannot be appointed).

(b) S. Ahmad Agha V. Mt. Zohra, A.I.R. 1925 Oudh 421 (father cannot be appointed). (0) Md. Saddig V. Wafati. A.I.R. 1948 Oudh 51, 53 (father cannot be appointed). 13 Raghavaiya v. Lakshmiah, A.I.R. 1925 Mad. 398 (Venkatasubba Rao & Jackson H.). 1' Kamini Mayi V. Bhushan, A.I.R. 1926 Cal. 1193 ,ll94.

Need for amendmei it, Comment in legal Journal.

Section Wm) 38 outer world, the certificate of the Court confers a greater importance on his power than he possesses as the natural guardian. In fact, in the Madras case' of 1925, there is a hint that the drafting of the present section is defective.

6.69. The position is therefore in need of clariﬁcation. On the merits, it is in the interests of justice to provide that clauses (a) and (b) do not apply where the husband or father-' is the applicant for guardianship. Even where such a person is the natural guardian, he may well consider it desirable to be declared as a guardian, for reasons mentioned above?' 6.70. in this connection, we may mention that long ago, an editorial in the Calcutta Weekly l\0ICS,' commenting on the famous Privy Council decision relat- ing to guardianship," made the following suggestion for a reform of the law:--

"ll the District Lourt can entertain an application by a stranger to dec- lare a rather unht to be his childrens guardian, there is nothing in reason to exclude its jurisdiction to entertain a complaint by the father seeking to recover custody of his own children. If no application under the Guardians and Wards Act is competent, surely a suit would lie in the Court of the District Judge for a declaration of the father's rights and for such relief as may be necessary to work them out.

"That is really the substance of the decisions of the High Courts in India to the ellect that Act VIII of 1890 did not repeal the general jurisdiction of District Courts to entertain suits relating to the guardianship and custody of minors, and we should be sorry if the judgment of the Privy Council should be understood as definitely negativing that jurisdiction. If it has, then surely the legislature should step in and do away with this anomaly." The District Court should have jurisdiction to entertain a father's suit or appli- cation for declaration of his rights as guardian and for recovery of custody of his minor children as against persons interfering with his rights. Such jurisdiction would. of course, have to be exercised in accordance with princi- ples so lucidly explained in their Lordships' judgment. What we contend for is that a father whose rights of guardianship over his minor children have been interfered with should not be left in doubt either as to the Court whose protection he is to invoke, or as to the procedure he is to adopt to vindicate his rights; nor, if he is a resident in the Mofussil, should he be "compelled in every case to come up with his plaint to the Original Side of the High Court for remedies which the local courts are perfectly com- petent to give to persons other than the father."

The amendment suggested by us will substantially remedy the anomaly.

6.7!. Incidentally. section l0(a) appears to be based on the assumption that after marriage the right of guardianship of the person and property of a female minor devolves upon her husband (if not unﬁt), even though the husband he a minor.

1. Rug/zuvaiya V. Laks/zmiu/z. AIR. 1925 Mad. 398. Also the mother if para 6.66 is accepted.

3- Para 6.68. supra.

4- Editorial note. "Father's remedy against deprival of custody of children" (l9l4) 18 Calcutta Weekly Notes (Journal) 209, 210.

5- Annie Besant V. G. Narayaniah, (1914) I8 Calcutta Weekly Notes 1089: I.L.R. 38 Mad' 807 (P.C.).

°~ Emphasis added.

In I K 39 6.72. The provision in section l9(a) is reminiscent of the earlier English rule, under which, as soon as the daughter married, the father's natural jurisdic- tion over her, and his right to her custody during infancy. determined.

"For the happiness and the honour of both parties, it (the law) places the wife under the guardianship of the husband. and entitles him. for the sake of both, to protect her from the danger of unrestrained intercourse with the world by enforcing cohabitation and a common residence?"

This was the view taken by Coleridge J. The authority of this view was shaken by a later case? where it was stated that a husband had no such right to "custody" as a parent has over his child. In that case a wife was. by her own desire. living with her son (and apart from her husband). The Court refused to restore her to his custody.

Clause (a). if construed literally. would create an anomaly.--~for exam- ple. where the husband himself is a minor. In an early Punjab case? which was a suit for the custody of a wife when both the husband and the wife were found not to have attained puberty. the decree was refused and it was held that in Muslim law. a husband is not entitled to custody of the minor wife too young for intercourse. The case was not decided under section

19. If the matter arose under section l9. the Court can refuse the order only by regarding the husband as "unfit".

6.73. This shows the right of the husband to custody is not an absolute one. This naturally raises the question whether clause (a) of section l9 should be allowed to continue in its present sweeping form. We would have made a speciﬁc recommendation on the subject so as to avoid conﬂict with personal law, particularly in a matter where the present law goes beyond the best interests of the child. However. if our recommendation' to save the jurisdiction of the Court in regard to custody on a consideration of the welfare of the minor is accepted. the conﬁict referred to above would cease to have any practical im- portance.

Incidentally. this particular problem does not arise in England. since the "law to which the minor may be subject" is superseded by the mandatory sta- tutory rule which regards the welfare of the child as paramount.

6.74. The question may be raised whether clause (a) is needed at all the present day. when persons below 18 years of age are prohibited from marrying by the Child Marriage Restraint Act. l929 as amended in 1978. If the present law relating to minimum age of marriage in India is complied with throughout India. there would not. in future. be any minor who is a female married in India.

But there could still be minors who are married outside India (who are not Indian citivensl and who have come to reside in India. and there may also be minors married in India before l978 (when the Cihld Marriage Restraint Act was amended so as to make 18 years the minimum age of marriage).

I-Ienee clause (a) of section l9 cannot be deleted.

1 Re Cachrane. (1840) 8 Dowe 633.

9 R. V, Leggart. (1852) l8 Q. B. 781.

3 Dim: v. Abdulla, (1 894) Punjab Record 97-93 (Civil Judgement No. 351). ' Paragraphs 6.59 to 6.61 supra.

Earlier nglish rule as to husband's control nver wife.

Right not absolute_ Utility of clause (8.) in the light of child marriage restraint.

Section l9(b)

---Equ.1l status to be conferred on mother.

Section 19, clauses (a) and (b) overlapping-

Amendment recommended.

Personal law.

Illegitimate children.

6.75. The next point is concerned with clause (h) of section 19. The pre- ference given by section l9(b) is conﬁned to the father. In view of the changed approach which we have recommended' in relation to the rights of each parent, it is necessary that the preference given in this clause to the father should be extended to the mother also, and she be placed on an equal footing with him. Accordingly, we recommend that in section l9(b), after the existing word "father", the words "or mother" should be inserted.

It may be noted in this context that the principle underlying section l9(b) has been held even now to apply to a mother as well as to a father, though with lesser force.' 6.76. There also seems to be some obscurity as to the exact inter-relationship between clause (a) and clause (b) of section 19, inasmuch as a minor who is a married female may fall under both the clauses. The point requires to be at- tended to. In our view, it would be better to conﬁne clause (b) to persons other than married females. We recommend a suitable amendment for the purpose.

6.77. We would also like to point out that in some respects. section l9(b) might conflict with personal law, in so far as clause (b) has the effect of giving pre-emptory preference to the father even where the father is not the natural and legal guardian by personal law.

6.78. For example, in the case of an illegitimate child, the assumption under- lying section 19(b) totally breaks down. The reason is that the father has no legal right of guardianship over such a child.

This was the position under uncodiﬁed rules of Hindu law3 and is also the position under its codiﬁed version.' In Muslim law also. the position is the same. In fact, the right of the mother to custody can be enforced by haheas corpus.' The position was settled long ago" in India for persons of both the commu- nities. So long ago as 1864. Holloway J. made the following observations?

"All the analogies of Hindu law, as we have already shown. are against the view of a bastard taken by the law of England. There is an element in that law, the doctrine of Christianitv. which would render anv argument drawn from its provisions merely deluding. There is. and can be. no ana-

logy."

In the case of persons of other communities also. there is fairly recent autho- ritv-"' speciﬁcallv holding that the mother is the natural and legal guardian of the illegitimate child.

'See discussion relating to section 17. supra (paragraphs 6.40 to 6.48). Also see para- graphs 6.66 and 6.69.

'Sumitra Bai V. Subhadra Bai. A.I.'R. I925 Nag. 178, I79.

"Mahabir V. Raghubar, A.I.R. 1933 Oudh 312, 313.

4Section 6(b), Hindu Minority and Guardianship Act, l956.

5Gohar Begum V. Suggi, A.I.R. 1960 S.C. 93.

''(a) In the matter of Saithri, (1891) I.L-R. 16 B0m- 307, 317-

(b) Venkamma v. Savitramma, (1888) I.L.R. 12 Mad. 67, 68. (C) Slmhfehart v. Munro. 5 S.D.A. N.W.P. 39.

"Mayna Bai v. Utraram, (1864) 2 M.H.C.R. 196, 203.

'Pamela v. P.C. Martin. A.I-R. 1970 Mad. 427,428,429, paragraphs 5 to 7 (Anglo-Indians) 41 6.79. In fact, the rule rests on certain fundamental considerations based on R31i°ﬂ31¢~ K the natural bond. In the Madras case already referred to,' Holloway J., turning to Roman law, gave a quotation from Gaius (which we need not reproduce) and made the following observations:

"This great master (Gaius) considers, that, in not denying the natural guardianship between the erring mother and her sons and of the sons with one another, and admitting heritable tie between them, the praetor was moved by natural equity."

Paternity is a matter governed by 'jus civile' and maternity by 'jus nature'. The creative forces of nature itself have bound the mother to her issue, whether born in lawful or unlawful wedlock, in a manner wholly or utterly different from the bond between the father and his sons. This natural relationship and these inescapable facts are reﬂected in ancient Hindu law governing succession to the Stridhana property of women. and in the rules recognised almost everywhere as to custody and guardianship of illegitimate children.

Thus, the provision in section l9(b) is not in tune with the general law in regard to illegitimate children.

6.80. There may be other cases where the rigid rule in section l9(b) would Foreisncrs. be inappropriate as conﬂicting with personal law. For example, in the case of a foreigner governed by another system of law, the Court will have regard to the system of law by which he is governed, which may not necessarily recognise any preferential status for the father? though the best interests of the child are para- mount.' 6.81. In view of what is stated above, it appears to be desirable to exclude, Is'°1c11t'l?")1l'1l"l';("I")°f from the scope of section l9(b), cases where, under personal law, the father is 1-,¢omm.nd¢d_ not the natural and legal guardian of the minor. This will also apply to the mother, if she is added in clause (b) as recommended above.' 6.82. To summarise recommendations made above in the discussion relating 5"'"m'"'V °f "' _ _ _ _ commendations to sectlon l9, amendment is required on the points enumerated below:---- relating to section 19.

(i) amending section 19 so as to apply the provisions of section 17 rela- ting to welfare of the child:''

(ii) making it clear that in cases under section 25 in relation to orders as to custody," welfare of the minor is the paramount consideration. (This amendment' will be made in section 25).

'Mayana Bar' v. Urraram. (1864) 2 M.l-I.C.R. 196, 203- 'Nugenr v. Verzera. (1 861-1873) All England Reports (Reprint) 318. 3(a) Re Kerrwt, (1964) 3 All England Reports 339. 343. 344 (Buckley J.).

(b) Re B's Settlement, (1940) Ch. 54.

'Para 6.66, supra.

'Para 6.59, supra.

'Para 6.61, supra.

"To be carried out under section 25. S66 Para 7-21 inf"?-

Recommendation for revising section 19.

Restrictions as to appointment or declaration of guardian.

(iii) clariﬁcation that clauses (a) and (b) do not apply to the husband or father or mother' making an application" for being appointed or declared a guardian;

(iv) addition of the mother in clause (b);3

(v) excluding from clause (b) married females;' and

(vi) excluding from clause (b) cases where. by personal law, the father or mother5 is not the natural and legal guardian of the minor."

6.83. To carry out the points made above, we recommend that section 19 should be revised as under:--

Revised Section 19

19. (1) 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 of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

(2) Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the person--

(a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unﬁt to be guardian of her person. or

(b) of a minor. who is not a married female, and whose father or mother is living and is not, in the opinion of the Court. unﬁt to be guardian of the person of the minor;

Provided that---

(i) in determining the question whether a person is unfit to be a guar- dian with reference to clause (a) or clause (b) of this sub-section, the welfare of the minor as explained in section 17 shall be the paramount considera- tion;

(ii) nothing in clause (a) or (b\ of this sub-section shall apply to a enve where the husband or the father or the mother. as the case may be. aprvli"s for being appointed or declared a guardian; and

(iii) nothing in clause (b) of this sub-seetion shall apply to a case where the father or the mother, as the case may be. is by the law to which the minor is subject. the natural guardian of the person of the minor' 'This is consequential on para 6.65. supra.

"Para 6 .65. supra.

3Para 6.66. supra.

'Para 6.68. supra.

'Addition of the mother is consequential on para 6.65, supra. 'Para 6.7]. supra.

'Besides this amendment of section 19, section 25 will be amended to ensure that the provisions of that section (section 25) apply notwithstanding anything contained in section 19.

CHAPTER 7 DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS: SECTION 20 TO 30

7.1. The duties, rights and liabilities of guardians are dealt with in sections 20 to 37. These sections are not conﬁned to guardians appointed by the Court but apply to all guardians.' , Scam 7.2. Section 20 deals with the liduciary relation of the guardian to the ward, and needs no change. Section 20.

., 7.3._Scction 21 provides that a minor is incompetent to act as guardian of .

any minor, except his own wife or child, or, where he is managing member of an ,5w°§;',',';§,g2},'f undivided Hindu family. the wife or child of another minor member of that "child". family. A doubt has arisen as to whether the expression ('child" in this section includes an adopted child)? We think that the expression should be widely con-

strued. No change. however. is required on this point.

7.4. It is not clear whether "guardian" in this section is conﬁned to the guardian of the person, or whether the section covers property. If the section is taken as extending even to guardianship of property, certain anomalies may

-arise.

Anomalies as to property.

In the first place. the last few lines of the section assume that a minor can be a managing member of a Hindu family where he is the seniormost male mem- ber.» However, on this point, thequery raised by Sadasiva Aiyar J. in a Madras ease (to be referred to later' on) should be noted.

In the second place. if the ﬁrst 17 words of the section, ending with "his own" wife or child" are takenas covering the guardianship of property also. the resultwould be'th'at 'a minor can be guardian of the property of his familv. though his own property would be subject to the guardianship of another person.

- -'Y , 9 _ . _ As to Hindus, it is now speciﬁcally provided that a minor shall be incompe- tentrto act as guardian of the property of any minor.' 7.5. The following" observations of Sndasiva Aiyar J. in a Madras case' are ObS€I'Vati0nS pertinent in this context'---- In Madras case' "I am. very doubtful whether a minor can at all be the managing mem- ber of _a Hindu family. though he is the senior male member. 'Guardian' in section 21 is evidently intended to include the guardianship of both per- son and property. It does seem anomalous that a minor could be the guardian of the person of his wife and children. that is. entitled to the cus- tody of their person and the management of their properties, while his own "' A nerson is sixbiect to the custodv of the legal guardian of his person. and (while) his properties are under the management of' the legal guardian of his proper- ties. But this particular section 21 cannot. in my opinion, be held to dero-

lliban Krishna v. Sailendrn Nar/1. A.I.R. 1946 Cal. 7_2. 'Sr/rdrrnrnnf V. (?'nkI//annrld. l8 C.W.N. 160, I64.

"Para 7.5. iizfrn.

'Section 10. Hindu Minority and Guardianship Act: 1955- Ibrahim v. Ibrahim, A.I.'R. l9l7 Mad. 612, 615.

4- 2 M oru&cA/ND/80 Need for amendment of section Zl.

Recommenda-

tion as to section 21.

Section 22.

Section 23 Section 24.

gate from the rights of the legal guardian of a minor's own person. I might venture to suggest that [he Legislature should amend section 21 by omitting the portion following 'child or' and by conﬁning the rights of a minor guardian over his wife and child to the control of their persons so far as it is necessary to exercise his conjugal right and the right of fondling his child. so that he might have no power to interfere with the management of their properties and so that the guardianship of their properties might be vested in the guardian of his own properties."

I ' -Some High Courts have taken the view '[that a minor can be a managing member of a Hindu undivided family, 7!'. ll is unnecessary to express an opinion on this point. However. so far as section 2] is concerned, it is. on principle, anomalous that the same person {minor managing member) would be competent to act in matters concerning the property. while. in matters concerning the person, he is subject to the guardian- ship of another person. The need for an amendment of section 21 is obvious.

7.7. On a careful consideration of various aspects of the matter, we recom- mend that section 21 should be revised as under. to remove the anomaly men- tioned zihovci "2l. (I) A minor is incompetent to act as guardian of any minor except as provided in sub-section (2).

( 2) A minor is competent to act as guardian of the person of his own wife or child so far as it is necessar_v to exercise "his conjugal right and his ripsvlrt in regard to the rrpbringing of the child."

'''.8. This takes us to section 22. which deals with the remuneration of the guardirm and permits him certain allowances. "Allowances" referred to in the vnction seem to cover only reward for the "care and pains in the execution of his duties". It does not seem to cover expenses to be incurred for the maintenance and education of the minor' (in the case of grardianship of the person). Such expenses are. at present, governed by rules." It is. however. desirable that this should be expressly covered by the section. so as to make the section compre- hensivc. accordingly. we recommend that the following sub-section should be added to section 22:----~ "{3} The Court may, in the case of a grmrdian of the person. also deter- 2m'n1~ from time to Iinrp the amount to be allowed to the guardian for the wrnporr. health and crlrrcatinn of ﬁre ward."

7.9. Section 23 provides that a Collector appointed or declared to be the _2!u3='dfan is subiect to the control of the State Government or of an authority noti- ﬁed bv the State Government in this behalf. The section needs no change.

7.1!). Section 24 provides that 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.

The section needs no change.

V 1) 77-frrrhnlr Raofi v. Lonkarrm, A.'[.'R. 1948 Nag. 324. ll"-'l T1'rr:.77r .Trw«7- V. Dhrrbcn Nrrﬂr, AIR. 1953 Orissa 7- (rs) Mnlla. Hindu Law (1974), page 974.

'"'Sectr'on 74.

'**Section 50.

7.1]. Section 25, hearing the marginal note "Title of guardian to 'custody Section 25- of Ward". Contains three sub-sections. Sub-section H). which is concerned with the ward leaving or being removed from the custody of a guardian of the person, in Custody empowers the Court to make an order for the return of the ward to the custody M ward' of the guardian. if such ()nh'r_)1'Hi be for the welfare of the minor. It also empowers the Court to "cause the ward to be arrested and to be delivered into the custod_v of the guardian". ' Sub-section (2) confers on the Court, for the purpose of "arresting the ward", the powers of a Magistrate of the ﬁrst class under' section 100 of the Code of C ri- minal Procedure. I882---now section 97 of the Code of Criminal Procedure, 1973.

Sub-section (3) provides that the residence of a ward against the will of tho guardian with a person who is not thc giiarclian does not, of itself. t«-rrninxw tlw guardianship.

