Report No. 83
6.70. Comment in legal Journal.-
In this connection, we may mention that long ago, an editorial in the Calcutta Weekly Notes,1 commenting on the famous Privy Council decision relating to guardianship,2 made the following suggestion for a reform of the law:-
"If the District Court can entertain an application by a stranger to declare a father unfit to be his children's guardian, there is nothing in reason to exclude its jurisdiction to entertain a complaint by the father seeking to recover custody of his own children, if no application under the Guardians and Wards Act is competent, surely a suit would lie in the Court of the District Judge for a declaration of the father's rights and for such relief as may be necessary to work them out.
That is really the substance of the decisions of the High Courts in India to the effect that Act VIII of 1890 did not repeal the general jurisdiction of District Courts to entertain suits relating to the guardianship and custody of minors, and we should be sorry if the judgment of the Privy Council should be understood as definitely negativing that jurisdiction. If it has, then surely the legislature should step in and do away with this anomaly.3
The District Court should have jurisdiction to entertain a father's suit or application for declaration of his rights as guardian and for recovery of custody of his minor children as against persons interfering with his rights. Such jurisdiction would, of course, have to be exercised in accordance with principles so lucidly explained in their Lordships' judgment.
What we contend for is that a father whose rights of guardianship over his minor children have been interfered with should not be left in doubt either as to the Court whose protection he is to invoke, or as to the procedure he is to adopt to vindicate his rights; nor, if he is a resident in the Mofussil, should he be compelled in every case to come up with his plaint to the Original Side of the High Court for remedies which the local courts are perfectly competent to give to persons other than the father."
The amendment suggested by us will substantially remedy the anomaly.
1. Editorial note Father's Remedy Against Deprival of Custody of Children, (1914) 18 Cal WN (Journal) 209,.210.
2. Annie Besant v. G. Narayaniah, (1914) 18 Cal WN 1089: ILR 38 Mad 807 (PC).
3. Emphasis added.