Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Nazir Khan vs Ganesh on 19 May, 1926
Equivalent citations: AIR 1926 All 687


1. This is a first appeal from an order brought by the father against an order of the District Judge of Agra made, or purporting to be made, under the Guardians and Wards Act. The circumstances are simple; but although the law is clear, they are such as arise from time to time and create difficulty in applying the law. One Nazir Khan applied to the District Judge to be appointed guardian of the person of his minor son who was born in 1912. Of course, the parties are Muhammadans. In December 1912, while the son was only eight months old, the father, the present applicant, handed over his son to one Ganesh, a convert to Muhammadanism, thereby delegating his duty of custody and care and up-bringing of the infant.

2. The arrangement was drawn up in a deed which went far beyond what the law recognizes in such matters, namely, it purported to be a sort of transfer of ownership and complete possession and control of the boy from the father to Ganesh, who undertook to bring him up to perform the marriage ceremonies and to educate him. No doubt, the deed was meant at the time to create a kind of adoption. We do not know, but it may have been based entirely upon sentimental considerations. Nazir Khan certainly had one other son; it is possible that Ganesh had none. There is, of course, no such thing as adoption amongst Muhammadans and an arrangement of this kind is clearly revocable. There is no question, of invalidity; whether the father by revoking such an arrangement and taking back the son would create a valid claim for compensation at the suit of Ganesh is a matter which cannot be considered as arising under the Guardians and Wards Act. It would have to be the subject-matter of a suit is any case and the decision would presumably depend upon the provisions of the deed, because unless the deed provided for compensation in the event of revocation, the fact that a revocable deed was entered into would presumably exclude the possibility of the parties contemplating the contingency of compensation arising. Persons who desire to adopt or to bring up other people’s children may well consider themselves rewarded by the pleasure it undoubtedly gives them in return for the expenditure of cash which they are able to spare upon an excellent object of that kind. Of course, the application made to the Court below in this case was a revocation of the authority contained in the deed

3. The learned Judge treats the application as being in form what it actually purported to be, namely, an application by the father to be appointed a guardian. It is a pity that District Judges who are called upon to administer this Act do not take the trouble to familiarize themselves with the fundamental law upon the subject and of the decisions of the Privy Council. If there were any doubt about the position of the natural father, that doubt was removed in the well-known case which attracted much attention at the time, namely, of Annie Besant v. Naruyaniah AIR 1914 PC 41 decided by the Privy Council in 1914. The case decided no more than that a suit by a father would not lie, but their Lordships went out of their way to enunciate the principles relating to the rights of a father over his children during their minority. He is the natural guardian, he cannot divert himself of that duty, or substitute another in his place. His duty is in the nature of a sacred trust. He may, in the exercise of his discretion delegate his authority to another, such as a tutor or a school master or a friend and entrust the education and custody of his children to that other on such terms as he sees fit. Such delegation is revocable.

4. The head-note suggests that if the father has exercised his rights in such a way as in the opinion of the Court exercising the jurisdiction of the Crown over infants, to create associations or to give rise to expectations on the part of the infants which it would be undesirable in their interests to disturb or disappoint, such Court would interfere to prevent its revocation. The head-note clearly goes beyond what was actually said by their Lordships and what may be reasonably implied, in our opinion, from the language which they used, but on the other hand, it may not express much too broadly, if at all, the considerations which would have to apply if some person in the interest of the minor or the minor himself applied to the Court to exercise its powers under the Act to interfere with the conduct of a natural guardian, who was obviously misbehaving himself and treating the child in such a way as to endanger its health, but in fact, all that their Lordships held was that a suit would not lie for the return of the infants and that a direction to the defendant to return the infants could not be carried out in England and that if the father desired to terminate the arrangement, in that case, his proper remedy was to apply to the High Court of Justice in England for a habeas corpus and it seems to be contemplated in the decision in In the matter of Joshy Assam (1896) 23 Cal 290 by Mr. Justice Sale relied upon by the learned Judge in his judgment, that an application under the Guardian and Wards Act might be made in some form under Section 491 of the Criminal P.C. for an order in the nature of habeas corpus. Whether that is correct or not, we desire to express no opinion, but we are satisfied that this application was misconceived and that the learned Judge ought, if he had taken reasonable pains, to have appreciated that fact from the first and to have treated it as an application under Section 7 of the Guardians and Wards Act for an order declaring the father to be the guardian in spite of the deed.

5. Instead of that, he appears to have treated it in the ordinary way as a dispute between two contending parties for the appointment of one or other of them as a guardian when the parents are dead and the infants need protection for their person and property, and he says in the course of what he supposed to be a decision on the merits that he preferred the evidence of Ganesh. We do not quite understand the real meaning of this mysterious pronouncement which appears to us to be quite irrelevant. Mr. Girdhari Lal defending the order, oddly enough made an appeal to a section which directed our attention amongst other things to the wishes of a deceased parent, asking us at the, same time to disregard the wishes of a living one. So far as we could discover during the argument this is the best legal point which can be taken in defence of the learned Judge’s order in this case. Act the same time he appealed to us to give effect to the wishes of the boy. This is always a painful subject, The father has a natural right. This man is a shunter whose duties take him out all hours of the night, for all we know he may be without a wife and he may have been glad to avail himself of the offices of a friend to look after his infant boy and a parent has always the right to do that, but he has also the tight to change his mind. He has obviously the right to re-assert his claim to have the boy with him under his influence and finally brought up at the most receptive age of life in the ideas and with the prospects which the father has for him, and there is no suggestion in this case of any ulterior motive or lack of bona fides because the boy has not been married and the cost of providing for his marriage will as the result of this proceeding necessarily fall upon the father. On the other hand, it is impossible for a child of 14 years of age to be continually in the company and under the care of a kind protector and friend such as Ganesh has proved himself to be, without forming a deep affection for him and possibly being alienated from his real father.

6. In this case the boy was allowed to go into the box and make statements, about some of which we feel somewhat incredulous, and it appears that Ganesh in the exercise of what he believed to be the right of an adoptive father, took steps to prevent the boy even seeing or communicating with his father. Where that sort of thing happens, it is inevitable that the natural inclination and desire of the boy will be to the individual who has been closest to him and has provided for his wants; that is the natural inclination of children, and it cannot but be a wrench to the individual, possibly to the boy, where the Court is called upon to intervene and put an end to such an arrangement by a parental order but such considerations cannot affect our duty, and fortunately the memory of children is short and we are satisfied that if the father treats the boy with the same care that Ganesh has done, the boy will have no reason to regret the order which we feel it our duty to make.

7. We allow the appeal and we declare under Section 7 that Nazir Khan is the natural guardian of the minor. We direct the respondent to return him to his father forthwith.

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