Equivalent citations: AIR 1961 MP 173

Bench: S Bhargava
Brejendra Narayan Ganguly And Anr. vs Chinta Haran Sarkar And Anr. on 10/10/1960
JUDGMENT
S.P. Bhargava, J.
1. This appeal arises out of an application under Section 25(1) and (2) of
the Guardians and Wards Act (VIII of 1890) read with Section 6 of the Hindu
Minority and Guardianship Act, 1956, made in the Court of the Second Additional
District Judge, Jabalpur. The application of the applicants was rejected by the
said Court. Being aggrieved by the said decision, this appeal has been
preferred.
2. The relevant facts of the case are that the applicants are husband and
wife and belong to Bengali Brahmin community. The applicants were the parents of
three children before 11−2−1956. Their 4th child was born on 11−2−1956 in some
hospital at Jabalpur. This child was a girl and was named ’Mana’. It is admitted
that on the 9th day after her, birth, the child was handed over to the custody
and care of the non−applicants (respondents) who also are the husband and wife.
The respondents belong to the Bengali Kayastha community. This is also admitted
that at the time of the handing over of the child, the relations between the
parties were very cordial. The present dispute ranges round the custody of this
child ’Mana’.

3. The case of the applicants was that at the time when Mana was born, her
mother (applicant No. 2) was in a very weak state of health. She was not
expected to feed the child properly. Under these circumstances the applicants
were required to make suitable arrangement for getting the child properly
brought up. The applicants say that ultimately they approached the respondents
with the request that they may assume responsibility for bringing up the child
till its mother (applicant No. 2) was in a fit state of health to assume her
responsibility of nurturing the child.
It is averred by the appellants (applicants) that the respondents (non−
applicants) gladly acceded to their request and brought up the child
satisfactorily. About seven or eight months after however, when the applicants
desired the child to be restored to them, the non−applicants on one ground or
the other put off the handing over of child and ultimately, refused.
4. The case of the non−applicants on the other hand was that a few days
before the birth of the child, there was an agreement entered into between the
parties to the effect that in case a female child was born to the applicant No.
2, the child would be given in adoption to the non−applicants who were issue−
less. It was further stated that it was agreed upon that the ceremony of
adoption would be performed about a year after.
In pursuance to the agreement, the ceremonies of giving and taking in
adoption took place on 6−1−1957. As a consequence of adoption, the applicants,
it was alleged, were not entitled to the restoration of the custody of child, It
was further alleged that the return of Mana to the applicants was not in her own
interest considering her welfare and so it was urged that the application of the
applicants deserved to be rejected.

5. A further point was urged in this Court to the effect that the application
as laid in Court did not fall within the purview of section 25 of the Guardians
and Wards Act.
6. The lower Court had framed four issues covering the objections raised.
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 Issue No. 1 pertained to tile factum of handing over of the child because
applicant No. 2 was not in a proper state of health. Issue No. 2 was with regard
to the factum of adoption. In my view, the facts covered under issue No. 1 fall
properly within the purview of the rebuttal of issue No. 2 and, therefore, I
propose to deal with the evidence led by the parties with regard to these two
issues together.

7. The most important question for consideration in this case is as to

whether the girl Mana was given in adoption on 6−1−1957 as alleged by the non−
applicants, It may be recalled that the Hindu Adoption and Maintenance Act, 1956
(Act No. 78 of 1956) came into force on 21st December 1956. It would, therefore,
appear that the adoption which is alleged to have taken place, is said to have
taken place only fifteen days after the Act permitting the adoption of a
daughter amongst Hindus generally became law.
Adoption of girl was not known to the general law of the Hindu before the
Hindu Adoptions and Maintenance Act, 1956, came into force and the onus of
establishing a local, tribal or family custom validating such an adoption was
upon those who allege it. No such custom has been set! up to support the
agreement or factum of adoption. It is interesting to note that in this case,
the agreement of adoption is said to have been made at a time when the law did
not permit such adoption.
The lower Court has discussed the evidence adduced on behalf of the non−
applicants with regard to the agreement of adoption in paragraph 10 of its
judgment. Non−applicant No. 1 in his deposition stated that the agreement was
made a week before the birth of the child but non−applicant No. 2 gave a
different version. She stated that the agreement was originally made about three
or four months before the birth of the child, and that it was subsequently
confirmed a fortnight before the birth of the child.

Non−applicant No. 1 deposed that both he and his wife were willing to adopt
the child, on the very day the talk originally took place, and when the
agreement was made. Non−applicant No. 2 gave a contrary version by saying that
she neither desired nor expressed her willingness to adopt till adoption
actually took place on 6−1−1957. In fact, she went to the length of stating in
the witness−box that the adoption of the child was forced upon her by the
applicant No. 1 and that in fact, she never had any desire to adopt.

