Category Archives: child custody Laws India

Custody of minor Child Under Indian Law

 

“In Laxmi Kant Pandey, this Court duly noted the provisions of the Convention on the Rights of the Child, but in the general context of adoption of children and, in particular, regarding the necessity to involve the natural parents in the consequent guardianship/custody proceedings. The provisions of the Convention which we have extracted indeed reiterate the settled legal position that the welfare of the child is of paramount consideration vis a vis the perceived rights of parents not only so far as the law in India is concerned, but preponderantly in all jurisdictions across the globe. We are mindful of the fact that we are presently not confronted with a custody conflict and, therefore, there is no reason whatsoever to even contemplate the competence or otherwise of the Appellant as custodian of the interests and welfare of her child. However, we would be loathe to lose perspective of our parens patriae obligations, and in that regard we need to ensure that the child’s right to know the identity of his parents is not vitiated, undermined, compromised or jeopardised. In order to secure and safeguard this right, we have interviewed the Appellant and impressed upon her the need to disclose the name of the father to her son. She has disclosed his name, along with some particulars to us; she states that she has no further information about him. These particulars have been placed in an envelope and duly sealed, and may be read only pursuant to a specific direction of this Court.  “

 

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IN THE SUPRME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. …….. OF 2015

[Arising out of SLP (Civil) No. 28367 of 2011]

ABC                                                …     Appellant

Versus

The State (NCT of Delhi)                                 …       Respondent

J U D G M E N T

VIKRAMAJIT SEN, J.

 

  1. A legal nodus of seminal significance and of prosaic procedural origination presents itself before us. The conundrum is whether it is imperative for an unwed mother to specifically notify the putative father of the child whom she has given birth to of her petition for appointment as the guardian of her child. The common perception would be that three competing legal interests would arise, namely, of the mother and the father and the child. We think that it is only the last one which is conclusive, since the parents in actuality have only legal obligations. A child, as has been ubiquitously articulated in different legal forums, is not a chattel or a ball to be shuttled or shunted from one parent to the other. The Court exercises paren patrae jurisdiction in custody or guardianship wrangles; it steps in to secure the welfare of the hapless child of two adults whose personal differences and animosity has taken precedence over the future of their child.
  1. Leave granted. This Appeal is directed against the Judgment dated 8.8.2011 delivered by the High Court of Delhi, which has dismissed the First Appeal of the Appellant, who is an unwed mother, holding that her guardianship application cannot be entertained unless she discloses the name and address of the father of her child, thereby enabling the Court to issue process to him. As per the Appellant’s request, her identity and personal details as well as those of her son have not been revealed herein.
  1. The Appellant, who adheres to the Christian faith, is well educated, gainfully employed and financially secure. She gave birth to her son in 2010, and has subsequently raised him without any assistance from or involvement of his putative father. Desirous of making her son her nominee in all her savings and other insurance policies, she took steps in this direction, but was informed that she must either declare the name of the father or get a guardianship/adoption certificate from the Court. She thereupon filed an application under Section 7 of the Guardians and Wards Act, 1890 (the Act) before the Guardian Court for declaring her the sole guardian of her son. Section 11 of the Act requires a notice to be sent to the parents of the child before a guardian is appointed. The Appellant has published a notice of the petition in a daily newspaper, namely Vir Arjun, Delhi Edition but is strongly averse to naming the father. She has 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 and consequent to her refusal to do so, dismissed her guardianship application on 19.4.2011. 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.
  1. Ms. Indu Malhotra, learned Senior Counsel for the Appellant, has vehemently argued before us that the Appellant does not want the future of her child to be marred by any controversy regarding his paternity, which would indubitably result should the father refuse to acknowledge the child as his own.

This is a brooding reality as the father is already married and any publicity as to a declaration of his fathering a child out of wedlock would have pernicious repercussions to his present family. There would be severe social complications for her and her child. As per Section 7 of the Act, the interest of the minor is the only relevant factor for appointing of a guardian, and the rights of the mother and father are subservient thereto. In this scenario, the interest of the child would be best served by immediately appointing the Appellant as the guardian. Furthermore, it is also pressed to the fore that her own fundamental right to privacy will be violated if she is compelled to disclose the name and particulars of the father of her child. Ms. Malhotra has painstakingly argued this Appeal, fully cognizant that the question that arises is of far reaching dimensions. It is this very feature that convinced us of the expediency of appointing amicus curiae, and Mr. Sidharth Luthra has discharged these onerous duties zealously, for which we must immediately record our indebtedness.

  1. It would be pertinent to succinctly consider the Guardians and Wards Act, 1890. The Act, which applies to Christians in India, lays down the procedure by which guardians are to be appointed by the Jurisdictional Court. Sections 7, 11 and 19 deserve extraction, for facility of reference.

“7. Power of the court to make order as to guardianship (1) Where the court is satisfied that it is for the welfare of a minor that an order should be made-

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian,  the court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.” The details of the form of application are contained in Section 10 and the procedure that applies to a guardianship application is prescribed in Section 11.

  1. Procedure on admission of application (1) If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof, and cause notice of the application and of the date fixed for the hearing-

(a) to be served in the manner directed in the Code of Civil Procedure,1882(14 of 1882)11 on-

(i) the parents of the minor if they are residing in any State to which this Act extends;

(ii) the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor;

(iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant; and

(iv) any other person to whom, in the opinion of the court special notice of the applicant should be given; and

(b) to be posted on some conspicuous part of the court-house and of the residence of the minor, and otherwise published in such manner as the court, subject to any rules made by the High Court under this Act, thinks fit.

(2) The State Government may, by general or special order, require that when any part of the property described in a petition under section 10, sub- section (1), is land of which a Court of Wards could assume the superintendence, the court shall also cause a notice as aforesaid to be served on the Collector in whose district the minor ordinarily resides and on every Collector in whose district any portion of the land is situate, and the Collector may cause the notice to be published in any manner he deems fit.

(3) No charge shall be made by the court or the Collector for the service or publication of any notice served or published under sub-section (2).

 

Section 19 is of significance, even though the infant son does not independently own or possess any property, in that it specifically alludes to the father of a minor. It reads thus:

 

  1. Guardian not to be appointed by the court in certain cases Nothing in this Chapter shall authorise the court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person-

(a) of a minor who is a married female and whose husband is not, in the opinion of court, unfit to be guardian of her person; or

(b) of a minor whose father is living and is not in the opinion of the court, unfit to be guardian of the person of the minor; or

(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

We must immediately underscore the difference in nomenclature, i.e. ‘parents’ in Section 11 and ‘father’ in Section 19, which we think will be perilous to ignore.

