The preferential right of the father as the guardian of a minor and the need to prove the welfare of the ward when resorting to Section 25.

Venkatasubba Rao, J.

1. This appeal raises questions regarding the interpretation of Sections 19 and 25 of the Guardians and Wards Act (VIII of 1890).

2. An application was made under the Guardians and Wards Act to obtain a declaration that the father of the infant in question was its legal guardian. The applicants wife died in the house of her parents leaving a female child of 15 days old. Within six months of her death the father of the infant requested his father-in-law to hand over to him his child, but his request was refused, and thereupon the father applied to the Court that he might be declared the guardian of his minor child. The learned District Judge made an order in his favour and also directed the custody of the minor to be given to the father.

3. The first contention of the appellant is that the Court had no jurisdiction to make the order in question under Section 19 of the Guardians and Wards Act. The material part of the section runs thus:

Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the person of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor.

4. It is argued, that inasmuch as the minors father is living and is not found to be unfit to be guardian, the Court cannot either appoint or declare a guardian. The question is whether this is the right construction of Section 19. In this connection, I may refer to another similar clause of the same section which enacts that a Court shall not appoint or declare a guardian of the person of the minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be her guardian. The section "recognises the preferential right of the husband or the father as the case may be and provides for the safeguarding of such right. It is not intended to impose a disability upon either of them but, on the contrary, the plain intention of the section is, that in the case of a married female no one other than a husband shall be appointed her guardian unless he is unfit to be such and in the case of a minor child none but the father, excepting when it is proved that he is not fit to be its guardian. We are asked to say (confining ourselves to the case of the father) that he can never be appointed or declared a guardian. This seems to me to defeat the very object of the section. When the father of the infant is found by the Court not to be unfit, it is said he is the very person that is not to be appointed or declared. The section is, in my opinion, badly drafted but the construction of the appellant, if accepted, leads to an absurdity, and the construction must, if possible, be rejected. In my opinion, the section means that if a third party applies he shall not be appointed or declared a guardian of the person of a minor whose father is living and is not unfit. If the father is the applicant, the section has no application. This is the view taken by a Bench of this Court of which I was a member in Satyanarayana v. Narasaiyanima (1923) 18 LW 173, and I still think that that view is correct,

5. Section 7 runs thus:

(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian the Court may make an order accordingly.

6. The form of the application is prescribed by Section 10. Under these two sections the question that the Court is to put to itself is : Is it for the welfare of the minor that its father should be declared to be the guardian of its person? If it is, the Court may make an order. Under Section 17 in making an appointment or declaration, the Court must first and foremost have regard to the welfare of the minor. But Section 19 says by way of a rider that it shall be presumed until the contrary is shown, that the welfare of the minor requires that the father shall be the guardian of the person.

7. T