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Chapter 17: "The Most Heartless"
"Of all the ghouls who feed on the bodies of the dead and the dying, the cancer quacks are most vicious and most heartless."
With these stark words one of the 20th century's most successful cancer-treating irregulars opened his autobiography, catching cleverly the fearsome and repulsive image in which mankind has conceived of cancer through the ages. The word "cancer" does derive from the Greek word for "crab."  The crawling spread of cancer, whether external and observable or internal and secretive, is relentless, and during long centuries the diagnosis of cancer has amounted to a sentence of death, following a painful and often protracted decline.
During the 20th century, important headway has been made in combatting this ancient disease. The basic processes involved in cancer's various forms are ever better understood. Diagnostic techniques are constantly improving. Great advances in therapy have come through improvements in surgery and in the use of x-rays, radium, and other radioactive substances. "The cold knife and the hot rays" really produce cures. Nearly a third of all patients with cancer are now being saved, as judged by the fact that they are still alive five years after diagnosis, and this proportion could be raised to a half with prompt and full application of the knowledge and skills possessed by our specialists .
But the age-old fear of cancer still persists. Indeed, relatively, the image of cancer has grown more grim. For the gains in fighting it have been less dramatic than medical triumphs in other areas, especially with respect to contagious diseases. Despite massive research, chemotherapy for cancer has so far yielded only modest results. Drugs can postpone death in patients afflicted with certain forms of cancer. A few antibiotics have caused some profound remission, if not cure. One rare type of cancer, treated with a combination of drugs, has yielded a high rate of five-year cures. But no chemotherapeutic agent has been found that can vanquish cancer as penicillin can often cure pneumonia. So, in the scale of killers, cancer has risen, now ranking as the number two cause of death, destined to end the lives of one out of every eight Americans .
The fear of cancer has doubtless been aggravated by the very necessary effort to combat it. For the word itself has appeared so often in the press during the last generation that latent concern has been Constantly quickened into conscious dread. Educational campaigns have aimed at leading the public to recognize symptoms and to seek diagnosis early enough for surgery or x-ray treatment to be effective. This effort has brought continued life to many who would have otherwise been doomed. Yet an inevitable side effect of increasing cancer-consciousness has been a rise in cancer quackery. For fear of cancer, fear that some ambiguous symptom may mean cancer, fear of surgery and radiation if one has or might have cancer, fear of the waiting period after orthodox treatment to determine its success or failure, fear that discovery has come too late to warrant treatment, fear, agonizing numbing fear, overwhelming the safeguards of rational prudence, sends desperate men and women to the cancer quack.
Not that the cancer quack is a new breed, of course; he has been around almost as long as the malady itself. He flourished in the 19th century, offering his "secret specific" to the frightened, who, "like a drowning person grasping at straws, seize upon the frail hope that is offered by the hand of ignorant charlatanry." Within the 20th century, all foes of the charlatan have been forced to keep him constantly in mind. The Sherley Amendment was provoked by the Bureau of Chemistry's loss of a cancer labeling case. Post Office fraud fighters have won a succession of victories over mail-order "specialists" in treating cancer. But Dr. Cramp, in successive editions of Nostrums and Quackery, noticed no diminution in their sordid ranks. Hardly a week passed without the receipt in his office of a letter announcing the discovery of a "sure cure" for cancer. Nor did pseudo-science wither during the decades that science was making its most notable advances. By the 1950's, some 4,000 quacks were fleecing thousands of victims who had or feared they had cancer out of about $50 million every year .
In 1936, the year in which Dr. Cramp published the last green-bound volume in his Nostrum and Quackery series, one of the key characters in Cramp's cancer cast showed up in Dallas, Texas. There, in a small one-story building, Harry M. Hoxsey opened a cancer "clinic."  This venture, unlike a number of Hoxsey's previous efforts which Cramp had chronicled, turned out to be a major financial success.
Hoxsey had inherited the cancer business. Early in his career he gave his father credit for the discovery of his remedy, setting the date at 1908. Later on Hoxsey told a more grandiloquent tale, pushing the date back to 1840 and transferring the distinction to his great-grandfather, who, on his Illinois farm, observed how his Percheron stallion cured a cancer of the right hock by standing knee-deep in a clump of shrubs and flowering plants. In both accounts, Hoxsey's father, a self-taught veterinarian, employed the secret anti-cancer remedy first on livestock, then on men. The elder Hoxsey died in 1919, and the cause of death was cancer, a fact his son later went to great pains to deny. Harry's mother died two years later, also of cancer. In 1921 Harry was 20, and life did not look promising. The youngest of 12 children, Harry had grown up in the rural Illinois village of Girard, had quit school after the eighth grade—he later claimed receipt of a high school diploma from a correspondence school—and had gone to work in the coal mines at neighboring Taylorville, selling some insurance on the side .
Some of his siblings were shortly to sue Harry, accusing him of taking their father's cancer formula for his own profit, after his mother's death, a legacy that should have belonged to them all. The suit was never pushed to a conclusive decision. Harry's story had it that his father, just before his death, had taught him the formula by having him copy it 250 times until he learned it by heart and had given him a dramatic death-bed injunction to devote his career to healing the sick, no matter what opposition he might encounter from "the High Priests of Medicine." In any case, Harry claimed, he had changed the composition of the formula .
About 1922 Hoxsey began to use the formula. As he later told the tale, a Civil War veteran with cancer of the lip had come to him and begged for treatment. Harry had demurred, saying he had no license to practice medicine."
"Nobody needs a license to save lives," the veteran had argued. "If I was drowning would you stand by and watch me go down because a sign on yonder tree says 'No Swimming Allowed'?"
"There's no adequate answer to that kind of logic," Hoxsey said in retrospect, "and I didn't waste any time trying to find one."
He used the cancer paste on the venerable veteran, who thereafter, throughout his life, was willing to testify in public utterance and in print that he had been cured.
While practicing spasmodically in Taylorville, Hoxsey joined up with two Chicago men to form the National Cancer Research Institute, a common law trust to exploit the use of his father's formula. When his associates backed out of this enterprise to give their support to another cancer venture, Hoxsey expanded his Taylorville operations into the Hoxide Institute. Supported by some of the town's businessmen, Hoxsey took over from the Order of the Moose an old frame house and began to advertise his treatment far and wide. "CANCER, the copy read, "Any person suffering from this malady . . . is invited to apply for authoritative information as to the cures that have been effected and are now being effected at Taylorville, under strictly ethical medical supervision, painlessly, without operation, and with permanent results." Inquirers were told to write the secretary of the Taylorville Chamber of Commerce .
Patients responded to the advertising, and shortly the local paper began to run stories of deaths that were occurring at the Institute. Local doctors began to be concerned. One of them wrote the "high priests" at the American Medical Association telling of examining a man who had received the Hoxide treatment. The paste had been applied to a tumor on the cheek. "Two days before ... [the man] died," the doctor wrote, "I was called to see him and found necrosis of not only soft tissue of his face, but a complete destruction of the malar bone. This man died of hemorrhage at the hospital."
To keep the secret of his medicine, the doctor said, Hoxsey bought the separate ingredients each at a different drugstore. The key ingredient, analysis at AMA headquarters revealed, was arsenic. Thus Hoxsey's vaunted remedy was an escharotic, a corrosive chemical that ate away the flesh. Through the ages physicians had employed such corrosive agents in treating external cancers, but this mode of procedure had become outmoded. "Pastes went out with the bustle," a cancer authority has noted, "so far as scientific medicine is concerned." Such chemicals could not distinguish between tissues that were cancerous and tissues that were sound. The risk of damage to healthy flesh was tremendous. The escharotic might eat into the blood vessels and cause death through bleeding. Surgery was much safer and more certain .
Hoxsey sued the AMA in response to its criticism, asking a quarter of a million dollars libel judgment. The case dragged on, and finally the AMA insisted that it be brought to trial. The Hoxsey Institute was not prepared, and the judge dismissed the suit. In the meantime, Hoxsey had gone to court as defendant instead of plaintiff. Charged with responsibility for the death of one of his victims, he was accused of practicing medicine without a license. He pleaded guilty and paid a $100 fine .
Hoxsey himself addressed his former neighbors. "There is a lot of knockers," he said, "who do not know what they are talking about, and especially around a man's home town, and if those knockers are here today and have the mind of a six year old child and don't leave here today, a walking, talking dyed-in-the-wool Hoxsey fan and convinced beyond a reasonable doubt that this treatment is a cure for cancer they are either deaf, dumb or blind, or else they are crazy." Regular doctors were "hard-hearted," interested in getting "their hand greased with plenty of money," wanting to drive their Packards and their Stutzes. AMA officials had been invited to attend the rally, but they had not come. "Why don't they fight in the open? Why don't they take this platform? Why don't they prove the Hoxsey affair is a fake as they say? . . . But no, friends, they haven't got the guts to accept this challenge."