  1. It is 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 is, therefore, in accordance with the Act and should be upheld. It seems to us that this interpretation does not impart comprehensive significance to Section 7, which is the quintessence of the Act. However, before discussing the intendment and interpretation of the Act, it would be helpful to appreciate the manner in which the same issue has been dealt with in other statutes and spanning different legal systems across the globe.
  1. Section 6(b) of the Hindu Minority and Guardianship Act, 1956 makes specific provisions with respect to natural guardians of illegitimate children, and in this regard gives primacy to the mother over the father. Mohammedan law accords the custody of illegitimate children to the mother and her relations. The law follows the principle that the maternity of a child is established in the woman who gives birth to it, irrespective of the lawfulness of her connection with the begetter. However, paternity is inherently nebulous especially where the child is not an offspring of marriage. Furthermore, as per Section 8 of the Indian Succession Act, 1925, which applies to Christians in India, the domicile of origin of an illegitimate child is in the country in which at the time of his birth his mother is domiciled. This indicates that priority, preference and pre- eminence is given to the mother over the father of the concerned child.
  1. In the United Kingdom, the Children Act 1989 allocates parental responsibility, which includes all rights, duties, powers, responsibilities and authority of a parent over the child and his/her property. According to Section 2(2) of that Act, parental custody of a child born of unwed parents is with the mother in all cases, and additionally with the father provided he has acquired responsibility in accordance with the provisions of the Act. To acquire responsibility, he would have to register as the child’s father, execute a parental responsibility agreement with the mother or obtain a Court order giving him parental responsibility over the child. In the U.S.A., each State has different child custody laws but predominantly the mother has full legal and physical custody from the time the child is born. Unless an unmarried father establishes his paternity over the child it is generally difficult for him to defeat or overwhelm the preferential claims of the mother to the custody. However, some States assume that both parents who sign the child’s Birth Certificate have joint custody, regardless of whether they are married. In Ireland, Section 6(4) of the Guardianship of Infants Act, 1964 ordains – “The mother of an illegitimate infant shall be guardian of the infant.” Unless the mother agrees to sign a statutory declaration, an unmarried father must apply to the Court in order to become a legal guardian of his child. Article 176 of the Family Code of the Philippines explicitly provides that “illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code.” This position obtains regardless of whether the father admits paternity. In 2004, the Supreme Court of the Philippines in Joey D. Briones vs. Maricel P. Miguel et al, G.R. No. 156343, held that an illegitimate child is under the sole parental authority of the mother. The law in New Zealand, as laid out in Section 17 of the Care of Children Act, 2004, is that the mother of a child is the sole guardian if she is not married to, or in civil union with, or living as a de facto partner with the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child. In South Africa, according to the Children’s Act No. 38 of 2005, parental responsibility includes the responsibility and the right (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. The father has full parental responsibility if he is married to the mother, or if he was married to her at the time of the child’s conception, or at the time of the child’s birth or any time in between, or if at the time of the child’s birth he was living with the mother in a permanent life-partnership, or if he (i) consents to be identified or successfully applies in terms of Section 26 to be identified as the child’s father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. This conspectus indicates that the preponderant position 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.
  1. It is thus abundantly clear that 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, recognizing her maternity would obviate the necessity of determining paternity. In situations such 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 wellbeing of the child. The Appellant has taken care to clarify that should her son’s father evince any interest in his son, she would not object to his participation in the litigation, or in the event of its culmination, for the custody issue to be revisited. Although the Guardian Court needs no such concession, the mother’s intent in insisting that the father should not be publically notified seems to us not to be unreasonable.
  1. We feel it necessary to add that the purpose of our 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 learned Counsel suggested, to understand the tenets of Christian law. India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law.
  1. It is imperative that the rights of the mother must also be given due consideration. As Ms. Malhotra, learned Senior Counsel for the Appellant, has eloquently argued, the Appellant’s fundamental right of privacy would be violated if she is forced to disclose the name and particulars of the father of her child. Any responsible man would keep track of his offspring and be concerned for the welfare of the child he has brought into the world; this does not appear to be so in the present case, on a perusal of the pleading as they presently portray. Furthermore, 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. It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation.
  1. We recognize that the father’s right to be involved in his child’s life may be taken away if Section 11 is read in such a manner that he is not given notice, but given his lack of involvement in the child’s life, we find no reason to prioritize his rights over those of the mother or her child. Additionally, given that the Appellant has already issued notice to the public in general by way of a publication in a National Daily and has submitted an affidavit stating that her guardianship rights may be revoked, altered or amended if at any point the father of the child objects to them, the rights, nay duty of the father have been more than adequately protected.
  1. The issue at hand is the interpretation of Section 11 of the Act. As the intention of the Act is to protect the welfare of the child, the applicability of Section 11 would have to be read accordingly. In Laxmi Kant Pandey vs. Union of India 1985 (Supp) SCC 701, this Court prohibited notice of guardianship applications from being issued to the biological parents of a child in order to prevent them from tracing the adoptive parents and the child. Although the Guardians and Wards Act was not directly attracted in that case, nevertheless it is important as it reiterates that the welfare of the child takes priority above all else, including the rights of the parents. In the present case we do not find any indication that the welfare of the child would be undermined if the Appellant is not compelled to disclose the identity of the father, or that Court notice is mandatory in the child’s interest. On the contrary, we find that this may well protect the child from social stigma and needless controversy.
  1. Even in the absence of Laxmi Kant Pandey, we are not like mariners in unchartered troubled seas. The observations of a three Judge Bench of this Court in Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 are readily recollected. The RBI had refused to accept an application for a fixed deposit in the name of the child signed solely by the mother. In the context of Section 6 of the Hindu Minority and Guardianship Act as well as Section 19 of the Guardians and Wards Act, this Court had clarified that “in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the life time of the father who would be deemed to be “absent” for the purposes of Section 6(a) of the HMG Act and Section 19(b) of the GW Act.” This Court has construed the word ‘after’ in Section 6(a) of the Hindu Minority and Guardianship Act as meaning “in the absence of – be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.” Thus this Court interpreted the legislation before it in a manner conducive to granting the mother, who was the only involved parent, guardianship rights over the child.
  1. In a case where one of the parents petitions the Court for appointment as guardian of her child, we think that the provisions of Section 11 would not be directly applicable. It seems to us that Section 11 applies to a situation where the guardianship of a child is sought by a third party, thereby making it essential for the welfare of the child being given in adoption to garner the views of child’s natural parents. The views of an uninvolved father are not essential, in our opinion, to protect the interests of a child born out of wedlock and being raised solely by his/her mother. We may reiterate that even in the face of the express terms of the statute, this Court had in Laxmi Kant Pandey directed that notice should not be sent to the parents, as that was likely to jeopardize the future and interest of the child who was being adopted. The sole factor for consideration before us, therefore, is the welfare of the minor child, regardless of the rights of the parents. We should not be misunderstood as having given our imprimatur to an attempt by one of the spouses to unilaterally seek custody of a child from the marriage behind the back of other spouse. The apprehensions of Mr. Luthra, learned amicus curiae, are accordingly addressed.

 

  1. Section 11 is purely procedural; we see no harm or mischief in relaxing its requirements to attain the intendment of the Act. Given that the term “parent” is not defined in the Act, we interpret it, in the case of illegitimate children whose sole caregiver is one of his/her parents, to principally mean that parent alone. Guardianship or custody orders never attain permanence or finality and can be questioned at any time, by any person genuinely concerned for the minor child, if the child’s welfare is in peril. The uninvolved parent is therefore not precluded from approaching the Guardian Court to quash, vary or modify its orders if the best interests of the child so indicate. There is thus no mandatory and inflexible procedural requirement of notice to be served to the putative father in connection with a guardianship or custody petition preferred by the natural mother of the child of whom she is the sole caregiver.
  1. Implicit in the notion and width of welfare of the child, as one of its primary concomitants, is the right of the child to know the identity of his or her parents. This right has now found unquestionable recognition in the Convention on the Rights of the Child, which India has acceded to on 11th November, 1992. This Convention pointedly makes mention, inter alia, to the Universal Declaration of Human Rights. For facility of reference the salient provisions are reproduced –

Article 1 For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Article 3

  1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
  1. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
  1. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

Article 7

  1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

Article 9

  1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

 

  1. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
  1. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

Article 12

  1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
  1. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Article 18