7.12. A number of questions arise with reference to section 25. In the (52°u";;§'i"'mE5;o first place. case law as to Court having jurisdiction under the section needs exa- be considered. mination.' In the second place." it is not clear whether the power under this section can be exercised where the ward has never lived with the guardian who now applies for custody. in the third place. the languane of certain prm»i<:ion< of the section (where it speaks of "arresting the ward") is archaic." in the fourth place.' although sub-section {ll of the section-itself lays down tlw test of welfare of the ward, yet attempts are. from time to time. made----though mostlv unsuccessfully--to argue'' that the rirrhrs of rim guardian should al.m_t'nﬂI!."I1P(> the dc=cz'.ri0n.

Then.' since the section deals with a matter vitally affecting the int-2"ests of the minor, it is desirable to make a speciﬁc provision as to the extent to which his wishes should be respected.

Finally,' there is also one addition in a matter of nrocedure that we would like to make. so as to emohasise the need for associating women with the pro- ceedings. wherever practicable." "

7.13. The first queseion concerns the Court having iurisdiction under the %°°he"';'('"%ge';;m section. Although section 25 does not specifically lay down which is the com- Court.

petent Court. it seems to be the general policy of the Act to vest iurisdiction in a Court having iurisdiction in the place where the Ward for the time beimz ordi-

narily rc.ridc.r.' However. the ouestion seems to have arisen in regard to section

25. and it has been held"''" that whether the application is under section 9 (apoli-

cation for guardianship of the person or property) or under section 25 (anr>lir:a-

tion for restoration to custodvl. it is the district Court having iurisdiction in the place where the minor ordinarily resides that would have iurisdiction, We do not consider it necessary to recommend an amendment on this noint 'Para 7.13. frrﬁn.

'Para 7.14, infra.

'Para 7 . 1 R, infra.

'Para 7.19. infra. « V ' 'See artzumenfs in Mangarrzre v. Chacko. A.I.R. 1970 Ker. T, 1.0, para 22 (F-B-l~ "Pam 7.19 infra.

7'Para 7.20. infra. -

'C/f Order 32A. Rules 4-5. Code of Civil Procedure, I908- "Sec section 4(5)(b)(ii).

'°Chr'manIaI v. Raiaram. A.I.R_. 1937 Born. l58, l59; 39 B.0m- L-R- 44- "Ma1tng Ba v. Ma Than, A.l.R. 1929 RaY1§- 129- ' "Tﬂak Raj v. Asha, AJR. 1979 Raj. 128. ,. . ~ l Persons not having actual custody.

I udicial decisions based on_ constructive custody.

7.14. The second question to he considered with reference to section 25 is. whether a person who m*vc'r hm! actual r'M.\'lm1_v of the chihl' can take pt'nc'cc(linf:s under the section. "

According to the Allahabad," Bombay,' Nagpur' and Patna' view' such proceedings cannot be entertained.

Other High Courts,"-7 however. adopt a more liberal interpretation and hold that even if a child has never been in the actual custody of a guardian. yet the guardian has constructive custody, and also. that refusal by a person to return the minor to such guardian amounts to "refusal to return" within the meaning of the section.

According to a recent Andhra case,' the word "removal" is not limited to physical removal constructive removal clearly falls within its ambit. In :1 Punjab case" where both the parents lived together and subsequently a minor son of 6 years was taken away by the mother, it was held that there was a crmsrrurriw> removal of the child from the father's custody and the father had a right to apply under section 25. ' Some of the earlier decisions on the subject are reviewed in the tlnderrnen:

tinned ruling." The eonﬁiet as to the scope of "custody" in section 25 was also noted in :1 recent Delhi case," but the question was not decided, not being necessary for disposal of the case.

As we shall mention later." the interpretation relying on "constructive cus- tody" has received the implied approval of the Supreme Court. ' ' 2 7.15. The iudieial decision which take the wider view" have. at present. to rely on the doctrine of ('constructive custody"---- a doctrine which has received the indirect approval of the Supreme Court." While the wider view on the sub-

ject would seem to do substantial justice. the result has not been achieved without straining the present language to some extent. Indeed. this was admitted in one of the earlier Madras cases on the subject." It is pe'haps for this reason thatiflte Rangoon High Court." while not accepting the liberal construction, hinted'-at the need for legislative action. ' " N 'Para 5.12. mpra.

'LatI'}'v. Shakoora, A.I.'R. 1973 All. 44].

'Achrat/nl V. Chlmanlal. A.T.R. I916 Born. I29.

'Dhrm K/Imnri v. Mnlwndrn. A.I.R. I923 Nag. I99. 200.

'.4/rrnrs-f Regzrmn V. ,7vfn.rM_/'rt. 52 LC. 998. I001 ('Pa.t.).

"( :1) Jwnlu Prnsurl V. Bar/m [.01. AIR. I942 Cal. 2l5- (bl Brrsant Krmr v. Gian Singh. /\.I.R. I939 Lah. 339.

(c) Ibralzim v. Ibrahim. A.l.R. l9l7 Mad. 6l2.

(d) Geeta v. Rulun. A.I.R. I966 M1'. 221, 222. para. 5.9.

'See also Punjab and Andhra cases, infira.

"Kata Karrenna v. Kata Paravathamma. (1978) 1 An. W.R. 425. "Similar Devi v. Rajpar Kaushal, (1978) 80 Punj. LR. 143.

"'SusI1I'Ia V. Ktmwar Krishna. A.I.R. I948 Oudh 226, 266. 270 para I8. "Akhmr Begum V. Jnn1.rhedMrInir. A.I.R. 1979 Delhi 67, 70. para l0 (Mar_ch)'(Prakash Narain J.) "Para 7 . 15, infra.

"Para 7.14. supra.

"Jacob v. Jacob, A.[.R. 1973 S.C. 2090, 2098. See para 7.16. inﬁ-a. "Ibrahim v. Ibrahim, A.I.R. l9I7 Mad. 612.

"M'anoo Ali V. Mawubi, AIR. 1936 Rang. 63, 64.

7.l6. It appears to us that it is desirable to expressly amend the language of "the section in this regard, so as to reflect the true and just position. There can hardly be any doubt about the soundness of such an aproach. It would be strange if the law, while providing for and insisting on the due discharge by a 'i"° °"'t°d3'- guardian of his duties towards his ward, should deny him the means of discharging those duties.' In this connection, we may refer to the following observations of the Supreme Court" :--

'in our opinion, 'at.L'llUll 25 of the Guardians and Wards Act contem- plated not only actual physical custody but also constructive custody of the iguaiuiau which term includes all categories 01 guardians. the object and purpose or this provision being ex tacie to ensure the weltare of the minor wurd, which necessarily involves due protection of the right of his guardian . to properly look alter the wards health, maintenance and education, this section demands reasonably liberal interpretation so as to etiectuate that ., object. llypcr-technicalities should not be allowed to deprive the guardian of the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote the "latter's wel- fare. if the court under the Divorce Act cannot make any order with respect to the custody of Ajit alias Andrew and Maya alias Mary and it is not open to the Court under the Guardians and Wards Act to appoint oi declare guardian of the person of his children under clause 19 during his lifetime, if the Court does not consider him unlit, then, the only provision to which the father can have resort for his childrerfs custody is section 25. Without, therefore, laying down exhaustively the circumstances, in our opinion, on the facts and circumstances of this case the husband's application under section 25 was competent with respect to the two elder children. The Court was entitled to consider all the disputed questions of fact or law properly raised before it relating to these two children. With respect to .Mahesh alias Thomas, however, the Court under the Divorce Act is at present empowered to make suitable orders relating to his custody, main- tenance and education. it is, therefore, somewhat diﬂicult to impute to the Legislature an intention to set up another parallel Court to deal with the questions of the custody of a minor which is within the power of a competent Court under the Divorce Act.

"We are unable to accede to the respondents suggestion that his appli- cation sliould be considered to have been preferred for appointing or declaring him as a guardian. But whether the respondent's prayer for cus- tody of the minor children be considered under the Guardians and Wards Act or under the Indian Divorce Act, as observed by Maharajan 1., with which observation we entirely agree, 'the controlling consideration govem- ing the custody of the children is the welfare of the children concerned and not the right of their parents'. It was not disputed that under the Indian Divorce Act this is the controlling consideration. The Court's power under section 25 of the Guardians and Wards Act is also, in our opinion, to be governed primarily by the consideration of the welfare of the minors con- cerned. The discretion vested in the Court is. as is the case with all judicial discretions. to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this: respect being scldom~if ever-«identical. The contention that if the luishnnd is not unﬁt in be the guardian of his minor children, then. the question of their "welfare does not at all arise is to state the pronositintt a bit too broadly and may at times be somewhat misleading. It does not 'Fr. obnmétiinns In Musheb Hussain v. Mr. J/maid, A.t.n. 1913 oudh 376. 3,_fycr:/'7 V. Jﬂca/7, ,'-\_..'.R. l973 ~S.C. 2090, 2098. ' Need for amendment of section 25 as to construc-

Defect in present language.

Section I511) and 25(2) -' The tirl'CSl of the ward.

Welfare of minor 48 take full notice or the real core of the statutory purpose. In our opinion, the dominant consideration in making orders under section 25 is the welfare of the minor childhen' and the considering this question due regard has, of course, to be paid to the right of the father 'to be' the guardian and also to all other relevant'fact0rs having a bearing on the minor's welfare. There is a presumption that a minor's parents would do their very best to promote their childrens welfare and, if necessary, would not grudge any sacriﬁce of their own personal interest and pleasure. This presumption arises be- cause of tlie natural, selllcss alleetion normally expected from the parents [or their children. lrom this point of view, in case of eoutlict or dispute between the mother and the lather about. the custody of their children, the approacli has to be somewhat ditfercnt from that adopted by the Letters rateiit be-nehvoi the High Court in this case. '1 here is no dichotomy between the titness of the father to be entrusted with the custody of his minor children and considerations of "their welfare. The father's titness has to be consi- dered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. if the custody of the fatheifcannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under section 25 merely because there ,is no defect in his personal character and he has attachment for his ehildren--which every normal parent has."

7.17. The present language of the section does not carry out the intention. The word "remove" in its literal meaning means "take off or away from the place occupied, convey to another place, change situation of, get rid of, dis- miss". There is no particular deﬁnition given in the Act. Doubt will persist as to its exact sc0pe,,if, it is not clariﬁed. The language of section 25 should, there- fore, be widened to provide an adequate remedy for the guardian of the minor to have his right declared to the custody of the minor and to have his right enforced by adopting the machinery provided in the Act.

7.l8. Thirdly. sub-section (1) of section '25 should be modiﬁed to remove that part of it which contemplates "arrest" of the minor. This is archaic.

As regards sub-section (2), which empowers the Court to exercise the powers of the Magistrate of the first class under section 100 of the Code of Criminal Procedure. 1882, it may be mentioned that the Code of 1882 has been repealed and replaced by successive later legislation. The corresponding provision in the Code of I898 was section 100, and 'the corresponding provision in the present Code (of 1973) is section 97. Necessary substitution (which is only. a verbal change) may be made in sub-section (2).

We recommend that section 25(1) and 25(2)' should be amended accordingly.

7.19. Fourtl:ly,_it should be emphasised. that the minor's welfare is the para- mount consideration" in proceedings, under section 25. This criterion is already indicated in sub-section (1) bypthe words "if ................ .. it will be for the welfare of the ward to return to the custody". However, it would be proper to re-emphasise this aspect."

1Empl1asi.~' added. ' 2(3) [\'()5'y _I.'1('(;/) v. Jacob A. C/ltl/t'!'a'I_I1a/(kﬂl. A,I.R. 1973 SC. 2090; para 7. to, supra.

(b) Haric/mnd v. Virbala, (1974) 15 G.L.R. 499.

"See also discussion relating to section 19 (Chapter 6, supra) 49 7.20. In our opinion, it would also be proper to provide that the Court shall G_uar<_!ian not make an order contrary to the wishes of a child of 14 or over, unless the ,','t',0'{,'Ll"':4 Court is satisﬁed that such an order is necessary by reason of special cireum- ' stances.

7.2l. I'inally, the ussoeiation of women in proceedings under section _'5,\~.wci;ution will, we think, he a healthy improvement. This is already permissible under the M '"'""°"' Code of Civil Procedure,' but it should be made obligatory, where practicable, in proceedings under the section.

In this connection, it would be of interest to note a provision recently intro- duced in the Children Aet"----

"(3) Every children's court shall be assisted by a panel of two honorary social workers possessing such qualiﬁcations as may be prescribed, of whom at least one shall be a woman, and such panel shall be appointed by the Administrator."

7.22. In the light of the above discussion, we recommend that section 25 r{ct.'i=illnlcIldull0D_ should be revised as under:----

"25. (1) If a ward leaves or is removed from the custody of a guardian Pmceed,-"gs of his person, or is not in the custody of the guardian though the latter is for custody entitled to such custody, the Court, if it is of opinion. that it will be for "f want the welfare of the ward to return to the custody of his guardian or to be placed in his custody, may make an order for his return, or for his being placed in the custody of the guardian, as the case may be.

(2) For the purpose of enforcing the order, the Court may exercise the power conferred on a Magistrate of the ﬁrst class by section 97 of the Code of Criminal Procedure, 1973.

(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 guardian-

ship.

(4) In making an order under this seetirm, the Court shall regard the wel- fare of the ward as the first and paramount consideration.

(5) The Court shall not under this section make. an order ('ontrar_v to the wishes of a child of fourteen years or over, unless "the Court is satisfied that such an order is necessary by reason of special circumstances.

(6) In a proceeding under this scection, the Court shall, wherever prac- ticable, make an endeavour to secure the services of a woman. whether related to the parties or not, including a woman professionally engaged in promoting the welfare of the family, for the purposes of assisting the Court in discharging the functions imposed by the law on it.

(7) The provisions' of this section shall apply notwithstanding any- thing to the contrary contained in section I9."

7.23. This taken us to section 26, which provides that a guardian of the Eamon 26 person appointed or declared by the Court, unless he is the Collector or a guardian appointed by will or other instrument. shall not remove the ward from the jurisdiction of the Court which appointed or declared him without the leave of 'Cf. 0. 32A. Rule 4, Code of Civil Procedure, 1908-

"Section 5(3), Children Act, 1960, as amended in 1978' 'See discussion relating to section 19, supra and para 7.19, supra.

Section 27 Section 28.

Transfer of valuable, movable property.

Need for amendment of section 29 as to movable nropcrty.

that Court, except for the prescribed purposes. The leave may be 'general or special and may be deﬁned by the order granting it. - ' M - ' The section needs no change.

7.24. Section 27 deals with the duties or the guardian of the property. Carrying out the principle laid down in se'cti6ti' 20 (ﬁduciary relationship). it provides that the guardian is bound todcal with the property of tlieiiward, as ('illici- fully as a man of ordinary prudence would deal with' 'it if it were his own, and subject to the provisions of this chapter, he may do. all acts which are reasonable and proper for the realisation, protection or beneﬁt of the pijopcrty- Although there is abundant case law on the section, it is mostly concerned with the appli- cation of the section in the innumerable situations of inﬁnite variety that present themselves in actual life No serious problems arising from the substance or form of the section have come to notice and we do not therefore recommend any change in the section. ' 7.25. Section 28 deals with the powers of the testamentary guardianiii res- pect of property. In brief, it provides that the power to alienate immovable property of the ward is subject to any restriction imposed by the will or other instrument under which he is appointed, unless he has been declared by the Court to be the guardian and the Court permits him by written order to dispose of any immovable property in a speciﬁed mannertnotwithstanding the restrictions imposed by the instrument. \' ' The section needs no change.

7.26. Section 29 imposes certain limitations on the power 'of a-'guardian of property (not being the Collector or testamentary guardian) appointed or declared by the Court, in relation to the alienation of immovable property. Per- mission of the Court is required for the speciﬁed classes of transfers. 2 We notice that the section is silent as to the disposal of movable property. being concerned exclusively with immovable property. So far as movable property is concerned. the Act does not directly impose any restriction on the powe;s oi' the guardian, except such as may ﬂow from the general ﬁduciary position of the guardian' or from obligatons imposed by the Court under sections 32 to 34 and similar general or residuary provisions.

Authority on this subject is scanty. In a Bombay case" decided under the Bombay Minors Act, 1864, it was held that the general rule was that a Hindu guardian could pledge the property of the ward for beneﬁcal purposes, and in respect of movables, there was no provision in section 18 of the Act of» 1864. However, the incurring of marriage expenses was speciﬁcally prohibited by that Act. ' « ~ ' The Act of 1890, as stated above, contains no direct provision on the sub- ject. ' 7.27. The question to be considered is whether this position should be allowed to continue. It is conceivable that the propertyiof the minor may corti- prise valuable movables. and prima facir'. a speciﬁc 'pthvision safeguardingtltfe interests of the minor in relation to' such property appears to be needed. 'l 'Section 20. Guardians and Wards Act, 1890. ' ' 'Maharana Shri Ranmal Singh v. Vadiial Vakhatchand, (1894) I.L;R. 20 Bo'.h.'6t, 7l , overruled on another point in I.L.R. 26 13cm. 22] I . A v I ' 31 While we do not consider' it necessary to lay down any rigid restrictions on the investment of funds of the minor of the "nature contained' in the Indian Trusts Act, it is, in our opinion, desirable to make speciﬁc provisions as to the alienation of movable property exceeding certain value. In modern times, im- portant classes of transactions may take place as to movab1es---such as shares; bank deposits and the like, and even' jewelleryand antiques. Leaving the dis- posal of such property entirely to be governed by the general or residuary pro- ViSi0l1S!:l'CfCrI'Ctl to above lIllgilIE"3UlIlClllI1CS' seriously prejudice the interests of wards. - ' » - ' 7.28. We thcrclore recommend that while retaining the substztncc oi" section Remmnwnda. 29 in so far as it governs immovable property, the following further provisions '5''".*5 'O should be added in that section. [The present section may be re-numbered as sub- mug" 29' section (I)]. ' -' .S'ub--seetion to be added in seeliorz 2.9 (after re-numbering present section 29 as sub-section (1)).

(2) Such person shall not, without the permission of the, Court----

(a) mortgage, pledge or charge, or transfer by sale, gift, exchange or otherwise, any part of the movable property of his ward, 'being---

(i) money {whether in cash or invested in any form) exceeding rupees two thousand in value, or

(ii) other movable property exceeding rupees two thousand in value, or

(b) vary any invmtnrent exceeding rupees two thousandin value:

Provided that nothing; in this sub-section shall apply to any transaction undertaken by the guardian on behalf of the minor in the ordinary course of business or for meeting daily needs or for the immediate preserva- tion and protection of the property.

