Asha Wadhwa alias Indu vs Prithvi Raj Wadhwa

V.S. Deshpande, J.

(1) The petitioner (wife) had made an application against the respondent (husband) u/s 12 oi the Guardians and Wards Act, 1890 seeking an order for the temporary custody and protection of the person or properly of the minor who is a one and a half year old son of the parties The application was also to be considered u/s 6(a) of the Hindu Minority and Guardianship Act, 1956. The application was dismissed by the trial Court mainly on the ground that the minor was born when the mother was very ill and bad, Therefore, to be brought up by the father with the effect that till now the minor does not ^now the mother at all. The trial Court, Therefore, did but think it desirable to disturb the custody of the father over the child pending the decision of the main application t)y the wife u/s 7 of the Guardians and Wards Act, 1890 for her appointment as the legal guardian as against her husband.

(2) To succeed in a revision petition u/s 115 CPC some jurisdictional defect against the impugned order has to be shown. Shri Daya Kishan learned counsel for the petitioner strongly relies upon the right of the wife to the custody of the minor till (he minor attains the age of five years given to her for the first time by section 6(a) of the Hindu Minority and Guardianship Act, 1956. The question, Therefore, arises as to whether the application made by the wife before the trial Court u/s 12 of the Guardians and Wards Act, 1890 is strengthened by reference to section 6(a) of the Hindu Minority and Guardianship Act, 1956 To decide this question it is necessary to know the scope of section 7 of the Guardians and Wards Act, 1890 first.

(3) When the Guardians and Wards Act was enacted in 1890 the Hindu Father was the legal guardian of his minor children. The right to guardianship included the right to the custody of the minors. Section 25 of the Guardians and Wards Act, 1890 is based on this presumption. Section 6 of the said Act expressly saves any power to appoint a guardian of the person or properly of 3 minor which is valid by the law to which the minor is subject. That ,normal rule under the Guardians and Wards Act Therefore, was that the father was entitled to the guardianship and custody of his minor children. It is only if there were circumstances which made it undesirable for the father to be the guardian or the custodian of his minor children that the custody of the minor could be transferred to the mother or to some other person as the court may Order. The Scope of section 12 of the Guardians and Wards Act, 1890 was, Therefore, limited by the above circumstances. An application u/s 12 could be made only ''for the temporary custody ar,d protection of the person or property of the minor . The language of section 12 implies that the application there under thereunder would be made only if the minor was not in the custody of his legal guardian. If the legal guardian was not a desirable person then an application u/s 7 had to be made for his removal and appointment of a new guardian. Similarly, if the legal guardian was not a proper custodian of the minor children an application under the uncodified Hindu Law had to be made for entrusting the custody of the minor to the mother for special reasons .But to application could be made u/s 12 for the entrustment of the permanen of the permanent custody of the a minor to a person other than the legal gus dian

(4) I hough the application by the wife before the trial Court was purported to be u/s 12 of the Guardians and Wards Act, 1890, she wanted it to be read also with section 6(a) of the Hindu Minority and Guardianship Act, 1956. In reality, her stand is that she being the mother has the right to the custody of the minor who is below five years of age because of section 6(a) of the Hindu Minority and Guardianship Act, 1956. She is, Therefore, seeking not the temporary custody and protection of the minor but the regular custody of the minor till he attains the age of five years by virtus of section 6(a) of the Hindu Minority and Guardianship Act, 1956. For the purpose an application u/s 12 of the Guardians and Wards Act, 1890, was not the appropriate step to be taken. The wife cannot be course be blamed for trying to combine section 12 of the Guardians and Wards Act,.1890with section 6(a) of the Hindu Minority and Guardianship Act, 1956. She did so because of the somewhat unclear legal position pointed out above.

(5) Section 2 of the Hindu Minority and Guardianship Act, 1956 says that the provisions of the said Act shall be in addition to, and not, save as hereinafter expressly provided " in derogation of the Guardians and wards Art, 1890. Section 5 of the Hindu Minority and Guardianship Act. 1956 gives an overriding effect to that Act over any rules of Hindu law to the contrary and also the provision of any other law in force immediately before the commencement of the said Act in so far as it is inconsistent with any of the provisions contained in the Act. Reading suctions 2 and 5 of the Hindu Minority and Guardianship Act, 1956 together, it would appear that the intention of section 2 is not to derogate from the provisions of the Guardians and Wards Act. 1890 even though any of the provisions of the Hindu Minority arid Guardianship Act, 1956 were to be in conflict with the provisions of the Guardians and Wards Act, 1890. The intention was to add the new provisions of the Hindu Minority and Guardianship Act, 1956 as supplement to the Guardians and Wards Act, 1890. Therefore ,the every riding effect of section 5 would not seem to apply to the provisions of the Guardians and Wards Act, 1890 even if they are to some extent inconsistent with the Hindu Minority and Guardianship Act, 1956. The role of interpretation of statutes in such a case is this : Each of the two statutes is allowed to operate within own sphere. Any inconsistency between the two is not to have the effect of an implied repeal of the older Act by the subsequent Act. Harishankar Bag V State of Madhya Pradesh.

