Dayabhai Raghunathdas vs Bai Parvati

Shah, J.—This is an appeal under the Guardians and Wards Act. It arises out of an application made by the appellant to the District Court of Surat u/s 25 of the Guardians and Wards Act for the custody of his minor daughter Bai Mani.

The lower Court has rejected this application on the ground that unless the appellant takes steps to be appointed a guardian of the minor, no application u/s 25 could be entertained by that Court.

The correctness of this view has been questioned before us in this appeal. A ''guardian,'' as defined by the Act, means a person having the care of the person of a minor or of his property, or of both his person and property. The appellant is the father of the minor and claims to be her natural guardian. Section 25 refers to the custody of a guardian and not of a guardian appointed under the Act. This distinction between a guardian and a guardian appointed under the Act is to be noticed throughout the Act. As an illustration we may refer to Section 26 of the Act where provision is made with reference to a guardian of the person appointed or declared by the Court.

It seems that it is open to an aggrieved party to make an application to the Court u/s 25 where the ward leaves or is removed from the custody of a guardian of his person. It is not essential that there should be a certificated guardian before an application u/s 25 could be entertained by the Court. We do not see anything either in the scheme of the Act or in the position of Section 25 in Chap. III which relates to duties, rights and liabilities of a guardian, which can be said to be in conflict with this view; on the contrary, it appears that the scheme of the Act supports it.

We say nothing as to the merits of the application. It was suggested on behalf of the respondents that the application may be disposed of on the merits here. But the lower Court has decided the application on a preliminary ground and it would not be right to say anything as to the merits at this stage. This appeal is decided only on the allegations made in the petition, which contains an averment that the applicant is a guardian of the minor as defined by the Act and that the ward is removed from his custody.

It follows, therefore, that the order of the lower Court must be set aside and the application sent back to that Court for disposal according to law.

Costs to be costs in the application.