7.29. The effect of contravention of the statutory restrictions as to the dis- section 30-

posal of property by a guardian is dealt with in section 30. The section pro- R°°°'"'"°"d""°"~ vides that a disposal of immovable property by a guardian in contravention -of section 28 or section 29 is voidable at the instance of any other person affected thereby. The view taken in the majority of the judicial decisions seems to be that a proceeding to set usirlv the transfer made in contravention of the above restriction" is not needed. " 'i 7.30. We do not consider it necessary to recommend any amendment in Recommendation this regard. However, the word "immovable" should be deleted. from section 30, tr3_tz;g;ezi3rl0 b so that it can apply to the disposal of-mavable property" as well--an amendment M ' that is consequential on the proposed expansion of the scope" of section 29. We W' recommend that section 30 should be amended accordingly.

net. section 20. Indian Trusts Act. 1882. ' 'Abdul Rahman v. Sukhdayal Singh. (1906) I.L.R. 28 All. 30 (Bancrji & Richards -73-)-

'Jai Narain V. Bachu Lal, A.l.R. 1938 Cal. 369. 372» 'Jagamath v. Clnmm'. A.I.R. 1940 All. 416, 421 (Mohammad Ismail & Vemia JJ.)-

5Mem Chandra v. Lalir ﬁlohan. (1912), 16 C.W.N- 715- 'Lrrlit Kmnar v. Nagctrdra Lal. A.I.R- I940 C8i- 539, 59'-

7Mur/ml.mnurn ('ln'Ity v. Antony Utluyar. (I915) I.L.R. 38 Mad. 867. 877 (Sada~:iv:t Ayynr & Rpcitctl' JJJ. ' "Sivuuntului v. .4rmmcImIu. A.'[.R. 1938 Mad. 822 (Venkalesubba Ran & Abdul Rah-nan JJ.). '-Uagadmnbtt Prnsnd v. Anadi Nath. A.I.R. 1938 Pat. 337, 349 (VVnrt & Manohar Lall .TJ.)-

"GhuIum Hn.c.min v. Ayeslm Bibi, A.l.R. I94]. MEKL 431. 432- "Sce recommendation as to section 29, supra.

Section 31.

Recommendation to amend section 31(3.) Section 32.

Section 33.

Section 34.

Section 34- Need for pro-

vision as to interest and_ for disallowing remuneration.

7.31. This takes us to section 31, Section 31 is a very detailed section, laying down with great care in what circumstances the Court ought to grant permission to the guardian to do the acts mentioned in the section. It provides that the permission shall not be granted except in case of necessity or for an evident advantage to the ward. Detailed provisions as to the form of the order and its contents are contained in the section, which also provides that the Court may cause notice of the application for the permission to be given to any relative or friend of the ward who should, in its opinion, receive notice thereof and shall record the statement of any person who appears in opposition to the applica- tion. Such a person may not necessarily be the relative or friend.' 7.32. in our view, it is desirable to add, in sub-section (3) of section 31. '8 speciﬁc provision to the elfect that a Court may direct sale by public auction or private negotiation. We therefore recommend that in section 31(3), clause (aa} should be inserted as follows after clause (a) 2- "(aa) that the sale shall be by public auction or private negotiation."

ln consequence, section 3l(3)(b) should be revised as under:----

"(b) that where the sale is to be by public auction, it shall be .......... ..

to the highest bidder .......... ..before the Court or some person etc. (rest as in the present section)."

7.33. Section 32 deals with the variation of powers of guardians of property appointed or declared by the Court, such variation to be for the advantage of the ward and consistent with the law to which the ward is subject.

The section needs no change. i 7.34. Under section 33, a guardian appointed or declared by the Court may apply to the Court for its opinion, advice or direction on any "present question"

respecting the management or administration of the property of the ward. The section also requires the Court to give notice to such person interested in the application as the Court thinks fit. The principal object of the section is to protect the guardian who states in good faith the facts and acts upon the opinion. advice or direction given by the Court. This is made clear in sub-section (3).

The section needs no change, case law on the section being mainly con- cerned with its application.

7.35. Section 34 imposes certain obligations on the guardian of property appointed or declared by the Court, not being the Collector. Though the matters dealt with may appear to-be of an administrative character, some of them are important. In particular, the scope of the expression "balance due" in section 34(d) seems to have been the subject matter of some controversy, and will be discussed at the appropriate place.' 7.36. We may ﬁrst deal with a point of substance. There appears to be need for a provision conferring on the Court power to award interest. At present. there is no such power in the Court, even though the guardian has retained the money improperly beyond the period for which he should have retained it. or has failed to account for the money and such failure is deliberate.

'Ruja Vemtgapal v. Kadir Velurwami. (I911) I.L.R. 35 Mad. 743, 744. "bee para 7.39, infra.

The need for a power to award interest has been pointed out in a Madras case.' On a careful consideration of the matter, we are of the view that such a power is needed. The justice of an order for the payment of interest in such cir- cumstances is obvious. There should also be a power to disallow remuneration for failure on the part of the guardian to submit accounts or tomake payment in time.

7.37. We. therefore, recommend that a suimblr; provision on the subject should be inscrtcd~-- say. as subsection ll) in section 3-3. after aw;--nnn1bering the present section as sub-section (ll. lhc new :sul)--:;t'ction could be ~snn1ewl1at on the following lines:--- » "{2} I f a guardian to wlzonisub-sccti'oir (I) upplirur (3.) fails to maintain regular accounts; or

(b) fails to exhibit his uccotmts in the ( ourt on the due date without proper cause; or (C) unduly delays exhibiting his amounts liy failing to appear before the Court without proper cause; or

(d) improperly retains any money or other propc/-ry in his hands, whether or not he hasbeen directed by the Court to make payment in respect thereof under clause (d) of sub-section (1)?

the Court may, if in its view the justice of the case so requires,-

(i) disallow the Wl'l0lr or any portion of the remuneration due to the guardian for the period of the account with reference to which default is committed, and

(ii) also charge interest at such rate not eaceerling twelve per cent per annum as the Court thinks just in the _circumstauces of the case, on the money or monetary value of the property in t'('.s'pe(?t of which default is committed or which has been improperly retained by the guardian. for the period of such default or l"('7.('I1flUiI, without prejudice to any other pI'0('('L'dll"1_g"I which may l.|(' tit/(mi r1_<'riim-I the guurrlian."

7.38. Clause (a) of section 314 requires the .ipp.ieuti».m In he "in the pres- cribed form". Such phraseology often receives a technical construction, so that minor departures from the "prescribe'df'i form raise controversies. It would be better to substitute the words "according to the prescribed form". We therefore recommend that in section 34(a). for the words "in the prescribed form". the words "according to the prescribed 'Form" should be substituted.

Recommendation to insert section 34(2), Section 34(a)---

Recommendation-

7.39. There seems to be a conflict of decisions of the question whether. 33.,-ggon 34(d;_ in section 34(d). the "balance due" means the balance due as shown in the accounts exhibited by the guardian. or whether it merms the balance due as found by the Court on an examination of the accounts. The former view has been taken by a few High Courts. namely. Caicutta." Lahore.' Madras' and Nagpur.' In the Lahore case, however, the High Court regretted the position. because the sum was unquestionably due from the guardian.

'Kasiprttliy v. Venugopal. A.I.R. 1950 Mad. 506, 507. 'DR (Kri.<lmas\\'nmi Naidu J3.

esecﬁon 34 is to be re-numbered as Slli)-SCL'i'i'()I't (I).

a,,,gu,,,,a,;, V, Alg/m,y]1, (1915) 21 C'.W.N. 628,» 691: /\.I.R. l'>1(: (til. 45*).

'Hakim Ray v. K/iundli Bat', A.I.R. 1930 Lab. 420, 421.

5HarikriShnﬂ v. Govindarajulu, A.I.R. 1926 Mad. 478. 479. 480 and Gnpuln.rwnm_v v. Rnmuiah AIR. 1944 Mad. 396, 397. -

'Ramlalsao v. Tan Singh. A.I.'R. 1952 Nag. 135, J36. para 6 (Kaushalcndra Rae & Deo JJ.).

"balance due".

Reasoning examined.

/Xmendmcnt of section 34(d) recommended.

Section 34(3) to be inserted.

sectitiii. '34A sectimtias.

The latter and the wider view has been taken by the Allahabad' and Patna? High Courts. Incidentally, the later Lahore view seems to fall in this category?

7.40. Some of the judicial decisions taking the narrower view have statqdi that the matter could be dealt with by the procedure laid down in sections 33 and 36, which contemplate a suit against the guardian, where an administration bond has or has not been taken, respectively. That procedure, however, is some- what cumbersome and we do not see any reason why, in a proper case. the Court itself should not have power, under section 34(tl), to direct payment; It is. no doubt, true that the iniquity under section 34 is, in general,4of-, ausgm-g mary n;iiure--a reason advanced in support of the narrower view,in«.one of the earlirr Lahore cases.' However, as was pointed out in a later ecision of the same Higfn Court.' on such a view, the scrutiny of the accounts'practieally becomes a farce.

7.4!. Whatever be the true construction of the present wording_ of clause (cl), we are of the opinion that it will be in the interests of" justice to expand the scope of the expression "balance due" in the context under consideration. 'Wt: may mention that in the Madras case," a hint as to need for amendment of the section was given. We therefore recommend that in section 34, at the end of the clause (cl), the words "and also the additional balance found due by the ('om-t on an exuniimttion of the accounts, though not shown in the accounts cxliihitod by him, or so much thereof as the Court directs" "should be added.

An appeal may be provided against the order' under section 34(d). in view of its important."

7.42. We are also of the view that before an order is passed under clause

(d) of section 34, the guardian should be given a reasonable opportunity of being heard. This may be regarded as implicit in view of the adverse consequences of such an order. but we would like it to be made explicit. To achieve this object. we recommend the insertion of a new sub-section in section 34 on these lines:

"(3) The ('ourt shall. before an order is. passed under ('l(m..vr' (d) of sub-

mrimi (I). give the guardian a reasonable opportunity of Iwing hcarz 7.43. Section 34A confers power on the Court to award remuneration for auditing accounts. The section was inserted by an amendment made in 41929? since it was considered that an adequate audit of accounts was d'e's'irable ahd had not been provided for in the law as it then stood. The same zimendmentiin-F scrtcd ciatlse (if) in section 50.

The section needs no change.

7.44. Section 35 deals with the procedure for filing a suit against the guardian where an administration bond has been taken from the guardian. , The section needs on change.

'r 1 'Sim Ram v. Gobfndi, A.l.R. l924 All. 593, dissented from in Rrmganarh v. .Murari}n}.' A.T.R:, 1936 All. l79. , 'i 'Mohamed Furizluddin v. Ahmad Abdul. A.I.R. 1928 Pat. 255. 158 "("1/rwun Siirglr V. Hur Kuur. /\.l.R. I933 L311. 484, 485.

4l-Elqir /llu/Ir1ntnim1' v. Bhari. /\.l.R. I932 Lalt 305-

-'Clmmm Singh S70 Har Kaur. A.I.R. I933 Lah. 484. 485.

"Gopalaswamy v. Rrmm_v_va, A.l.R. 1944 Mad. 397. 398.

"Cf. Radha Khisilllll v. Klmsliy Ram, I'l92|) 67 l. C. 309 cited in A.I.R. 1926 ﬂztd. 478. I "See amendment rccominendcd in section 47, infra. -

7.45. Section 36 deals with the ﬁling of a suit against the guardian where Section 36- :ulministr:ution l-mm] was not talnrn 35 ('0nf(=Inpl.')t('(i by ,'\'k'('li("I 35, It cnipnwers any person with leave of the Court to institute a suit as next friend against the tv,uardiun or his,' representative.

Subsection (2) of the section contains a reference to section 440 of the Code of 'Civil Procedure. which should now be read as Order 32, rules 1 and 4(2) of the Code of 1908. We recommend that the sub-section should be suitably revis- ed for the purpose.

We are further of the opinion that where the Court has passed an order un- der section 34(d) requiring the guardian to pay in the Court the balance due. it should not give leave for the institution of a suit under this section in so far as die suit relates to that amount. The question of liability of the guardian would already have been dealt with in proceedings under section 34 and there should be no necessity for duplicating the proceedings so far as that amount is concern- ed. An exception may, however. be made where recovery otherwise than by suit is not practicable.

Accordingly, we recommend that a new sub-section (3) should he :ul-.lr.-.d to section 36. as follows:--

« i "(3) Where the guardian has been required by the Court to make pay- s ,-izment of the balance due under clause (d) of sub-section (1) of section 34. the Court shall not grant leave under this section for the institution of a .suit against the guardian in so far as such a suit relates to the amount so required to be paid, unless the court is satisﬁed that recovery of that amount otherwise than by a suit under this section is not reasonably practicable in the circumstances of the case."

7.46. Section 37 deals with the general liability of the guardian as trustee. S¢°ti°n 37- The principal object is to save the right of the ward or his representative to pur- suei any remedy against theguardian or his representative which, not being ex- pressly provided in either section 35 or section 36, would be legally available against a trustee or the representative of the trustee. The opening part of the section contains the words "of the two last foregoing section". It is necessary to substitute. for these words, the words and ﬁgures "section 35 or 36" (in con- formity with current legislative practice), and we recommend accordingly.

Recommendation.

Recommendation for verbal amend_m?nt._ '' .5} 9-'.

pi ('H A PTER 8 '|'l"'.|{?\llN»\'l'3t)N (H7 ("!l;\Rl)lANSHll': SECTIONS 38-42 3°°P°- 8.1 l~ive sections in the Act deal with thetermination of guardianship. These are--

Section 13 Right of survivorship among joint guardians. Section 39, R€m0\'1Li of guardian.

Section 40 .4 Discharge of guardian. .

Section -1| ----- Cessation of authority of guardian. Section 4?. ~ Appointment of successor to gmardian dead, discharged or removed.

section 38. 8.2. Section 38 deals with the right of surviorship among joint guardians. A surviving guardian is allowed to continue to function as such, till the vacancy is ﬁlled up. The rule as incorporated in the section possesses practical utility.

The section may. therefore. he leftiundisturbcd.

9¢¢'i°n 39- 8.3. Section 3') nrewides for removal of the guardian by the Court on the speciﬁed g.-rounds. Although there is considerable case law on the section, most of the reported decisions raise questions concerned with application of the sec- tion. rather than with the principle of the provision. In this position. We have no change to recomend in the section. ' section 40. 8.4. Section 40 deals with the discharge of a guardian, and seems to need no change.

Section 4m)_ . 8.5. The circumstances In whtcn the powers of.are guardian ceases are dealt Recommgndaﬁon, with in section 41. A few matters require discussion under the section.

In the first place. section 41(1) provides that the.powers of a guardian of the person cease on the death, "rentoval" prdischarge of the guardian. The expres- sion "removal" has been construed' as including an implied removal under sec- tion 7(2). We are of the view that in order to avoid future controversy, it is desirable to add, in section 41(1), the words "express or implied" after the word "removal". We recommend accordingly.

Section 41 _ 8.6. The second question is concerned with the death of the ward. Section ::ﬂ'ga:'°p"' 4l(3) provides that when "for any cause" the powers of a guardian cease, the loath of ward. Court may require him or. if he is dead, his representative, to deliver as it may direct any property in his possession or control belonging to the Ward or any accounts in his possession or control relating to any past or present property of the ward.

There is. however. some doubt as to whether sub-section (3) of section 41 is applicable where the minor himselt" dies. The controversy hinges on the cons- truction of the words "any cause" appearing in sub-section (3). The Allahabad High Court takes the narrower View in this respect? In a Bombay case,' the Ilibmz V. Sailendra. /\.I.R. i946 ('al. 272.

"Chandra B/mk/um \.r. Slrjmz Kumur, (I 920) I.L.R. 42 All. 1, 4, 5.

'Murlidhur v. Vnl/abhdas, (I909) I.L.R. 33 Born. 419, 421.

56 57

Court granted a discharge to the guardian on the death of the minor, thus im-

plicdly adopting the wider view. The Lahore High Court' also takes the wider view.

8.7. We think that the wider view should be incorporated by m express Recommendation amendment of the section. Even at present, the language of section 41(3) is wide ;'e'cf;'n°"f1m enough to include the case of a guardian ceasing to be such by reason of the and 41(2). death of the ward.' However, a doubt has been expressed as to-whether the Court has any power in such a situation----the suggestion being that the parties must be left to litigate in an ordinary Court.' The position should be made clear by a suitable amendment recognising the wider scope of the section.

Accordingly, we recommend addition of the following words at the end of section 4l(l)(c) and 4l(2)(c):----

"or by the deazh of the war ".

8.8. Assuming that section 41 applies to the case of the death of the ward,' S°¢U,<>n 41(3)- there is some obscurity as to the precise order to be passed by the Court in such case order' a situation under section 4|(3). Should it be an order for~

(a) delivery of the property to the heir of the minor. or

(b) ﬁling of an inter-pleader suit,' or (C) directing any other course?

8.9 Delivery to the heir would prima facie be an expedient alternative. Recommelgdation However, there is no speciﬁc provision permitting delivery to the heir. The §'1(;§'_ s°°"°"

absence of power to direct delivery of the property of a deceased ward to an heir is likely to lead to serious hardship in certain cases. In our opinion, justice requires that the Court should be given' a wide discretion in the matter. To avoid needless controversy, the law should be amended to recognise by express enumeration the powers of the Court in this respect so as to obviate the doubt expressed in some decisions.' 8.10. In this connection, we would like to quote the observations of Shadi View of Shadi Lal C.J. in a Lahoure case.' The observations are as follows:---- La! C'J' "It is also conceded that these powers can be exercised when the guar- dianship of the property is determined by any of the causes speciﬁed in sec- tion 41(2). Why should be Court become functus ofﬁcio, if the cause deter- mining the guardianship is the death of the ward'? Is there any reason for making this differentiation? Surely, the Court which has appointed the guar- dian and is acquainted with his dealings with the property is in a much better position than any other Court to settle various matters relating to his stewardship of the property. This method of deciding disputes about the nature and the extent of the property and the liability of the guardian with respect to that property provides not only an efficacious but a cheap and 'S/zibcharan v. Bhawzmi. A.l.R. 1928 Lah. 495, 496.

'KulIappa v. Palaniappa, A.I.R. 1951 Mad. 574, 575 (Vishwanath Shastri J.). "Tulasidas v. Madhavdas, AIR. 1926 Mad. 148, 149 (Srinivas Ayyangar J.). 'Para 8.7, supra.

'See discussion in Mr. Sugrabi v. Mkstakem Iﬂran, A.I.R. 1944 Nag. 334. 335. 'Kullappa v. Palaniappa, A.l.R. 1950 Mad. 574 (Vishwanath Sastri J1). "Tulasidas v. Madhavdas, A.I.R. 1926 Mad. 148, 149 (Srinivas Ayyangar J.) 'Shiv Charan La! v. Bhawani Shankar, A.I.R. 192s'L'ah. 495, 496. 4 ' Recommendation tuuinsdrt -sub-

section (3A) in secti0n'4.].

Section 42.

" iatter section.' 58 expeditious remedy. There is no retgson why the Court should be deprived Hi This _iuriSkli-.Tti<u1 when the g,v,ua1'<l_ianship is determined by the death of~ti1c war ". - i 8.11. in Vi('W of the points made shove, we rccnmmund that in scctiofn 41. at new suh-section. somewhat on the following lines, should he inscrted:~ ' "(3A) ,Where the powers of a guardian cease by reason of the death of the ward,. the Court may, without prejudice to the powers conferred on~d't*'by sub-section (3), require the guardian, or if he is dead, his representative. to del liver the property or accounts referred to in sub-section (3) to such person as the (hurt may, after a summary inquiry, determine to be the person legally rutitlrd tlm-rto by reason of the death of the ward:

"Provider! that any determination by the Court shall be limited II: (M orders to be passed under this section and shall not affect the title of any other person claiming to be so entitled; ' "Provided further that the Court may, in an appropriate case, direct any person claiming to be so entitled to take appropriate legal proceedings for the establishment of his title mad make such orders as the Court thinks ﬁt for the custody of such property or armunts pending the result of such legal proceedings." " " ' ' ' i 8.12. This takes us. to section 42, which provides for the appointment by the Court of a successor to a guardian in two cases:--

(i) where the guardian is discharged. or, under the law to which the ward is subject, ceases to be entirledto act; or '

(ii) where the guardian is removed or dies.