  1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

Article 21 States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

Article 27

  1. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.
  1. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.
  1. In Laxmi Kant Pandey, this Court duly noted the provisions of the Convention on the Rights of the Child, but in the general context of adoption of children and, in particular, regarding the necessity to involve the natural parents in the consequent guardianship/custody proceedings. The provisions of the Convention which we have extracted indeed reiterate the settled legal position that the welfare of the child is of paramount consideration vis a vis the perceived rights of parents not only so far as the law in India is concerned, but preponderantly in all jurisdictions across the globe. We are mindful of the fact that we are presently not confronted with a custody conflict and, therefore, there is no reason whatsoever to even contemplate the competence or otherwise of the Appellant as custodian of the interests and welfare of her child. However, we would be loathe to lose perspective of our parens patriae obligations, and in that regard we need to ensure that the child’s right to know the identity of his parents is not vitiated, undermined, compromised or jeopardised. In order to secure and safeguard this right, we have interviewed the Appellant and impressed upon her the need to disclose the name of the father to her son. She has disclosed his name, along with some particulars to us; she states that she has no further information about him. These particulars have been placed in an envelope and duly sealed, and may be read only pursuant to a specific direction of this Court.
  1. We are greatly perturbed by the fact that the Appellant has not obtained a Birth Certificate for her son who is nearly five years old. This is bound to create problems for the child in the future. In this regard, the Appellant has not sought any relief either before us or before any of the Courts below. It is a misplaced assumption in the law as it is presently perceived that the issuance of a Birth Certificate would be a logical corollary to the Appellant succeeding in her guardianship petition. It may be recalled that owing to curial fiat, it is no longer necessary to state the name of the father in applications seeking admission of children to school, as well as for obtaining a passport for a minor child. However, in both these cases, it may still remain necessary to furnish a Birth Certificate. The law is dynamic and is expected to diligently keep pace with time and the legal conundrums and enigmas it presents. There is no gainsaying that the identity of the mother is never in doubt. Accordingly, we direct that if a single parent/unwed mother applies for the issuance of a Birth Certificate for a child born from her womb, the Authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate, unless there is a Court direction to the contrary. Trite though it is, yet we emphasise that it is the responsibility of the State to ensure that no citizen suffers any inconvenience or disadvantage merely because the parents fail or neglect to register the birth. Nay, it is the duty of the State to take requisite steps for recording every birth of every citizen. To remove any possible doubt, the direction pertaining to issuance of the Birth Certificate is intendedly not restricted to the circumstances or the parties before us.
  1. We think it necessary to also underscore the fact that the Guardian Court as well as the High Court which was in seisin of the Appeal ought not to have lost sight of the fact that they had been called upon to discharge their parens patriae jurisdiction. Upon a guardianship petition being laid before the Court, the concerned child ceases to be in the exclusive custody of the parents; thereafter, until the attainment of majority, the child continues in curial curatorship. Having received knowledge of a situation that vitally affected the future and welfare of a child, the Courts below could be seen as having been derelict in their duty in merely dismissing the petition without considering all the problems, complexities and complications concerning the child brought within its portals.
  1. The Appeal is therefore allowed. The Guardian Court is directed to recall the dismissal order passed by it and thereafter consider the Appellant’s application for guardianship expeditiously without requiring notice to be given to the putative father of the child.

 

 

(VIKRAMAJIT SEN) ………………………………..J

(ABHAY MANOHAR SAPRE) …….J

Child Visitation right of father

Child Visitation right of father

Child Visitation right to father.
“In the application dated 9.5.2008 filed before the Additional District Judge, Delhi, the mother made it clear in paragraph 12 that she is ready to furnish any undertaking or bond in order to ensure her return to India and to make available to the father, his visitation rights subject to the education of the child. This Court finds that so far as the order which had been passed by the High Court, affirming the order of the Trial Court, the visitation rights of the appellant-father have been so structured as to be compatible with the educational career of the child. This Court finds that in this matter judicial discretion has been properly balanced between the rights of the appellant and those of the respondent.”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2704 OF 2010
(Arising out of SLP(C) No.19935/2009) Vikram Vir Vohra ..Appellant(s) Versus
Shalini Bhalla ..Respondent(s) J U D G M E N T
GANGULY, J.
1. Leave granted.
2. This appeal by the husband, impugns the judgment and order dated 27.07.09 of Delhi High Court which upheld the judgment and order of the Additional District Judge passed in relation to applications filed by both the parties under Section 26 of the Hindu Marriage Act (hereinafter "the Act"). The impugned judgment 1

 permitted the respondent-wife to take the child with her to Australia.
3. The material facts of the case are that the parties to the present appeal were married as per the Hindu rites on 10.12.2000. A child, Master Shivam, was born to them on 05.08.02. In view of irreconcilable differences between the parties they had agreed for a divorce by mutual consent under Section 13-B of the Act and filed a petition to that effect and on 05.09.06 a decree of divorce on mutual consent was passed by the Additional District Judge, Delhi.
4. As regards the custody of the child there was some settlement between the parties and according to the appellant the same was incorporated in paras 7 and 9 of the petition filed under Section 13-B (2) of the Act. Those paragraphs are as under:
"The parties have agreed that the custody of the minor son Master Shivam shall remain with the mother, petitioner No.1 who being the natural mother is also the guardian of the son Master Shivam as per law laid down by the Supreme Court of India. It is, however, agreed that the father petitioner shall have right of 2

 visitation only to the extent that the child Master Shivam shall be with the father, petitioner No.2, once in a fortnight from 10 AM to 6.30 PM on a Saturday. Petitioner No.2 shall collect the child Master Shivam from WZ-64, 2nd Floor Shiv Nagar Lane No.4, New Delhi-58 at 10 AM on a Saturday where the child is with his mother. And on the same day at by 6.30 PM, the petitioner No.2 would leave the child back at the same place with the mother i.e. petitioner No.1 and in case he does not do so petitioner No.1 the mother shall collect the child from petitioner No.2 on the same day. Both parties undertake before this Hon’ble Court that they would not create any obstruction in implementation of this arrangement.
The petitioner No.1 shall take adequate care of the child in respect of health, education etc., at her own cost. In case the petitioner No.1 changes her address or takes the child outside Delhi, she shall keep petitioner No.2 informed one week in advance about the address and telephone nos. and the place where the child would be staying with the mother, to enable the petitioner No.2 to remain in touch with the child.
The petitioner No.1 has received all her Stridhan and other valuables, articles and other possessions, and nothing remains due to her from the petitioner No.2. The petitioner No.1 and the child Shivam has no claim to any property or financial commitment from petitioner No.2 and all her claims are settled fully and finally".
5. Thereafter the respondent-wife filed applications dated 07.11.06 and 9.05.08 and the 3

 appellant-husband also filed applications dated 17.11.07 and 16.02.09 under Section 26 of the Act seeking modification of those terms and conditions about the custody of the child.
6. The respondent was basing her claim on the fact that she wanted to take the child with her to Australia where she was employed for gain with a request to revoke the visitation rights granted to the appellant for meeting the child. This she felt will be conducive to the paramount interest and welfare of the child. The appellant on the other hand sought permanent custody of the child under the changed circumstances alleging that it is not in the interest of the child to leave India permanently.
7. The Trial Court vide its order dated 06.04.09 took notice of the fact that in the joint petition of divorce, parties voluntarily agreed that the custody of the child shall remain with the mother and father shall have only visiting rights, in the manner indicated in the mutual divorce decree. The Court modified the terms and 4

