Report No. 83
7.12. Section 25-Questions to be considered.-
A number of questions arise with reference to section 25. In the first place, case law as to Court having jurisdiction under the section needs examination.1 In the second place,2 it is not clear whether the power under this section can be exercised where the ward has never lived with the guardian who now applies for custody.
In the third place, the language of certain provisions of the section (where it speaks of "arresting the ward") is archaic.3 In the fourth place,4 although sub-section (1) of the section itself lays down the test of welfare of the ward, yet attempts are, from time to time, made-though mostly unsuccessfully-to argue5 that the rights of the guardian should also influence the decision.
Then,6 since the section deals with a matter vitally affecting the interests of the minor, it is desirable to make a specific provision as to the extent to which his wishes should be respected. Finally7 there is also one addition in a matter of procedure that we would like to make, so as to emphasise the need for associating women with the proceedings, wherever practicable.8
1. Para. 7.13, infra.
2. Para. 7.14, infra.
3. Para. 7.18, infra.
4. Para. 7.19, infra.
5. See arguments in Margarate v. Chacko, AIR 1970 Ker 1 (10), para. 22 (FB).
6. Para. 7.19 infra.
7. Para. 7.20, infra.
8. Cf. Order 32A, rules 4-5, Code of Civil Procedure, 1908.