By Dhruva Vig
Introduction
It is an act that has been enforced with the intent to consolidate and amend the law relating to Guardian and Wards. The Act is based on opinions elicited by a reference to Local Governments and High Courts on the subject of certain defects in the law relating ‘ to the Guardianship of minors‘, and its object is to provide a law of Guardian and Ward, but it does not take away any of the powers at present possessed by statutes, and it provides that, in the selection of guardians and other matters; regard shall be made to the personal law of the minor.
It must be noted that the Guardian and Wards Act 1890 is a secular act which shall apply to every citizen and community of India, while The Hindu Guardianship and Minorities Act of 1965 shall be applicable only to followers of Hinduism and its subsets thereof such as Jains, Buddhists, Sikhs, Lingayat, Arya Samaj, followers of Brahmo, followers of Prarthana Samaj, and Virashiva.
The Hindu Guardianship and Minorities Act was established with the purpose and intent to give power to the Guardians and Ward Act of 1890, and provide a more coherent legislation to better serve the rights and protection for children rather than act as a replacement for the already prevailing law at the time.
In a nutshell, the Act has been enacted with the purpose of defining rights, obligations, relations between adults and minors.
People belonging to other religious communities such as Muslims, Parsis and Christians shall not be covered within the scope of this law. This law shall act in furtherance to that of Law of Guardians and Wards of 1860, and does not repealing effect on the latter.
The Guardians and Wards Act 1890 also lays down the procedure on how to petition the relevant Courts for the appointment of a competent guardian.
Landmark Judgements
Gaurav Nagpal v. Sumedha Nagpal[1]
Facts :
The appellant father and the respondent mother married on 14-10-1996 and a child was born to them on 15-11-1997. Initially, the High Court by order dated 30-9-2002, in exercise of its power of revision, had allowed the custody of a child to the father (appellant) with visitation rights to the mother (respondent).
But as the visitation rights granted to the mother were not complied with, the District Court allowed a contempt petition of the respondent mother and also allowed her application under Section 6 of the Hindu Minority and Guardianship Act, 1956 and transferred the custody of the child to her.
By the impugned order, the High Court dismissed the appeal of the appellant father. Dismissing the appeal with modifications in the impugned orders, the Supreme Court opined the decision forthwith-
Held:
“The principles in relation to the custody of a minor child are well settled. The paramount consideration of the court in determining the question as to who should be given custody of a minor child, is the “welfare of the child” and not rights of the parents under a statute for the time being in force or what the parties say. The court has to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others. Mature thinking is indeed necessary in such a situation. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis. In such matters, human angles are also relevant for deciding the issues. The object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of ward’s health, maintenance and education. The power and duty of the court under the Act is the welfare of minor.”
Nil Ratan Kundu & Anr. v. Abhijit Kundu[2]
Facts:
‘A’ was the son of the respondent. Allegedly, A’s mother, ‘M’ had been continuously tortured by the respondent for bringing more dowry from her parents, the appellants herein. One day M was l brutally assaulted by the respondent and his mother which resulted in her death.
The appellants herein lodged FIR against the respondent and his mother under Sections 498-A and 304 IPC. The respondent was consequently arrested. A, who at that time was only five years old was found in sick condition at the respondent’s residence.
His custody was then handed over to the appellants. The appellants maintained the child with utmost love and affection and got him admitted to a well-reputed school.
During the pendency of the criminal case, the respondent was enlarged on bail. He then filed an application under the Guardians and Wards Act, 1890 seeking custody of A. The appellants opposed that application. The trial court allowed the application and held that the respondent was the natural guardian of A and the present and future of A would be better secured in the custody of the respondent.
Accordingly, it directed the custody of A to be “immediately” given to the respondent. That order was upheld by the High Court. The appellants then filed the present appeal by special leave. Allowing the appeal, the Supreme Court held the following decision with regards to the principles governing custody of minor children.
Held:
In determining the question as to who should be given the custody of a minor child, the paramount consideration that should be made by a court is the “welfare of the child” and not the rights of the parents, under a statute for the time being in force.
The legal position in India follows the doctrine laid down in English and American Law. Halsbury’s Laws of England[3] and American Jurisprudence[4] was referred to by the Court.