8. Apart from the contradictions found in the statement of the two non−
applicants, there are many circumstances present in the case which point out
that possibly the story of the agreement of adoption being in existence has been
cooked up only to support the case of adoption set up by the non−applicants. The
non−applicant No. 2 has admitted in her statement that her husband’s brothers
have as many as seven or eight daughters. She has admitted that it was suggested
to her that some one amongst these girls may be taken by her but she did not
like the idea.

It appears unreasonable on the face of it that even if it be assumed that the

non−applicants were desirous of adopting a female child, much in advance of such
an adoption being permissible according to law, they would not have thought of
adopting a girl related to them, particularly when no strained relations between
the non−applicants and the brothers of non−applicant No. 1 are alleged. This is
also significant that the age of non−applicant No. 2 at the time of the alleged
agreement of adoption was only about thirty years. It does not become clear from
the record as to whether as a fact non−applicant No. 2 had given up all hopes of
bearing children and if so, on what grounds.
9. Non−applicant No. 2 has stated that her husband had consulted some lawyer
about a month before the date of adoption and the lawyer had expressed the
opinion that the adoption was then permissible. This statement shows that before
non−applicant No. 1 consulted the lawyer, he did not know as to whether it would
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 at all be possible to adopt a girl. Without knowledge of such an adoption being
permissible, the possibility of an agreement of the type alleged by the non−
applicants with the applicants being made in those contingent circumstances that
if a girl is born, she would be given in adoption alter a year, seems to be too
remote.
It is too tall a story to be believed. Further the non−applicants have not
even cared to examine the particular lawyer who had given that advice to non−
applicant No. 1. In fact, non−applicant No. 1 in his deposition admitted that
before the birth of the girl Mana, he had obtained no legal opinion on the
possibilities of adoption but he did obtain such opinion two or three months
before actually making the adoption.

Non−applicants’ witness Kamal Kumar Guha (N.A.W. 4) stated in his deposition

that applicant No. 1 had himself stated to him that he had agreed to give the
child Mana in adoption to the non−applicants. But, applicant No. 1 has not been
asked any question in his cross−examination to get the version of Kamal Kumar
Guha corroborated. His statement, therefore, does not inspire confidence.

10. Considering all the facts and circumstances that have been brought to
light with regard to the alleged agreement of adoption, I am in full agreement
with the view taken by the lower Court and hold that no such agreement has been
proved.
11. Before discussing the evidence pertaining to the ceremony of adoption
alleged to have taken place on 6−1−1937, I may emphasize that there is a very
heavy and serious onus resting on a person who relies upon an adoption. In such
a case, the proof of adoption has to satisfy a strict and severe scrutiny. In a
recent case reported in Kishori Lal v. Mt. Chaltibai, AIR 1959 SC 504, their
Lordships observed as follows:−−

"As an adoption results in changing the course of succession, depriving

wives and daughters of their rights and transferring properties to comparative
strangers or more remote relations, it is necessary that the evidence to support
it should be such that it is free from all suspicions of fraud and so consistent
and probable as to leave no occasion for doubting its truth. When the family in
which the adoption is claimed to have taken place is that of Marwari Aggarwals
and belongs to a commercial community who maintain a complete and detailed
accounts, failure to produce account in such circumstances would be a very
suspicious circumstance."
In the instant case, this burden has to be discharged with even greater
strictness because of the particular fact that an unusual adoption is set up.
(After discussing evidence His Lordship concluded). The evidence in support
of the adoption is considerably weak and unconvincing when all the circumstances
of the case are properly considered. I, therefore, conclude that the non−
applicants have failed to prove adoption set up by them and held accordingly.
12−14. The next question raised by the non−applicants is that it has not been
proved that the restoration of Mana to the custody of applicants would be in her
own interest. I am clearly of the view that this objection also is baseless and
without any force. According to the Hindu Law, the; natural guardian of a minor
child is the father. In the next place, the guardian, of a child is the mother.
In this case, both the father and mother have joined in making application.
Nothing has been said against their habits or ways of living. So, there exists
no ground on the basis of which the placing of the child under their normal care
can be said to be unsuitable considering the welfare of the child. The very
principle of guardianship is that there is a presumption that parents will be
able to exercise good care in the welfare of their children if they do not
happen to be unsuitable as guardians.
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 It was their instinct to care for the welfare of their child that prompted
them to part with the child even it was so tender in age. The point emphasized
by the learned counsel for the non−applicants was that separation of the child
at the stage from the non−applicants would be a step which will not be conducive
to the welfare of the child. The child and non−applicants both are said to be
not in a position to bear the separation. What is being said on their behalf can
be urged in my view with a greater force in favour of the applicants.
It would be against all principles of law to separate the child from the
parents against their will when they are not found unfit to care for the child.
It would be seen that during the whole period of litigation, which runs to about
three years, the child has been kept separate from the parents on a false plea
of adoption. I, therefore, hold that it has not been shown that it would be
against the interest or welfare of the child Mana, that she should not be
restored to the applicants.
15. The last point that has been urged is that as the child was voluntarily
made over to the non−applicants admittedly, the present proceedings are
misconceived. In other words, the argument was that the applicants cannot seek
relief in these proceedings when the child has not been removed forcibly or
secretly. It has been urged that if at all there is a remedy, it can only be by
way of a suit. I am of the opinion that this objection also is not tenable.
Section 25 of the Guardians and Wards Act (VIII of 1890; reads as under:

25 (1): If a ward leaves or is removed from the custody of a guardian of

his person, the Court, if it is of opinion that it will be for the welfare of
the ward to return to the custody of the guardian, may make an order for his
return, and, for the purpose of enforcing the order, may cause the ward to be
arrested and to be delivered into the custody of his guardian.