And Hoxsey presented his gallery of patients who said they had been cured, quizzing them publicly on the details of their experience. "Anyone in the hearing of my voice," he challenged, "who will prove that the Hoxsey Method does not cure more than 50 per cent of its patients, or if they will prove or show that there is another method under God's skies as good as the Hoxsey, he can receive the reward which we have offered on our large posters."
Applause was frequent, the local editor observed, and when one speaker asked if the audience wished to endorse Hoxsey in his attempts to save lives, "the response was so nearly unanimous that those who remained sitting for any reason could be counted on the fingers."
Hoxsey's Girard endeavors were indeed brief, and twice more be paid a fine for practicing in Illinois without a license. A cooperative venture across the river in Iowa did not work out much better. Hoxsey teamed up in Muscatine with another uneducated promoter of a cancer cure, Norman Baker, but the two fell out, the state stepped in, and Hoxsey was barred by injunction from treating cancer patients. During the next several years, Hoxsey was much on the move. He set up shop in Detroit, in Wheeling, then in Atlantic City. Wherever he went, the AMA dogged his footsteps. Legal actions were sometimes instituted. Finally, in 1936, Hoxsey went south. Dallas promised to be a safer and more prosperous haven, at least for a time .
As had been true beginning with his Illinois enterprises, Hoxsey strove to concentrate on the business and promotional sides of his Dallas clinic, leaving the diagnosing and treating mainly to a series of eclectic, homeopathic, and osteopathic physicians whom he employed. But he could not bring himself to abstain completely from therapy. Again convicted of practicing medicine without a license, Hoxsey was fined $25,000 and sentenced to five months in jail. A higher court, however, set aside this verdict. Hoxsey managed to acquire an honorary Doctor of Naturopathy degree and was licensed in Texas as a naturopath .
Hoxsey's early years at Dallas coincided with the early years of the chemotherapeutic revolution. His burgeoning business owed not a little of its success to this fact. For, in addition to treating external cancers with escharotic substances, the clinic offered to treat internal cancers by "chemical" means. Hoxsey was to claim that his internal medicines had been used by his father and inherited from him. But the evidence seems to suggest that, in his Illinois days, only the corrosive paste was employed in therapy, used, to be sure, not only in treating skin cancers, but also for cancer—or purported cancer—of the breast and female organs. Exactly when he began using his "tonics" for hidden cancers within the body is not clear. Perhaps he acquired his formulas from Norman Baker during the tempestuous joint operation in Muscatine. At any rate, in his early Dallas days, Hoxsey boasted he could cure internal cancers with medicines. To a public increasingly fearful of cancer and increasingly hopeful of chemotherapy, such an appeal offered a gleam of hope .
The ingredients in Hoxsey's internal medicines, kept secret until revealed in court actions, varied somewhat from time to time. Two liquid mixtures played the central role, one brownish-black in color, the other pink. The brownish-black liquid contained water, potassium iodide (used mainly in medical practice as an expectorant to loosen tenacious sputum in cases of bronchitis), cascara sagrada (an herbal laxative), sugar syrup, and usually prickly ash, buckthorn, alfalfa, and red clover blossoms. The pink liquid, besides the other ingredients, contained lactate of pepsin, a vehicle used to help the stomach tolerate nauseating medicines; the pink variety was prescribed when patients encountered some of the unpleasant side effects occasionally experienced when taking potassium iodide .
Why his colored mixtures cured cancer, Hoxsey and his spokesmen were frank to confess they did not completely know. "We have been too busy treating cancer victims—and fighting court battles to keep our clinic open—" he asserted in his autobiography, "to spare the time, personnel and facilities for objective study." His hypothesis, in its bluntest version, held that a major chemical imbalance in the body caused normal cells to mutate into a cancerous form, and his medicines restored the original chemical environment, checking and killing the cancerous cells. This hypothesis could be elaborated at length—as in an address delivered by Hoxsey's medical director—into a complicated fantasy of irrelevant scientific and pseudo-scientific jargon that sounded very impressive to the layman but caused genuine cancer experts to grieve. What made things worse, as the experts assessed the Hoxsey theories, was that the Hoxsey literature condemned the only treatments yet found valid in cancer therapy. "In my opinion," wrote medical director J.B. Durkee, "x-ray and radium have no place in the treatment of cancer. . . . They further upset basic cell metabolism rather than do anything to correct it." Durkee's lecture, in printed form, played a prominent role in Hoxsey's "scientific" confrontation of his would-be patients .
Equally important in that confrontation were testimonials from earlier patients. Just as on "Hoxsey Day" at Girard, so in Dallas Hoxsey could present "satisfied" users of his method, men and women who credited him with saving their lives. They would. respond to letters from inquirers, talk to investigating groups, testify in court, and write their touching expressions of gratitude for Hoxsey to print and distribute far and wide.
Hoxsey's promotional documents did not claim that all cancers could be cured. Indeed, be specifically denied this was the case. Cures were less certain if x-ray or radiation treatment had been used first. But with Hoxsey's "entirely revolutionary" internal medicine, many cancers could be cured. The cure rate for breast cancer, for example, according to Dr. Durkee's speech, was 50 to 60 per cent. And countering his caveats, in the minds of those who read Hoxsey's literature, were the compelling case histories .
When a fearful patient showed up at the door of Hoxsey's first small Dallas clinic, or later at the larger building which growing business led him to acquire, the patient's case history was transcribed by a clerk. The sufferer's own suspicions were taken down, plus a record of anything he had been told by doctors whom be might have consulted earlier. Documentary records of previous diagnosis or treatment, like the results of a biopsy, were solicited. Then came some laboratory tests: various blood studies, a urinalysis, a test for syphilis. Very rarely a biopsy was secured, Chest and pelvic x-rays were made and a general physical examination given by a member of the staff. The medical director reviewed the records and, if cancer was diagnosed, prescribed the Hoxsey treatment. Patients said to have external cancer were treated with Hoxsey's current version of the escharotic powder. They and patients said to be suffering from internal cancer were put on the internal medication, usually the brownish-black liquid first, three teaspoonfuls a day. "Supportive" treatment of vitamins, laxatives, and antacids was also prescribed. Then the patient saw the business manager and arranged for the payment of the clinic's charges: the basic fee in Dallas was first $300, later increased to $400, plus certain other costs. Hoxsey insisted, as he had asserted throughout his career, that many indigent sufferers were treated free .
As the years went by, thousands of patients from all over the nation made the trip to Dallas, learning of Hoxsey through his printed pamphlets or by word of mouth. Some had diagnosed their own symptoms without consulting doctors and had reached the fearful decision that cancer had attacked them. Others, with cancer diagnosed by physicians, sought out Hoxsey instead of submitting themselves to surgery. Still others had already undergone operations and x-ray treatments, but in their despair determined to miss no bets. The Dallas methods were also exported to other states. A few physicians and osteopaths around the country, after spending some time in Dallas, returned to their own cities and sought to treat cancer the Hoxsey way, receiving by mail their supply of the brownish-black and pink tonics .
As his clinic prospered, Hoxsey sought to bolster its prestige. In 1945, accompanied by three Congressmen, he showed up at the National Cancer Institute in Washington. The year after Hoxsey had begun his Dallas operation, Congress had created the National Cancer Institute to confront, with all the resources of modern science, a major health problem in which the public was displaying an increasing concern. Besides conducting its own research, the NCI was eager to discover helpful clues wherever they might be found. Suggestions coming from outside the agency were often turned over for appraisal to the National Advisory Cancer Council, a group of the nation's leading experts in the cancer field. To avoid burdening the Council with trivial and patently futile suggestions, criteria had been established to govern which methods of treating cancer, among those proposed, warranted investigation and possible testing. When Hoxsey, the Congressmen in tow, showed up at the Institute, the NCI's chief, Dr. R.R. Spencer, explained these criteria. The Institute, he said, would be glad to present Hoxsey's case to the advisory council if he would furnish certain information. He must reveal his formula and explain his techniques of treatment in detail. He must also present a record of at least 50 cases treated by his method. Each case must represent an individual in whom the presence of internal cancer had been confirmed by competent biopsy, who had been treated by physicians and given up as hopeless, and who then had been treated by Hoxsey and had survived from three to five years .
From Senator Elmer Thomas of Oklahoma, Hoxsey managed to get a more sympathetic response. One of the Senator's constituents credited Hoxsey with saving his son's life and urged Thomas to pay a visit to the Dallas clinic. Thomas came. In a sort of formal hearing, transcribed by a court reporter, the Senator quizzed a group of satisfied users whom Hoxsey had assembled and was obviously impressed. Hoxsey offered to put his treatment to any kind of test the Senator might arrange, and Thomas promised to return to Washington and try to interest government medical experts in such a trial of strength. No test eventuated, but Hoxsey printed up the verbatim testimony of the "hearing" and distributed it far and wide .