“In deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.”
Sangeetha Raghuram v. Pushpa Raghuram[5]
Held:
The Court observed that Sec. 3 of the Guardians and, Wards Act expressly reserves the power of any High Court in relation to the provisions of the Act provided the High Court has been exercising or possessing such power erstwhile. Sec. 3 keeps intact the power of the High Court as well.
Further, Clause 17 of the Letters Patent ordains that the High Courts of Judicature at Madras, Bombay and Calcutta within the respective Presidencies shall have jurisdiction with respect to persons and estates of infants, idiots and lunatic. The Court made the observation that it is incontrovertible that these three High Courts have both the power and jurisdiction in view of Sec. 3 in conjunction with clause 17 Letters Patent.
Tackling the issue of jurisdiction, the Court opined that “The contention of the learned counsel for the 1st respondent is that the Letters Patent is confined to the three named High Courts and cannot be stretched to this High Court. This contention clearly glosses over the impact of Sec. 3 and Sec. 32 of the Andhra State Act. Sec. 30 confers the entirety, of original, appellate other jurisdiction exercised by the Madras High Court in respect of the territories included in the State of Andhra and Sec. 32 postulates the applicability of practice and procedure that prevailed in the High Court at Madras. Thus, it is Evident that the Andhra High Court is curved out of Madras High Court and certain territories in the Andhra State are acceded from the jurisdiction of Madras High Court and brought in under the jurisdiction of Andhra High Court. Therefore, Andhra High Court is a chip of the block of Madras High Court and is in the nature of a tributary.”
K. Vidyasagar v. Shobha[6]
In view of the provisions relating to application for guardianship of minor, the Court observed that it is the District Court in whose jurisdiction the minor ordinarily resides, and which has the jurisdiction to entertain, try and dispose of the issue as well.
According to the facts of case, as the minor was residing in District Chittoor (A.P.), order passed by District Court, Ambajogai (Mah.) was held to be without jurisdiction. The economic condition or resourcefulness of parties to proceedings for guardianship cannot be considered in such cases.
“The issue of jurisdiction needs to be answered by the supplementary provisions of section 9 of the Guardians and Wards Act, 1890. Nowhere the relevant provision takes into account the economic condition or resourcefulness of the parties to the proceedings for guardianship. Issue of guardianship of the person of minor concerns the minor and as such, it is the District Court in whose jurisdiction the minor ordinarily resides, has the jurisdiction to entertain, try and dispose of the issue concerning the guardianship and this has been adequately expressed in sub-section (1) of section 9 of the Guardians and Wards Act, 1890.”
In the present case, the learned District Judge was swayed by the economic condition of the applicant rather than by the provisions of law. Ergo, the Learned District Judge fell in error in concluding that it had a jurisdiction to entertain, try and dispose of the application for guardianship of the minor, who then resided at Madnapalli, District Chittoor (Andhra Pradesh).
Impugned order was thus, passed without jurisdiction and was set aside.
Athar Hussain v. Syed Siraj Ahmed[7]
Dismissing the appeal, the Supreme Court held that in the concerned matter of guardianship of a child that was before the court, the prima facie case lied in favour of the father as under Section 19 of the 1890 Act, unless the father was not fit to be a guardian, the Court had no jurisdiction to appoint another guardian.
The respondents in the present case, despite the voluminous allegations that were levelled against the appellant, were not able to prove that he was not fit to take care of the minor children, nor had the Family Court or the High Court found him so.
The Court took the view that the question of custody is different from the question of guardianship. The father was entitled to continue being the natural guardian of the children; however, the considerations pertaining to the welfare of the child might indicate lawful custody with another friend or relative as serving his/her interest better.
Thus, the court held that the question of guardianship can be independent of and distinct from that of custody in the facts and circumstances of each case. The Court followed suit with regard to the decisions that were held in previous landmark cases, that were Rosy Jacob v. Jacob A. Chakramakkal[8] and Siddiqunnisa Bibi v. Nizamuddin Khan.[9]
In matters of custody the welfare of the children is the sole and single yardstick by which the court shall assess the comparative merit of the parties contesting for the custody.
