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1914 Supreme(SC) 37
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE L.C., LORD MOULTON, LORD PARKER OF WADDINGTON, SIR JOHN EDGE, AND MR. AMEER ALI.
BESANT - Appellant
Versus
G. NARAYANIAH - Respondents
On Appeal from the High Court at Madras.
Decided On : May. 4, 5, 25. 1914.
Solicitors for appellant: Lee & Pembertons.
Solicitor for respondent: Douglas Grant.
Solicitors for respondents added by order: Colder, Woods & Pethick.
A father's delegation of custody is revocable unless it creates expectations undesirable to disturb. Jurisdiction for guardianship requires the minor to be "ordinarily resident" in the district; courts cannot issue mandatory orders for the return of minors from foreign jurisdictions that would violate the laws of that foreign country.
Headnote:(A) Guardians and Wards Act, 1890 - Sections 9, 19 and 52 - Indian Majority Act, 1875 - Section 3 - Letters Patent, 1865 - Clauses 13, 17 and 20 - Guardianship and custody of minors - Father as natural guardian - Delegation of custody and education to a third party - Such authority is essentially revocable, provided the welfare of the children requires it, unless the delegation has created associations or expectations that would be undesirable to disturb - Jurisdiction of the District Court is confined to infants ordinarily resident in the district - Minors residing in a foreign country cannot be considered ordinarily resident in a local district for the purpose of initiating guardianship proceedings.
(B) Jurisdiction of High Court - When a suit is transferred from a District Court to the High Court, the powers of the High Court are generally confined to those which might have been exercised by the District Court - A mandatory order directing a party to bring minors from a foreign jurisdiction to the local jurisdiction, against the will of the minors, may be contrary to the laws of the foreign country and unenforceable.
Facts of the case:
A father entrusted the custody and education of his two minor sons to a third party, who took them to a foreign country for university education. The father subsequently revoked this authority and filed a suit in a District Court seeking a declaration of his entitlement to guardianship and custody, and a direction for the third party to hand over the children. The suit was transferred to the High Court, which declared the minors wards of the court, appointed the father as guardian, and ordered the third party to return the children to the father.
Findings of Court:
The suit was misconceived as the father remained the natural guardian. The District Court lacked jurisdiction because the minors were not ordinarily resident in the district. The High Court, upon transfer, could not exercise powers beyond those of the District Court. Furthermore, the mandatory order to return the children from a foreign country was improper as it could lead to legal conflicts in that foreign jurisdiction.
Issues: Whether the District Court had jurisdiction over minors residing in a foreign country; whether the delegation of guardianship by a father is revocable; and whether the High Court could issue a mandatory order for the return of minors from a foreign jurisdiction.
Ratio Decidendi: The court held that while a father is the natural guardian and cannot substitute another as guardian, he can entrust custody, which is a revocable authority. Jurisdiction under the relevant Act requires the minor to be ordinarily resident in the district. A court should not issue an order that would be contrary to the laws of another country, particularly regarding the forced movement of minors.
Result: Order of the High Court discharged and suit dismissed with costs.
Legal Category Hierarchy
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family law
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guardianship and custody
- natural guardianship
- wardship
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guardianship and custody
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practice and procedure
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jurisdiction
- territorial jurisdiction
- international jurisdiction
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jurisdiction
Judgement
Appeal from a judgment and decree of the High Court (October 29, 1913) affirming a judgment and decree of that Court in its original civil jurisdiction (April 22, 1913).
The respondent G. Narayaniah, having by agreement given the custody and bringing up of his two minor sons to the appellant, revoked the agreement, and in October, 1912, instituted a suit against her in the District Court of Chingleput by a plaint claiming (1.) a declaration that he was entitled to their guardianship and custody; (2.) a declaration that the appellant was not entitled, and in any case was unfit, to have the charge and guardianship of them ; (3.) a direction to the appellant to hand them over to him, or to such other person as to the Court should seem fit. The circumstances under which the suit was instituted, so far as they are material to the decision, appear fully from the judgment of their Lordships.
At the date of the commencement of the suit the minors were resident in England, and with the exception of a period between September, 1911, and February, 1912, they had not resided within the jurisdiction of the District Court of Chingleput since September, 1910.
The suit was transferred from the District Court into the High Court by an order made under clause 13 of the Letters Patent, 1865, and was heard by Bakewell J.
The learned judge delivered judgment on April 22, 1913, in favour of the first respondent (plaintiff). He was of opinion that any delegation of guardianship by a father was revocable, and an agreement to the contrary void ; he therefore held that the first respondent was entitled to revoke the authority given to the appellant, and he further held that the first respondent was not unfit to be guardian of his children.
A decree was accordingly made which, after declaring that the minors were made wards of the Court, appointed the first respondent the guardian of their persons and ordered that the appellant should on or before May 26, 1913, hand over the custody of the boys to him as their guardian.
The elder of the two boys attained eighteen years of age a few days after this decree was made.
The present appellant appealed and obtained a stay of execution with regard to handing over the boys until after the hearing.
The High Court in its appellate jurisdiction first heard arguments upon the question whether Bakewell J, had jurisdiction to make the decree, and on this question delivered a preliminary judgment.
The learned Chief Justice, after stating that, under the Indian Majority Act, 1875, s. 3, and the Guardians and Wards Act, 1890, s. 52, the effect of the decree was to extend the minorities of the boys until they attained twenty-one, held that the Guardians and Wards Act, 1890, did not take away any common law or equitable jurisdiction in relation to minors and guardians which was vested in a District Court at the time when the Act came into force, and that, notwithstanding clause 20 of the Letters Patent of 1865, the jurisdiction of the High Court in the suit was the same as if the suit had been instituted in that Court. He was consequently of opinion that the jurisdiction of the High Court was not restricted to that which might have been exercised by the District Court if the suit had not been transferred under clause 13 of the Letters Patent of 1865. The learned Chief Justice further held that the words " within the Presidency of Madras" in clause 17 of the Letters Patent of 1865 merely limited the territorial jurisdiction and did not qualify or restrict the powers of the High Court with regard to the guardianship of minors. In his view the jurisdiction which the High Court at Madras possessed in connection with the estates and persons of minors was the jurisdiction which in England could be exercised by the Lord Chancellor, acting for the Sovereign as parens patriae, when the Supreme Court in Madras was instituted; and that if the domicil and residence of the father within the jurisdiction of the Court of Chancer