Hoxsey's posture on having his methods tested had been used before by the cancer irregulars and would be tried again. Vigorous public protestations that a test was desired, frequently repeated and broadly circulated, impressed the layman, especially when he was desperately seeking help against a dreaded malady for himself or for his loved ones. Such protestations betokened the promoter's self-confidence, his apparent willingness to abide by the rules of the scientific game. The layman could not so easily grasp that the promoter was either too ignorant to understand the real rules of adequate scientific testing or else insincere in his protestations, either unwilling or unable to provide the type of sophisticated data from which expert scientists could draw valid conclusions. When scientists rejected proffered tests, on grounds that the data were insufficient, it was easy for the promoter to raise the ancient cry of persecution. Physicians did not dare find out the truth, he could say, for fear that their lucrative methods of treatment might become outmoded. This pitch too brought sympathetic response from many laymen, well aware that regular medical treatment often was expensive. Such an appeal played also on a latent suspicion of complicated science that was present, as well as awe and respect, in the mass mind.
Hoxsey continually proclaimed that he wanted tests. In the year that Senator Thomas visited him, Hoxsey wrote the Texas State Medical Board: "If you will come out here to the clinic and we cannot prove to you that we have cured cancer after radium, x-ray, and surgery had failed, we will give you $10,000, or better still, we will take 25 cases of cancer and let the entire Dallas County Medical Society or any doctor in America take 25 cases, and if we do not cure two to their one in sixteen weeks, we will donate $10,000 to .my charitable organization in Dallas County." Two years later Hoxsey expressed his eagerness for testing to two scientists who visited the clinic at the behest of the American Cancer Society. The next year he again submitted case data to the National Cancer Institute, and again, after careful appraisal, the Institute determined that the material did not meet its basic requirements. Hoxsey's 77 case reports were accompanied by only six biopsies; only two of these were from patients treated for internal cancer, neither of which revealed anything that could be identified as cancer cells. Despite this, a committee of the National Advisory Cancer Council perused the Hoxsey records case by case. No single case met the Council's criteria. Clinical tests were naturally refused .
If Hoxsey had not had tests, he had certainly undergone trials. The results of these court actions in Dallas doubtless had much to do with the buoyancy with which he fraternized with senators and the boldness with which he spoke his mind. A new effort to convict Hoxsey of practicing without a license had come to naught when the jury could not agree upon a verdict. Nor was Hoxsey found guilty in a damage suit brought by a widower who charged that his wife's death had been due to negligent and improper treatment at the clinic. Hoxsey, moreover, won two judgments in libel suits involving Morris Fishbein. And a federal district judge refused the government an injunction to stop Hoxsey's distribution of his tonics in interstate commerce .
The AMA had not forgotten Hoxsey, and in 1947 Fishbein had written an excoriating editorial in the journal entitled "Hoxsey—Cancer Charlatan." To warn a wider audience, Fishbein had also co-authored an article called "Blood Money" for the Hearst chain's weekly magazine section, carried by the San Antonio Light. Fishbein repeated the phrase "cancer charlatan" in reference to Hoxsey and termed his father "a veterinarian and dabbler in faith cures" who had himself succumbed to cancer after claiming to have found a cure for it. Hoxsey promptly sued, asking a million dollars libel damages .
He won the case, receiving, however, not a million dollars but only two, one for himself, one for his father, Elderly judge William Atwell, who heard the case, concluded from the testimony that Fishbein, acting from "a mistaken sense of public duty" and bearing Hoxsey "no malice," had indeed been guilty of libel. Yet Hoxsey, whose methods of promotion depended in part on making the public believe that the AMA was hounding him, had suffered no serious damage from the article—hence the nominal award. Hoxsey had no license to practice medicine in Texas, and yet he had applied his yellow arsenic powder to the breast of a woman and this had resulted in her death. But, the judge ruled, Hoxsey did have the right to employ physicians, even though they were "not especially learned men," and patients had the right to go to them for treatment. "Pay your money," judge Atwell said, "and take your choice." The judge seemed to have been much impressed by the testimony of the satisfied users whom Hoxsey had paraded to the witness stand. They said they had had cancer, and they said they had been cured. "Healing," Atwell was persuaded, had occurred, and the circumstances brought to his mind the healing of Christ .
Judge Atwell was also on the bench when, in 1950, the government sought to enjoin Hoxsey from shipping his medicines for internal cancer across state lines. Not until this date had court decisions broadened the definition of labeling under the 1938 law so as to make it seem applicable to Hoxsey's methods of operation. The Food and Drug Administration first instituted a seizure action against tonics sent from Dallas to a Hoxsey practitioner in Denver, but Hoxsey let this action go by default. Now, in Judge Atwell's courtroom, he fought .
Food and Drug officials had worked prodigiously to develop a persuasive case. Their goal was to demonstrate the ineffectiveness of Hoxsey's tonics in treating internal cancer and to disprove Hoxsey's oft-repeated claims that cases had been cured. Dr. David 1. Macht, a distinguished specialist in pharmacological and experimental therapeutics, long a Johns Hopkins professor, was called to the stand .
"Absolutely no basis for it," he replied, "and I am speaking not only as a pharmacologist, but as a member of the American College of Physicians."
Potassium iodide, indeed, another specialist testified on the basis of his own researches, "would speed up the growth of cancer." Hoxsey's tonics, still another noted cancer research scientist said, had not cured cancer in mice. In an experiment which he conducted for the Food and Drug Administration, malignant growths in mice treated with the medicine were uniformly larger at autopsy than at the beginning of the tests .
In preparing for the trial, Food and Drug inspectors had tracked down the case histories of scores of Hoxsey's patients. Men, women, and children who had talked with Senator Thomas, those whose names had been used in Hoxsey's promotions, those whose cases had been submitted to the National Cancer Institute, all were investigated. Patients still living were talked with; members of the families of those who had died were interviewed. Physicians with whom Hoxsey's patients had consulted before or after going to the Dallas clinic were queried, their records checked. Hospital records, the records of pathological clinics, were studied. Hoxsey's former employees were questioned. From all this inquiry a pattern emerged. This pattern the government sought to make clear in court. Selecting 16 cases—nine of them persons whose testimony had been given in Hoxsey's pamphlet considered as labeling—the government called to the stand the patients or their survivors, diagnosticians, pathologists, surgeons, and other scientific experts. Hoxsey's claimed "cures" of internal cancer as represented by these typical cases, the government sought to show, all fell into three classes. Either the patients had never had cancer, although treated for it at the Dallas clinic. Or they had been cured of cancer by proper surgical or radiation treatment before consulting Hoxsey. Or they had had cancer and either still were so afflicted or had died .
One of the most poignant cases presented involved a high school boy of 16 who, after a football injury, developed an extremely malignant cancer in a leg bone. When the boy's physician recommended amputation, the parents could not face this prospect and took their son instead to Hoxsey's clinic. The medical director, the father testified, had guaranteed a cure. For some four months the lad took Hoxsey's tonics. They did no good. Several months later the boy was dead. Had the amputation been performed, the physician who had first treated the boy testified, he would have had a fighting chance .
Hoxsey, who did not take the stand himself, based his defense mainly on another round of testimonials. Indeed, some of his former patients who were government witnesses continued, despite the evidence, to express their loyalty to him. Twenty-two other patients took the stand for the defense to bless the Hoxsey treatment. Half of these cases had been treated for skin cancers with Hoxsey's escharotic powders and pastes. The issue of the external treatment was not on trial, but judge Atwell let these witnesses testify anyhow. Cancer specialists did not deny Hoxsey might cure some cases of skin cancer with his tissue-eating chemicals. The method, however, was outdated and unnecessarily painful and hazardous. Modern surgical and radiation techniques could cure upwards of 95 per cent of such cases more safely and humanely .
Of Hoxsey's 11 patients testifying that they had been cured of internal cancer, the only evidence that three had ever had the disease was their own affirmation. In four other cases, the government introduced rebuttal testimony to show that the patients had been cured before consulting Hoxsey. In the four remaining cases, the sole evidence that the patients had indeed had cancer was the testimony of Dr. Durkee, Hoxsey's medical director. In cross-examining Durkee, the district attorney brought out the inadequacy of his qualifications to speak with authority in this field. A 1941 graduate of a Chicago osteopathic college, Durkee had interned for less than a year at a small unaccredited osteopathic hospital in Nebraska, where he had seen only four or five cases of cancer. Then he had practiced for several years in a Texas village, encountering perhaps 10 to 15 cancer patients. In 1946 he had joined Hoxsey's staff. There he had seen some 35 to 50 patients a day, examining each one for an average of five to ten minutes. He did not "need a biopsy to make a diagnosis of cancer," he testified, and rarely used the technique. Biopsies that Durkee had submitted to pathological laboratories, other evidence showed, were so poorly prepared as to be useless, His knowledge of the pharmacological action of the drugs in the Hoxsey tonics was vague, his explanation of the Hoxsey theory of cancer and its cure as fuzzy from the witness stand as in his public address reproduced in the labeling pamphlet .