 conditions of the custody and visitation rights of the appellant about the minor child. By its order the Trial Court had allowed the respondent to take the child with her to Australia but also directed her to bring the child back to India for allowing the father visitation rights twice in a year i.e. for two terms – between 18th of December to 26th of January and then from 26th of June to 11th of July.
8. Being aggrieved by that order of the Trial Court, the appellant appealed to the High Court. It was argued by the appellant since no decree was passed by the Court while granting mutual divorce, an application under Section 26 of the Act does not lie and in the absence of specific provision in the decree regarding the custody and visitation rights of the child, the Trial Court has no jurisdiction to entertain the petition afresh after passing of the decree.
9. The High Court took into consideration the provisions of Section 26 of the Act and was of the view that the aforesaid provision is 5

 intended to enable the Court to pass suitable orders from time to time to protect the interest of minor children. However, the High Court held that after the final order is passed in original petition of divorce for the custody of the minor child, the other party cannot file any number of fresh petitions ignoring the earlier order passed by the Court.
10. The Court took into consideration that even if the terms and conditions regarding the custody and visitation rights of the child are not specifically contained in the decree, they do form part of the petition seeking divorce by mutual consent. It was of the view that absence of the terms and conditions in the decree does not disentitle the respondent to file an application under Section 26 of the Act seeking revocation of the visitation rights of the appellant.
11. It is important to mention here that the learned Judge of the High Court had personally interviewed the child who was about 7 years old 6

 to ascertain his wishes. The child in categorical terms expressed his desire to be in the custody and guardianship of his mother, the respondent. The child appeared to be quite intelligent. The child was specifically asked if he wanted to live with his father in India but he unequivocally refused to go with or stay with him. He made it clear in his expression that he was happy with his mother and maternal grandmother and desired only to live with his mother. The aforesaid procedure was also followed by the learned Trial Court and it was also of the same view after talking with the child.
12. Being aggrieved with the judgment of the High Court the appellant has approached this Court and hence this appeal by way of Special Leave Petition.
13. We have also talked with the child in our chambers in the absence of his parents. We found him to be quite intelligent and 7

 discerning. The child is in school and from the behaviour of the child, we could make out that he is well behaved and that he is receiving proper education.
14. The child categorically stated that he wants to stay with his mother. It appears to us that the child is about 8-10 years of age and is in a very formative and impressionable stage in his life. The welfare of the child is of paramount importance in matters relating to child custody and this Court has held that welfare of the child may have a primacy even over statutory provisions [See Mausami Moitra Ganguli vs. Jayant Ganguli – (2008) 7 SCC 673, para 19, page 678]. We have considered this matter in all its aspects.
15. The argument of the learned counsel for the appellant, that in view of the provisions of Section 26 of the Act, the order of custody of the child and the visitation rights of the 8

 appellant cannot be changed as they are not reflected in the decree of mutual divorce, is far too hyper technical an objection to be considered seriously in a custody proceeding. A child is not a chattel nor is he/she an article of personal property to be shared in equal halves.
16. In a matter relating to custody of a child, this Court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing stages of his or her life. That is why custody orders are always considered interlocutory orders and by the nature of such proceedings custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child.
17. In Rosy Jacob vs. Jacob A Chakramakkal – [(1973) 1 SCC 840], a three judge Bench of 9

 this Court held that all orders relating to custody of minors were considered to be temporary orders. The learned judges made it clear that with the passage of time, the Court is entitled to modify the order in the interest of the minor child. The Court went to the extent of saying that even if orders are based on consent, those orders can also be varied if the welfare of the child so demands.
18. The aforesaid principle has again been followed in Dhanwanti Joshi vs. Madhav Unde – [(1998) 1 SCC 112].
19. Even though the aforesaid principles have been laid down in proceedings under the Guardians and Wards Act, 1890, these principles are equally applicable in dealing with the custody of a child under Section 26 of the Act since in both the situations two things are common; the first, being orders relating to custody of a growing child and 10

 secondly, the paramount consideration of the welfare of the child. Such considerations are never static nor can they be squeezed in a strait jacket. Therefore, each case has to be dealt with on the basis of its peculiar facts.
20. In this connection, the principles laid down by this Court in Gaurav Nagpal vs. Sumedha Nagpalreported in (2009) 1 SCC 42 are very pertinent. Those principles in paragraphs 42 and 43 are set out below:
"42. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.
43. The principles in relation to the custody of a minor child are well
settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the "welfare of the child" and not rights of the parents under a statute for the time being in force".
11

21. That is why this Court has all along insisted on focussing the welfare of the child and accepted it to be the paramount consideration guiding the Court’s discretion in custody order. See Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka – [AIR 1982 SC 1276], para 17.
22. In the factual and legal background considered above, the objections raised by the appellant do not hold much water.
23. Now coming to the question of the child being taken to Australia and the consequent variations in the visitation rights of the father, this Court finds that the Respondent mother is getting a better job opportunity in Australia. Her autonomy on her personhood cannot be curtailed by Court on the ground of a prior order of custody of the child. Every person has a right to develop his or her potential. In fact a right to development is a basic human right. The respondent-mother cannot be asked to choose between her child 12

 and her career. It is clear that the child is very dear to her and she will spare no pains to ensure that the child gets proper education and training in order to develop his faculties and ultimately to become a good citizen. If the custody of the child is denied to her, she may not be able to pursue her career in Australia and that may not be conducive either to the development of her career or to the future prospects of the child. Separating the child from his mother will be disastrous to both.
24. Insofar as the father is concerned, he is already established in India and he is also financially solvent. His visitation rights have been ensured in the impugned orders of the High Court. His rights have been varied but have not been totally ignored. The appellant-father, for all these years, lived without the child and got used to it. 13

25. In the application dated 9.5.2008 filed before the Additional District Judge, Delhi, the mother made it clear in paragraph 12 that she is ready to furnish any undertaking or bond in order to ensure her return to India and to make available to the father, his visitation rights subject to the education of the child. This Court finds that so far as the order which had been passed by the High Court, affirming the order of the Trial Court, the visitation rights of the appellant-father have been so structured as to be compatible with the educational career of the child. This Court finds that in this matter judicial discretion has been properly balanced between the rights of the appellant and those of the respondent.
26. In that view of the matter, this Court refuses to interfere with the order passed by the High Court. The appeal is dismissed with the direction that the respondent-mother, 14

 before taking the child to Australia, must file an undertaking to the satisfaction of the Court of Additional District Judge-01, (West), Delhi within a period of four weeks from date. No order as to costs.
…………………..J.
(G.S.SINGHVI)
…………………..J.
(ASOK KUMAR GANGULY)
New Delhi