Therefore, while deciding the question of interim custody, the court must be guided by the welfare of the children since Section 12 empowers the court to make any order as it deems proper. What is important to note is that the court shall determine whether, in proceedings relating to interim custody, there are sufficient and compelling reasons to persuade the Court to change the custody of the minor children with immediate effect.
Stability and consistency in the affairs and routines of children is also an important consideration
According to the facts of the case, the children were in the lawful custody of the respondents since October 2007. The custody of the minor children with the respondents was lawful and had the sanction of the order of the High Court granting interim custody of the children in their favour.
Hence, the Court held that “the considerations of the welfare of the children and that the custody of the children should not undergo an immediate change, prevail. At any rate, the children are happy and are presumably taken care of with love and affection by the respondents, judging from the reluctance on the part of the girl child to go with her father. She might attain puberty at any time. As the High Court has rightly observed, it may not be in the interests of the children to separate them from each other. Hence, at this juncture, status quo is not to be disturbed, as the question is only of interim custody at this stage.”
The Court further held, “As far as the question of custody is concerned, the personal law governing the minor girl dictates that her maternal relatives, especially her maternal aunt, shall be given preference and there is no conflict between the welfare of the children and the course of action suggested by the personal law to which they are subject. To the extent that it is a question of interim custody, there is no reason to override this rule of Mohammedan Law and hence, a prima facie case is found in favour of the respondents. Further, the balance of convenience lies in favour of granting the custody to the maternal grandfather, aunt and uncle. However, consideration of the welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor.”
Anjali Kapoor v. Rajiv Baijal[10]
The Court discussed the extent of right of a natural guardian to hold custody of child and the factors that are to be considered in granting such custody. The Court held, that the said right is not always absolute.
The welfare of child is of paramount importance while considering granting custody of child. In the present case, the Father had married a second time whilst having a child and was getting meagre income, all while claiming custody of the child on ground of being natural parent, from grandmother of child, as the mother having died in childbirth was not there to take care of the child.
It was further held, that taking proper care and attention in upbringing of the child is an important factor for granting custody of child. Thus, it was held on facts, that the respondent father may not give comfortable living for the child and child might have to be in the care of stepmother, especially as the father had to be out of the house frequently on account of business.
The child was brought up by appellant (grandmother) since her infancy and had developed an emotional bonding with her. The Appellant was financially sound, and the child was growing up in atmosphere which was conducive to its growth.
Hence, custody of child was allowed to be retained by appellant under the provisions of Hindu Minority and Guardianship Act, 1956, Ss. 13 and 6.
The test for custody of child rights of natural guardians vis-à-vis welfare of the child was given due consideration by court. The question, as to what would best serve the welfare and interest of the child, shall be the sole and predominant criterion for such test.
Under the Act, a father is guardian of minor child until he is found unfit to be guardian of minor female child. However, it must be noted that the welfare of child prevails over legal rights of parties while deciding custody of minor child.
Indian Council Social Welfare v. State of A.P.[11]
Facts:
In this case, the issue of adoption of Indian children by foreign couples was taken up. The court held that the procedure to be gone through, before any guardianship certificate was issued by Family or District Court, must be strict and adequate in nature.
Processing of all applications regarding grant of guardianship certificates and sending of children to their appointed guardians abroad was stopped by State Child Welfare Department in view of ongoing investigation in the present case.
It was held, that since there were no allegations of malpractices against the petitioner organizations, there was no impediment in sending children in relation to whom guardianship certificates had already been issued by appropriate courts, and who were in the custody of petitioner organizations, to their appointed foreign guardians.
It was further held, that in instances where guardianship applications pending were pending, the appropriate courts can proceed in accordance with law, and in the present case, held that State Govt. was entitled to continue the investigation.
Held:
“It is necessary to note that before a guardianship certificate is issued by the Family Court or the District Court concerned, a letter of relinquishment, VCA (Voluntary Coordinating Agency) clearance, no-objection certificate from CARA (Central Adoption Resource Authority) and other relevant documents such as the home study of the proposed guardians, no-objection certificate from the agency which has scrutinised the application of the proposed foreign guardians, as also approval from the scrutinising agency in India who scrutinises these applications (in the case of the State of Andhra Pradesh this scrutinising agency is the Indian Council of Child Welfare) are required. Thereafter the court decides whether the guardianship should be granted or not. In case there are any objections in respect of any proposed guardianship application, the same can be and are usually raised by the appropriate authority before the Family Court/District Court concerned.”