Atwell's decision did not surprise FDA officials. His admission into the record of the self-diagnosis of cancer by Hoxsey's lay witnesses, his willingness to hear testimony about external cancer, had been straws in the wind. In any case, the Food and Drug men suspected that Atwell himself had once been a Hoxsey patient .
The government appealed. Persuaded that Atwell had been swayed by incompetent testimony, that be had misapprehended the impact of evidence presented by medical experts, the government asked the circuit court to grant the injunction which Atwell had refused. After a careful scrutiny of the two large volumes of testimony, the three-judge court unanimously acceded to this request. A layman's opinion as to whether be had had cancer and been cured, the judges said, was "entitled to little, if any, weight." Only a biopsy could permit accurate diagnosis. Only surgery, x-ray, and other radioactive substances could cure—such was the judgment of the "overwhelming weight of disinterested testimony. A judge "should not be so blind and deaf as to fail to see, hear and understand the import and effect of such matters of general public knowledge and acceptance." Hoxsey's entire promotional campaign sought to persuade the cancer sufferer that "he had an excellent chance to become one of those cases in which the medicine would be successful." Yet with respect to Hoxsey's own testifiers in his labeling, the government had demonstrated that the brownish-black and pink tonics had not proved efficacious. Atwell had erred, therefore, abusing his discretion. He must grant the injunction which the government had sought .
Before Atwell could ponder this directive, Hoxsey asked the Supreme Court to reverse the circuit court's decision. But the highest tribunal would not grant certiorari. So Atwell yielded to the circuit court's demands. The injunction he issued, however, followed a form suggested to him by Hoxsey's attorneys rather than the form presented by the government. The decree did not flatly bar Hoxsey's internal medicines from shipment in interstate commerce. It forbade their interstate shipment unless—and here was an effort to appeal to the McArmulty decision of half a century before—unless they were labeled to show that there existed a conflict of medical opinion concerning their curative claims. Such a ruling, Food and Drug officials knew, would shut no doors at all .
Since the circuit court had found as fact that Hoxsey's internal remedies could not cure cancer, no legal room existed for the assertion of differences of medical opinion. So the government sought from the circuit court a writ of mandamus that would require Atwell to issue the injunction in the proper form. In the legal maneuvering over the writ, Hoxsey again appealed to the Supreme Court and was denied. The circuit court, using a less rigorous remedy than a writ of mandamus, nonetheless made it clear to Atwell that the disputed clause in his injunction was in "direct conflict" with the court's earlier ruling—McAnnulty did not apply—and must be excised. In October 1953, nearly three years after the case had gone to trial, judge Atwell issued the injunction without the "conflict of medical opinion" clause. But the issue was still not finally settled. Hoxsey went to court once more, appealing for a stay of execution of the injunction on the grounds that his constitutional rights had been violated, an appeal the government termed "frivolous." Another year went by before the Supreme Court, refusing to hear the circuit court's denial of Hoxsey's plea, put an end to the extended litigation. In October 1954 the injunction at long last went into effect .
The government's injunction, won at great cost, did not stop Hoxsey's Dallas operation. Two years later, indeed, one estimate put his annual gross at $1.5 million extracted from some 8,000 patients. Curtailing his interstate shipments and exchanging his labeling for a "prescription" approach, Hoxsey continued to manage his clinic, staffed by osteopaths who dispensed the tonics to cancer sufferers much as before. "There's only one way they'll ever close that Hoxsey Clinic," he told one audience, "and that's to put a militia around it." To attract patients to Dallas, Hoxsey set out on a massive drumbeating campaign. He used favorable, passages from the trial testimony as "advertising," planting such extracts and laudatory comments in mass-appeal magazines, sometimes in exchange for a fee. He brought to Dallas a group of doctors from around the country—many of whom the AMA considered less than fully reputable—and published their favorable reactions. He went on extensive lecture tours, speaking to fringe groups who shared his antagonism toward organized medicine. He paid a writer to ghostwrite his autobiography and sent a copy to every Senator and Representative. He made motions as if to run for the governorship of Texas. He leagued together with other foes of the FDA and the AMA in accusing these organizations of conspiring to stifle medical freedom .
One of Hoxsey's new allies in his expanded fight was Gerald B. Winrod, the Kansas evangelist. A militant fundamentalist, Winrod had fought modernism in religion during the 1920's. Later he turned his attention to right-wing politics, providing the inspiration for Sinclair Lewis' portrait of "Buzz" Windrip in It Can't Happen Here. A visit to Germany in 1934 confirmed Winrod's pro-Nazi inclinations, although he played this down while nearly winning the Republican Senatorial nomination from Kansas in 1938. During the war he was indicted for sedition for expressing views calculated to injure morale in the armed forces, but the death of the judge halted the trial. After the war, Winrod's personal organ, the Defender, brought to a hundred thousand subscribers a mixture of fervent fundamentalism in religion and morals, right-wing political extremism, violent antagonism toward Jews and Negroes, hostility to fluoridation and mental health programs. The Defender also accepted flying saucers and championed unorthodox healers .
The American Rally shared with other dissident groups belief in "medical freedom," defined as the right of every individual to seek treatment from Hoxsey's clinic and other clinics and practitioners frowned on by the orthodox medical profession. Two such groups were the American Association for Medico-Physical Research and the American Naturopathic Association. Hoxsey and his associates spoke before their meetings. At a naturopathic convention in Chicago, Hoxsey addressed himself to the theme, "Who Are the Real Cancer Quacks and May God Have Mercy on Their Souls." From the same rostrum during this meeting, an address was also given by Fred J. Hart .
Hoxsey's cancer treatment metastasized from Texas into other states, particularly Pennsylvania. There its chief champion and promoter was state senator John Haluska. Having lost his mother and a young son from cancer, Haluska gave Hoxsey credit for saving his sister's life after regular doctors had given her up. (Her physicians later testified she had been cured by x-ray before going to Dallas.) Administrator of a hospital in Spangler, Haluska had been ousted for trying to convert the nurses home into a cancer clinic according to the Hoxsey pattern. Then Haluska. remodeled an appliance store and garage in Portage, a coal-mining town in the mountains of western Pennsylvania, employed one of Hoxsey's former medical directors, and offered to treat cancer sufferers. The medication was slightly different, not tonics but pills—first red and black pills, then red, green, and yellow pills, the size of small lima beans. The pills contained, however, most of the ingredients in Hoxsey's tonics. When Hoxsey visited Portage, he was welcomed with a motorcade and a banquet at which Haluska apotheosized him as "the greatest man in the country today—greater than President Roosevelt was, and greater than President Truman and President Eisenhower." Similar praise resounded through the chamber of the Pennsylvania senate, with Hoxsey taking a bow from the balcony, as Haluska in a long oration announced the opening of the Portage clinic and lauded the Hoxsey methods. To his fellow senators, Haluska also introduced Kathy Allison, a young girl from Indiana. "Here, Mr. President," he said, taking Kathy into his arms, "is that little angel who, according to medical science, had to meet the angels soon. Today, she is going to school; was X-rayed last week and found to be cancer-free and is playing like any other normal child." Hoxsey had treated her; God had spared her. "Senator Haluska's Great Speech" was published in Winrod's Defender, and thousands of reprints spread across the country .
The Portage clinic opened in 1955 to brisk business. One early customer, a perfectly healthy FDA inspector, received an examination lasting a minute or two and was told he had cancer of the prostate. Quickly Food and Drug officials and a federal marshal visited the clinic and, amid a hostile throng of townspeople, seized half a million pills. After long delay, the seizure action came to trial. Hoxsey, testifying that he was not financially interested in the Portage venture, although serving as adviser, sat out the six-week jury trial at the defense table. Again, as at Dallas, satisfied users praised the Hoxsey methods. Again the government presented medical experts who condemned the Hoxsey medications as useless in cancer and refuted Hoxsey's alleged cures. Even little Kathy Allison, eight months after her touching appearance in the Pennsylvania Senate, had died of cancer of the chest. The jury condemned the Portage pills and ordered them destroyed .
While waiting out the law's delays, the Food and Drug Administration took an unprecedented step. The 1938 law authorized the dissemination of information regarding drugs in situations involving imminent danger to health or gross deception of the consumer. This provision had not hitherto been used. As the Pennsylvania seizure trial kept being postponed, and as cancer victims continued visiting Dallas and Portage, the FDA weighed the value of a major public warning. Might not such an outburst of publicity for Hoxsey, even though critical, do more harm than good, giving a clue to the desperate, who might sense Hoxsey's promises and disregard FDA's explanation of the dangers? On the other hand, a flood of letters was reaching FDA from cancer victims or their families, frightened people who had been advised to consult Hoxsey and were inquiring for the facts. One such letter came from a college girl in California who, while studying a semester in the nation's capital, had heard a speech on quackery by a man from the FDA. Now her father had cancer and was planning to go to Dallas. She wanted "to discover the truth as far as it is known." The official who had made the speech telegraphed her that Hoxsey's treatment was "totally ineffective," sent fuller information by airmail, and wrote that he had talked about her father's case with the director of the National Cancer Institute, to whom her father's physician should immediately phone. Might there not be many such citizens who could be prevented by a public warning from wasting their money and risking their lives? FDA officials decided to act .