' 4 In the first casefthe power of the Court isconﬁhed to a guardian appointed or declared by 'thé'Court. In the second case. the power extends also to a guar- dian appointed by a will or other instrument. The procedure in Chapter 2 must be followed.' " The terms of the section have created no probiems, but_aV question has arisen as to how far an order appointing a second guardian under sectioii 42 is appeaiable under section 47. We propose to consider the matter under the t 'See, in particular, section 11. _ .

'See discussion as to section 47, irtl_'ra_ (part; 9.7).' CHAPTER 9 SUPl'I.EMl7.NTAL PROVISIONS: SECTIONS 43-51

9.]. Supplemental provisions are contained in sections 43 to 51. These are--~ Sections Section 43. Orders for regulating conduct or proceedings of gua r- 43 to 51. dians and enforcement of those orders.

Section 44. Penalty for removal of ward from jurisdiction.

Section 45. Penalty for contumacy.

Section 46. Reports by Collectors and Subordinate Courts.

Section 47. Orders appealable.

Section 48. Finality of other orders.

Section 49. Costs.

Section 50. Power of High Court to make rules.

Section 51. Applicability of Act to guardians already itppointed by Court.

9.2. With reference to section 43. it is only sub-section (4) that needs some Section 43- _ comment. This sub-section contains references to sections 492 and 493 of the R°°°mm°"da"°"' Code of Civil Procedure. which should now be revised so as to read as reference to Order 39. rules 1-2, Code of Civil Procedure, 1908. We recommend necessary amendment of section 43.

9.3. In section 44. the amount of maximum ﬁne needs revision in view of the Sections decline in the purchasing power of the rupee since 1890. The section at present 44 t° 46' provides as under:--

"44. It", for the purpose or with the effect of preventing the Court front exercising its authority with respect to a ward, a guardian appointed or declared by the Court removes the ward from the limits of the jurisdiction of the Court in contravention of the provisions of section 26, he shall be liable. by order of the Court. to ﬁne not exceeding one thousand rupees. or to imprisonment in the civil jail for a term which may extend to six months."

Our recommendation would be to substitute, for the words "one thousand". the words "ﬁve thousand" rupees.

The amounts of ﬁne mentioned in section 45(1), last paragraph also appear to need revision in view of the changed economic conditions. This paragraph mentions three amounts. in this context--

(i) the amount of ﬁne as ﬁxed initially must not exceed one hundred rupees:

(ii) in case of recusancy, a further ﬁne may be imposed for a continuing default, but it must not exceed ten rupees for each day after the ﬁrst during which the default continues;

(iii) the amount of the ﬁne should not exceed ﬁve hundred rupees in the aggregate.

It would be appropriate to increase the ﬁrst and third amounts tenfold. having regard to the decline in the purchasing power of the rupee since 1890.

5--2 M of I.J&CA/ND/80 Section 47.

Section 47 and orders under section 34(d)_ Section 47(ff)---Re-

commendation.

Section 47 and orders under section 42.

As to the second amount. since it is a further ﬁne for a continuous default. it livclold lllt'l'l.T-':.\'L' will do.

Accordingly. we recommend that the last paragraph of section 45(l) should he revistrd as under:

"the person, guardian or representative, as the case may be, shall be liable, by order of the Court, to ﬁne not exceeding one thousand rupees, and in case of recusancy to further ﬁne not exceeding ﬁfty rupees for each day after' the ﬁrst during which default continues. "and not exceeding five thousand rupees in the aggregate, and to detention in the civil jail until he undertakes to produce the minor or cause him to be produced. or to compel his rvltlzn. or to deliver the statement. or to exhibit the accounts or to pay the halaltce, or to deliver the property or accounts, as the case may he."

Section 46 needs no change.

9.4. The list of appcalable orders is given in section 47. We need not enume- rate thcm. but shall conﬁne ourselves to the points that need consideration.

9.5. The ﬁrst point concerns orders under section 34, clause ((1), which are. at present. not appealablc. In our view, an order under this clause. even as the clause now stands, is an order of some importance and should be appealable. Observations of eminent Judges' have indicated the need for providing an appeal against these orders. After the amendment'-' which we have recommended in sec- tion 34(d). an appeal is all the more necessary against such orders, as their scope will now be much wider than at present.

An order refusing to pass a direction under section 34(d) should also be appealable. Of course, the appeal should be against a ﬁnal order, and not a merely interlocutory one, whether it be one directing payment or one refusing to direct payment.

9.6. Accordingly, we recommend that in section 47, after clause (f), the fol- lowing new clause should be inserted:

"(lf) under clause (d)' or [sub-section (1) of] section 34. requiring the guardian to make payment into Court of the balance due as speciﬁed in that clause or refusing so to require him, not being an interlocutory order in either case."

9.7. The next point relating to section 47 concerns orders under section 42. There seems to be a certain amount of obscurity' on the question whether an appeal lies against an order appointing a second guardian under section 42. The order is not speciﬁcally mentioned in the list of appealable orders as given in section 47. The Chief Court of Sind has taken the view' that the order under secton 42 really falls under section 7 and is therefore appea'-able. On the other hand according to the Calcutta view." an appeal does not lie against an order under section 42, but if the Court. before passing such an order, has not complied with the procedure for removal of the guardian under section 39. then an appeal would lie against the order of removal.

'E.g. Go/mlaswam_v V. Ramayya, A.I.R. 1944 Mad. 397 (Leach C.J.).

2Paragraphs 7.34 to 7.36, supra.

"Section 34 will be re-numbered as section 34(1) see Chapter 7, supra.

'Para 8 .12. supra.

'Ghulam Hyder v. Abdul. (I914) 7 Sind Law Reporter 90; 23 Indian Cases 776. "Mahabir v. Bidhi Chand, (I914) 20 Calcutta Law Journal 298; 27 Indian Cases 28.

In our opinion. this is a matter on which the position should be speciﬁcally laid down in the x"ct. pa.i'ticiilar{\~' in vicw 02' the well recognised rule that a right of appeal must be given expressly. Having regard to the nature and effect of the order. there cl-in hardly be any doubt as to the need for a right of appeal.

9.8. Accordingly, we recomniend that in section 47, a new clause (k) should section 47u;)_ be inserted at the end of the section. in these terms:---- R°°°'""'°"da"°"-

"(kl under section 42, appointing or declaring, or refusing to appoint or ('('('/(U('. (I _z3'iarr}imi (is; .mc'Cc.r.rn,v- In a _£'ll(I7("(i'77 in the ci'r(:mnst(mces sp('c'iﬁed' in r/ml .s'r'¢'Ii'mI."

/\.~'; .'I mnscqiiciitial L'l'l'.t|lgC, in clause (j) of the section, the full stop at the cm! should lie replaced by the word and punctuation mark: ":or".

9.9. This takes us: to section 48. which reads us under:~-

"Save as provided by the last foregoing section and by section 622 of _ _ the Code of Civil Procedure, an order made under this Act shall be ﬁnal, '5°°"°" 48' and shall not be liable to be contested by suit or otherwise."

[Section 622 of the Code of Civil Procedure of 1882 corresponds to section ll5 of the Code of Civil Procedure. 1908].

9.|0. The wording of the section is peremptory. But orders under the Act are intended for the protection and welfare of the minor, and the proceedings Effect of the are not adversary in the usual sense. In a number of cases,' orders as to cus- tody. sanction of alienations and the like have been cancelled or modiﬁed by construed' the Court to suit changed circumstances". The "ﬁnality" of the order is confined to a suit or any other form of litigation of a substantive character, and does not bear cancellation or modiﬁcation of the order in appropriate cases.

9.1!. In particular, it is recognised that orders as to custody are temporary.' Tempo"? , _ _ _ , nature 0 A possible exception would be an order appointing a guard1an"'----an order orders.

which can either be contestcd on appeal" or (in effect) he set aside by taking proceedings for the removal of the gurrdian. But apart from such special situ- ations, courts have, in general. attempted to achieve substantial justice by allowing review in suitable cases.' In an exceptional case, even an order of an appointment of a guardian has been recalled.' 9.12. In our view, the language of the section ought to be modiﬁed to bring it in harmony with the demands of justice and with actual practice of diggm the courts.

9.13. It may be noted that the provision in section 48 is. to a large extent. History of derived from the Act of 1874' relating to European British minors. Section 9 section 48- 'See Harriam Singh v. Kiimala Devi, A.I.R. 1971 HP. 25 (review cases).

2Ram l1'arnI(li V. Jaganmitlv. A.I.R. l932 All. 5. 8.

niV(.'§'.'lI'd(lS v. /tmmd. (1907) I.L.R. 3] Born. 590.

" V. ]'Junr'smriap_rm v. Krishnamma. A.l.R. 1959 Mys. I50.

5Fc:ri'd v. .Mi'th0. '43 RR. 3906 followed in Shmfan v. Vhnlii A.I.R. 1922 Lab. 395. "Section 47.

7RnsIimom' v. Gmiada, A.I.R. I915 Cal. 49; 19 C.W.N. 84. 88 "Walmiu K/mloa/1 v. Kabiruddin, A.l.R. 1958 Pat. 410.

"Section 9. European British Minors Act (13 of I874).

Recommendation to revise section 43.

Section 4') Section 49A (New)-

Recovery as arrears of land revenue.

Section 50 Section 5l----

To be repealed.

of that Act provided that "Save as provided by section 8. no order passed under this Act in respect to the guardianship of a minors person or property shall be liable to be contested in any other proceedings". However, it should be noted that by section 8 of the same Act, it was, inter alia, provided that "in cases instituted under this Act. the Court shall be guided by the procedure pt'('S- cribed in the Code of Civil Procedure in so far as the same is applicable ...... .. ". Thus, in the scheme of the Act of 1874, the provision of the Civil Procedure Code relating to review became applicable to all orders under that Act.

9.14. In the light of the above discussion. we recommend that section 48 should be revised as under:«---

"48. (1) Save as provided by section 47 of this Art! or by section 115 of the ('ode of Civil Procedure, 1908. an order under this Act shall be ﬁnal and shall not be liable to be contested by suit or otherwise.

(2) Nothing in this .S'('CIi()I'I shall affect the }'urisdi('tion of the Court to vary, by way of modification. addition or omission, "an order passed under this Act, where the Court after due notice to the parties is satisﬁed that it is necessary or expedient to do so."

9.l5. We have disposed of section 48. Section 49 provides that the costs of any proceeding under the Act, including the costs of maintenance of a guar~ dian or other person in the Civil Jail, shall, subject to rules made by the High Court. be in the discremn of the Court in which the proceeding is held. Al- though the corresponding provision' in the Code of Civil Procedure is more speciﬁc, it does not appear to be necessary to be so elaborate in the Act under consideration. The section may therefore be left as it is.

9.16. At present, the Act contains no direct provision for the recovery of various amounts that might become due under its provisions from guardians. Sections 35. 36, 43(4) and 45 do contain certain provisions which could be pressed into service. but these are indirect or secondary and the procedure is not expeditious. We are of the view that there is need for an express provision authorising the recovery of such amounts as arrears of land revenue.

Accordingly, we recommend that a new sectionﬁsay, as section 49A~should be inserted in the Act on the subject as follows:----

"49A. Any amount that becomes due under the provisions 0)' this Act from a guardian by virtue of an order of the Court, without prejudice to any other mode of recovery,' be recoverable as arrears of land revenue."

9.17. Section 50 enumerates the matters with reference to which rules can he made by the High Court." It needs no change.

9.!8. Section 51 deals with the application of the Act to a guardian ap- pointed under any enactment repealed by the Act. These enactments were enu- merated in a Schedule which was annexed to the Act [890 as originally enacted and referred to in section 2. Section 2 and the Schedule were revealed in 1938 by the Repealing Act. By now. all such guardians must have been dead and the wards also must have either attained majority or died. We therefore recom- mend that section 5] should be repealed.

'Section 35, Code of Civil Procedure. i908 (costs).

'1Cf. section 232. Income Tax Act, 1961 and Jagdish Pratap v. State of U.P. A.I.R. 1973 SC. 1059.

"See also sections t0(I)(e), lI(l)(b). 31, 34(a) and 49.

CHAPTER 10 SUMMARY OF RECOMMENDATIONS We summarise below the recommendations made in this Report.

Chapter 4--~Deﬁm'tions.

(ll lhc definitions contained in section 4 should be re-arranged in the al- phabetical order.' (2) The deliniton of "guardian" in section 4(2) should be amended by add-

ing an Explanation to cover a de facto guardian."

Chapter 5--Empowerment of subordinate judicial officers.

(3) Section 4A(l) should be amended by substituting, for the words "original civil jurisdiction", the words "unlimited original civil jurisdiction", so that dele- gation of powers of the Court under the Act may be made only in favour of senior judicial otﬁcers.3 Chapter 6----Appoimment and declaration of guardian.

(4) In section 7, an Explanation should be inserted to provide that "property" includes hereditary trusteeship.' (5) In section 7. a new sub-section should be inserted to ensure that the Court can make an appointment of a guardian conditional on the performance of a condition by the guardian.' (6) In section 8. a new clause--clause (bb)----should be added to entitle the minor himself to apply to the Court for the appointment of a guardian in certain cases.' (7) In section I2. a provision should be added in express terms regarding power to make an interlocutory order (for production of the minor) in respect to proceedings under section 25.7 (8) In section 14, the present provision requiring Courts to send a report to the State Government (in case of multiple proceedings ﬁled in Courts which are not subordinate to the same High Court) should be altered. Instead. this report should be submitted to the High Court in whose jurisdiction the proceed- ings were instituted. The High Court having jurisdiction over the place where they were first instituted should decide where the proceedings should continue."

(9) Section 17 should be revised so as to make the minor's welfare the para- mount consideration in the appointment of a guardian and to equalise the posi- tion of the mother with that of the father and to spell out the considerations re- levant for determining what order will be for the minor's welfare."

'Para 4.5.

'Para 4. I 3.

"Para 5.2.

'Para 6. I0.

"Para. 6.2 l.

"Pairagraphs (1.24 and 6.25.

"Para 6.30.

'Para 6. 33.

9Para 6.48.

63 64

(10) In section 17, a new provision should be inserted to empower the Court to call for periodical reports from a guardian appointed by the Court.' (ll) Section 6 of the Hindu Minority and Guardianship Act, 1956 should be amended as to the age upto which the custody should ordinarily be with the mother. The age should be revised from ﬁve to twelve years."

(I2) A new section ~section I 8A ~-should be added as to the appointment of :: juristic person as guardian. subject to certain conditions."

H3) (.'crI:iin unicmlmcnls should be made in section I') to ensure that the welfare of the minor becomes ll'=.c paramount consideration in appointing a guardian.' [As to inaking welfare of the minor paramount under section 25, see point concerning section 25. infra].

(14) It should be provided in section 19 that clauses (a) and (b) of the sec- tion do not apply where the husband or the father (or mother) is the applicant for guardianship.' (15) In section 19(b], after the word "father" the words "or mother" should be added.' (16) Section 19, clause (b), should be conﬁned to persons other than married females.' (17) Where, under personal law, the mother or the father is not the natural guardian of the minor, then he or she should also be excluded from the pw ferential position given by clause (b) of section 19.' Chapter 7----Rights, duties and liabilities of guardians.

(18) Section 21. which empowers a minor to act as a guardian in certain cases. should be modiﬁezl as recommended."

(19) Section 22 should be amended to empower the Court to authorise the grant of expenses for the maintenance of the minor."

(20) Section 25 should be revised--

(i) to make verbal changes in regard to the archaic phrase "arrest",

(ii) to make welfare of the minor paramount, and

(iii) to add a provision for consulting the wishes of the minor in certain cases."

(21) In regard to proceedings under section 25, welfare of the minor should prevail notwithstanding anything to the contrary contained in section 19."

'Para 6 .49.

'Paragraphs 6.50 and 6.53.

'Para 6.56.

'Paragraphs 6.5') and 6.83.

'Riragraphs 6.59 and 6-83- 'P-aragrnphs 6.75 and 6.83.

'Paragraphs 6.76 and 6.83.

'Paragraphs t». M and 6.8}.

'Para 7 . 7.

"Para 7.82.

"Para 7 .22.

"Para 6.61 65 (22) In section 29, provisions restricting the disposal by the guardian of movable property exceeding rupees two thousand in value, or variation by him of investments exceeding that value, without the permission of the Court, should be added. Exception may be made for certain speciﬁed cases.' (23) Section 30 should be amended to delete the word "immovable", so that the section will apply to all property. This is consequential on the recom-

mendation to expand the scope of section 29."

(24) In section 3l(2), an express provision authorising the Court to direct it private sale of property should be added."

(25) Section 34 should be amended to confer power on the Court to direct the defaulting guardian to pay interest and to disallow remuneration for failure to submit accounts by the guardian.' (26) In section 34(a), for the words "in the prescribed form", the words "according to the prescribed from" should be substituted.' (27) In section 34(d). an amendment should be made to provide that the balance as found by the Court may be ordered to be paid by the guardian in case of default.' (28) In section 34, a new sub-section should be inserted to require that the guardian should be given a reasonable opportunity of being heard before an order requiring payment under section 34(d) is passed.' (29) In section 36(2), the reference to "Code of Civil Procedure" should now be suitably revised as a reference to 0.32, R. l and 4(2) of the Code of 1908.8 (30) A new sub-section (3) hould be added to section 36 as follows:--

"(3) Where the guardian has been required by the Court to make pay-

ment of the balance due under clause (d) of sub-section (1) of section 34, the Court shall not grant leave under this section for the institution of a suit against the guardian in so far as such a suit relates to the amount so required to be paid, unless the Court is satisﬁed that recovery of that amount otherwise than by a suit under this section is not reasonably prac- ticable in the circumstances of the case."

(31) The opening words of section 37 should be replaced by a reference to sections 35 and 36, in conformity with current practice in legislative drafting."' Chapter 8---Termination of guardianship: sections 38-42.

(32) In section 4l(l)(a). after the word "removal", the words 'express or implied" should be added."

'Para 7.28.

'=Para 7.30.

"Para 7.32.

'Para 7.37.

"'Para 7.38- "Pan! 7 .4l.

"l'ar.'t 7.42.

"Para 7 .45.

"Para 7.45.

"Para 7 .46.

"Para 8.5.

(33) In section 4l(l)(c). the case of the ward's death should be added.' (34) In section 41(2)(c) also, the case of the ward's death should be added."

(35) In section 41, a new sub-section should be inserted to empower the Court to give certain directions as to the delivery of property on. the death of the minor.' Chapter 9---Suppiem<'ntal provision-F:

Sc('fi0I1.5' 43--~5I (36) In section 43(4), a reference to Order 39, Rules I-2, Code of Civil procedure. I908 should be substituted.' (37) In section 44, the amount "one thousand rupees" should be raised to I "ﬁve thousand rupees".5 (38) In section 45, the various amounts of maximum ﬁne should be in-

creased as recommended."

(39) In section 47, a new clause (it) should be inserted to provide for an appeal against an order directing or refusing to direct the guardian under section 34(d) to make payment of the balance due.' (40) In section 47, a new clause (k) should be inserted to make appealable orders for the appointment of a successor guardian under section 42. As a consequential change, 'in clause (j), the word "or" should be added at the end, and the full stop should be replaced by a comma."

(41) Section 48 should be revised so as to make an express provision for the variation of an order by the Court on certain grounds.' (42) A new section 49A should be introduced to empower the recovery of various amounts due from a guardian under the Act as arrears of land revenue.-° (43) Section 5] should be repelaled."