"(2): For the purpose of arresting the ward, the Court may exercise the
power conferred on a Magistrate of the first class by Section 100 of the Code of
Criminal Procedure, 1881.
"(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 guardianship."
16. In the case of Annie Besant v. Narayaniah, ILR 38 Mad 807: (AIR 1914 PC
41), the Privy Council has observed:
"Among Hindus, as in England, the father is the natural guardian of his
children during their minority; but this guardianship is in the nature of a
sacred trust, and he cannot therefore during his lifetime substitute another
person to be guardian in his place. He may, in the exercise of his discretion as
guardian, entrust the custody and education of his children to another; but the
authority he thus confers is essentially a revocable authority, and if the
welfare of his children require it, he can, notwithstanding any contract to the
contrary, take such custody and education once more into his own hands....."
The facts of that case bear considerable similarity with the facts involved
in the instant class. In that case also, the father of the two minor children
had made them over for up−bringing and education to the defendant and
afterwards, the plaintiff wrote to the defendant cancelling his previous letter
by which he had constituted her the guardian of his two sons and demanding that
the two boys should be handed over to him by ’a’ named date.

In that case, instead of following the procedure prescribed under the

provisions of the Guardians and Wards Act, a suit was instituted. Their
Lordships came to the conclusion that the remedy of suit adopted was
misconceived. In Dhan Kumari Devi v. Mahendra Singh, AIR 1923 Nag 199, a
different view was taken after distinguishing the facts of the Privy Council
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 Case referred to above. The instant case is clearly covered by the authority of
Annie Besant’s Case, ILR 38 Mad 807: (AIR 1914 PC 41) (supra).
17. The word ’remove’ in its ordinary, grammatical and literal meaning means
’take off or away from the place occupied, convey to another place, change
situation of, get rid of, dismiss’. There is no particular definition given of
the word in the Act and it does not appear that it has been used as a term of
art. The result, therefore, is that whether the child has been removed
voluntarily or involuntarily, with the consent of the natural guardian or
without It, in my opinion the language of Section 25 of the Guardians and Wards
Act is sufficiently wide in amplitude to provide 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 Clause 2 of
Section 25, of the Guardians and Wards Act.
18. It has been held in many cases that refusal by person to deliver child to
its natural guardian when asked to do so amounts in effect to a removal from
custody. In Raghvaiya v. Lakshmiah, AIR 1925 Mad 398, it was said:

"A ward who was never in the actual custody or charge of his father may be
deemed to be re−moved from his custody when the person in actual possession
repudiates to the father’s knowledge the right of the father to the actual
custody of the minor."
Further, in Noshirwan v. Sharoshbanu, AIR 1934 Bom 311 the law on this point
was stated as under:
"A ward in the actual custody of another person with the permission of the
guardian .....is deemed to be under the constructive custody of the guardian,
and the refusal of the person in actual custody to hand over the minor to the
guardian amounts to a removal of the minor from the constructive custody of the
guardian within the meaning of Section 25."
And, in Sarada Nayar v. Vayankara Amma, AIR 1957 Kerala 158, it was observed:
"Even though the words "removal" and ’custody" are not defined in the Act,
these two words have also to be taken to have been used in Section 25 in their
widest sense just as the words "guardian" and "ward". The word ’custody’ must,
therefore, be taken to mean any form of custody, actual or constructive, or, in
other words physical or legal. The legislature has not chosen to specify the
nature of the custody contemplated by Section 25....."

Applying the principle formulated in these cases to the facts of the present
case, the conclusion reached by me is that the respondents’ act in repudiating
the right of the appellants to resume the custody of the child amounts to
’removal’ within the meaning of Section 25 of the Guardians and Wards Act.
19. The result is that the appeal succeeds. I set aside the order passed by
the lower Court and order that the female child, Mana, referred to above, shall
be restored to the custody of applicant No. 1 under the provisions of Section
25(2) of the Guardians and Wards Act, within one month of this order. If
necessary, warrant of arrest of the child, ’Mana’ shall be issued and
immediately on arrest, the child shall be made over to the applicant No. 1. The
non−applicant (respondents) shall pay the costs of the appellants for both the
Courts, Counsel’s fee in this Court is fixed at Rs. 50/−.

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