In April 1956 the FDA issued its warning, terming Hoxsey's methods "worthless," and "imminently dangerous to rely on . . . in neglect of competent and rational treatment." The basic facts of the Texas injunction trial were tersely given. Besides relying on the daily press, FDA officials made a special effort to circulate the warning notice among farm, lodge, and church periodicals, asking those tempted to try Hoxsey's treatment to write to the FDA first for fuller facts. For months pathetic inquiring letters reached Washington at the rate of 50 to 100 a day. To spread the warning even further, the FDA prepared a "Public Beware!" poster, printed in red and black, which was displayed in the 46,000 post offices and postal substations throughout the land. These warnings, FDA officials concluded, did much good. While they triggered a new barrage of angry letters from Hoxsey's admirers, mailed to Congress, to the FDA and to the press, they cut down on customers in Dallas and Portage. A conservative FDA estimate held that, in the 30 weeks after the first warning, at least 3,000 people had been dissuaded from trying Hoxsey's futile treatment .
Hoxsey sought to enjoin the government from issuing its warnings. But Hoxsey lost his case, just as his Pennsylvania collaborators had lost their seizure action. While the seizure action was still on appeal, the government sought an injunction to stop the Portage clinic from operating in interstate commerce. After the government had presented its case in court, the Portage opposition collapsed. Haluska and his aides agreed to the injunction, promised to drop their appeal in the seizure case, and offered to withdraw a suit they had launched to stop further FDA investigations of their clinic. In October 1957 the FDA could issue a new release stating that the government had "now been successful in all pending Federal court actions involving the 'cancer remedies' known as the Hoxsey treatment." .
But Hoxsey's tide had turned. The Portage clinic closed shortly thereafter. At his home base the pressures mounted inexorably. Texas court actions revoked the licenses of Hoxsey's doctors and granted a permanent injunction to prevent his practicing medicine in Texas. Hoxsey then leased his clinic to another operator. Again the FDA moved in. The agency secured a supplemental consent decree of permanent injunction by which this operator promised to write all persons who had employed the Hoxsey treatment since 1957 that it could no longer be obtained. Since late 1960, therefore, except for a sporadic instance here and there about the country, the Hoxsey method of treating cancer at clinics has disappeared. Testimonials from patients claiming "cures" by the method, however, have continued to appear in the pages of health magazines, along with formulas for the Hoxsey medications and the addresses of herbalists who will supply the raw ingredients from which the medications may be made .
The decade of litigation against Hoxsey had cost the federal government perhaps a quarter of a million dollars  .This expensive victory did not provide a shield against any other wares than the clinic-prescribed brownish-black and pink tonics and the variously colored pills. While Hoxsey had been the largest unorthodox cancer promoter of the 1950's, he had had competitors. During the efforts to close the Portage clinic, a world-noted cancer authority, Dr. David A. Karnofsky, had addressed the American Cancer Society's Pennsylvania division . Besides Hoxsey's treatment, he said, 13 other major promotions were available to Americans who feared they had cancer. In 1966 the American Cancer Society, issuing a catalogue of Unproven Methods of Cancer Treatment, came up with a list twice as long as Dr. Karnofsky's.
While the scientific search went on, in public and private laboratories, for chemicals that might better aid in controlling cancer, the unscrupulous and misguided continued to tell Americans that the miraculous discovery had already occurred. Among the fearful and the desperate, these false prophets continued to find victims for their worthless wares.
Fishbein, "History of Cancer Quackery," Perspectives in Biology and Medicine, 8 (Winter 1965), 140.
Harry M. Hoxsey, You Don't Have to Die (N.Y., 1956), 1.
Michael B. Shimkin, Science and Cancer (Public Health Service Publication 1162: Washington, 1964), 3.
Caleb Ticknor, A Popular Treatise on Medical Philosophy (N.Y., 1838), 178; N&Q, in, 7; L. Henry Garland, "California Outlaws the Cancer Quack," Today's Health, 37 (Aug. 1959), 30; Jonathan Spivak, "Crusade on Quacks," Wall Street Journal, June 22, 1960.
Hoxsey, You Don't Have to Die, 180.
The Hoxsey Method of Successfully Removing Cancer (Taylorville, [19281), in Hoxsey folder, AMA Dept. of Investigation; Hoxsey, You Don't Have to Die, 62-76. The AMA Hoxsey folder contains much data on the cause of Hoxsey's father's death, and the FDA discovered that Hoxsey wrote the Illinois State Registrar for a copy of his father's death certificate using an incorrect middle initial, receiving a reply that no certificate could be found. The initial was corrected in the copy of the Registrar's letter he reprinted in You Don't Have to Die. Interview with Gilbert Goldhammer, Nov. 17, 1960.
Judge William H. Atwell's oral opinion, Mar. 18, 1949, in Harry M. Hoxsey v. Morris Fishbein et al., in the U.S. District Court the Northern District of Texas, Dallas Division, copy in FDA file, Injunction 232; Girard (Ill.) Gazette, July 18, 1929; Life, 40 (Apr. 16, 1956), 125.
AMA Hoxsey file; Hoxsey, You Don't Have to Die, 71-74, 141-53.
AMA Hoxsey file; JAMA, 86 (Jan. 2, 1926), 55-57.
Ibid., Samuel B. Herdman, M.D., to Cramp, Oct. 9, 1924, AMA Hoxsey Me.
JAMA, 86 (Jan. 2, 1926), 55-57; AMA Hoxsey file; Charles S. Cameron, The Cancer Quacks (Public Health Service Publication No. 559: Washington, 1957), 3.
JAMA, 86 (Jan. 2, 1926), 55-57.
Ibid., 93 (Aug. 3, 1929), 400-402.
Ibid.; Girard Gazette, July 18, 1929.
Ibid.; JAMA, 93 (Aug. 3, 1929), 400-402.
AMA Hoxsey file; JAMA, 133 (Mar. 14, 1947), 774-75; FDA file, Inj. 232.
FDA file, Inj. 232; JAMA, 155 (June 12, 1954), 667-68; Transcript of Record in the United States Court of Appeals, Fifth District, No. 13645, United States of America, Appellant, versus Hoxsey Cancer Clinic, a Partnership and Harry M. Hoxsey, an Individual, Appellees (Fort Wortb, 1951), 69-84.
Hoxsey, You Don't Have to Die, 44-46; Durkee address in Hoxsey Cancer Clinic, Specializing in Cancer, in FDA file, Inj. 232.
Transcript of Record, passim; FDA file, Ini. 232.
Memorandum by R. R. Spencer, Chief, NCI, of meeting, Oct. 19, 1945, regarding "Bryan & Peak Cancer Clinic, Administering the Hoxsey Method of Treatment," copy in AMA Hoxsey file.
Ibid.; "Hoxsey 'Cure' for Cancer," Committee on Cancer Diagnosis and Therapy, National Research Council, Feb. 1, 1951, copy in AMA Hoxsey file; Hoxsey, You Don't Have to Die, 200-206.
Ibid., 210-12; FDA file, Inj. 23Z.
Ibid.; JAMA, 137 (Aug. 7, 1948), 1333; Langer to Surgeon General Leonard A. Scbeele, May 25, 19-1, copy in FDA file, Inj. 232; Sen. Resolution 142, Cong. Record (82 Cong 1 ses.), 5611.
FDA file, Inj. 232; Dallas Times Herald, May 25, 1948; JAMA, 145 (Tan. 27, 1951), 252-53.
Ibid.; Hoxsey, You Don't Have to Die, 223-43; Chicago Herald-American, Mar. 20,1949.
Judge Atwell's oral opinion, Hoxsey v. Fishbein.
FDA file, Inj. 232; DDNJ 3288.
FDA file, Inj. 232; Transcript of Record, passim.
Ibid., 544-1065; U.S. v. Hoxsey Cancer clinic, a Partnership, and Harry M. Hoxsey, an Individual, 198 Fed. (2,d) 273 (1952).
U.S. v. Hoxsey Cancer Clinic, a Partnership, and Harry M. Hoxsey, an individual, 94 Fed. Supp. 464 (1950).
Goldhammer interview, Nov. 17, 1960; Washington Report on the Medical Sciences, May 28, 1951.
Circuit Court decision, 198 Fed. (2a) 273.
Ibid.; 212 Fed. (2d) 439; 348 U.S. 835; FDA file, Inj. 232; DDNJ 4654.