P. V. Dixit .... .. Chairman S. N. Shankar .... .. Member Gangeshwar Prasad .... .. Member P. M. Bakshi .... .. Member-Secretary 22nd April, 1980.

'Para 8.7.

'Para 8 .1 I .

'Para 9.2.

'Para 9 .3.

"Para 9.3.

7Para 9.6.

'Para 9.8.

"Para 9.14.

"Para 9.16.

"Para 9.18.

APPENDIX 1 POSITION AS TO CUSTODY OF CHILDREN IN PERSONNEL LAW Custody of children in Hindus is governed by the following statutory pro- Custody in viSi0":_ﬂ_l_..' llindus.

"6. Natural guardian of a Hindu minor: Ihe natural guardians of a Hindu minor, in respect of the minor's person. as well as in respect of the minors 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;

"(e) in the case of a married gir1--the husband;

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this seetionw

(a) if he has ceased to be a Hindu, or

(b) if he has completely and ﬁnally renounced the world by be- coming a hemiit (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."

As to Muslims, under Hanaﬁ law, the mother is entitled to the custody of a Custody in male child until the child attains the age of seven years and of a female child l'ﬂ'2':r'1;'E)""V until puberty."--' If the mother is absent or disqualiﬁed during the age of the child mentioned above, the custody of the child belongs, in Hanaﬁ Law, to the speciﬁed female relatives. If the mother and the female relatives are all dis-- qualiﬁed, then the father and (in his absence) the speciﬁed male relatives become entitled to custody." After the ages mentioned above (i.e., in respect of a male child above the age of seven years or of a female child who has attained puberty). the father becomes entitled to the custody."

Among Shias. the ﬁrst right of custody is that of the parents, and priority shia Law.

between them is determined on the basis that the mother should be entitled during infancy, i.e. in the case of male till the age of two years and female till seven years. Later on. the father has the right to custody.7 Among Shias failing the parents, the grandfather is entitled to the custody, and failing him. certain speciﬁed relatives are entitled?

'Section 6. Hindu Minority and Guardianship Act, I956.

"For history of Hindu law, see Appendix 2.

3Tyabji, Muslim Law (1968). page 216, paragraph 238.

'As to husband's rights, see discussion as to scclion l-

--'|'ynl:ji, Muslim Law (I 968), page 2l7, paragraph 23'), and page 2| 8. paiagrapll 24]. "'l'yubji, Muslim Law (1968). page ZI8. paragraph 242.

1Ty4bji, Muslim Law (I968), page 228. paragraph 249, Summary.

s-ryabji. Muslim Law (I968). page 221, paragraphs 245 to 249.

lmpact of the British rule and nature i'l cnrlv legislation.

1 ridge--made law.

Fragmented structun APPENDIX 2 IIISTURY OF '1'!-ll') LAW i'n\T INDIA

1. introductory lgvolution oi' the law of gttzstdiansliip in lndia is one of the most interesting cltttpters in Indian legal history. lhc cnrlier developments in this ﬁeld are vitally and integrally connected with the Ilritish rule and its impact on Indian legal institutions.

'lltc llritislt Government's origiiial-~--und most itnportantw~non-trading acti- xiay in lndin was the collection \'r land revenue. lo lacilitate the collection of revenue from minors' estates. legislation became necessary. The second most important t'unt'tion ol the British (iovernmcnt was the administration of justice. For the representation of minors in litigation, again, legislation was necessary. Litigation in those times was concerned mostly either with revenue or with pro- prietary rrtatters Early legislation relating to minors and guardians was there- fore predominantly concerned with proprietary aspects. There was also an immediate need for regulating the affairs of European British subjects. This need resulted in the passing of a speciﬁc Act' applicable to European British minors.

However, side by side with this legislative development, another silent change was taking place through judgemade law. The West was gradually having its impact on some parts of personal law of the Hindus who,--ﬁrst in the Bengal Presidency and later in big towns of the Bombay and Madras Pre- sidencies---wcre coming into close contact with the ruling class, thereby imper- ceptibiy imbibing some of their customs and practices. It was through this process that the practice of making wills (a practice which itself had travelled from the Roman law to the common law) came in vogue and gained recognition as part of the Hindu law as administered in British India.

Roman law had :1 system" of appointing testamentary guardians, and the appointment of a guardian by will also came to be recognised amongst Hindus. In a case of 1807 relerrecl to by Strange." the Pandit recognised, apparently as it matter of course, that the father's testamentary nomination of his brother as guardian should prevail against the claim of the natural guardian, the widow. The power of a father to appoint a guardian for his minor son by will was again recognised in a case reported' in 1867.

All these developments supplied the material that formed the content of the law of zuzirdianship as it existed in the latter half of the 19th century.

However, social and political conditions--and the accidents of history-- --were responsible for a fragmented structure of the legislation on the subject. Unifor- mity and coherence were to a large extent lacking. For_ exan1ple----speaking of want of unit'ormity--the following peculiar features of the position before 1890 may be mentioned:

(at different laws' were in force in different local areas. such as the Bengal Presidency, the Bombay Presidency and the Madras Presidency;

'The European British Minors Act (13 of i874).

'~'-|'nI' Romam law. see /\ppcndii< 3.

"Strange. Hindu Law, Vol. 2. Di|g*--' 72- 'Soobah Doargali Lu! Jim v. Rajah Neelumimt' Siugli. ( I 867) 7 W.R. 74 (Cal.).

-'Details will be found infra.

68 69

(b) there were differences as regards the rules applicable to European British subjects and the rules applicable to others;

(c) there were also differences as between the jurisdiction exercisable by Chartered High Courts and the jurisdiction vested in other Courts----a difference which. to some extent, is continued' even by the Act ol' 1890.

ll. Hindu Law Rules laid down in the legal system on this subject are not new to India. In ancient India. infants and students were entitled to the special protection of the king. until the attainment of majorly by he former and until the completion of study by the latter. The properties of minors were to be protected": The duty of the king to protect his subjects thus especially extended to such persons.

According to the manusmriti," the king shall protect the inherited (and other) property of a minor until he (the minor) has returned (from his teacher's house) or until he has attained majority.

"The minority ends with the sixteenth yeur"."

In one of the comments on the Bill which led to the present Act, the role of the Courts in regard to appointment of guardians has been beautifully deduced from the duties of the king." and also sought to be supported by reference to some of the ancient Indian law-givers. A verse of Baudhayana has also been quoted---- 4 "The King is bound to defend his subjects. their goods and chattles, lands and tenements."

The comment l'l£l.\ further ohserved-- ".

"infants are incapable of taking care of themselves and are therefore peculiarly under' the protection 01' the king. it is impossible for the king to do so p('I' sc in each individual case. He therefore delegates this care to his courts of law and equity, who exercise it by appointing guardians or curators, by guiding and controlling their acts and limiting may,---abrogat- ing-~the rights of natural guardians in some instances. Besides this. though the law imposes upon the father a duty in connection with his children and gives him credit for ability and inclination to execute it, yet that pre- sumption, like all others, would fall in particular instances, and if an ins- tance occurred in which the father was unable or unwilling to execute that duty or was actively proceeding "against it, of necessity the Crown must place somewhere a superintending power over those who cannot take care of themselves--~vide Powell v. Cleaver."

Dr. Ratti_t;an's views are also of interest" as to the _nosition in ancient India-~~--

"Looking at the question from a legal aspect, it is to be observed that under both systems (Hindu and Muslim law), the ruling power is recog-

'svelion -1.. Act of I890: Section 12. Proviso. Hindu Minority and Gtumligtpgljip Act, 1956. =U_('. S;|l'i\.'1l'_ Epuehs in Hindu Legal History (1958). pztgzcs 58 and 72.

"Martusmriti. VI1l.i27; Vol. 25 S.B.E. (I 967). page 237, and footnote 27.

'Krjllltka on Narada. Hi.

~"Nation.al Archives. File relating *0 Act 8 of 1890, page 92/correspondence.

°Dr. Rattig:-in (in his comment on the Bill), National Archives, Legislative Department Papers rel-utiiig to Act 8 of 1890. Appendix Y, pages 5-6.

Ancient H.ndu Law The parents patrae and its rationale.

Dr. Rattiganifs view.

Testamentary guardians.

Positi on before I 890.

nised as the supreme or universal guardian of all incapacitated persons,' and it is only a nautral corollary from this principle that in both systems we should also ﬁnd a certain power of interference permitted to the sovereign in regard to the marriage of minors. Thus, in a text cited in the Nimaya Sindhu (the highest authority in the Benarcs and Mahratta schools on ques- tions relating to marriage). Chapter lll. page 32, and attributed to Manu. a girl who has no relatives competent to give her in marriage is commanded to repair to the ruling power. And Narada in his lnstitutcs (Capter Xll,

22) lays down the same rule in these words: 'll there be none of these (i.e., relatives competent to give in marriage) the girl shall apply to the king, and, having obtained his permission to make her own choice, choose a hus-

band for herself'. So also in the Muhammadan Law in default of the agnales, certain uterine relations, and the moula~al-mawalah, the power of giving in marriage is vested in the ruler and the kazi (see Bailey's Muham- madan Law, page 46; Amir Ali's Personal Law of the Muhammadans, page 192)."

Ill. Muslim Law In Muslim law also, in default of the de jure guardians, the duty of appoint- ing a guardian for the protection and preservation of the infant's property de- volves on the Judge as the representative of the sovereign."

It may also be mentioned that the capacity of Hindu and Muslim fathers to appoint, by their wills, guardians for their children after death has been re- cognised by the legislature in lndia since the date of the Permanent Settlement."

We do not. however, propose to embark upon a detailed discussion of the rules of Hindu and Muslim law, as those rules do not seem to have furnished to any noticeable degree the source material for the content of the rules en- acted in the Act of 1890.

IV. Position before I890-~'l'he Acts and the Regulations.

It is now time to discuss the position in India before the Act of 1890. Before 1890, there was no all India Act dealing with the guardianship of minors. The matter was governed, in part, by several scattered Acts or Regulations and, in part. by certain uncodiﬁed rules of personal law. The principal legislative measures may be enumerated:

(ll Act 40 of 1858 (The Bengal Minors Act), originally applicable to the Bengal Presidency, but later also extended to the Punjab, Oudh etc. This Act did not apply to minors who were European British subjects, nor to persons under the superintendence of the Court of Wards.

(2) Act 9 of 1861 (An Act to amend the law relating to minors). This Act made certain provisions supplementing the legislation relating to minors. lt was not applicable to European British subjects.

'Authorities in Hindu Law----

(i) ('olcbrooke's Digest. Vol. III (London l£d.). page 542.

(ii) Mann. Chapter VIII, verse 27.

Muliannnadan authorities --

(i) Maenaghten's Principles of M.L., Chapter VIII. paragrr-ph 6: I2 Suth. W.R. 337.

(ii) Das Moslemische Recht von Micolans v. (Tornauw. page 153 leipzig, l855). zlmambandi v. Mursuddi, (1918) I.L.R. 45 Cal. 892, 893 (C.P.C.).

"Trevclyan on Minors ( I912), page 63, refers, inter alia, to Bengal Regulation 5 of 1799 and Bengal Regulation 1 of l800.

7l (3! The Bombay Minors Act (20 of 1864) applicable to the Bombay Prcsiilcucy. It did not apply to liumpcuii British subjects.

(4) la) Madras Regulation 5 of 1804 and certain other Regulations of the Mntlrzis ('otlc. which were applicable to the Madras Prcsirlency. Thesi-

did not apply to European British subjects. or to persons under the siiper- intendeiice of the Court of Wards.

(b) Madras Minors Act (14 of 1858).

(5) The European British Minors Act (Act 13 of 1874), relating to the guardianship of European British minors. It did not apply to territories within the jurisdiction of the Chzirtererl High Courts.

(6) Provisions in the charters of the Chartered High Courts.

The legislation of 1858, 1864 etc. merely conferred expressly a certain juris- diction on the courts and deﬁned exactly the position of those who availed them- selves of, or were brought under those Acts.' 2 The genesis of these Acts is of interest. Soon after the establishment of "mars, of the Court of Wards in Bengal," it was found necessary to give to the Civil Courts legislation _ . . . " j on guardianship.

powers to nominate guardians of mniors over whom that Court p0SS€SS€(i no power.' The ﬁrst major step in this direction was the enactment of Bengal Regula- tion 1 of 1800, which authorised Zillah Judges, where there were no testamen tary guardians. to nominate guardians to disqualiﬁed landholders not subject to the authority of the Court of Wards. This Regulatim, with others relating to the same subject, was repealed by the Bengal Minors Act (40 of 1858). which provided :1 machinery for the appointment of managers of the estates" and guar- dians of the person of minors (not being European British subjects)" residing in Bengal outside the limits of the original civil jurisdiction of the High Court.

Similar provision was made for the Madras Presidency by Madras Regula- tion 5 of 1804, section 20, and 10 of 1831, section 3. and for Bombay Presidency by Act 20 of 1864, which was in terms similar to Act 40 of 1858.

The Bengal Minors Act (40 of 1858) was the result of certain practical Act of l858--- difﬁculties which had been revealed by the case law or otherwise in the working G°""""

of the law. For example, a Hindu guardian, even if he acted honestly, was in diﬂ'i- culty as to how he ought to deal with a minor's property under circumstances of pressure. The family might be very seriously in debt, but it was often doubt- ful whether the minor was liable for a portion of the debts, or whether the neces- sity was sutliciently urgent to justify the sale or mortgage of the immovable pro- perty of the minor. Sometimes. the guardian was a purdanashin lady or other member of the family, ignorant of the law, and might be inﬂuenced by the mem- bers of the family whose interests were adverse to those of the minor. In this state of the law, the estates of the minor were constantly sold or mortgaged with- out legal necessity--sometimes sold on ruinous terms. Purchasers as well as minors were found the victims of fraud and ignorance, and dealing with the 'Ram Chamier V. Brojrmulli. U877) l.L.R. 4 Cal. 929. 939.

"Sham Kuar V. ,Mohammda, (l 892) l.L.R. 19 Cal. 30!, 308.

"Bengal Regulation 10 of 1793.

'Trevelyari. The Law relatiig to Minors U912). page 75- "Bengal Minors Act (40 of i858), section 1.

'See Callychurrv Mrdlick V. Bhuggalmlrychum Mirllick, (1872) l0 B.L.R. 231. 7Sr'kher Chund v Dulpurty Singli, (I879) I.L.R. 5 Cal. 363, 380. 381.

Act of 1858 -

section 4_ Act of l8t'-l 72 property of minors had proved a source of litigation. It was to remedy these e.\'il54 that one ml" the provisions --scction IR was enacted. the intention being not o"ly to protect the interest of the minor, but also to throw upon the civil courts a large share of the duties and responsibilities which had previously hccn lhmwn upon lhc !__'lIili\ll;l'.iS and to which the guardians had, as a rule, been found to be unequal.

Section 3 of the Bengal Minors Act provided that no guardian could insti- tute a suit or defend a suit connected with a minor without a certiﬁcate of administration.

'~'.-'otion 4 of Act ml' IXSR rim thus'»-» "Any relative or friend of a minor in respect of whose property such certiﬁcate has not been granted. or, if the property consist in whole or in part of land or any interest in land, the Collector of the district may apply to the Civil Court to appoint a ﬁt person to take charge of the property and person of such minor."

In l86l. there was passed an Act to amend the law relating to minors. The principal provisions are to be found in sections l and 2, which are quoted below:' "I. Any relative or friend of a minor who may desire to prefer any claim in respect of the custody or guardianship of such minor may make an application by petition, either in person or by a duly constituted agent. to the principal Civil Court of original jurisdiction in the district by which such application. if preferred in the form of a regular suit, would be cogniz- able. and shall set forth the grounds of his application in the petition. The Court. if satisﬁed by an "examination of the Petitioner or his agent, if he appear by agent, that there is ground for proceeding, shall give notice of the application to the person named in the petition as having the custody or being in the possession of the person of such minor. as well as to any other person to whom the Court may think it proper that such notice should be given. and shall ﬁx as early a day as may be convenient for the hearing. of the petition and the determination of the right to the custody of guardian- ship of such minor.

"II. The Court. may direct that the person having the custody or being in possession of the person of such minor shall produce him or her in Court or in any other place appointed by the Court on the day ﬁxed for the hearing of the petition or at any other time. and may make such order for the tem- porary custody and protection of such minor as may appear proper."

The rest of the Act of 1861 (from section 3 onwards) was mainly concerned with matters of a procedural nature. Section 3 required the Court, after hear- ing the statements of the parties. to make an order regarding custody or guardian- ship. Section 4 required the Court to be guided by Act 8 of 1859 (Act for sim- plilying the procedure of Courts of Civil jurisdiction not established by Royal Charter) as far as applicable. Section 5 provided for an appeal to the sudder court from an order of the lower court under the Act. and section 6 provided that "any order passed under this Act in respect to the custody of guardianship of a minor shall not be liable to be contested in a regular suit". Section 7 saved certain laws, as also the jurisdiction of the Supreme Court and Court of Wards.

Section 8 deﬁned the term "Sudder Court".

'Bengal Minors Act. 1858. section 4.

'Act 9 of l86t'(An"Act to amend the law relating to minors).

The Bombay Minors Act of 1864 was passed in these circumstances:' "It was deemed cxpctlicnl by the Bombay Government, on certain repre- sentations from the Judges of the late Sudder Adawlut, to make provision for the better protection of the property of minors. The judges sug- gested that an enactment was required analogous to Act XL of 1858. Such an enaeiment was accordingly framed with such alterations as the different circumstances of the Bombay Presidency demanded, and was passed by the Court of the Governor of Bombay. The Act provided that proceedings of the Zillah Judges with reference to minors "should be open to appeal to the High Court of Judicature in Bombay. But it is stated in the Letters Patent of the High Court that the appellate jurisdiction of that Court is confined to cases already subject to appeal to the Sudder Adawlut. and to cases which shall become subject to appeal to the High Court by virtue of such laws and regulations relating to civil procedure as shall hereafter be made by the Governor General in Council.

"It was thus clear that. consistently with this provision in the Letters Patent. the Government of Bombay in its legislative capacity was not compe- tent to give an appeal to the High Court in a new class of cases. Assent to the Bill was accordingly withheld by the Governor General. and the Government of Bombay has requested that an Act to secure the attainment of the objects in View may be passed by this Council. The proposed Act is founded on Act Xi, of I858 with certain necessary alterations as to the agency by which the law is to be administered."

Neither Act 40 of 1959 (Bengal Minors Act) nor Act 20 of l864 (Bombay Minors Act) was intended to alter or affect any provisions of Hindu or Maho- medan law, as to guardians who did not avail themselves of those Acts. The scope of these enactments was merely to confer expressly a certain jurisdiction and to deﬁne exactly the position of those who availed themselves of, or were brought under. those Acts, leaving persons to whom any existing rules applied. unaffected. The Legislature did not mean to sweep away all ancient law on the subject or to subject to one inﬂexible rule the property of all minors. For example. a Hindu widow (as mother and natural guardian of her minor son), could dispose of property belonging to the minor, even though she had not ob- tained a "certiﬁcate" of administration under those Acts."

As regards legal proceedings taken on behalf of Act of IS64.