custody of child under section.26 of Hindu marriage act,1955

Child custody in Divorce proceeding under sec.26 of Hindu marriage act.
Prabhati Mitra vs D.K. Mitra on 17 January, 1984
Equivalent citations: 25 (1984) DLT 186
Author: A B Robatgi
Bench: A B Rohatgi
JUDGMENT
Avadh Behari Robatgi, J.
(1) This unfortunate matter arises out of matrimonial differences. A girl of 14 and a boy of 11 are living with their mother. Their is a contest between the parents as to which should have their care and custody. Each is attacking the other. The guardian judge has decided that the minors should be transferred to the father’s control. From that order mother appeals to this court.
(2) The appellant, Smt. Prabhati Mitra, is the mother of the children. The respondent, Shri D.K. Mitra, is their father. Their marriage was dissolved by a decree of divorce passed by this court on 21.5.82. There are two children of the marriage. A daughter Sofia alias Bipasha, a girl 14 years of age. She was reading in 8th class in Lady Irwyn School. The other is a son. Raja alias Tanmoy, a boy 11 years of age. He was studying in 5th class in Frank Anthony School.
(3) Unfortunately the marriage of the parties came to grief. The mother left the house on 22.3.1980. On 25.7.1980 she made an application under section 25 of the Guardian and Wards Act for the custody of the two minor children. The father opposed. The application was dismissed for want of prosecution on 24.8.1982.
(4) On 24.5.1983 the mother went to the house of the father and met the children in his absence. They narrated their tale of woe to her. Moved by the story of their maltreatment and neglect, she brought them with her without obtaining any orders of the court. On 30th. May, 1983 she made an application to the Guardian Judge staling that when she went to see the children at the house of their father, they started weeping and insisted that she should take them with her as they were not happy in the father’s house, She found it unbearably distressing to lew them behind. So the children accompanied her to her house. At present they are with the mother. She produced the children before the judge. They told the judge that they would like to live with the mother. The court allowed her custody of the children till an application is moved by the father.
(5) It appears that the father had gone out of India during those days. When he returned he did not find the children at home. He immediately made an application under section 151, Code of Civil Procedure statling that the children bad been removed from his custody forcibly and that it is not in the interest of the children to live with their mother. He sought the custody of the minors. By his order dated 21st July, 1983 the Guardian Judge decided this application in favor of the father. He made an order to the mother to hand over the custody of both the children to the father “forthwith”.
(6) The learned judge held that “the mother took the law in her own hands and removed the children from the custody of the father in his absence and such a course adopted by the mother cannot have any legal sanction.” He was of the view that “the custody of the children with the mother is absolutely illegal”. From this order granting custody to the father, the mother appeals to this court.
(7) It appears to me that the learned judge did not decide the case on merits. He mainly held that the wife had kidnapped the children from the legal custody of the father who was not unfit to retain their custody and therefore the children must be restored to the custody of the father. That is why at the end of his judgment he observed that it was open to the mother to claim custody and “she can apply afresh for obtaining custody of the children under the provisions of Guardians and Wards Act” or by reviving the earlier proceedings she had launched in 1980.
(8) In the very beginning when I started hearing the appeal I told counsel for both parties that I will decide the case on merits and they can adduce such evidence before me as they thought proper. The parties have given evidence by affidavits. I have heard arguments at length. Written arguments have also been submitted by both parties.
(9) In my opinion the learned judge erred in concluding that he should make a peremptory order for the children’s return to the father. He should have heard the case on its merits. It is true that the parents ought to be discouraged from taking the law into their own hands. The courts must set their face against kidnapping. If a child is in the mother’s care and the father takes it away against her will, the proper course usually will be to restore it to her forthwith in the absence of any evidence that this is likely to harm the child. But the courts are now more anxious to consider the case on its merits. The courts are becoming increasingly reluctant to make peremptory orders and are now much readier to consider the merits. This appears to be the view of Supreme Court in Dr. Mrs. Veena Kapoor v. Varender Kapoor, . The Punjab High Court had dismissed the mother’s
petition for habeas corpus on the narrow ground that the custody of the child with the father was not illegal. The Supreme Court remitted the case to the High Court to take evidence and to consider the questions as to whether it was in the interest of the minor that its custody should be handed over to the mother, after taking into consideration all the circumstances of the case. This new attitude to the question of custody suggests that I should investigate the merits of the rival claims of the parties and for this purpose I embarked on an inquiry after taking affidavit evidence.
(10) This was not a case of kidnapping, as the Judge thought. The mother informed the Nizamuddin Police Station about the fact of removal of children on that very day i.e. 24.5.1983. She produced them before the judge. She brought their distressing condition to his notice. He allowed the mother to retain custody. But the course adopted by the learned judge means initially moving the children from father to mother, then from mother to father by his order, and possibly from father to mother if the wife did as advised by the judge. So the children will virtually become playthings in the parental warfare. Like a rolling stone they will have no stability of home.
(11) “THE controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents.” (Rosy Jacob v. Jacob, ). It is well
settled that “in the matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party.” (Veena Kapoor v. Varender Kapoor (supra) ).
(12) This is the paramount consideration. Other considerations must be subordinate. The mere desire of a parent to have his child must be subordinate to the consideration of the welfare of the child and can be effective only if it coincides with the welfare of the child. Consequently, it cannot be correct to talk of the pre-eminent position of parents, or of their exclusive right to the custody of their children, when the future welfare of those children is being considered by the court. What does this paramountcy of welfare means ? In the words of Lord Macdermott in J. v. C. (1970) Ac 668, 710 :
“(THESEwords) must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they can note a process whereby, when all the relevant facts, relationships, claims and wishes of parents. risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the Child’s welfare as that term has now to be understood. That is the first consideration because it is of the first importance and the paramount consideration because it rules upon or determines the course to be followed.”
(13) The crux of the case is that father and the mother have now been divorced. They were married in 1968. Out of the wedlock these two children were born. Sofia was born on 22nd December, 1969. Raja was born on 23rd August, 1973. Later on their marital relations became estranged. The wife petitioned for divorce on the ground of her husband’s cruelty under section 13(1)(ia) of the Hindu Marriage Act. The Additional District Judge dismissed the petition. On appeal Goswani J. allowed the appeal of the wife holding the husband to be guilty of cruelty. He granted a decree of divorce in favor of the present appellant against the respondent. The custody proceedings are the outcome of this divorce litigation. One important fact which has to be constantly borne in mind is that after divorce the father remarried on 15.9.1982. The mother remains unmarried. She says that she does not intend to remarry.
(14) Of the problems resulting from the dissolution of marriage none is more serious than that of trying to ensure the future well being of the children. The size of the problem has assumed such an enormous proportion that each year thousands of children are affected by the divorce of their parents. While it is a general principle of law that in proceedings relating to the custody and upbringing of a child, the child’s welfare is the first and foremost consideration, it is often the case-and should be openly admitted-that in divorce proceedings the welfare of the children of the marriage is in direct conflict with the desire- and the legal right-of one or both of the parents divorced. The very institution of divorce proceedings bodes ill for the children of the marriage. When the marriage breaks down their custody becomes the subject of a court order.
(15) In the forefront of his arguments counsel for the father said that the mother is living in adultery with one Mr. Vashisht and she is therefore disentitled to the custody of the children by reason of her moral character. For this he relies on the observations of Goswami J. in Prabhati Mitra v. D.K. Mitra. 1982 Hindu Law Reporter 397, 407.. What was argued before Goswami J. was that the wife had some sort of relationship with Mr. Vashisht. The wife denied this. The husband objected to the visits of Mr. Vashisht to their house. As a result there were quarrels between the husband and wife. The learned judge observed “in these circumstances, I feel that the learned trial judge was right in drawing the inference that the allegations of the respondent regarding the relationship of the petitioner and Mr. Vashisht were not without foundation or reckless and as such the said allegations cannot be termed as an act of cruelty”. The learned judge was only concerned with the question whether the husband was cruel to the wife when he objected to the visits of Mr. Vashisht to the house. This point he decided in favor of the husband and held that on this count he was not cruel because his objection was not without foundation. I cannot read it as a positive finding of adultery against the wife. The wife alleged that Mr. Vashisht was like a brother to her. But she did not produce him in court. So it was held that the husband was not cruel to the wife when he objected to Vashisht’s visits, whether frequent or spasmodic, and if as a result there were “unpleasant incidents” between the parties.