Life, 40 (Apr. 16, 1956), 125; FDA file, Inj. 232; Findings of the Doctors Who Investigated the Facilities, Procedure and Treatment at The Hoxsey Cancer Clinic April 10th and 11th, 1954; JAMA, 155 (June 12, 1954), 667-68; FDA file, Interstate Seizure No. 4-052M; Dallas News, Apr. 10, 1956.
"Keep Them Out! The Reverend Gerald B. Winrod," Nation, 155 (July 4, 1942), 7-9; Roy Tozier, "Mr. Dies Kills an Investigation," New Republic, 102 (Apr. 22, 1940), 532; N.Y. Times, Nov. 13, 1957; the Defender, passim.
JAMA, 140 (Aug. 27, 1949), 1352-53; F&D Rev., 45 (Feb. 1961), 27; Defender, 1954-1957, passim, May 1956, p. 5, on Winrod's boyhood "cure"; Cong. Record (84 Cong., 2 ses.), 6296; "Truth Loses at Pittsburgh," a Nov. 28, 1956, Winrod letter to Defender readers, in FDA file, Interstate Seizure No. 4-052M; W. F. Janssen, "Quackery and the News," Public Health Reports, 74 (July 1959), 637.
American Rally membership card; printed flyer announcing 1955 convention; American Rally, Feb.-Mar. and Oct. 1955; announcement of Apr. 1955 Chicago meeting; memorandum on Hoxsey address at Chicago meeting, Apr. 30, 1955. These documents are in FDA file, Interstate Seizure No. 4-052M.
Program for Aug. 1959 convention in Chicago of the American Association for Medico-Physical Research, in FDA Decimal file 045.A; Naturopath, 60 (Oct. 1955), 338-43.
AMA folder on Abrams, Albert (College of Electronic Medicine); DDNJ 4667; FDA file, National Health Federation; FDA file, Inj 232; Ralph Lee Smith "Amazing Facts about a 'Crusade' That Can Hurt Your Health," Today's Health , 44 (Oct. 1966), 30-35, 76.
Ibid.; NHF Bulletin, Nov. 1956, Feb, and July-Aug. 1957.
FDA file, National Health Federation, especially NHF Progress Report on work accomplished during 1958 session of Congress; FDA file, Inj. 232; Larrick, "Report from the Food and Drug Administration," FDC Law Jnl., 13 (Mar. 1958), 153. The protest letter is in FDA file, Interstate Seizure No. 4-052M.
Ibid.; Pittsburgh Press, Oct. 31, 1958; "Senator Haluska's Great Speech," reprint from the Defender, Mar. 1955.
FDA file, Interstate Seizure No. 4-052M; DDNJ 5212; Johnstown Tribune-Democrat, Apr. 5, 1956; F&D Rev., 40 (Dec. 1956), 205, 223.
Janssen, "Quackery and the News"; FDA file, Ini. 232; FDA release, "Public Warning against Hoxsey Cancer Treatment," Apr. 4, 1956.
Ibid.; Janssen, "Quackery and the News"; FDA release, Jan. 28, 1957; Janssen interview, July 25, 1956; Drug Trade News, 32 (May 6,1957), 26.
Harry M. Hoxsey v. Marion B. Folsom . . . and George P. Larrick, 155 Fed. Supp. 376 (1957); U.S. v. Hoxsey Cancer Clinic, John J. Haluska, et al., Civil Action No. 15807, Western Dist., Pa., Oct. 2, 1957; DDNJ 5202; FDA release, "Report on Legal Actions against the Hoxsey Cancer Treatment," Oct. 24, 1957.
FDA file, Inj. 232; FDA release, Sep. 21, 1960; DDNJ 6316 and 6317. In 1962 Utah enjoined a clinic of which a former Hoxsey nurse was a proprietor for using the Hoxsey method. F&D Rev., 47 (Jan. 1963), 6; American Cancer Society, Unproven Methods of Cancer Treatment (N.Y., 1966), 53.
Goldhammer interview, Nov. 17, 1960.
Pittsburgh Press, Nov. 11, 1955.
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Law Web: Whether court can hand over custody of child to mother in proceeding U/S 97 of CRPC?
Whether court can hand over custody of child to mother in proceeding U/S 97 of CRPC?
Considering the principles laid down by Their Lordships of the Supreme Court and of various High Courts, there is no dispute that mother is entitled of the custody of the child below the age of 5 years, being a guardian. On 17-10-1989, the children were in the custody of the non-applicant No. 1 Smt. Warsha the mother, when she reached to her parents place for 3rd delivery. The children were taken away from her custody by the husband on the assurance of returning them to her custody. However, it is an admitted fact that the applicant No. 2 the husband of the non-applicant No. 1 Warsha instead of taking the children with him, he took them to his parents who are residing at Daryapur. The children were not returned to the custody of the non-applicant No. 1 Warsha and when her brother had gone to bring them back, he was driven out. Thus, the non-applicant No. 1 Warsha was prevented from love and affection of her children and also their custody. It has been brought to my notice that the non-applicants Nos. 2 and 3 are admitted in the school. It is an admitted fact that the non-applicant Nos. 2 and 3 were in the custody of their grand-parents. Considering the facts and circumstances, there is no doubt that the non-applicants Nos. 2 and 3 were confined. Therefore, the proceedings instituted under Section 97 of the Cr.P.C. were legal, just and proper.
1. Whether the institution of the proceeding u/s. 97 of the Cr.P.C. directing the applicant No. 1 Purushottam Thakur to produce and hand over the minor children to the non-applicant No. 1 Smt. Warsha w/o Narayan Thakur, was legal, just and proper ? This is the only question to determine.
The applicant No. 1 Purushottam Thakur is the father of the applicant No. 2 Narendra Thakur. The non-applicant No. 1 Smt. Warsha is the wife of the applicant No. 2 Narendra Thakur. The non-applicants Nos. 2 and 3 viz. Ku. Chinmaya and Akshay are the daughter and son of the applicant No. 2 Narendra and non-applicant No. 1 Smt. Warsha. Therefore, the applicant No. 1 Purushottam Thakur is the father-in-law of the non-applicant No. 1 Smt. Warsha and the grandfather of the non-applicants Nos. 2 and 3 - Ku. Chinmaya and Akshay.
Out of the wed lock the applicant No. 2 Narendra and non-applicant No. 1 Smt. Warsha have 3 children. Ku. Chinmaya's date of birth is 14-6-1985, Akshay the non-applicant No. 3's date of birth is 29-4-1987 and the 3rd one Pralhad born on 14-12-1989.
The applicant No. 2 Narendra Thakur is an Engineer working in the service of State. He and his wife Smt. Warsha were living together at Ratnagiri where Narendra was posted as an Engineer. The dispute arose between the husband and wife. We need not go in details about their rival contentions of strained relations.
It is an admitted fact that on 17-10-1989 the non-applicant No. 1 Warsha was reached to her father's house by the applicant No. 2 Narendra Thakur. At that time, they had a daughter viz. Chinmaya aged about 5 years and a son Akshay aged about 2 years. Smt. Warsha was also due for 3rd delivery. According to Smt. Warsha, on 17-10-1989, her husband forcibly took away Ku. Chinmaya and Akshay from her custody in spite of her resistance. Shri Narendra the husband of Smt. Warsha assured her that he would return the children to her on 3-11-89 i.e. after Diwali Festival. The children not being returned, Smt. Warsha sent her brother to Daryapur on 8-11-89 where both the children (non-applicants 2 and 3) were lodged with their grandfather i.e. the applicant No. 1. When the brother of Smt. Warsha asked the applicant No. 1 to allow the non-applicants Nos. 2 and 3 to accompany him to Mangrulpir, the applicant No. 1 declined to do so and driven him out. It is, thus, crystal clear that though the applicant No. 2 Narendra father of non-applicants Nos. 2 and 3 took both the children on 17-10-89 instead of keeping them with him, Shri Narendra kept the children at Daryapur with his father.
Smt. Warsha's father received a letter on 3-1-90 and a telegram on 14-1-90 from the applicant No. 2 Narendra Thakur to the effect that Smt. Warsha should not go to Daryapur. Thereby, she was prevented from approaching her children and taking the custody of them. Being the mother of the minor children, under law, she is entitled for the custody of her minor children. She was prevented and the children were confined in the custody of the applicant No. 1 i.e. the father-in-law of Smt. Warsha. Smt. Warsha filed and application u/s. 97 of Cr.P.C. before the Judicial Magistrate, First Class, Mangrulpir, contending that the children were wrongfully confined by Shri Purushottam the grandfather of the children. The learned J.M.F.C., Mangrulpir after hearing, issued search warrant directing Shri Purushottam Thakur to produce the children before the Court. In pursuance of the search warrant, the children were produced before the Court on 20-1-1990 by the Police. On 23-1-1990 Shri Purushottam filed the reply denying the allegations levelled in the application particularly forcibly taking away and wrongful confinement of the children. Shri Purushottam Thakur specifically contended that the children are taking education under his supervision and utmost care is being taken as he himself is well educated person, serving as a Jr. Lecturer at Daryapur. He specifically contended that in the interest and welfare of the children, they should remain with him.