Acts of 1858 and 1864- Scope of_ minors. in Bengal, no Legal guardian could institute or defend a suit connected with the estate of a min0r,P'°°"'""85 unless he had obtained a certiﬁcate of administration? In this respect the law has undergone a change in the Guardians and Wards Act, 1890. Under the Act of l858 (Bengal Minors Act). a "certiﬁcate" was essential, but under the Act of l89(). it is not required.

As was observed in the Statement of Objects and Reasons appended to the Bill' which led to the Act of 1890-

"One effect of the assimilation of the law will be to do away with the rule. which obtains in the Presidencies of Bengal and Bombay. that no person shall be entitled to institute or defend any suit connected with a minor's estate of which he claims the charge until he has obtained a certificate of administration."

'National Archives. File relating to Act 8 of i890. notes portion. pages 2. 3. '(a) Ram Chander V. Brojomzrh. (l877) T.L.R. 4 Cal. 929. 939.

(b) Hamzpa v. Nfhalpi. (l89l) l'.L.R. l5 Bom. 259. 261.

'Statement of Objects and Reasons to the Bill of I886.

by minors.

Legislation in force in Mntlras.

Act of 1874 Immediate occasion for the Bill_ Act xx of 1864, Section 2.

So much as regards the Presidencies of Bengal and Bombay. In Madras, bcsidcs R<'g|)i3iiOll 5 of W04. the Following Regulations and Acts contained a part of the law on this subject. vi2.'t----

Regulation 3 of 1802.

Regulation H) of 1831.

Act 19 of 1841.

Act 21 of 1855.

Act 14 of 1858 (Madras Minors Act).

Act 9 of 186] (An Act to amend the law relating to minors).

It remains now to notice the European British Minors Act, 1874 passed to provide in the Punjab and elsewhere for the guardianship of European British subjects.

Section 2 dealt with definitions. Appointment of a guardian by the parent was provided for in section 3. Incidentally, section 3 of the Act of 1874 is the genesis of section 5 of the Act of 1890 (The section is now repealed).

Under section 4. if the ('ourt within whose jurisdiction the minor resided found that a guardian of his person or property had not been provided for under section 3, the ('ourt could appoint a guardian of his person or property or both.

Sections 5 to 9 of the Act of 1874 dealt with procedural matters. Section 10 contained elaborate rules for awarding custody. The guardian's duties, rights and liabilities were dealt with in sections 10 to 25. An interesting provision was that contained in section 12, to the eﬁect that a ward is presumed to be of his father's religion and the guardian, in the absence of a direction of the Court to the contrary, must train the ward in such religion. However, if the ward is old enough to form an intelligent preference for any religion, the Court in giving such direction "shall attend to such preference". Another interesting provision was that contained in section 2], which provided that on the death of one or two or more joint guardians. whether appointed by a parent (section 3) or by the Court (section 4), the power continued to the survivor or survivors until a further appointment is made by the Court. It would also be interesting to note that amongst the causes for removal of guardian was one mentioned in section 22(g) of the Act of I874, under which the Court could remove a guardian on the arrival within the local limits of the Court "of some person whose guardian- ship the Court may think likely to be more beneﬁcial to the minor than the guardianship of the person so removed".

V. Slate of the law and diﬂiculties felt The legislation mentioned above constituted the background of the Act of 1890. The immediate occasion for undertaking the legislation that culminated in the Act of 1890 was furnished by certain practical difﬁculties that had been experienced in the working of the Bombay Minors Act, 1864. These difficulties had been brought to the notice of the Government of India by the Bombay High Court through the Local Government. The ditﬁculty was thus described9--

"Any person may assume the charge of a minor's property without any sanction from the civil court. No one need take out a certiﬁcate "unless for the purpose of enabling him to institute or defend a suit connected with the estate of which he claims the charge. If he does not profess to claim the charge of the property. he may dispense with a certiﬁcate even 'National Archives. File relating to Act 8 of 1890, page 37/correspondence. 'National Archives. File relating to Act 8 of 1890, page 6/Notes.

K):

for the purpose of litigation. He may institute a suit as next friend, or defend

-'it as guardian for the suit. If he takes out a certiﬁcate he cannot deal with any immovable property without the sanction of the civil court previously obtained: and every alienation made by him without such sanction is abso- lutely invalid; while an alienation made with such sanction cannot. except ' under special circumstances, be impeached. On the other hand, a person ' who does not take out a certiﬁcate is absolutely beyond control, and can deal with the minor's property as he pleases."

"It can hardly be said that this state of the law is favourable to the interests of the minor. There is nothing to compel a self-constituted admini- strator to apply to the Court for a certiﬁcate; but on the contrary, there ' is every inducement to him not to do so. Now I think that. in the case

-"of every considerable estate, and especially when it consists of "immovable property, it is desirable that every administrator should be obliged to satisfy ' the Court of his ﬁtness before he meddles with the property."

Though the suggestion pertained only to the Bombay Act, it was. on an examination of the subject in the Legislative Department, thought that since the Bengal Minors Act, 1858 was drawn on the same lines as the Bombay Act, the improvements suggested in the Bombay Act would be needed in that Act also. It was further pointed out that the European British Minors Act, 1874 had also created several anomalies. For example, its provisions were confined to "European" British subjects, and were inapplicable to Eurasians. ' 2 Some problems had arisen in Madras also. The minute of the Chief Justice of Madras? is oi interest in this context--

"Although the Acts XL of 1858 and XX of 1864, which gave rise to the present reference, do not apply to this presidency. and the diﬁiculties arising on construction of these Acts in connection with Chapter XXXI of the Code of Civil Procedure have consequently not been "experienced here a review of the law relating to minors obtaining in this presidency will show that it is, as interpreted by the courts. defective in that it leaves certain minors without adequate protection and fails to provide suﬁicicrntly for the representation and protection of minors whose property becomes the subject of litigation.

"Regulation V of 1804 created for this presidency a Court of Wards.

By section 3, it was enacted that, where property charged with direct pay-

ment of rents or revenue to Government should devolve by inheritance on a persons incapacitated by age, & c., from taking charge of the said property on their own behalf, the Collector should transmit to the Court of Wards a report stating the circumstances, and that the Court of Wards should there-

upon state the case with their opinion and judgment to the Governor in Council to the end that the decision and orders of the Governor in Council might be passed thereon." a The following is another interesting comment" dealing with the position in Madras:-----

"l think there can be little doubt that the present is a most favourable opportunity for dealing with the question of the 'care of the persons and 'Minute of Chief Justice of Madras: National Archives, File relating to Act 8 of 1890, pages 37, 38 etc. (coriespr-n('.er.ce). _ _ _ __ 'Na.-.ion:i'i Archives. File relating to Act 8 of 1890, page I24!correspondence.

6-2 M of LJICAIND/80 Act_XX of 1864 section 2.

Act X of 1877, Chapter XXXI.

Act XX of 1864.

section 18, l.L.R. 2 Cal.

"82 i'.L.'a. 4 Cal.

929. Need felt in Bengal.

Position in Madras.

Comprehensive law considered desirable.

Request 'or all 'India Bill.

property of minors in India'. The ﬂaws and defects pointed out by the Bombay High Court in Act XX of 1864 exist in a great measure in Act XL of 1858, and probably they are also to be found in Madras Regulation V of 1804. The advantages of effecting a general improvement in all these laws by passing one general consolidated Act applicable to the whole of India are so self-evident as not to need much discussion. The principle of codiﬁcation has been adopted by the Government of India, and is being carried out. The present proposal is one step more in the same direction. Thus the passing of one general Act will not only be in accordance with this principle, but it will enable the Legislature to remedy the defects that are now found to exist. The Bengal Act was passed a quarter of a century ago. It was inevitable that defects and omissions should come to the light in this interval. These require to be remedied, and the rulings passedinthis time by the High Courts require to be engrafted in the positive enactment. I am therefore of opinion that a suﬂicient case has been made out to warrant the matter being taken in hand for "the purposes of further legis- lation. It may be pointed out that there are at present the Majority Act. Act IX of 1861, the Court of Wards Act and others, all relating to the different branches of the same subject. If the law is to be codiﬁed. all these Acts might be taken up, and one general Act passed on the subject appli~ cable to the whole Empire. thus forming an additional chapter to the Indian Statutes Book on the Law ofGu'1rdian and Ward."

In view of this position, it was suggested' that it may be considered generally whether the best plan would not be to consolidate and amend the law relating to minors for all India. There were defects in Act 40 of 1858, and it might be useful to invite all Local Governments to report what amendments if any. were required in the law prevailing in each province.

Because of the diﬂiculties felt, the Legislative Department was requested to be good enough to prepare and introduce into the Council of the Governor Genera'. for makirig Laws and fxiegulaticns a Bill prepared (on the line suggested). applicable to all classes, extending to the whole of British India. embodying such of the provisions of Act 40 to 1858, and Act 13 of 1874, as were suitable and repealing the Acts and Regulations which related to the appointment of guardians by the civil courts. It would be for the Legislative Department to consider what further detailed provisions may usefully be inserted in the Bill, in order that the proposed measure may be made as complete and comprehensive as possible. A second Bill might be necessary in order to make the amendments required in Chapter 3l of the Code of Civil Procedure then inforcre."

On the whole, therefore, it was considered proper to propose a comprehensive and self-contained law that would apply to the whole of British India.

A draft Bill prepared by the Legislative Department was, under the autho- rity of a Government Resolution, circulated for comments to local governments.

judges, the bar and the public.

lt was in this background that the Bill was introduced' in 1886 in the Council of the Governor General.

'N;[ion:1lV,'_TChlV€S File relating to Act 8 of 1890, P3355 7-3.7 notes- 'National Archives, File relating to Act 8 of 1890. D88'? 3/C0"'°SP0l'|d¢I10¢- 'Statement of Objects and Reasons, Gazette of India (Jan.-June 1886), page 76.

VI The Bill of 1886 and proceedings thereon The following abstract of the proceedings of the Council of the Governor-- pmceedjn' Gweral of India relating to the Bill are of interest':~-- of Governor Genergl in "GUARDIAI\'S AND WARDS BILL C°""°'l-

The Hon'ble Mr. Scoble presented the Report of the Select Committee on the Bill to consolidate and amend the law relating to Guardian and Ward. He said':-

"This Bill was introduced nearly four years ago by my hon'ble friend Mr. Ilbert,' and, as the constitution of the Council has changed considerably since its introduction, 1 think it desirable, in presenting the Report of the Select Committee, to say a few words as to the objects of the measu e and the general scope of its provisions.

"The Hindu and Muhammadan, as well as the "English, law lays down certain general principles regarding the relationship of guardian and ward. and the application of these general principles has been regulated by several enactments of the Indian legislature. Besides the numerous local Regula- tions and Acts constituting Courts of Wards for the different Provinces, and deﬁning their powers and duties, there are several Acts of this Council making provisions for the care of the persons and property of Hindu and Muhammadan minors not brought under the superintendence of these Courts.

Act XL of 1858 was passed with this object for the Bengal Presidency, and its operation extends also to the North-Western Provinces and Cudh, the Punjab, Lower Burnla, the Central Provinces and .A,.jmere. Act XX of 1864 reproduces for the Bombay Presidency. with some \'.sr?:tti:ms, the Bengal Act of 1858. Act IX of 1861 amends the law for 'nearing suits relative to the custody and guardianship of minors in British India generally. As regards minors who are European British subjects, the Supreme Courts, and after- wards the High Courts, had jurisdiction under their Charters; and Act XIII of 1873 provided for minor of this class resident in those parts of the country to w'l*;it:h the Jurisdiction of the Chartered I-iigh Court »:lo':s not extend.

"In 1881 the Bombay Government drew attention to certain defects in Act XX of 1864, and suggested an amendment of the Act in order to remove difficulties which had been experienced in the administration of minors' estates under its provisions. Examination showed not only that the Bombay criticisms were sound as regards the particular Act in force in that Presi- dency but that several of them were applicable to the Bengal Act also, and that there was room for material improvement both in the form and in the substance of the Acts generally. Before taking action, however, Local Gov- ernments and other authorities were consulted, with the result that the Bill now before the Council was introduced by Mr. Ilbert on the 12th March, 1886.

"In his speech on that occassion my hon'ble friend indicated with great clearness the lines on which the Bill had been framed.

" 'Nothing he said, 'can be further from my intention than to interfere with Hindu family customs or usages, or to force Hindu or Muhammadan family law into unnatural conformity with English law. But, on looking into the European British Minors Act, which was framed with special reference

-;qm;0,1._11 p,,L-hit»,-_ . 1,» §;_E!':,[i\/C Department (Apr€E. .'8')C*), Proceedings Nos. .' to 43'» - Guardians and '\V£1l'(l~; Act ls9t'--~Ap,-vcndirt A23.

'Gazette of lndia, January to June 1890. Part Vi, page 36.

'Statement of Objects and Y'\I3asr_ins: Gazette of India, January to June 1886, page 76.

to the requirements of what may be "called English minors, it appeared to me that almost all its simple and general provisions were applicable, or might with 2 little modiﬁcation be made applicable, to Hindus and Muhammadans as well as to English guardians .... ..According1y, what I have done has been to take as my model the European British Minors Act, which is the latest and fullest of the lndian Acts relating to guardians, and to frame on its g lines an Act applicable as a whole to all classes of the community. but con-

' - taining a few provisions limited in their application to particular classes ....... ..It is not intended by this measure to make any alteration in Hindu or an Muhammadan family law .

"Inthe second place, my hon'ble friend stated'-

" 'The Bill will not repeal or supersede the enactments relating to the different Courts of Wards. The provisions of those enactments,' he said, 'are intimately connected with the administrative machinery of the different Provinces; and it would be either impossible, or at least verv diﬂicult, to " supersede them by a general Act applying to the whole of India. "They will accordingly be left outstanding. The Bill will relate only to such guardians as are appointed or recognised by the ordinary Civil Courts, and there will be an express saving for the jurisdiction and authority of the different Courts "of. wards." ' "Lastly, my hon'ble friend proposed, 'in deference to what appear to be the views of the High Courts on this point, .... .. that the jurisdiction of the High Courts under their Charters is to be maintained alongside of their jurisdiction under the Act'.

"Since the Bill came into my hands the principles thus laid down have been carefully adhered to. Its provisions have been most attentively consi- dered by two Select Committees, and it has been twice referred for opinion

- to Local Governments. If it now fails of completeness as a consolidation of the law on the subject to which it relates, it is not for want of consideration, but because consideration has shown the diﬂiculties which stand in the way of complete treatment of so complicated a subject. Ad ea quae frequentius accidunt jura adaptuntur: exceptional cases must be left to be dealt with _ by the Courts of Law, as they arise."

Vii. Zinactments repealed.

The Act of 1890 replaced the pre-existing enactments. or so much thereof as was surviving. The following enactments were repealed* by the Act:--

Num';:er and year Title or subject Extent of repeal Acts of//ze Governor General in Council 14 of 1858 Minors (Madras) The whole.

40 of 1858 Minor: (Bengal) So much as had not been repealed.

20 of 3864 .r\/linors (lioinbay) The whole.

9 of 1861 Minors The whole. V 701' 1370 Court-fees Section 19 H, and article 10 of Schedule' 1.

401' i872 Punjab Laws So far as it related to Act 40 of 1858.

19 of i873 T"-rollli-V/t'.;r?C' :~.-'Provinces Section 258.

LanI'- FL r. em :3.

'Mr. llbcrt.

'National Archives, Legislative Department Papers relating to the Act, Appendix C, page H. 79 Nllmbcl' and W211' Tlllt' 0|' 5'Ul'_i€C' Extent of repeal l3 of I874 European British lVlll't()f'~; The whole. t5nt'ts74 laws Local Extent So far as it related to any enactment re- pealed by this Act.

17 of I 875 Burma Courts Section 96.

20 of I875 Central Provinces Laws So far as it related to Act 40 of I858. 18 ol' i876 Oudh Laws So far as it related to Act 40 of I858. Madras' Rz'gI4laII'0/tr 5 of 1804 Court of Wards Section 20, and so much of sections 21 and 22 as related to persons and property of minors not subject to the superintendence ol' the Court of Wards.

10 of l83l Minors' Estates Section 3.

VIII. Age of majority History of the legislation relruing to majority in India is also a fascinating topic.' The Hindu and Muslim laws current in Bengal with reference to the age of majority were recognised in Bengal by the Bengal Regulation 10 of l973,2 which declared that minority with respect to both Hindus and Muslims was limited to the expiration of the ﬁfteenth year. That section was, however, rescinded by Bengal Regulation 26 of I793, by which" the minority of Hindu and Muslim pro- prietors of estates paying revenue to Government. was declared to extend to the end of the eighteenth year.

The next enactment. affecting the age of majority of Hindus and Mahomedans in Bengal was Act 40 of 1858 (the Bengal Minors Act), which provided for the care by the Civil Court of the persons and property of minors (not being European British subjects), who had not been brought; under the superintendence of the Court of Wards. For the purposes of that Act the age of majority was ﬁxed at eiglzteen years.' Act 40 of l858 has since been repealed.' By the Bengal Court oi' Wards Act". which placed under the superintendence of the Court of Wards all minor proprietors of entire estate (other than pro- Drietors who were subject to the jurisdiction as respects infants of a High Court). the word "minor" was deﬁned' as a person under the age of eighteen years.

This Act was repealed in 1879. and the repealing Act" deﬁned a "minor" as a person who had not completed his age of twenty-one years.

Madras Regulation 5 of I804, which inter alia constituted a Court of Wards' for the Madras Presidency, provided" that "where minors may succeed to herit- able property. they shall not, in any case. be competent to take charge of, or to administer their own alfairs during the period of their minority, and for the better understanding thereof the duration of minority shall, without exception, continue until the completion of the eighteenth year of age."

'Trevelyan. The Law relating to Minors (l9l2), pages 4-5. 3Section 28. Bengal Regulation l0 of I703 (which established the Court of Wards).

"Section 2. The unrepealed portions of Regulation 26 of l7)3. were repealed by Act 29 of l87l. save as therein provided.

"Section 26, Act 40 of l858.

"Guardians and Wards Act. 1890.

"Act 4 of 1870 (Bengal Court of Wards Act).

7Scction 2. Bengal Court of Wards Act (4 of 1870).

"Section 3. Bengal Court of Wards Act. I879 (Act 9, Bengal Code of l 879). "That Regulation was repealed by section 2, Madras Act 1 of l9C2. "Section 4 Madras Regulation 5 of 1804 (Court of Wards).

7-2 M of LJ &CA/ND/80 ,,ovl!-

History of legis-

lation on majority.

Madras Regulation of H304.

Bombay law and Madras law.

Age of main-

rity for spe-

cial purposes.

Controversy as to Bengal Minors Act.

I r.dian_ Majority Act. 1875.

Uniform age adopted in I890.

The llomhay Mirrors Act (20 of 1864.) which was in force in the Bombay Pre- sidency coittuiturtl _pmvisiota'~. =riI'.wil;u' in tliosc of Act 40 of I858. '|'hc Madras Minors Act (14 of 1858) contained somewhat similar provisions.

To add to the complications of the law as to the age of majority before the passing of the Indian Majority Act 9 of 1875, there were several other enactments ﬁxing the age of majority for the special purposes of such Acts.' The enactments pointed in different directions for different purposes.