Chandrakala Menon v. Vipin Menon (Capt.)[12]
Held:
The Court discussed the issue of custody of a minor daughter and the visiting/meeting rights in instances of divorce between parents.
The Court held that even though the father is the natural guardian of the minor, the question of her custody was to be decided not on the basis of legal rights of the parties, but on the sole criterion of interest and welfare of the minor. The divorce had taken place between the parents by mutual consent.
Father was a qualified engineer residing in India and mother was doing her Ph.D. in USA. Both were belonging to well-to-do families, while the daughter was brought up by her maternal grandparents. The daughter, who is an intelligent girl, was having ample love and affection for both her parents as well as for her maternal grandparents.
Thus, it was held that it would be in the interest and welfare of the minor that she should be in the custody of her mother in USA. The mother and maternal grandfather gave the undertaking to bring or send her to India once in a year so that her father can have her company, and the father was also at liberty to meet her in USA whenever he likes.
Wazid Ali v. Rehana Anjum 2005[13]
The Court dealt with two different contentions in the present case:
(a) The question of appointment of guardian for minor, where such question of welfare of the minor should be answered after weighing and balancing all factors germane to the decision-making.
“The word “welfare of the child” admits of no strait-jacket yardstick. It has many facets, such as financial, educational, physical, moral and religious welfare. The question, where the welfare of the minor lies should be answered after weighing and balancing all factors germane to the decision-making, such as relationships, claims and wishes of parents, risks, choices and all other relevant circumstances. The answer lies in the balancing of these factors and circumstances and determining what is best for the minor’s total well-being. The cardinal principle is that minors cannot take care of themselves so that the State as pater patriae has powers to do all acts and things necessary for their protection. It is, therefore, the primary duty of the Court to be satisfied what would be for the welfare of the minor and to make an order appointing or declaring a guardian accordingly. In the present case, the parties are Muhammadan and though paramount consideration in the cases coming under the Act for appointment of guardian should be the welfare of the minor, it must be as far as possible consistent with the personal law relating to the parties looking to the age of the child, which is only four years, it would be appropriate to give her in the custody of her mother.”
(b) The question as to whether a prayer to give custody of minor made in reply to the application would amount to an application with prayer to give the minor in custody of the respondent.
“Merely because the prayer has been made in the reply would not in itself is a ground to deny the delivery of custody of the minor child to her mother. A prayer to give in custody the minor child made in the reply would amount to an application with prayer to give the minor child in her custody.”
ABC v. State (NCT of Delhi)[14]
Facts:
The appellant, as a Christian by faith, gave birth to a child and raised him without any assistance from or involvement of his putative father. She filed an application under Section 7 of the Guardians and Wards Act before the Guardian Court for declaring her the sole guardian of her son.
She got published notice of the petition in a daily newspaper but was strongly averse to naming the father. She had filed an affidavit stating that if at any time in the future the father of her son raises any objections regarding his guardianship, the same may be revoked or altered as the situation may require.
However, the Guardian Court directed her to reveal the name and whereabouts of the father in view of the requirement under Section 11 of the Act for service of notice to the parents of the child before appointment of a guardian.
The appellant, having refused to do so, the court dismissed her guardianship application. The appellant’s appeal before the High Court was dismissed in limine, on the reasoning that her allegation that she is a single mother, could only be decided after notice is issued to the father, that a natural father could have an interest in the welfare and custody of his child even if there is no marriage; and that no case can be decided in the absence of a necessary party.
It was contended on behalf of the State that Section 11 requires a notice to be given to the “parents” of a minor before a guardian is appointed; and that as postulated by Section 19, a guardian cannot be appointed if the father of the minor is alive and is not, in the opinion of the court, unfit to be the guardian of the child.