(6) The effect of a harmonious reading of the provisions of the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act, 1956 would appear to be as follows: the substantive right conferred on the mother to the custody of the minor till he attains the age of five years by lection 6 (a) of the Hindu Minority and Guardianship Act, 1956 is not subject to one limitation as one imposed by section 26 of the Hindu Marriage Act, 1955 that a proceeding between the husband and the wife should be pending before an application can be made by the mother for the custody of the minor under lection 6(a) of the Hindu Minority and Guardianship Act, 1956. Section 26 of the Hindu Marriage Act, 1955 provides only for an interim order just as section 12 of the Guardians and Wards Act, 1890 does Ob the contrary, section 6(a) of the Hindu Minority and Guardianship Act, 1956 is not concerned with and interim order at all. It alters the Hindu law in an important respect It lays down the rule that the custody of the minor below the age of five years is to be with the mother "ordinarily ". The use of the word " ordinarily " means that the father can show special circumstances as to why the rule should oat be followed and as an exception the custody of the minor should not be given to the mother. Curiously, the Hindu Minority and Guardianship Act, 1956 does not provide for a specific procedure for the enforcement of the right of the mother. This difficulty, however, is not insuperable. The application of the mother u/s 7 of the Guardians and Wards Act, 1890 is already pending before the trial Court. It is a substantive application for her appointment as a guardian in place of the father. This application is still to be decided by the trial Court after taking evidence of the parties. Just as sections 7 and 25 of the Guardians and Wards Act, 1890 deal with the subject of guardianship including that of the permanent custody of the minor so also section 6 of the Hindu Minority and Guardianship Aet, 1956 deals with the question of permanent guardianship of the minor including the permanent custody of the miner. It would appear, Therefore, that the enforcement of the rights created by section 6 of the Hindu Minority and Guardianship Act, 1956 may appropriately be included in the subject matter of the application made by the another u/s 7 of the Guardians and Wards Act, 1890. One may go further and observe that even if the application u/s 7 of the Guardians and Wards Act is not made the mother of a Hindu minor below the age of five years would be entitled to make an application merely for the custody of the minor without disturbing the legal guardianship of the minor. Such an application would be in accordance with section 6 of the Hindu Minority and Guardianship Act, 1956. Such a view would be supported by the maxim Ubi jus ibi remedium. There is no doubt that lection 6 gives the right of custody of a minor below the age of five years to the mother. Even if it does not prescribe the remedy, if would appear that an application u/s 6 would be maintainable in the court which has the jurisdiction to deal with the cases between the husband and wife under the law which includes the statutes changing the personal laws of the Hindus passed in 1955 and 1956 Fortunately for the mother an application u/s 12 of the Guardians and Wards Act, 1890 has already been made and she can urge in the same application her right to the custody of the miner under lection 6 (a) of the Hindu Minority and Guardianship Act, 1956.

(7) From the order under revision it is clear that the trial Court was concerned only with the temporary custody and protection of the minor in disposing of the application u/s 12 of the Guardians and Wards Act, 1890. It was not concerned with the permanent custody of the minor to which the mother can lay claim u/s 6(a) of the Hindu Minority and Guardianship Act, 1956. On the view that I have taken above, the anxiety of the mother really is to obtain the custody of the minor not only temporarily but regularly till be attains the age of five years u/s 6(a) of the Hindu Minority and Guardianship Act, 1956. The application u/s 12 of the Guardians and Wards Act, 1890 was not, Therefore, suited to this prayer. The trial Court cannot, Therefore, be said io have gone wrong jurisdictionally in dismissing that application. On that finding this revision is dismissed with the observation that the claim of the mother u/s 6(a) of the Hindu Minority and Guardianship Act, 1956 has still to be considered by the trial Court when the application u/s 7 ef the Guardians and Wards Act, 1890 comes before it for disposal. As the question is of great delicacy and urgency to both the parties, the trial Court will no doubt dispose of the application u/s 7 as expeditiously as possible. There will be no order as to costs.