In lhc Bengal Mino s Act (40 of H158). the deﬁnition of the word "minor""

was contained in section 26, which laid down, "for the purposes of this Act, every person shall be held to be a minor who has not attained the age of 18 years". This section had been the subject of conflicting interpretations in Cal- cutta. According to one view. l8 was the age of majority only in cases where the estate of the minor had been brought under the charge of the Civil Court. Accor- ding to another view, whether or not the intervention of the Civil Court be in- voked. l8 was the limit of minority.

For example. Mr. Justice Phi-nr held that the expression "for the purposes"

in section 26 "meant relative to all that forms the stshje;t of this Act," ie.. the protection ot the person and property of infants. He thus made 18 years the limit of minority for all purposes of contract. Mr. Justice Jackson carried this even further. holding that the age of minority was for all purposes extended to IR years. The discussion on this point is contained in the undermentioned rulings:

l W.R.C.R. 75 3 W.R.C.R. 50.

I0 'W.R.F.B. 36.

I3 VV.R.C.R. 4:32.

5 B.L.R. 8].

ll I-*V.R.C.R. 561.

7 B.L.R. 607.

8 B.L.R. 379.

10 B.I..R. 240.

The law respecting majority thus remained in an unsettled state until the Indian Majority Act of 1875 was passed. That Act (as its preamble states) was passed for prolonging the peroid of non-age and attaining more uniformity and certainty respecting the age of majority in case of persons domiciled in British India.

The Act of 1890 adopted a uniform age for all purposes for appointing a guardian. This was achieved by adopting. by reference. the deﬁnition of "minor", as given in the Majority Act. 1875. The age as given in that Act was 18 years. Once a guardian was appointed, the age of majority was extended to 21 years. The latter result was achieved by amending the Indian Majority Act. 1875-an amendment eﬁected by the Act of I890.

1Scc--

(at The Indian Succession Act (ID of '.8651 section 3. applied to Hindus by the Hindu Wills I Act (21 of i870). section 6.

(b) The Limitation Act (9 of 1871). section 3-

(d) Indian Christian Marriage Act (16 of 1872), section 3.

National Archives. File relating to Act 8 of 1890, page 91/correspondence.

APPENDIX 3 ENG] ISH LAW. /IN!) ITS [EVOLUTION I . Introductory _ English law on the subject of guardianship of minors and custody of children 18 not to be found codified in one single enactment. So much of it as is statutory is scattered in several enactments. Part of it is still non-statutory. Broadly speak- ing, the sources of the English law on the subject are the following:----

(1) Legislation on the subject of guardianship and custody (including, testamentary guardianship).

(2) Legislation relating to children.

(3) The law relating to inherent jurisdiction of the High Court in rela- tion to wardship.

(4) The law relating to habeas corpus, in so far as it deals with the recovery of custody of minors below the age of discretion.

Legislation on the subject. particularly the statutes passed during the last half a century or so, shows that mrch of the ﬁeld has come to be regulated by the State. The "rights" of the parents have receded into the background, while the welfare of the child has come into the foreground. This stage has not, how- ever, been reached without consirlerrthle experimentation. Even now, the comp- lexity of the legislation relating to children and the frequency with which it has been subjected to amendment, rather shows that the ﬁnal solution to the problem of securing the welfare of children is not within easy reach.

A very brief history of the manner in which the law has evolved would not be out of place.

The law on the subject of guardianship of infants has undergone great changes in recent years.' Originally based largely on the patriarchal and feudal theories of the family, it was readjusted to modern conditions on the abolition of feudal tenures in 1660," and again, with the increasing recognition of the equa- lity of husbands and wives before the law, in 1886 and 1925. The key-note of the law is, however, not the traditional rights of the father, nor the abstract rights of the mother. but the welfare of the child: and this principle was expressly affir- med by the Act of 1925 as the 'first and paramount consideration'.

The principle has been reiterated" in the Act of I971. and again in the Act of 1973.

In this process, the two great instruments of law reform---equity and legisla- tion~--have played a notable part. The role of judicial decision in common law courts has been limited. because of the constraints that attach to improvement in the law by the judicial process.

1Jcnks, The Book of English Law (1953), pages 229-230. 'The Tenurcs Abolition Act, 1660.

'The Tenurcs Abolition Act, I660.

8] Introduction.

Evolution of law.

Evolution in recent times.

Significance.

Patria potestas and development of guardian-

ship.

Concept of Tutelst.

Roman law as to puberty.

Persons above puberty.

Statutory provisions as to persons above puberty, 82 II. Roman law iictiore we deal with the history oi' legislation in England. it would he appro- priate to refer brieﬂy to certain interesting features of Roman law. Much of the modern law of guardianship owes its genesis--if not in the content, at least in its coneeptsto the Roman law. For example, the classiﬁcation of guardians into legal, testamentary and certiﬁcated guardians, which we ﬁnd in modern legal systems, ha: a striking parallel in the scheme of the Roman law relating to tutela. So have the topics of powers of guardians, legal safeguards and many other matters. The very expression "minor" is ultimately derived from the phraseology of Roman law.

In Ruin-an law. by virtue of pa/riu {mlr'.\'f(I.s', the father was not only the it-cad of the family. but had extensive powers. "Children begotten in lawful wedlook are in the power of the parents." Guardianship in Roman law began as a projection of the patria porestus into the future, with a view to protection of the liztmilv propcrt_\ after the death of the tt-stator.'-' l'rotc('tion of the [urrsrm Mme later. and did not assume importance until the institution of the "dative guardian"

(guardian appointed by the Magistrate) came into prominence.

There were two kinds of guardianship, distinguished as tutela and eura (curatio) in Roman law.

Tutcla was defined as "a right and power exercised over a free person who, on account oi tender years, cannot take care of himself, given and allowed by civil law"."

Where the father was alive, patria potestas was in operation and the ques- tion of tutela did not arise, in general. The father could also make a testamentary appointment of guardianship. In certain situations, where the above types of guardians did not exist. certain Roman Magistrates had power to appoint magis- terial guardians (tutela dativa). In the city of Rome, there was a special praetor for the purpose.

Tutela was integrally linked with puberty. In the theory of the Roman law. a person came in the full enjoyment of his personal and proprietary rights on the attainment of puberty (14 years for boys and 12 years for girls). Upto the age of pube ty. his or her interests were looked after, and protected, by the "tutor" in the absence of the father. The essence of tutela consisted in the assis- tance which the tutor had to give to enable juristic acts to be performed by the person below age. This was because of the doctrine that as such persons were not legally independent persons (std juris), their transactions required the ap- proval of a guardian (tutor).' Tutela ceased at puberty, but certain other developments relevant to the protection of persons who had attained puberty should be noted. By an "inter- diet", the Praetor could nullify transactions into which a person under 25 had entered l)er'ausc of his luck of husincss sense,"

An early statute allowed persons above the age of puberty (14 for males and 12 for females as stated), and below the age of 25 years. to be placed under the temporary control of curators, without whose consent certain alienations of 'Justinian, Institutes, Book 1, title 9, section 86.

'Lee, Elements of Roman Law (1955), page 91. para 137- "Servius (Consul B.C. St, First Commentary on the Edict), quoted by Justinian. 'Encylopaedia Americana, "Roman Law----Law of Persons--G11ardianship".

-"Derrett, Introduction to Legal Systems 1968, page 25.

property could not be made. At a later date, Emperor Marcus Aurelius initiated the practice of allowing the minor to get a [)(I'/II(lI'l('fII curator appointed.' The parallel institution of Cara minnrium was thus developed, to save young persons from the consequences of their own lack of judgment at an age over puberty. This was meant for persons below 25.' (Minor XXV Anniis). In the beginning. the praetor exercised certain powers in individual cases to prevent over- reaching ol' the minor. Later. a curator was appointed on the minor's applica- tion." In later law. the distinction between tutor and curator' was progressively blurred.

The tutelu impuberum (upto puberty) in the classical law corresponds broadly to the English concept of guardianship of infants, but its original purpose was somewhat ditierent from the modern one of guardianship. Modern guardianship is concerned exclusively with the interest of the ward. Primitive tutelu was con- cerned more with the riglrts of the guardian.' As to the persons who could be guadians. the earlier rule"

was that the nearest male agnate was the guardian in the ease of puberty (ll for males. l'_' for females, as already stated). if the minor was not under ,m1rI'ia /mteslus." Later. cognates were substituted by Justinian.7 Being based on a rule of law, this guardianship was called tutela legitima----an expres- sion derived from the [ex of the Twelve Tables (450 B.C.). But the father could in Roman law a person under appoint a testamentary guardian--tutor testamentarius--and in later times, failing both of such guardians, a magistrate would appoint a tutor.

Women could not be "tutors" in Roman law. In fact, they themselves had to be under a "tutor" (if they were not under patriu pofeslas), except in certain special cases (e.g. Vestal virgins). This position slowly underwent modiﬁcation and was abolished in 410 A.D. The Roman law had many provisions for protecting wards against mal-admi- nistration by. or misconduct of. tutors. Any person other than the ward could take proceedings for the removal of a tutor on the ground of mis-conduct------a pro- vision originating in the Twelve Tables. After the temination of guardianship, the ward or his heirs could ﬁle an action for liquidation of accounts and could claim double damages against a tutor who had been guilty of embezzlement»----also a provision dating from the Twelve Tables." In the later Republic, a more general remedy called the urtio tutelae could lie after the termination of the guardianship.

Guardians were sometimes required to furnish security. and this security could be demanded even from legal guardians in appropriate cases." lf the Magistrate. in a case requiring security, failed to take it, he exposed himself to a subsidiary action for consequential damages." The tutor had to make an inventory of the estate of the pupil and his own property was subject to a general "hypothee"~----

'Lee. Elements of Roman Law (I955). page 93.

"~'L1Lstinian. institutes. Book l. Title 23. sections l39--l4l. "Nicholas. Roman Law (I 975 reprint), pages 93-94.

'Nicholas, Roman Law (I975 reprint). page 90.

"EllCyCl(!l'{l.Ckllil l3ril.'umica»-----"Roman Law~~Law ol' l'ersons~ --(J'lu|'t|i«'lI1*'llll'"- 7Lee. ljlcincrits of Roman Law (I955). page 87. para I28. 5Nicholas, Roman Law (I975 reprint). page 95.

"Lee, Elements of Roman Law (I955), page 90, para 136.

"Lee, Elements of Roman Law (1955). page 90, para l36, item 4. "Lee, Elements of Roman Law (I955), pages 90-91, para 136, item 4.

Tutcla in Roman law compared with

-present Eng-

lish doctrine.

Right of guardianship.

Provisions for protec-

tion of wards.

Security.

Lunatics.

Crown as feudal ovcrlord.

View of Pollock ant! Maillund Father's right after end of feudal system.

Position upto the sixties 84 a charge which law created in favour of a pupil or a minor over the whole of the estate of the tutor or curator.' The Roman law had also a provision for the appointment of curators of lunaties, as well as an institution for the guardianship of the spendthrift (cura prodigiif The latter institution is understood to be still in force in the civil law system in some countries. By the law of The Twelve Tables, mad men tjuriosi) were placed under the curatorship of the nearest agnate.

111. line Middle .\ge----»~.ludiealure Act the position In Lllglalltl lull) now be dealt vuth. in the Middle Ages the Crown as lcudul overlortl C.'\Cl\.'lb\:Ll Lt guardianship over the person and estate of its iutant teu'dl1ts-lll-L'illt:l.' nus grtaroiansitip, which was exceedingly profitable to the guaxrtlian, was enloreetl lit the Lotut of Wards, but on the abolition of that court and oi the system ot military tenures, at the Kcstoratioii, the feudal aspect of this jurisdiction vanished. lhe Crown, however, did not abandon the infant when it ceased to be able to make a profit out of him. On the contrary, it came to claim, as "parcns partrz'uw" protective jurisdiction over all infants in the king- dom, and this jurisdiction was entrusted to the Court of Chancery. It would be impossible to go into the details of the jurisdiction here, but we may notice that the court could appoint guardians of the infant whenever, through the death or misconduct of the parents this course was necessary; and even though no guardian was appointed, it was possible by taking the appropriate steps to con- stitute the infant a ward of the court, with the result that no important step in connection with his upbringing could be taken without the court's sanction. This jurisdiction in cases of infancy still exists, and was exercised by the Chancery Division of the High Court' till recently. It has now been transferred to the new Family Division.

Pollock and lviaitland make tits observations as to the state of the law in earlier times :r--

"This part of our law will seem strange to those who know anything of its next of kin. Here in England old family arrangements have been shattered by seignorical claims, and the Kings Court has felt itself so strong that it has had no need to re-construct a comprehensive law of wardship. That the King should protect all who have no other protector, that he is the guardian above all guardians, is an idea which has become exceptionally prominent in this much governed country. The King's Justices see no great reason why every infant should have a permanent guardian because they believe they can do full justice to infants."

When the feudal system came to an end, the position changed. Where the Court did not appoint a guardian, the fathers right to control and custody of his children was, except as limited by statute leg. section 4, Custody of Children Act, 1891), absolute' - even against the mother.

IV. The position before the Judirature Acts Upto the sixties of the last century. the father's right was. by and large, predo- minant in England. To some extent, the rigour of the law was softened by the 'Lee, Elements of Rttlllllll Law (1955). page 177. para 263 and page 91. para I36. item 5. lﬂncyclujmctligt lttil;tiinit':t~» ~' RnH';L!l Law-- Law of Pcrsons~~GtIat'tlitm:l1ip".

"Radcliffe and Cross The English Legal System (1971). Page 144- 'Cf. G. Cross. "Wards of Court" (1967) 83 L.Q.R. 200-I4 spouock & Mnitland, History of English Law, Vol. 2, page 312.

jurisdiction exercisable by the Court of Chancery in regard to infants. The doctrine of "welfare of the child" was slowly linding its feet. in so far as, along with the right of the father, it was considered relevant to consider the welfare of the minor whenever the circumstances ol' the ease so justified it.

lhe parent, it has been said', is taken both by the Court' ~ guardian by nature and nurture----a view ol Chuueery and" by the courts of common luw.7----"~' ilhis doctrine of g;:I;udi.i1isliip "by nature and nurture" would appear to be based upon the doctrine oi n'.itu=.i| justice £15 derived front antiquity:-~~-

"Le pier on la nner, Ines un elrunger ne peul justilier le pois Ll'un eitfant per Htlxtlll de nurture." ("lite lntlier or the mother may take possession of it child by ixnsoii ol nurture but not 21 struiigcr"; per Danby, .I., Year iitmlx. U l,:.tlW. 4, Wlcl] Pl. 2).

'll1e early canon law (with which equitable views are closely associated) exhibits the same view:"

"Infants iniideliuin licite haptizatur, si parentes idest pater, mater, avus, avia val tutores, consentant": Codex, Juris Canonici, Can. 750, paraphrased.

"l he Sunima iheologica reveals the same mediaeval attitude concerning the rights (both as to religion and as to custody) of parents over their children, in an extreme case, thus:

"It is against natural justice if a child before coming to the use or reason were to be taken away from its parents' custody, or anything done to it against its parents" wish." "A son before coming to the use of reason is under his father's care". [Part 11 (second part), question 10, art. 12}; as to religion "Contra justitiam naturalem esset, si pueri invitis parentibus bapti-

7.arentur"; (Snmma lheologiea, 3, Question 68, art. 10).

The Custody of Infants Act, I839 (Talfourds Act), empowered the Court of Chancery to give the mother,"-- ----

li) custody of her ehihlren until the £l§_'.L'- of seven, and

(ii) access to them until the children come of age.

But a mother guilty of adultery was excluded" from these rights. The domi- nance of the father continued.

'See Carroll (1 .30) All E R Rep at page 210.

"Ex part: Hop/cins, (l 732) 14 ER. 1009, LC.

"Str'IemauVA3hd0iwz. (l 7'42) 2 .\tl;. 'r77; 26 689. L.C.; Sii1117_;<)i1 on Iztfziitfs (l 926). page 91. 'De Marreiiil/e' V De .M..'/zm'."i'i';--'. (l 804) 32 ER. 762. LC. 5 Re .Marqm's of S':ilz'.v1ri1-_ir '7.ml Ecclexrirrical Comrsu. (I 876) 2 Ch. D. 2') (C./\.). "Ex purlc .S'!u'mzer (1824) 'J Nloore. CT'. 278 (Rule at common law).

7R. V. De .'l/Iumreyi/lc, (l 304) 5 East. 221; l Smih. KB. 358; l02 E.R. lO54. at the l_n'caSt).

'Re Ht'!/cc'n'l'I/. (1552) I3 C.B. I33; 138 ER. 888.

"R. V. Green/If//. ([835) 4 Ad. & El. 624.

"R. v. Clark". Re Race. (1857) 7 E. & B. H56; ll9 E.R. 1217.

' 'R. v. l[0:i'r'.r. Ex purlv Brit'/i)I'd. (I 860) 3 L. & E. 333: I21 li.R. 467. ' '(,'r:I'1Iiclr?L' v. (,'ar!:'irt'g:'. (l 863) 2 SW. 8.'. T1'. 567; I04 LUR. ll I7. "See Re ('arm/I. (l 930) All E.R. at page 218.

"Custody of Infants Act, 1839.

15"l'ulfourd's Act, 183') (2 & 3 Vie. C. 54).

(Ch i ftl an in llint (Ina rdianship by nature 7ll'l(l nurture.

View nl (.'.".not1iez«l iuw.

Legislation of 1839.

The cases of Agar--Eliis' furnish a strong example of the vigorous enforce-

ment of the rights of the parents----especially, the father. The conﬂiet there was between a Protestant father and a Roman Catholic mother, the father asserting his rights in a way in which members of the Court as men disapproved of. Cotton, Case of A gra Eihs LJ and Leg]S'."YiVe develt pments as to custody

886. ., expressed his view thus in one of the easesr "lt has been said that we ought to consider the interest of the ward. Undoubtedly. But this court holds the principle that when, by birth, a child is subject to a lather, it is for the general interest of faniilies and for the general interest of elnldren, and really for the interest of the particular infant, that [/16 court should m/1, c.t'ccpt in very cxtiwrte ca.s'c.s', interfere with the discretion of the father, but leave him to responsibility of exercising that power which nature has given him by the birth of the child."

Bowen, L.J. (24 Ch. D. at page 337 Agw'-Ellis) observed:

"The court must never target, and will never forget, tirst of all, the rights of family life, which are sacred. 1 think all that could be said on that subject has been said far better than 1 could repeat it by Kindersley. V.C., in the ease of Re Curtis? and the cases to which he there, refers. Those are as to the rights of family life. Then we must regard the beneﬁt of the infant; but then it must be ieniembered that if the words 'beneﬁt of the infant' are used in any but the accurate sense, it would be a fallacious test to apply to the way the court exercises its jurisdiction over the infant by way of interference with the father. It is not the beneﬁt to the infant as conceived by the court, but it must be the beneﬁt to the infant having regard to the natural law which points out that the father knows far better' as a rule what is good for his children than a court of justice can.

"But in that case the court was so slow to decide anything as to religion adverse to the possible views of the parent that, whereas "Malins, V. C., had made an order that the children should be brought up as members of the Church of England, the Court of Appeal, while arriving at the same result, struck out the declaration, leaving the matter to the decision of the father."

These cases, which excited strong feeling at the time owing to the rival claims of father and mother, were probably one of the causes which led to the insertion of section 5 of the (juardiansliip of lnfants Act, 1886, which provided :° "The court may, upon the application of the mother of any infant (who may apply without next friend), make such order as it may think ﬁt regarding the custody of such infant and the right of access thereto of either parent. having regard to the welfare of the infant, and to the conduct of the parents. and to the wishes as well of the mother as of the father and may alter, vary, or discharge such order on the application of either parent, or, after the death of either parent, of any guardian under this Act, and in every case may make such order respecting the costs of the mother and the "liability of the father for the same or otherwise as to costs as it may think just."