The impugned judgment was, therefore, in accordance with the Act and should be upheld. Allowing the appeal of the appellant mother, the Supreme Court made the following observations-
Held:
“An analysis of the law relating to custody and guardianship of children born outside wedlock in various jurisdictions indicates that the preponderant position is that it is the unwed mother who possesses primary custodial and guardianship rights with regard to her children and that the father is not conferred with an equal position merely by virtue of his having fathered the child. This analysis should assist us in a meaningful, dynamic and enduring interpretation of the law as it exists in India. The predominant legal thought in different civil and common law jurisdictions spanning the globe as well as in different statutes within India is to bestow guardianship and related rights to the mother of a child born outside of wedlock. Avowedly, the mother is best suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word “mamta”. Furthermore, recognising her maternity would obviate the necessity of determining paternity. In situations such as this, where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility. In today’s society, where women are increasingly choosing to raise their children alone, we see no purpose in imposing an unwilling and unconcerned father on an otherwise viable family nucleus. It seems to us that a man who has chosen to forsake his duties and responsibilities is not a necessary constituent for the well-being of the child.”
It was further held that “The purpose of analysis of the law in other countries was to arrive at a holistic understanding of what a variety of jurisdictions felt would be in the best interest of the child. It was not, as the learned counsel suggested, to understand the tenets of Christian law, Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts, who are the natural guardians of their illegitimate children by virtue of their maternity alone, without the requirement of any notice to the putative fathers. However, our Directive Principles envision the existence of a Uniform Civil Code, but this remains an unaddressed constitutional expectation. India is a secular nation, and it is a cardinal necessity that religion be distanced from law. Therefore, the task before the Court is to interpret the law of the land, not in the light of the tenets of the parties’ religion but in keeping with the legislative intent and prevailing case law.”
Vivek Singh v. Romani Singh[15]
Facts:
The Appellant husband, an army officer, had managed to retain custody of daughter from age of 21 months to 8 years by eluding police action and flouting court order leading to initiation of contempt proceeding. Because of such long association with father and being deprived experience of mother’s company, the child had preferred to remain with father.
But respondent wife, who was a teacher, throughout continued her efforts to get back custody of child. At age of 8 years, when the girl child would be in process of transition to independent thinking, mother’s company and care at least for some time would be essential, as child-mother bonding would now be best for child’s development.
Regular schooling and proper education of child is also essential which respondent as a teacher at a prestigious school would be in a better position to look after.
On an overall assessment of facts and circumstances, the court held that the factors in favour of respondent mother are weightier than those in favour of appellant father of girl child. Hence High Court had rightly granted custody of the child to respondent mother, subject to directions regarding periodical visitation by appellant.
Further directions regarding admission of child to school by respondent were given by Supreme Court. Dismissing the appeal, the Supreme Court gave the following views-
Held:
“In cases of this nature, where a child feels tormented because of the strained relations between her parents and ideally needs the company of both of them, it becomes, at times, a difficult choice for the court to decide as to whom the custody should be given. No doubt, paramount consideration is the welfare of the child. However, at times the prevailing circumstances are so puzzling that it becomes difficult to weigh the conflicting parameters and decide on which side the balance tilts. In order to determine child custody, the jurisdiction exercised by the court rests on its own inherent equality powers where the court acts as “parens patriae”.”
In the first instance, it is to ensure that the child grows and develops in the best environment. The best interest of the child has been placed at the vanguard of family/custody disputes according to the optimal growth and development of the child primacy over other considerations.
The Court observed that the child is often left to grapple with the breakdown of an adult institution. While the parents aim to ensure that the child is least affected by the outcome, the inevitability of the uncertainty that follows regarding the child’s growth lingers on till the new routine sinks in.
The effect of separation of spouses, on children, psychologically, emotionally and even to some extent physically, spans from negligible to serious, which could be insignificant to noticeably critical. It could also have effects that are more immediate and transitory to long lasting thereby having a significantly negative repercussion in the advancement of the child.
While these effects may not apply to every child of a separated or divorced couple, nor has any child experienced all these effects, the deleterious risk of maladjustment remains the objective of the parents to evade and the court’s intent to circumvent.
Thus, this right of the child is also based on individual dignity.
Second justification behind the “welfare” principle as given by the court is the public interest that stand served with the optimal growth of the children. It has been well recognised that children are the supreme asset of the nation.