(16) The first and foremost consideration is the welfare of the minor. The rights and wishes of parents must be assessed and weighed in their bearing on the. welfare ofthe child in conjunction with all other factors relative to that issue. The mother’s custody is preferred not because she has a paramount claim against other relations but because of the care and supervision that a mother who is not out at work can give to young children is a very important factor. The court may see the child privately and ascertain the wishes of a child if it is grown up. I talked to the children in my chamber twice-once on September 7, 1983 and a second time on October 13, 1983. They showed me their school record, their progress record and fee books. Both of them are studying in a good public school. They told me clearly and unambiguously that they were not willing to go to their father under any circumstances because they had been ill treated by their step mother. They complained of maltreatment by the stepmother and neglect by the father. They told me that they were given raw potatoes and onion to eat. They were not sent to school in clean and properly pressed school dress. They said that their stepmother in Calcutta threatened to drown them into sea if they did not leave her house.
(17) At this stage I must mention that the learned trial judge also had a private interview with the children. His impression was, however, different. He was of the view that the children had been “tutored” and “coaxed” to speak against their father so much so that they were not willing to talk to him. The children told the judge that their father will beat them for going away with their mother in his absence, To this the judge said :
“To my mind this apprehension in the “minds of the children has been created by continuous poisoning from the side of the mother.”
From my talk with the children I did not have the impression that they had been tutored. They talked to me freely. As normal children, they seemed to me very happy with their mother. This was the dominant impression they left on my mind.
(18) It was said that the Father is employed in Trade Fair Authority on a decent salary, that he can give better education to the children, that they can be respectably brought up if custody is given to him. The fact that one claiment to the custody is in a position to give the child a better start in life than another does not give him a prior claim. It is the happiness of the child, not its material prospects, with which the court is concerned, and any other rule would automatically put a poor parent at a disadvantage. Obviously, however, a party’s financial position cannot be ignored entirely, e.g. if he is so poor that he cannot provide home for his children, this in itself might be enough to refuse him actual custody. But again the quality of the home life that the child will have must not be measured in purely material terms : the amount of time and energy that a parent can devote to its care and upbringing is of considerable importance. This may mean that a mother who can spend the whole of her time with her children will necessarily have an advantage over the father who will be out at work all day, whatever alternative arrangements he can make to have them looked after. (See Re. K 1977 (1) All E.R. 647). Here the position is complicated by the fact that the father has remarried. Giving custody to the father will amount to giving custody to the stepmother. From the stepmother the children had maltreatment. From the father neglect. This was the experience of the past. The affidavits filed on behalf of-the mother and the children’s report to me in private show that this was the state of things. It will be harsh to the children to repeat the old experiment. In the fact and circumstances of this case the husband is disentitled to the custody of the children. He has remarried. The new partner he has taken will care more for the children whom they bring into this world. Human nature is the same the world over.
(19) There is an affidavit by the stepmother as to her willingness and intention to look after the children and be a mother to them. I do not think a stepmother, however anxious to do her best for the children, can take the place of the mother. The mother is more likely to give the attention to the children that they need at this formative stage than a stepmother who, however anxious to perform her duties, will naturally be more interested to the needs of a child who is her own child. The order of the judge gives the custody to the father. So the mother is deprived of the care and control of the children. The children, too, are deprived of their mother’s care. They will have the opportunity of a stepmother to care, but that is not always the same thing. Above all the children are not prepared to live with the stepmother.
applied the welfare principle and held that the mother, a muslim woman, and a singing girl by profession, was entitled to the custody of her minor illegitimate daughter of 6 years which was in the custody of her mother’s sister. No matter who her father is, the Supreme Court said, the mother is entitled to the custody of the illegitimate daughter. The interest of the child will be better served if she is in the custody of the mother rather than her mother’s sister, the court said.
(21) In Saraswatibai Ved v. Shripad Ved, Air 1941 Bombay 103 Beaumont Cj said:
“however the paramount consideration is the interest of the child, rather than the rights of the parents. Human nature is much the same all the world ever, and in my opinion if the mother is a suitable person to take charge of the child, it is quite impossible to find an “adequate subsitute for her for the custody of a child of tender years.”
He further observed:
“The modern view of the judges in England is that it is impossible, in the case of a young child, to find any adequate substitute for the love and care of the natural mother.— The mother’s position is regarded as of much more importance in modern times than it was in former days, when a wife was regarded as little more than the chattel of her husband.”
Wadia J. said:
“c of the minor has married again. That in itself may not be a ground for depriving him of the custody of bids minor child. But the court has got to consider all the circumstances of the case, and taking human nature as the same here as elsewhere, a stepmother cannot be expected to be very much interested in the welfare of a minor stepson, nor likely to give him the attention, love and sympathy which the child naturally reqauires.”
(22) The courts in this country took this view in 1941. Now we have advanced much further. The position of women in society is much improved today. The modern trend is well represented by the Supreme Court decision in Gohar Begum where the mother, a singing girl, was held to be entitled to the custody of her illegitimate daughter. Regardless of the question who the father is, the court held that mother is preferable to any other near relation.
(23) In Balram Mandal v. Rajani Mandalain, the boy
was illtreated by the stepmother. The court said that if the boy is kept under the guardianship of the father, for all practical purposes, the stepmother will have full control over the boy. The court held that the natural mother was a better guardian than the stepmother.
(24) In Munnibai v. Dhanush, the father after divorce had remarried. The court held that there was probability of the minor child being neglected by the stepmother. It was held that the mother was entitled to the custody of the child as she had stated that she had no intention to marry again. The claim of the natural mother was preferred to the claim of the father in the matter of custody.
(25) The marriage of the parties has been dissolved by a decree of divorce. This is the most important factor in this case. After divorce the question of custody, control and maintenance of the minor children of the marriage has now arisen. Section 26 of the Hindu Marriage Act provides for the custody of the children:
“26.In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and . education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.”
(26) The wife ought to have petitioned under this section. This is the proper provision applicable to a broken home. All orders relating to “custody, maintenance, and education” of minor children are to be made “from time to time” and may be varied, suspended or discharged. They all automatically come to an end on the child’s 18th birthday when he attains majority.
(27) The court can make provision “in the decree” and “after the decree”, and from “time to time”. The legislature has given full elasticity in the exercise of the court’s power and it would be unwise to restrict this elasticity. So flexible are the powers of the judge. In effect the legislature is saying: “In such cases trust the judge.” This flexibility is its greatest advantage. In ordinary circumstances no final order is ever made. “From time to time” it can be varied, suspended or superseded.
(28) The mother and father are fighting about the custody of the minor children. The court has to make such provisions-now that the decree of divorce has been passed-“as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible.” If parents are divorced, arrangements have to be made about the children’s upbringing. With whom are the children to live ? Who is to be empowered to take major decisions about their upbringing, for example, about their education ? If the children have their home with one parent, what arrangements are to be made to allow the other to preserve the relationship with them by visits, holidays and so on ? Who is to provide financially for the children ? These difficult questions arise.