'Re ,4.€'ru'-1_iI{i.\'. .4J.'m'-If/Ii,\' v. Lrxstfr/Irv. (I 878) 10 ('l1- 1'- 492 (l 8?") 74 Cit 13- 3'7- me 'jgrzr-ff}/f.v. (t 35:33 :4 Ch.l). 317. 334.

3R0 C,,,.,,-S, (1839) 28 L._]. Ch. 458: sub nom. Curtis v. ('urn's. 34 L.'l'.O.S. t0. 'Emphasis added.

5§ection 5. Guardianship of Infants Act. 1886 (49 & 50 Vie. c. 27)-

Court and (since 1886) by country courts was extended (subject to certain lirnita- (as to religion of the child):w "Upon any application by the parent for the production or the custody of a child, if the court is of opinion that the parent ought not to have the custody of the child, and that the child is being brought up in a different religion to that in which the parent has a legal right to require that the child should be brought up, the court shall have power to make such order as it may think lit to secure that the child be brought up in the religion in which the parent has a legal right to require that the child should be brought up. Nothing in this Act contained shall interfere with or alfect the power of the Court to consult the wishes of the child in considering what order ought to be made, or diminish the right which any child now possesses to the exercise of its own free choice."

V. Position after the Judicature Acts After the Judicature Acts. the Court of King's Bench, which had previously acted on the strict common law views of parental rights, was enabled, by the fusion of law and equity prevailing, to add to its powers the equitable view of the Court of Chancery representing the King as parents patriae." The Judicature Act expressly provided that equity shall prevail. But, the court still vigorously enforced the right of the parents, especially of the father, to control the religious education of a young child?

However, since the middle of the nineteenth century, Parliament has inter- vened in a series of statutes, the effect of which has been to whittle down the father's rights further and also to give the mother positive rights to custody which even equity did not accord to her.' The process of reform initiated' in 1839 was gathering momentum.

Custody of Infants Act, I873.A--»This Act extended the principal of Ta|fourd's Act of 1839. by empowering the eoun" to give the mother custody until the child reached the age of I6. It did not, however, repeat the proviso relating to her adultery. Section 2, which is still in force, introduced a further reform, which had long been overdue, by enacting that agreements as to custody or control in separation deeds (which had formerly been void as contrary to public policy) should be enforceable so long as they were for the child's beneﬁt.

Guardianship of Infants Act, 1886.--This further extended the provisions of the earlier Acts by empowering the Court to give the mother custody of her children until they reached the age of 21. Furthermore, the father was now stopped from defeating the mother's rights after his death by appointing a testa- mentary guardian, for it was enacted that the mother was to act jointly with any guardian so appointed, and for the ﬁrst time she herself was given limited powers to appoint testamentary guardians.

Custody of Children Act, l891.----This Act was passed as the direct result of a number of cases in which parents had succeeded in recovering from Dr. 'Section 4. Custody of Children Act. 1891 (IS & 16 Gcol 5 c. 45)-

'('f. section 44. Supreme Court uF .|ndic;1tiire Consolidation Act. 1925.

"Re ('m'rr;I/. (I930) All E.R. Rep. at pages 200-20].

'Bromley. Family Law (1971). pages 269-270.

"Custody of Infants Act, 1839.

"Bromley, family Law (l97l), pages 269-270.

Act of 1891.

Position _ after Judi-

cature Act_ Provisions as to claims tor custody.

I How far wel-

fare of child paramount in Chancery.

Fa ther as legal guardian.

Barnardo children whom they had placed in his now famous "homes", or whom they had abandoned and he had taken. It provides that if a parent has aban- doned or deserted his (or her) child, the burden shall shift to him to prove that he is [it to have custody of the child claimed and that the court may refuse to give him possession of the child altogether (section 1). Moreover, if at the time of the parent's application for custody the child is being brought up by another person, the court may now, upon awarding custody to the parent. order him to pay the \vholc or part of the costs incurred in bringing it up (section 2).

tiimtr/ic1n.\/rip U} [nfmits ,lt'z, |'lZ.'5 lt may be Iiotcd that the Act of [925 gave statutory effect to the rule that In any dispute relating. to a child the unirt must i'eg:1i'tl its welfare as the tirst and paramount consideration. It also corn- plcted the process of assimilation of the parents' rights by enacting that neither the father nor the mother should from any other point of View be regarded as having a claim superior to the other and by giving to the mother the same right to appoint testamentary guardians as the father. Jurisdiction to make orders relating to custody etc. which had formerly been exercisable only by the High Court and (since l88o) by county courts vvns extended (subject to certain limita- tions) to magistrates' courts.

There is some controversy as to the extent to which the principle of "wel- fare" was regarded as paramount in Chancery. Speaking of the Guardianship Act, 1925, Lord Donovan remarked in 1969, that it seems "incredible" that Parliament should have passed such an enactment as section 1 of the Act of 1925, if the position were that it "made no difference at all to the law as already expounded by the judges". He did not agree that the Act "enacted no new law".

On the other hand, Lord Upjohn maintained that the Act "enshrined the view of the Chancery Courts"," and Lord Guest apparently agreed with him."

On balance, it would seem that there was some lingering uncertainty (when the Bitl was drafted; as to tlie e,\tcnt to which the "wclfarc" principle had en- crouched on basic parental rights.

In the Act of 1925, the language of the opening section----"Where in any proceeding before "any court . . . . . . . . . . . . . .. the custody or upbringing of an infant .... ..is in question. the court, in deciding that question, shall regard the welfare of the infant as the lirst and paramount consideration... ....... .."----secmcd to place the matter beyond all doubt. Yet, astonishingly, this did not prove to be so. Another forty-four years were to pass' before it was settled that welfare consi- derations really must predominate in all custody proceedings.

VI. Modern developments The position in 1953 was as follows:-J "Subject to this fundamental principle (welfare of the child) an infant's father still remains his sole legal guardian during his (the father's) life- time; but this fact, of course, adds little, if anything, to the father's primary position as a parent. On the father's death, the infant's mother becomes. either sole guardian, or guardian jointly with a guardian appointed by the deed or will of the father, or. in default, by the Court. And, even during i_;_ V, (-__ (1070) /\.C_ 553. 7371); (1969)! /\llE.R. 788, 834.835. =./. v. (1 (1970) A.('. 068. 724E: (I969) 788. 832- ''J. v. C, (1970) A.C'. 668, 607F.

'J. v. C., (1970) AC. 568- ﬁlenks, Book of English law (1953). l7i13€5 229430' 89 the father's lifetime, the mother has the same right to apply to the Court in respect of any matter aiieeting the infant as the father has, and an equal right to appoint by deed or will a guardian to act after her death as co- guardian with her surviving husband, or, if he is dead, the guardian appointed by him. In the event of dillerences of opinion between the surviving parent and the guardian appointed by the deceased parent. the Court may award sole custody of the infant to either, as it may consider best for the welfare of the infant."

V' I1. Present position lhe principles on which quvstioiis relating to custody, upbringing etc. of Custody»-

minors are to be dccitlcd, is thus laid domi in the Liiglish Act of 1971':

"I. Where in any proceedings beloie any Court (whether or not a court as delincd in section l5 of this Act)

(a) the custody or upbringing of a minor;

(b) the administration of any property belonging to or held on trust for a minor, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the minor as the lirst and paramount consideration, and shall not take into consideration whether, from any other point of view, the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father."

Section 1(1) of the Guardianship Act, 1973 now provides as follows:--»--

"l.--(l) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisa- ble by either without the other.

In proceedings for custody etc. such equality was already provided in 1971.' But in the absence of such proceedings, the father's rights prevailed." That posi- tion is also now modiﬁed by the Act of 1973 referred to above.

This would seem to have practically abolished the rule of the common law whereunder the natural guardian of legitimate ehild3 was the father, and the mother did not share the guardianship as such while he is alive.

VIII. Cust<0dy Coming specifically to the topic of custody of children, the father's right to custody of his legitimate children was complete and exclusive in England in the middle ages.

It was only in the 19th oentury' that the mother could be 'S:'.clinn I, Guardianship of Minors Act. l97|. "Tcnurcs /\boIitir,\n Act. I660.

"Ex. p. Hopkins'. (1732) 3 p. Wms. 152, per Lord King L.C.; Re--z1grar~ElIi.r. (I883) 24 (11.1).

317. 335.

"Custody of Infants Act, 1839 (2 & 3 Vic. c. 54) (Repealed in 1873).

I nglish Act I-I" |97l.

Xct of 1973.

Father as natural guardian :~ nd mother's position.

History of right to custody, Illegitimate child.

Testamentary

-guardianship.

awarded access to a child until the child reached the age of seven years. The Act is said to have been passed after the judgement in R. V. Greenhill' [See Warde v. Wurde, (I849) 2 Ph. 786]. Where there was no testamentary or Court guardian. the mother was, in equity, guardian lor nurture.' Later." the mother could be awarded custody of a child until it reached the age of sixteen years. In 1925.' the mother was given an equal right through the court to the custody of the child and in 1971.5 the mother was given exactly the same rights and autho- rity as the law allows to the father i11 England.

As regards the illegitimate child. the position was just the reverse in England. in the middle ages, such a child was regarded as a [ilius nullius." By the end of the 19th century, the mother had the right of custody over her illegitimate child.' The father had no right to custody even though the legislation imposed on him the duty to maintain the illegitimate child. Upto 197! this position continued, subject to one modiﬁcation. namely. that in certain cases the orders for custody could not be passed without the father's consent. Now,' both the parents have the same equal right to apply to the court for custody of the illegitimate child.

IX. Testamentary guardianship Testamentary guardianship in England is based on statute. The earliest statute" was passed in the time of Charles the Second. It conferred power on the father to appoint a guardian by deed or will for an infant upto the age of 21 years. The father himself need not be a major (under the Statute as originally enacted). Later, however, this concession was restricted to deeds" and only a major can now appoint a guardian by will in England.

The testamentary power was hotly opposed by the King and his officers, while it was dcdulously supported by the Church and its dignitaries. Finally. the Church triumphed. Until recently, the Ecclesiastical Courts dealt with all testa- mentary matters and granted probate. So it was necessary. in the time of Charles 11, to have a statute empowering the father to appoint a guardian.

This does not mean that under the Common Law the father had not the right of guardianship. but under the peculiar tenures obtaining in England and the law of primogeniture. the power of the father to appoint a guardian for his heir was resisted till the legislature intervened." The power to appoint a testa- mentary guardian was later given to the mother also (in 1886).

X. Cliildrc-ii's Acts Side by side with these developments as to guardianship and custody. legislative measures for the welfare of children have come in quick succession. With the passage of the latest Act~----Children Act, l975--------this branch of the law has be- come the most complex.

'R. J. Green/1!'I/. (1836) 4 Ad. & El. 624.

"~'R. v. Clarke. (1857) 7 El. & Bl. 186.

"Custody of Infants Act. l873 (36-37 Vic. c. 12) and Guardianship of Infants Act. l886 (40- 50 Vic. c. 27).

'Guardianship of Infants Act, 1925 (l5-16 G60. 5 c. 45).

"Section I. Guardianship rt' Minors Act. 1971.

"See discussion of Law Commission of India. 62nd Report tWorkm:n's Compensation Act)» pages 32-34. paragraplis 2.4 to 2.6.

'Baslatdy Laws /Mncndincnt Act. I872 (35-36 Vic. L'. ('5).

"Scctioi1s 9 and I4. Guardianship of Minors Act. I971.

9Tenures Abolition Act. I660. l2 Charles ll. C. 24.

"The Wills Act. 1837 (I Vict. c. 26. section 7).

"Pollock & Maitland, History of English Law, Vol. 2. page 312.

Originally, legislation for children provided for the care. protection, main- tenance. welfare. training. education and rehabilitation of neglected and delinqu- ent children and for the trial of the later. The ('hiltlrcn Acts contain elaborate provisions for the establishment of a specialised machinery in terms of juvenile/ children's courts. remand/observation homes. certiﬁed/approved/special schools. probation and after-care services. Besides. the Acts envisage an effective utilisa- tion of voluntary welfare agencies at various stages of apprehension. treatment and rehabilitation of children in need of care and protection.

The Children Act, I975 expanded the scope of this legislation. its provisions may be thus summarised. so far as they concem the position in F.ngland-~-

(i) The Act provides a means whereby. as an alternative to adoption. rela-

tives and others looking after children on a long term basis can apply for and obtain the legal custody of the children. Such persons may apply for, what is called, a "custodianship" order and this vests "legal custody" of the child in the applicant. who becomes known as the child's "custodian". The Act thus introduces a new concept. A "custodian" appears to be in a similar position to a parent having custody of his child. but the Act deliberately refrains from giving him the designation "guardian". "Custodianship" may be said to be a new form of guardianship though giving less rights and powers than guardianship, and to be similar to. but not identical with. custody.

(ii) Section 33 provides that. on the application of any qualiﬁed person who is not the mother or father of the child. the court may make a custodianship order vesting legal custody of the child in the applicant. "Legal custody" is deﬁned in section 86. A person is "qualiﬁed" when (i) he is a relative or step- parent and he has the consent of a person with custody and the child has had his home with him for the three months preceding the application (though step- parents are not qualiﬁed in certain circumstances lSee section 33(5) and (8)]. or

(ii) he is anybodv else, has the same consent and the child has had his home with him for 12 months. including the three months preceding the application. or (iii) he is anvbodv with whom a child has had his home for three years including the three months preceding the application. So. where a child has lived for three years away from a person who has legal custody of him. the person. if anv. with whom he has lived for that period is entitled to ask the court to make him the custodian and give him legal custodv. though such legal custodv is not equivalent to the legal custody the ﬁrst person had.

(iii) Provision is made for certain snpplementarv orders to accompanv a "custodianship" order. Orders for access and maintenance may be made (section

34). Custodianship orders mav be revoked and varied (section 35).

(iv) A court is empowered. in cases where the requirements for making an adoption order have been satisfied. to make a custodianship order instead. if it is of the opinion that such an order would be more appropriate. A custodianship order mav also be made in Favour of someone where a parent has applied for cnstodv under fl1o Guardianship of Minors Act. 1971. section 9 (see section 37).

(V) Section 39 provides a means wherebv disputes between ioint ciistndiwps about a child's upbrinning can be resolved bv the court making an order.

Provision is made for local authoritv investigation of application for custo- dianship orders. and for welfare reports to be obtained by the courts (sections 39-40).

(vi) Section 41 restricts. pending a court decision. the removal of a child from an applicant for custodianship who has looked after him for three vears.

Children Act of I975.

Habeas Corpus.

Nature of the writ and its unenforceability.

Age of discretion 92 Further provisions deal with enforcement and effect of custodianship orders (sections 43. 43 & -14). (tu.sto(lians are empowered to apply for affiliation orders in certain circumstances (section 45).

XI. Habeas Corpus In England, Habeas Cornus has also long been used to gain the custody of infants. The writ is issued on the application of the party seeking custody and is directed against whoevur has the control of the infant.' Though. in theory. it still rests on the idea of relieving an illtttlal restraint. the ordinary rules of family law apply in custody casns. and the matter is heard in the Family Division (previously. the ('lmncery Division).

An application for custody is a proceeding which involves "not a question of liberty. but nurture. control and educ:.=tion".' As Scrutton l...J. said in his pictures- que language.' proceedings (by way of habeas corpusl for custody are being used "not for the body. bu' for the soul of the infant".

The essence of the writ habeas corpus has always been to free the infant from any unlawful restraint or ill-usacze. and the court has never been bound to deliver him to anyone. if. therefore. the infant had reached years of discretion and cscrmcd beyond the control of the father. he would not be delivered to the father without cxamin.'ition_ but would be allowed to elect where he should go.' In other words. the right of the father to custody in such cases became unenforceable by the father.----at any rate by habeas corpus nroceedinqs in a court of law--once the infant had reached years of discretion. thoucrh the right continued to exist in theory until the infant attained the age of twenty~one.5 However. so long as the infant remained in the actual custody of the father. the father' had a legal right to the control of his infant children. and if the infant were of the years of discretion. the court would interfere only on the same grounds as it would have interfered if the infant were under that age (though it was recognised that a young. child reouires very different treatment from an older one. and conduct of a father which might be tolerated in the case of one might be perfcctlv intolerable in the case of the other.

The one of discretion was :ionnrentlv fourteen years in the case of a male.' but, by artmment from the provisions of one statute." it was sixteen in the case of a female infant.

So far as concerned an illctvitimate child. it sccms that the infant could elect. or at least its wishes would bf' taken into consideration as soon as it had nassed the age of nurture." thourzh the position was. of course. basically different in that no one appeared to have had any right to the custody of an illegitimate child after it had attained the one of nurture.

'Sharpe. Law of Habeas Corpus (19761 Dages 168, 169.

'Barn.vrdo V. McH1r,2e. (1 R9!) l OR. 194. 203 (Lord Ezhcr MR.)-

'Rt' Carrol (19313 l KB. 317. 331.

4R. v. Greenhill. (1838 4 A. & E. 624.

'See Hargreaves's More to Coke upon Lfrrlernrr. 88b and Re A,E'nr~Et'Iiv. (l 5383) 24 Ch.D. 317. 'Re Arrnr-Fllis. (I88?) 74 Ch.D. 317.

7R. v. Clarke. (1857) 7 Fl. & BI. 186: T'/znmn.rse! v. 7'honm.rset. (I 894) p. 295.

'The statute (1557) (4 & F 'Phillip & l\v'Im'_\' (2 SH relates to ziductirm.

..Re Hm-'d. (1841) 3 Man. 8' Gr. "-47: R. v. (','.r.u/rs, H957) 7 Fl. & Til. 196: RP Whilf'. (1343) Hi LT. 349.

XII. Wards of Court A minor can be made a ward of court only upon the making of an application pmcedum for an order to that effect. Prior to 1949. an infant became a ward automatically when an action or other proceeding relating to his person or property was com- tncnccd in the Chancery Division. but now a speciﬁc application is required.' The court has an extensive and special jurisdiction over wards of courts iI1]urisdiCﬁ0n_ respect of both their person and their property, and exercising that jurisdic- tion it acts in a parental and administrative manner. Thus, the court will decide who is to have the cttstoziy. care and control of the ward and who is to have access to the ward and what access is to be allowed. It will control where the ward is to live and will not permit him to be removed from the juris- diction of the court without leave. It follows that it can make orders for his maintenance. and supervises his education and religzious upbringing and investi- gates proposals as to IT13l'Y'la§ZQ.2 Of the recent English cases illustrating this jurisdiction. the most important is that in which the court refused permission to allow the sterilisation of :2 girl of about I] years of age. who was supposed to be mentally defective."

ln the c\'crcise of this jurisdiction also. the welfare of the minor is the paramount consideration.' 'Section 9(1), Law Reform (Miscellaneous Provisions) Act, 1949. 'I-lalsbury, 4th edition, Vol. 24, pagé 266, Dam 597-

"Re Re D. (Minor) (1976) 1 All ER. 326.

'J. v. C_'f., U969) 1 All E.R. 788. (EL) MOIPCBE----S4--2 M of LJ & CA/ND/80-23-6-81-2000.

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