Lilabai vs Chandulal

Samvatsar, J.—The petitioner is the daughter of opponent No. 1 Chandulal and is alleged to be a minor about 15 years old. She left her father''s custody or was removed from it, by the opponent No. 2 Harischandra.

On 17-7-1956 Chandulal applied to the District Judge, Indore u/s 25 of the Guardian and Wards Act for custody of his minor daughter, the present petitioner. In the application, he alleged that the petitioner was born on 3-8-1942 and being a minor was living with him; that on 9-6-1956 the opponent Harischandra seduced her and took her away from his custody which is the custody of the natural guardian; that he had already filed criminal complaint against Harischandra in the Court of the First Class Magistrate, Mhow, for prosecuting him u/s 366, I.P.C. and these proceedings were pending in that Court.

To prove that Lilabai was still a minor, Chandulal produced a copy of the school leaving certificate of the minor in which the date of birth of the present petitioner Lialabai is mentioned to be 5-8-1942.

Along with the petition u/s 25, Guardian and Wards Act Chandulal also filed a special application requesting the Court to Issue a search-warrant to arrest the minor and to secure her presence before the court for further orders in regard to her custody during the pendency of these proceedings.

The learned Additional District Judge, Indore, granted the prayer of Chandulal by his order dated 17-7-56 and directed a search-warrant to be issued to arrest the minor and to produce her in court on 31-7-1936.

It appears that somebody on behalf of the petitioner was watching the proceedings. On 18-7-1956 she submitted an application to the Additional District Judge requesting him to cancel the order for issuing the search-warrant. In this application, she contended that she had attained majority and was not a minor. She further contended that Harischandra was not in Mhow and it was incorrect to state that she was in his custody or was living in his house.

The learned Additional District Judge, was not satisfied that there were any good grounds to reconsider the order passed on the previous day and rejected the application filed by the petitioner for its cancellation. The search-warrant issued by the District Judge was however not executed by the police officer Mhow with due diligence with which it should have been executed and this enabled the petitioner to disappear from Mhow.

On 22-9-1956 the petitioner again applied to the Court to cancel the warrant. In this application, she contended that Section 12 of the Guardian and Wards Act did not apply to the proceedings initiated u/s 25 of that Act and the search-warrant issued was therefore illegal and without jurisdiction. The kerned District Judge overruled the contention and rejected the prayer for canceling the search-warrant. Aggrieved by this order, the petitioner has preferred this revision-application.

Mr. S.L. Garg, learned counsel for the petitioner raised only one contention. He submitted that Sec. 12 of the Guardian and Wards Act did not apply to a proceeding commenced u/s 25 of the Guardian and Wards Act. The learned Additional District Judge had therefore no jurisdiction to issue a search warrant for arresting the petitioner and for producing her in court. In support of this proposition Mr. Garg, relied on AIR 1929 487 (Lahore)

Two points arise for consideration. (1) Whether the court had jurisdiction to issue the search-warrant for production of the minor petitioner in court and, (11) Whether this is a fit case for interference in exercise of the revisional powers of the High Court.

There is nothing in Section 12 of the Guardian and Wards Act to suggest that the powers of the court to issue a search-warrant for production of the minor are confined to proceedings initiated by an application u/s 7 for appointment of a guardian. But it was argued that because Section 12 follows Section 9, 10 and 11 it should be construed as being confined to cases arising under those sections. I do not see any force in this contention. As I have already observed there is nothing in the language of Section 12 of the Guardian and Wards Act to show that its operation is conned only to proceedings initiated under the provisions of the previous sections. In my opinion Section 12 of the Guardian and Wards Act confers power on the Court to pass an interim order for the custody of the minor when he has left the custody of the guardian or has been removed from it, and proceedings are by the Guardian for restoring it under the provisions of Section 25 of the Act. I am supported in this view by a decision of the Lahore High Court in AIR 1938 313 (Lahore) In that case a guardian was appointed by the Court for the person of a minor but the minor was not restored to her custody. The guardian appointed by the court therefore filed an application u/s 25 of the Guardian and Wards Act for the custody of the minor. She also applied for an interim order u/s 12 of the Guardian and Wards Act. The application was refused by the District Judge relying on the decision of the High Court in Indersingh Vs. Kartar Kaur. The guardian preferred an appeal, which was heard by the Division Bench of that High Court. The learned Judges of the Division Bench overruled the decision of the single Judge in Indersingh Vs. Kartar Kaur and allowed the appeal. In this connection, the learned Judges of Division Bench observed as follows:--

There is another way of looking at the matter. A minor who is not delivered to the guardian after he has been appointed by a competent court, can be treated as having left or been removed from the custody of the guardian under Sec, 25 (1), Guardian and Wards Act. As remarked by a Division Bench of the Allahabad High Court in 49 All. 773 at page 777, the judicial interpretation has taken a merciful view of the matter so as to prevent the courts being rendered powerless and has treated the custody mentioned in Sec. 25 as constructive custody.

The Allahabad case reported in 49 Allahabad at page 773 was a decision of the Division Beach. That was a case in which the parties were Muslins and the dispute related to the custody of the boy who at the relevant time was living with his mother. The father applied for being appointed guardian of the person of the minor and that prayer was granted by the court. As the minor happened to be below the age of 6, the court ordered that he should be allowed to remain with mother until he completed the age of 6, that is up to 31st December, 1925.

After this date had expired, the father again applied for being appointed the guardian and for possession of the child, and that prayer was again granted. The mother preferred an appeal to the High Court, wherein she contended, that the order of the Court appointing a person who was natural guardian was without jurisdiction and should be vacated, The learned Judges of the Division Bench agreed with this contention. They however, held that Sec. 25 of the Guardian and Wards Act applied to the case and the natural guardian was entitled to an order for the custody of the minor under Sec. 12 of that Act.

A careful reading of these authorities indicates that when a minor leaves the custody of the guardian or is removed for the custody of the guardian, an application can be made under Sec. 25 of that Act and an interim order also can be passed under the provisions of Sec. 12. In this view of the matter, there is no substance in the contention raised by Mr. Garg.

On the merits of the case also there are no grounds for interference. The petitioner is a minor female of the age of 15 years and is residing with a stranger. Some body is watching the court proceedings on her behalf and is raising objections after objections without producing her before the Court. In her first application, filed on 18-7-1956 she stated that she was living alone at Mhow but when the search-warrant was issued she was found to have disappeared from there. It seems to me that she is living with the opponent Harischandra and he is trying to help her in evading process of the court. In my opinion, in the interest of the minor, it is desirable that she should be under the protection of her father rather than that of stranger. If there are any apprehensions, that the father will marry her against her wishes or subject her to any kind of ill-treatment or force her to take recourse to undesirable conduct, arrangements can be made for her protection by the Court.

I see no reason to entertain this revision-application and it is here by dismissed with costs.