(29) Where custody is contested between the parties, as here, other difficulties arise. Each of them is anxious to have custody, but it is open to question whether the contest always indicates that the parties are moved solely or even primarily by the desire to safeguard the children’s interests. Passions are aroused in divorce and judgments distorted. One party may contest other’s claim to custody from spiteful or selfish motives. The children are then in danger of becoming pawns in the struggle of wills. This case vividly illustrates it. In circumstances of this kind, the judge in deciding custody is in the end forced back to the test of welfare of the children. He strives to make the best arrangement which he can devise for the children in the new situation created by the dissolution of the marriage. The law is now infinitely more complex, largely because the welfare of the children has become a major concern of public policy transcending the “rights” of individual parents. This means more than that the courts will not enforce parental rights if to do so would not serve the children’s interest. The legislature has given wide powers to the court to look after the welfare of the children. This indeed is one of the most difficult problems in family law.
(30) In the broadest sense, custody meant the sum total of the rights which a parent could exercise over his child. These rights continue until the child attains the age of 18. Over the years the father’s primacy was reduced in three ways. First the Court in exercise of their paternal jurisdiction might interfere to deprive the father of some or all of his rights. This is the theory of Guardian and Wards Act 1890. Secondly, section 26 of the Hindu Marriage Act, 1955 has made the mother’s rights equal to those of the father. Thirdly, the courts have attached increasing importance to the welfare of the child rather than the rights of the parents. The paramount consideration in case of disputes between the father and the mother is the welfare of the child. Section 26 says that provision has to be made consistently with the wishes of the minors wherever possible. This shows that the court may disregard the rights of a parent if it finds that by having regard to their wishes it will be promoting the welfare of the children. The parent’s rights can be suspended and superseded where it is shown that to do so will be in the interest of the minor. This is the key-note of the law relating to the exercise of parental rights and gowers, as it has developed over the centuries culminating in the Hindu Marriage Act, 1955. Earlier cases indicate that effect will always be given to father’s legal rights unless he had forfeited them by moral or cruel conduct or was seeking to enforce them capriciously or arbitrarily. The parental rights are on the decline. The welfare theory is on the ascendant.
(31) In this age of equality of sexes the effect of legislation and judge-made law is to whittle down the father’s rights and also to give the mother positive rights to custody which in earlier days the law did not accord to her. In the cascade of legislation passed in the fifties of this century e.g. The Hindu Marriage Act 1955, the Hinnu Minority and Guardianship Act 1956, the Mindu Adoptions and Maintenance Act 1956, the legislature has touched upon the subject of welfare and protection of children from many angles. The new Guardianship Act of 1956 is in addition to and not in derogation of the Guardians and Wards Act 1893. The father’s pre-eminent position as the patria potestas or head of the family who demanded unquestioned obedience to his commands simply does not obtain today. It is the children’s interest which predominates. The legislation, old and new, is characterised by the golden thread which runs through it, which is that the welfare of the child is considered first, last and all the time.
(32) The “welfare principle” is the proper test to be applied in cases of disputes between the parents and is now universally accepted as applicable in all courts dealing with this issue, whether it is matrimonial jurisdiction or guardianship jurisdiction. The welfare of a child is not to be measured by money alone, nor by physical comfort only. It must beread in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consideration, and the court must do what under the circumstances a wise parent acting for the true interest of the child would or ought to do.
(33) The conduct of the parents in relation to the child is obviously relevant in determining what is in his best interest. The parents’ conduct towards each other may also be relevant if it reveals personality, or behavior problems which might adversely affect the child. But is matrimonial mis- conduct and responsibility for the breakdown of the parents’ marriage “as district from conduct towards the child” to be taken into account in deciding custody issues? There has been a remarkable change of judicial policy on this issue in England. It was for long a settled rule of the divorce court that a mother who had been guilty of adultery should be deprived of care and control. It then came to be recognised that an adulterous mother could nevertheless be a good mother. (Willoughby v. Willoughby 1951 Probate J 84). Singleton L.J. said : “I have yet to learn that the fact that a woman commits adultery prevents her in all circumstances from being a good mother” (p. 192). In some cases even the conduct of the parent was a relevant factor. If one of the spouses was an innocent party it was thought that he was entitled to the custody. But even this is no longer accepted as a universal principle. It all depends on the facts of a particular case. Any attempt to formulate general pronoucements applicable in all cases will be likely to create more difficulties than it solves. What the court has to deal with is the lives of human beings and these cannot be regulated by formulae.
(34) Take the present case. The husband was held to have treated his wife with cruelty. He was the breaker of the home. His cruel conduct sounded the death knell of the marriage. No one can possibly be proud of that.
(35) On the facts of this case it appears to me that the mother is entitled to the custody of the children. The daughter Sophia is a young girl of 14 years. The mother can be relied upon to give that wise counsel and sure guidance that are so necessary to a young girl growing up and maturing through adolescence into a womanhood. As regards the son it will not be in their interest if brother and sister are separated. They have grown up together. The substitute care which the father can provide cannot outweigh the risks of separating these two children from their mother. Their interests will suffer if they are brought up in the home we of the stepmother. On the facts welfare of the children-this girl of 14 and a boy of 11-admits of no other solution.
(36) In practice, as the cases show, the mother now has a built-in-advantage in disputes over the care and control of young children since it will normally be difficult for a father to provide adequate material care for them. In any case the courts have been heavily influenced by the view that a mother’s care is necessary for the child’s proper psychological development. Hence a mother is likely to be given care and control because she is thought “not as a matter of law, but in the ordinary course of nature the right person to have charge of young children.” (Re : K (minors), 1977 I All E, 647, 655 per Sir John Pennycuick ; Rosy Jacob v. Jacob, and Raj
Rani v. Subhash Chander, 23 (1983) Delhi Law Times 240 (DB).
(37) Much capital was sought to be made of the observations of Goswami J. in relation to the wife’s character and conduct, that is visits of Vashist to the matrimonial home and the husband’s protests with regard thereto. It was said that the wife is disqualified from claiming custody of the children on this ground. According to this view if the husband is morally blameless in relation to the breakup of marriage he ought to be given the custody. I do not agree, If the father, however innocent he may be, cannot provide the necessary physical and emotional environment, nothing can derogate from the court’s duty to provide the solution which is for the child’s welfare. The child’s welfare has become the only factor to be taken into account and everything else is subordinate to it. In the end the judge has this single decision to made, namely, what is best for the welfare of the child ?
(38) Applying these principles it appears to me that there is no reason at all why the mother ought not to have the custody, care and control of the children. They are devoted to her and she is attached to them. The husband has remarried. The new partner he has taken will have her own children. The father had one child from the second marriage. But unfortunately he has died. Remarriage is a factor which has to be taken into account. If on that ground the husband is disqualified the natural mother must be given the custody. In many cases this must inevitably happen when a home is broken. To grant custody to the father would only lead to further unhappiness. The guardian judge has failed to give enough weight to the loving relationship between the mother and the children who are now grown up. Nor has he given due weight to the second marriage of the husband. The judge seems to me to have repeated one of the myths that the court has been trying to explode for many years. In the judgment he says:
“The mother has not absolved herself of the charge of adultery against her and rather thought not fit to contest the charge. Such conduct disentitles her from claiming the custody of the children.”
He thought that the observations of Goswami, J. “reflect upon the way of life which the mother is leading at the moment and if the children are allowed to be in her company it may have adverse affect on their moral as well as physical growth.” I cannot accept this view. Goswami, J. has not found that the mother is living in adultery. He was concerned only with the question of cruelty. He found that the husband was not cruel when Vashist visited his house and he protested. To say that this is a finding of adultery against the wife will be doing the grossest injustice to her. V/e live in a tolerant society. Adultery has to be put in issue and proved like a quasi-criminal offence. So the basis of the judge’s order giving custody to the father was, in my view, unsound. He made a wrong decision. Founding himself on a narrow conception of moral welfare, he gave too little weight to the factors favorable and too much weight to the factors adverse to the mother’s claim that she should retain care and control of the children. It is the duty of the appellate court to set aside the decision if it is satisfied that it is wrong. On the view I take the Judge’s error was in the balancing exercise. Every case of custody involves a balancing exercise. It involves choices and risks.