Rightful place of the child in the sizeable fabric was recognised in many international covenants, which have been adopted in this country as well. Child-centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are regarded as the future of the nation.
The Court further held that, “A proper education encompassing skill development, recreation and cultural activities has a positive impact on the child. The children are the most important human resources whose development has a direct impact on the development of the nation, for the child of today with suitable health, sound education and constructive environment is the productive key member of the society. The present of the child links to the future of the nation, and while the children are the treasures of their parents, they are the assets who will be responsible for governing the nation. The tools of education, environment, skill and health shape the child thereby moulding the nation with the child equipped to play his part in the different spheres aiding the public and contributing to economic progression. The growth and advancement of the child with the personal interest is accompanied by a significant public interest, which arises because of the crucial role they play in nation building.”
In the instant case, the factors which weighed in favour of the appellant are that the child was living with him from tender age of 21 months and was happy in such company.
In fact, it was her desire is to continue to live with the appellant. Normally, these considerations would have prevailed upon the Court to hold that such custody remains with the appellant.
However, that is only one side of the picture in such instance as observed by the Court.
Nagaiah v. Chowdamma[16]
Facts:
A suit was filed by the appellants (Plaintiffs 1 and 2) praying for a declaration that the suit property was a joint property of the appellants along with their father Respondent 2 (Defendant 1) and that they were entitled to 2/3rd share in the property, that the sale deed executed by the father in favour of Respondent 1 (Defendant 2) was not binding on their 2/3rd share in the suit property.
A relief of permanent injunction was also sought. At the time of filing of the suit, Appellant 2 being aged about 17 years, his elder brother Appellant 1/Plaintiff 1 filed the suit not only on his personal behalf but also on behalf of his minor brother. The trial Court dismissed the suit on merit.
The first appellate Court allowed the plaintiffs’ appeal and decreed the suit. The second appeal preferred by Defendant 2 was allowed by the High Court and the suit was dismissed. The High Court opined that Plaintiff 1 being the elder brother could not act as the guardian of the minor Plaintiffs 2 before any competent Court and that Defendant 1, being father of Plaintiff 2 was the natural guardian and hence could only represent Plaintiff 2.
The Court gave the view that every suit by a minor which had been instituted in his name by a person who in such suit, shall be called the “next friend of the minor”. Any person who was of sound mind, who had attained majority, who can represent and protect the interest of the minor, who is a resident of India and whose interest is not averse to that of the minor, may represent the minor as his next friend.
Also, such person who was representing the minor plaintiff as a next friend shall not be party to the same suit as defendant. “A “Next friend” must act for the benefit of the “minor” or other person who is unable to look after his or her own interests or manage his or her own lawsuit (person not sui juris) without being a regularly appointed guardian as per the Hindu Guardianship Act. He/she acts as an officer of the court, who is especially appearing to look after the interests of a minor or a disabled person whom he represents in a particular matter.”
It was observed that if a suit by minor had been instituted without the next friend, the plaint would be taken off the file as per Rule 2 of Order 32 of the Code.
Hence, the only question to be decided in this appeal was, whether the first plaintiff being the elder brother of minor second plaintiff (at the time of filing of the suit) could have filed the suit on behalf of the minor as his next friend/guardian? Answering in the affirmative and allowing the appeal, the Supreme Court in this landmark judgement, gave the following views-
Held:
“In case, where the suit is filed on behalf of the minor, no permission or leave of the court is necessary for the next friend to institute the suit, whereas if the suit is filed against a minor, it is obligatory for the plaintiff to get the appropriate guardian ad litem appointed by the court for such minor. A “guardian ad litem” is a special guardian appointed by a court in which a particular litigation is pending to represent a minor/infant, etc. in that particular litigation and the status of guardian ad litem exists in that specific litigation in which appointment occurs. However, even in respect of minor defendants, the decree cannot be set aside even where certain formalities for the appointment of a guardian ad litem to represent the defendant have not been observed. In the case of minor defendants, where the permission of the court concerned under Order 32 Rule 3 of the code is not taken, but the decree has been passed, in the absence of prejudice to the minor defendant, such decree cannot be set aside. The main test is that there has to be a prejudice to the minor defendant for setting aside the decree. In the matter on hand, the suit was filed on behalf of the minor and therefore the next friend was competent to represent the minor. Further, admittedly no prejudice was caused to Plaintiff 2.