After hearing the parties, the learned J.M.F.C. Mangrulpir passed the order on 25-1-1990 holding that the wrongful confinement was not made out and the application under Section 97 of Cr.P.C. was not tenable.
On 20-1-1990 i.e. before the reply was filed by Purushottam Thakur, the learned J.M.F.C. had directed that the children should remain in custody of mother - Smt. Warsha during the pendency of that application. However, while the order was passed on 25-1-1990, Smt. Warsha was directed to give the custody of the children to the father of the children viz. Narendra Thakur. In spite of the order, as the custody of the children was not given to the applicants, they filed an application on 29-1-1990 before the J.M.F.C. Mangrulpir. But, the application was rejected by an order dated 30-1-1990 as not being maintainable.
Smt. Warsha being aggrieved by the order dated 25-1-1990 passed by J.M.F.C., Mangrulpir in M.J.C. No. 11/90, preferred a criminal revision application No. 24/90 which was allowed by the Addl. Sessions Judge, Washim vide order dated 11-5-1990. The applicants also preferred the criminal revision application No. 14/90 against the order of rejection of their application on 30-1-1990, but the same was rejected by the order dated 11-5-1990. The criminal revision applications No. 14/90 and 24/90 were decided by the common order by the learned Addl. Sessions Judge, Washim.
3. Before hearing the learned counsel for the parties, I initiated reconciliation proceeding requesting both the learned Counsel for the parties to keep their clients present in the court. On 12-9-1991 Smt. Warsha with her children and other relations was present in the court. However, none of the applicants were present on that day. On the request of Mr. Palshikar, the learned counsel for the applicants, the case was adjourned to 13-9-1991. On 13-9-1991, the applicant No. 1 Purushottam Thakur, non-applicant No. 1 Smt. Warsha the wife of Narendra were present in the court with the children. At 2.15 p.m. the parties along with their counsel were called in Chamber and I tried to bring home the amicable settlement between the parties not only in respect of the custody of the children but considering the young age of Smt. Warsha and her husband Narendra Thakur to patch up their dispute and to lead married life. During the discussion it appeared that Smt. Warsha had developed apprehension from her husband Narendra and, therefore, she felt that in case the joined the society of her husband, there is no guarantee about her life and honour. She has brought to my notice that Narendra has filed a divorce petition and, therefore, he is not interested to lead married life with her. As there was no settlement I was constrained to hear both the counsel and perusing record to decide the case on merit.
4. Shri Palshikar, the learned counsel for the applicants strenuously argued that the learned Addl. Sessions Judge, Washim has completely misdirected himself in construing the provisions ofSection 97 of Cr.P.C. thought the case was not made out to the effect that the non-applicants Nos. 2 and 3 - minor children were confined by the applicant No. 1 who is the grandfather of the children and under such circumstances the confinement amounts to an offence. It is further submitted that for a search warrant under Section 97 of Cr.P.C., a person must be in wrongful confinement and such confinement amounts to an offence. The case, in hand, according to the applicants the children were staying with their grandfather and grandmother and were going to the school. They were also freely moving in the town with their grandfather and grandmother. Therefore, it cannot be said that the children were in confinement much less in wrongful confinement of the applicant No. 1. Further, it is submitted that the children in the custody of the grandparents did not amount to any offence as the children were handed over by their natural guardian - the father i.e. the applicant No. 2 Narendara Thakur. Shri Palshikar, the learned counsel for the applicants submitted that the learned Addl. Sessions Judge, Washim has dealt with the application under Section 97 of Cr.P.C. as if it was an application for custody under the provisions of the Hindu Minority and Guardianship Act and the Guardians and Wards Act, 1925. In case if at all the mother wanted the custody of the children, she should have applied under the relevant provisions of the Act providing for getting custody of the minors but certainly Section 97was not the remedy. The order of the learned Addl. Sessions Judge, Washim, though apparently deals with the welfare of the minors, is in fact in abusory process of law as he could not have imported those principles while considering the application under Section 97 of Cr.P.C. The order of the learned Addl. Sessions Judge, Washim is, therefore, perverse and is liable to be set aside.
"Search for persons wrongfully confined - If any District Magistrate, sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that confinement amounts to an offence, he may issue a search warrant, and the person to whom such is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper."
"Whoever wrongful restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said "wrongfully to confine" that person."
6. Shri Chandurkar, the learned counsel for the non-applicants supported the findings of the learned Addl. Sessions Judge, Washim and submitted that the non-applicant No. 2 a daughter Ku. Chinmaya and the non-applicant No. 3 a son Akshay were admittedly minors and below 5 years when the application under Section 97 of Cr.P.C. was filed in the court of J.M.F.C., Mangrulpir on 19-1-1990. The non-applicants Nos. 2 and 3 minor children were removed by the applicant No. 2 Shri Narendra Thakur on 17-10-1989 and instead of keeping the children with him, he reached the minors to Daryapur and kept them with his father i.e. the applicant No. 1 Purushottam Thakur and his wife. When the action of applicant No. 2 Narendra was obstructed, he extended an assurance to return the children after Diwali Holidays but as the children were not returned and given in custody of the non-applicant No. 1 Smt. Warsha, she was constrained to send her brother to bring the children but he was prevented to do so. Though it is side that the minors were freely moving along with their grandparents, it cannot be said that they was free lancer to move according to their desire being of tender age. As the non-applicants 2 and 3 were not allowed to go to their mother, naturally they were restrained and confined. The mother being the natural guardian to have custody of minor children below 5 years of age, the institution of the application under S. 97 of the Cr.P.C. was just and proper.
A reliance has been placed on the case of Sk. Razak v. Riyasathbi reported in 1975 Cr. LJ 1131 (Bombay-Nagpur Bench). In the case before His Lordship, the relations between the husband and wife were deteriorated and consequently the wife left the house of the husband. The husband and wife both resided at Nagpur but in different Mohallas. The spouses had a child. The child was with her mother who was staying with her mother. The child was residing with the mother since the birth. The mother of the child alleged that on 5-1-73 at about 7 a.m. her husband came with some of his friends, made a row, assualted the mother and took away the child forcibly from her custody. She filed a report with the police but no action appears to have been taken. Consequently, an application under Section 100 of Cr.P.C. was filed.
"There was a confinement of the child which amounted to an offence. This being the subjective satisfaction of the Magistrate, which cannot be lightly interfered with at the revisional stage unless a strong case is made out before the Court. Once that position is accepted, then the matter becomes more clear that the Magistrate had no option but to pass an order to search warrant."
"Under the circumstance, the Magistrate issuing the warrant be said to have reason to believe that the confinement by the father amounted to wrongful confinement".
"It is revolting to modern sense of justice and fair-play that a person who has lawful custody of the minor should be deprived of such custody by crude means which has no sanction under the law. Removal of the child by using physical force from the custody of the mother is prima facie a wrongful act. Keeping the child beyond the reach of the person who is entitled to its custody would amount to wrongful confinement".
"If the children of below 7 years of age were forcibly taken away from the custody of mother by the father, the court can issue warrant under Section 97 of the Cr.P.C. for search of children and also hand over the custody of children to the mother if found suitable".
8. Shri Chandurkar, the learned counsel for the non-applicants submitted that the mother being the natural guardian, she is entitled to have the custody of the child till the child is below 5 years of age under Section 6 of the Hindu Minority and Guardianship Act, 1956. The object and purpose being ex facie to ensure the welfare of the minor ward which necessarily involves due protection of the right of his guardian to properly look after the ward's health, maintenance and education. Admittedly, in the case in hand, the non-applicants Nos. 2 and 3 at the relevant time i.e. when the application under Section 97 of Cr.P.C. was filed in the court of J.M.F.C., Mangrulpir were below 5 years of age.
"In our opinion, S. 25 of the Guardians and Wards Act contemplates not only actual physical custody but also constructive custody of the guardian which term includes all the categories of guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward's health, maintenance and education. This section demands reasonably liberal interpretation so as to effectuate that object".
"The father's fitness from the point of view just mentioned cannot override considerations of the welfare of the minor children. No doubt, the father has been presumed by the staute generally to be better fitted to look after the children - being normally the earning member and head of the family - but the court has in each case to see primarily to the welfare of the children in determining the question of their custody in the background of all the relevant facts having a bearing on their health maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels : nor are they mere play things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions yielded to the considerations of their welfare as human being so that they may grow up in normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father is excepted to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them".