The rights and restrictions of the natural guardian provided under the Hindu Guardianship Act do not conflict with the procedure for filing a suit by a next friend on behalf of the minor. Not only is there no express prohibition, but a reading of Order 32 of the Code would go to show that wherever the legislature thought it proper to restrict the right of the next friend, it has expressly provided for it in Rules 6 and 7 of Order 32 of the Code. Rule 9 of Order 32, apart from other factors, clarifies that where a next friend is not a guardian appointed or declared by the authority competent in this behalf and an application is made by the guardian so appointed or declared who desires to be himself appointed in the place of the next friend, the court shall remove the next friend unless it considers, for reasons to be recorded, that the guardian ought not to be appointed as the next friend of the minor. The principles arising out of the Guardians and Wards Act, 1890 and the Hindu Guardianship Act may not be apposite to the next friend appointed under Order 32 of the Code. The appointment of a guardian ad litem to represent the defendant or a next friend to represent the plaintiff in a suit is limited only for the suit and after the discharge of that guardian ad litem/next friend, the right/duty of guardian as defined under clause (b) of Section 4 of the Hindu Guardianship Act (if he has no adverse interest) automatically continues as guardian. In other words, a next friend representing the minor in the suit under Order 32 Rule 1 of the Code, will not take away the right of the duly appointed guardian under the Hindu Guardianship Act as long as such guardian does not have an adverse interest, or such duly appointed guardian is not removed as per that Act.
After attaining majority, if the plaintiff elects to proceed with the suit, he may do so by making an application, consequent upon which the next friend ceases to represent the minor plaintiff from the date of attaining majority by the minor. Order 32 Rule 12 of the Code requires the minor plaintiff to have the option either to proceed with the suit or to abandon the suit and does not at all provide that if no such election is made by the minor plaintiff on attaining majority, the suit is to be dismissed on that ground. In case, if the court discovers during the pendency of the suit that the minor plaintiff has attained majority, such plaintiff needs to be called upon by the court to elect whether he intends to proceed with the suit or not. In other words, the minor who attained majority during the pendency of the matter must be informed of the pendency of the suit and in the absence of such a notice the minor cannot be imputed with the knowledge of the pendency of the suit. So, before any adverse orders are to be made against the minor who has attained majority, the court has to give notice to such person.”
Amit Kumar v. Sonila[17]
The Court held that the act of handing over custody in previous divorce proceedings to appellant husband was conscious decision and cannot be treated as made under force, pressure or fraud. The Respondent wife was well educated, and she had 6 months’ time to think over terms of settlement in divorce proceedings.
As per settlement the parties were free to re-marry any one and that did not have any effect on custody of children as well. Also, the Appellant husband borne all expenses of children, whereas the respondent wife never contributed towards expenses. She was unwilling to make any payment towards expenses of her children and had rather transferred the funds to one of her colleagues.
Subsequent proceedings that were initiated by respondent wife were only to pressurise appellant husband not to claim any amount towards such expenses. The Court held that once she relinquished her custody rights in earlier divorce proceedings, subsequent proceedings for custody were to be treated as a doubtful claim.
The Court gave the view that the terms of custody would require modification only where children, so desire or appellant husband had failed to take care of children. Mere factum of second marriage of appellant husband and child born therefrom cannot be put against him. Interaction with them is one of factors for deciding custody matter.
The appellant husband and the respondent wife took divorce by mutual consent. As per terms of settlement between parties, parties were at liberty to marry with another person and custody of children would be with the appellant husband while the respondent wife would pay for expenses.
However, she did not make any contribution towards expenses. Due to transfer of the appellant husband, he had thought of sending children to boarding school. He demanded the respondent wife to pay towards expenses of children.
In response to this demand, the respondent wife filed an application for custody of children and even sought for cancellation of terms of settlement of divorce terms. Several allegations were made by the parties against one another.
The custody matter was dismissed by the trial Court. The respondent wife challenged this order before the High Court. While deciding this appeal, the High Court noted that the appellant husband got married again and begot a child from his second wife. Considering interaction with children, the High Court granted custody to the respondent wife.
Against this order, SLP was preferred. In this case, the matter was remanded to the High Court for reconsideration. Even after remand, the High Court passed order granting custody to the respondent wife. Hence this appeal was filed in response.
Hence, order passed by High Court was set aside and the custody was restored to appellant husband, and modalities to be followed by parties were directed so as not to disturb education of children.
Sheoli Hati v. Somnath Das[18]
The Court held that the purpose and object of Guardians and Wards Act, 1890 is not mere physical custody of minor but due protection of ward’s health, maintenance and education as well. The power and duty of court under this Act should be the welfare of minor.
The word “welfare” must be taken in its widest sense, that is, apart from physical well-being, moral and ethical welfare of child also weigh with court. Even though the provisions of special statute, such as the Guardians and Wards Act, 1890, governing rights of parents or guardians may be taken into consideration, the Court gave the view that there is nothing which can stand in way of court exercising its parens patriae jurisdiction.
It was held that there was no hard-and-fixed formula which can be found out or which can be applied in each and every case. Each case has to be examined in its own facts and merits. Every child must have a right to proper health and education, and it is the primary duty of parents to ensure that child gets proper education Courts exercising parens patriae jurisdiction can decide such issues in interest of minor.
On facts of the present case, it was further held, that the report submitted by Jamshedpur school, where minor daughter was earlier studying, had indicated that home atmosphere was not conducive for child to perform well.
Further, the District Probation Officer in his report submitted that minor daughter is average student as per her school progress report card but in interaction she was found to be an intelligent girl, and atmosphere free from stress or tension would do better for her future.
Admittedly, the respondent husband had given up his claim of custody of child with the intention that the child should get best education at neutral environment, which may help in developing her personality. The Appellant wife, however, opposed to the said prayer to send child to boarding school, and tried to find fault with boarding school at Ooty (Tamil Nadu).
In the current circumstances in which child was living, the Court had to take extra caution and precaution to ensure that child is kept away from negative influences
While deciding this appeal, the Supreme Court made the recommendations that the High Courts should take into consideration subsequent materials which may be brought before it by parties including progress report of child, and must also consider medical issues of child and if necessary, obtain medical reports to decide about interacting with child.
- (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1 ↑
- (2008) 9 SCC 413 ↑
- Halsbury’s Laws of England, 4th Edn., Vol. 24, Para 511, p. 217; Habeas Corpus, Vol. I, p. 581 ↑
- American Jurisprudence, 2nd Edn., Vol. 39, Para 31, p. 34 ↑
- (1984) 2 AP LJ 131 : 1984 SCC OnLine AP 117 ↑
- 2012 SCC OnLine Bom 612 : (2012) 5 Mah LJ 805 : (2013) 4 AIR Bom R (NOC 83) 23 : (2013) 7 Bom CR 928 ↑
- (2010) 2 SCC 654 : (2010) 1 SCC (Civ) 528 ↑
- (1973) 1 SCC 840 ↑
- AIR 1932 All. 215 ↑
- (2009) 7 SCC 322 : (2009) 3 SCC (Civ) 108 ↑
- (1999) 6 SCC 365. ↑
- , (1993) 2 SCC 6 : 1993 SCC (Cri) 485. ↑
- SCC OnLine MP 204 : (2005) 3 MP LJ 319 : AIR 2005 MP 141 : (2005) 2 HLR 562 : (2005) 3 MPHT 438 ↑
- (2015) 10 SCC 1 : (2016) 1 SCC (Civ) 1 : 2015 OnLine SC 609 ↑
- , (2017) 3 SCC 231 : (2017) 2 SCC (Civ) 1 : 2017 SCC OnLine SC 125 ↑
- (2018) 2 SCC 504 : 2018 SCC OnLine 32 : (2018) 2 SCC (Civ) 182 ↑
- (2019) 12 SCC 711 : (2018) 5 SCC (Civ) 643 : 2018 SCC OnLine SC 2204 ↑
- (2019) 7 SCC 490 : (2019) 3 SCC (Civ) 681 : 2019 SCC OnLine SC 847 ↑