"It is now well known that this broad view of the right of the father to claim the custody of the minor child without reference to the welfare of the minor is not acceptable to law. It appears to us that such a view is not only untenable on authorities but is clearly wrong in constitutional principle. Child is a person within the meaning of Art. 21 of the Constitution. It has, therefore, a right to its life as guaranteed by Art. 21 of the Constitution. The word 'life' should be understood in this context as expansively as it has been understood in other contexts as comprehending more than mere animal existence. (See Kharak Singh v. State of U.P. . The theory that the father has an unlimited and unrestricted right to the custody of the minor child even to the extent of disregarding the welfare of the child would be theoretically inconsistent with this constitutional provision. It is no doubt true that the minor is not in a position to express its preferences. But that incapacity makes no difference to the legal theory with which we are now concerned because that incapacity would not take away the child's inalienable right to life recognized by the Constitution. The recognition of an unlimited right in another person be it the father, to the custody of the Ward would not only be constitutionally inconsistent with this right of the minor under Art. 21 of the Constitution but it would also be in consistent with the constitutional power and duty of this court to protect and enforce the fundamental right to life of all persons including that of the minor. This argument of the learned counsel for the petitioner that the father has an unlimited right to claim the custody of the minor child without reference to the welfare of the minor child must, therefore, be rejected."
Para 12 Normally, there can be no absolute rights in a social order. In a social formal rights can only be relational. As recently said by Lord Diplock in Maharaj's case (1978) 2 WLR 902, 909, in a society one man's freedom is another man's restriction. The fetish of right has hitherto been the cause of many a confusion in our jurisprudence. We must not merely look to the subject of the right without identifying the person over which this right is to be exercised. In a social order all rights in the ultimate analysis are only rights and relations between persons and not between person and inanimate things sometimes called, 'nature'. Recognition of father's unlimited right to the custody of the child would almost reduce the child to the position of a chattel from the position of a person. We cannot therefore, accept this absolutist legal proposition. Law is more than logic but is no more than social engineering. It is social policy backed by the State force. The sanctity of its dictum must be found in the ultimate analysis in its service of social goals as determined by the Constitution. Under the feudal order, allegiance and protection went together hand-in-hand and the feudal Lord assumed protection of his vassal in return for the latter's allegiance. This is one of the legal principles that advent of capitalistic legal order did not choose to replace. Particularly in the case of minors who cannot be excepted to express their intelligent preferences the modern State assumes the ultimate responsibility for their welfare. This is the origin of parents patriae jurisdiction of the Courts sharing in the sovereign power of the State. In exercise of this jurisdiction, which is derived not by reason of any statute but as an inseparable attribute of judicial power of the State, the court should always look to the welfare of the minor in all matters relating to its life. Every claim including the one which has been advanced in this case by the father for the custody of the minor child, must be subordinate to the power and duty of this jurisdiction to look after the welfare of the minor. For these reasons, we have no hesitation in rejecting the submission made on behalf of the petitioner".
"The general principal in matters relating to the custody of a minor is well settled that the paramount consideration is the welfare of the minor and not the legal right of this or that party. The cases referred to us all proceed upon this principle. We may also in this connection refer to the proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which provides that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. There is a strong presumption that mother's protection for children of tender age is indispensable. There may, however, be circumstances in a particular case which rebut this presumption and it may be held that the welfare of the minor, although of tender age, lies in giving the custody to the father."
It is universally accepted that "Mother is the name for God in the lips and hearts of little children".
It is observed that "God could not be everywhere and, therefore, he made mothers". .... A Jewish proverb.
It is also said that "What is home without a mother ?".
It is also common experience of all that "A mother loves her child more than the father does because she knows it's her own, while the father only thinks it's his".
Nepoleon Bonaparts says that "The future destiny of the child is always the work of the mother".
Tennyson says that "The bearing and the training of a child is woman's wisdom".
There is a proverb in Marathi that "Aai sarkhi maya aani nimbachi chhaya"
"The right of a father as a natural guardian to the custody of his minor child is not an indefeasible right in law, if the exercise of such a right is not in the minor's welfare. An order under Section 25, Guardians and Wards Act is really meant to protect the minors welfare which is the primarily consideration in deciding whether or not the custody of the minor should be restored to the applicant. Such a matter has to be decided on practical and humanitarian and not on sanctimonious grounds".
"The principles of law in relation to the custody of a minor appears to be well established. It is well settled that any matter concerning a minor has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor".
"428. Infant's welfare paramount. In any proceedings before any Court, concerning the custody of upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application of the income thereof, the Court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view, the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. This provision applies whether both parents are living or either or both is or are dead.
Even where the infant is a foreign national, the Court, while giving weight to the views of the foreign Court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the Courts of any other country".
"Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who is addition because of her profession and financial resources may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels; nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian Court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. The approach of the learned single Judge, in our view, was correct and we agree with him. The Letters Patent Bench on appeal seems to us to have erred in reversing him on grounds, which we are unable to appreciate.
At the bar reference was made to a number of decided cases on the question of the right of father to be appointed or declared as guardian and to be granted custody of his minor children under Section 25 r/w S. 19 of the Guardians and Wards Act. Those decisions were mostly decided on their own peculiar facts. We have, therefore, not considered it necessary to deal with them. To the extent, however, they go against the view we have taken of S. 25 of the Guardians and Wards Act, they must be held to be wrongly decided.
The respondent's contention that the Court under the Divorce Act had granted custody of the two younger children to the wife on the ground of their being of tender age, no longer holds goods and that, therefore, their custody must be handed over to him appears to us to be misconceived. The age of the daughter at present is such that she must need the constant company of a grown-up female in the house genuinely interested in her welfare. He mother is in the circumstances the best company for her. The daughter would need her mother's advice and guidance on several matters of importance."
11. Considering the principles laid down by Their Lordships of the Supreme Court and of various High Courts, there is no dispute that mother is entitled of the custody of the child below the age of 5 years, being a guardian. On 17-10-1989, the children were in the custody of the non-applicant No. 1 Smt. Warsha the mother, when she reached to her parents place for 3rd delivery. The children were taken away from her custody by the husband on the assurance of returning them to her custody. However, it is an admitted fact that the applicant No. 2 the husband of the non-applicant No. 1 Warsha instead of taking the children with him, he took them to his parents who are residing at Daryapur. The children were not returned to the custody of the non-applicant No. 1 Warsha and when her brother had gone to bring them back, he was driven out. Thus, the non-applicant No. 1 Warsha was prevented from love and affection of her children and also their custody. It has been brought to my notice that the non-applicants Nos. 2 and 3 are admitted in the school. It is an admitted fact that the non-applicant Nos. 2 and 3 were in the custody of their grand-parents. Considering the facts and circumstances, there is no doubt that the non-applicants Nos. 2 and 3 were confined. Therefore, the proceedings instituted under Section 97 of the Cr.P.C. were legal, just and proper.
The learned Addl. Sessions Judge, Washim has considered all the factual and legal aspects and findings are well founded and, therefore, they are confirmed.
"The question for consideration is as to whether the bar under S. 397(3) Cr.P.C. should have been taken note of to reject the revision at the instance of the State Govt. or action taken by the High Court in exercise of its inherent power has to be sustained. It is not disputed by Counsel appearing for the State that the move before the High Court was really on application for revision of the order of the Magistrate releasing the truck. That is exactly prohibited under S. 397(3),Cr.P.C. Merely by saying that jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of S. 397(3) of the Code could be labelled as one under S. 482. We are satisfied that this is a case where the High Court had no jurisdiction to entertain the revision. The appeal is allowed and we set aside the order of the High Court. The order of the Magistrate as affirmed by the Sessions Judge is upheld".
13. There is no dispute about the principles laid down by Their Lordships of the Supreme Court. However, it is not applicable in the case in hand. In the case in hand, the applicants had not challenged the order passed by the learned J.M.F.C., Mangrulpir on 25-1-90, it being in their favour. However, the children were given in the custody of their mother on 20-1-1990. After passing the final order dtd. 25-1-90, the applicants approached the learned J.M.F.C. Mangrulpir by filing an application on 29-10-1990 praying for the restoration of the children to them. However, the application, not being maintainable, was rejected vide order dtd. 30-01-90. Against the order passed on the application dtd. 29-1-90, the applicant No. 1 filed a criminal revision No. 14/90. The non-applicant No. 1 Warsha filed a criminal revision No. 24/90 against the order passed by J.M.F.C. Mangrulpir dtd. 25-1-90. The learned Addl. Sessions Judge, Washim passed the common order. The instant revision application No. 84/90 is the first revision filed in this Court against the order passed by the learned Addl. Sessions Judge, Washim in criminal revision No. 24/90, setting aside the order passed by the learned J.M.F.C., Mangrulpir. It being the first revision, the principle as laid down by their Lordships of the Supreme Court in the case cited supra, is not applicable at all. Therefore, there is no force in the submission made by Shri Chandurkar, the learned counsel for the non-applicants.
14. In the result, the application is rejected.

matches:
application No. 24
application No. 14
v.
Art. 21
Art. 21
v.
Art. 21
application No. 84