(39) The relations between the parties are embittered. They are fighting in court, as I saw each of them, with inflamed passions. They are on the worst of terms. A state of acute hostility prevails between them. This sharpness of conflict between parents has made my task difficult. Even though the divorce proceedings have ended, the bitterness and mutual recrimination continue. There were allegations, counter-allegations, and mutual suspicions. The wife complained that the husband is following her everywhere to see that she is thrown out of employment by the employer and out of the house where she is living by the landlord. She showed me letters which, according to her, he had written under anonymous names to her employers and others describing her as a call girl and a smuggler. The husband denied this. I have not gone into the truth of these allegations, because that was not the scope of the proceedings. But what I have found is that there are unending accusations of one against the other even now that they are divorced,
(40) I have borne in mind throughout the children’s welfare is the first and paramount consideration. I am convinced that it is in the children’s interest to stay with their mother. To take them away from her would not only be wrong from their point of view, it would also, in my judgment, be a grave injustice to the mother. As I see, these proceedings are in fact a continuation of divorce proceedings which took place before Goswami J. I have, therefore, to keep in mind the characters and personalities of the claimants, before and after divorce, their rights and wrongs, their conduct and behavior, their quarrels, shoutings and unkindnesses.
(41) Under section 26 the court is enjoined to make a provision for the minor children “consistently with their wishes wherever possible”. I have met these two children twice in my chamber and talked to them in private. Although the court cannot allow a young person of 14 to decide entirely for herself, the fact that she did at the moment have a very positive view cannot be ignored as a most important factor in the case. I cannot ignore the close relationship of the mother and the daughter. It appears to me that she is a caring and a loving mother. The children have attained the age of the discretion. One is 14 and the other is 11. They can make an intelligent preference. The girl will soon be on her own.
(42) Custody means physical possession. It means a bundle of rights or to be more exact a bundle of powers which continue until the child attains the age of 18 years. But as Lord Denning has pointed out :
“custordy is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is, It starts with a right of control and ends with little more than advice.”
( Hewer v. Bryant, 1970 (1) Q.B. 357, 369).
(43) One other thing remains to be said. The wife is educated. She is a teacher. She was employed in a women’s organisation. She produced her salary certificate. She earns from tuitions also. She can look after the education of the children. The husband’s case is that the education of the children has suffered. They were removed from their previous schools, it is true. The girl was removed from Lady Irwin School and the boy from Frank Anthony Public School. I was at pains to ascertain whether they are being sent to a good school now. I found that they are reading in a good public school. I saw their progress report and their fee book. The mother has put them in a good school with whatever means she has. But she was not willing to disclose the name of the school in open court because she feared that the husband will remove them from the school. This will add to her difficulties, she said. She has asked me not to disclose the name of the school in my judgment.
(44) The question is whether the court is bound to disclose the name of the school to the father. He is very much insistent. In my opinion, I am not bound to disclose it to him in view of embittered relations between the parties and the vilification campaign which he is carrying on against his previous wife, as was alleged by the appellant. The inherent jurisdiction of the court is derived from the crown’s prerogative power as parens patriae. The theory is that court is the guardian of all the infants in the realm. This invests the proceedings with a somewhat unusual character. Inasmuch as there is a justiciable issue between the parties the court is normally exercising a judicial function, but as its first duty is to protect the child irrespective of parents’ wishes, its jurisdiction is also administrative. The House of Lords concluded in Official Solicitor v.K ((1965) Appeal Cases 201) that this entitled it to depart from the normal rules of evidence if this is necessary in the child’s interest. It has always been accepted that the judge is entitled to see the child and each of the parents in private. In Official Solicitor v. K (supra) it was held that the judge may receive a confidential report from the child’s guardian ad litem without disclosing it to the parties if he considers that disclosure would be detrimental to the child.
(45) Where the paramount purpose is the welfare of the minor, the procedure and rules of evidence should serve and certainly not thwart that purpose. The judge can hold proceedings in camera. He can see the children privately in his room when dealing with these cases. He can see each parent separately. This is left co judge’s discretion. In the last resort the welfare of the child must dominate. Everything else is subordinate. This is the essence of the matter. (See Scott v. Scott, (1913) Ac 417, 437). No one disputes that this practice is free from objection or that these interviews are confidential. (In re A” at p. 235). As has been said :
“A principle of judicial enquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of principle of this sort does not serve the ends of justice, it must be dismissed otherwise it would become the master instead of the servant of justice.”
(In re K p. 238 per Lord Devlin).
(46) This is an unusual step, no doubt. But this is necessitated by the exceptional circumstances of this case where I have found that the parties even after divorce have taken to the path of unending accusations and recriminations.
(47) PARENTS’ pre and post-divorce behavior has induced me to take this unusual step. Apart from this it must be remembered that the wardship jurisdiction of the court is not ousted or abrogated. The wardship litigation is very different from other litigation. It is not an ordinary lis. In the words of Lord Cross :
“clearly a wardship case differs altogether from ordinary litigation. In an ordinary action the court has before it two parties, each of whom asserts that he has a legal right to a decision in his favor. The function of the judge is to act as umpire at the fight and to decide which side has won. In a wardship case the court is asked to take the child into its care and to decide how and with whom it is best for the child to be brought up. The role of the parties is to simply put before the judge for his consideration their suggestions with regards to the ward’s upbringing.”
( 83 (1967) Lqr p. 200, 207).
(48) It is right at this stage to say that in order to be satisfied myself whether the children were reading in some school I asked the Registrar to verify the fact from the school named by the children in my private interview with them. He has informed me that the children are actually reading in a public school, as deposed by the mother in her affidavit. The daughter is in 8th class and the boy is in 5th class.
(49) To summarise: I rest my judgment on the broad ground that the mother is entitled to the custody of the children ; and there is nothing in her conduct, her character, or her present position to induce any court to take away her children from her. I do not want to take the risk of sending the children back to the father who has remarried. That will produce a rankling sense of injustice and depression in them which will not only hinder their development, but can easily prejudice their whole future. My choice is for the mother.
(50) The welfare test is the ultimate criterion. It is the governing consideration. Between 1890 and 1955 the whole social attitude towards parents and children had changed and the law has continued to develop and will develop by reflecting the changing times, trends and tendencies. Gone are the days of the pater familias. Gone are the days of the absolute right of the father to the custody of his child. The change in the climate of social conditions has taken place gradually and its influence on the courts has been quite perceptible. The tide began to turn against the power and authority of the father. Under the impact of changing social conditions and the weight of opinion the Hindu Marriage Act was passed in 1955. Section 26 is directed to equalise the legal rights or claims of the parents, and seeks to achieve an equality between the sexes in relation to custody of minors. This is a statutory provision which is almost refreshing in its clarity. The section means what it says-no more and no less : if on a consideration of all the circumstances the judge considers that the paramount welfare of the minor demands a particular arrangement as being the proper one he shall make that arrangement. The stepmother has lodged an affidavit that she will act as the mother of the children. I think she cannot take the place of the mother. The mother has layers of love for her children. She can wipe the tear of every eye.
(51) The judge is required to give sympathetic consideration to the wishes of the minor if he is of an age fit enough to express an opinion. The court has the duty to consider the application on its merits before it. It must take into account all the merits and demerits of the alternative proposals as they seem likely to bear upon the child’s welfare. In the end it must adopt the course most calculated to promote the welfare of the child. There is nothing permanent about the order relating to custody; it can be varied at any time.
(52) The more modern approach to the question of custody is represented by Gohar Begum’s case. The modern feeling in these matters is that ties of affection ought not to be disregarded. Ved v. Ved be Beaumont Cj illustrates it. The equality of parents is much more pronounced in the Hindu Marriage Act. The authorities are not always consistent and the way along which they have moved towards a broader discretion had many twists and turns. No useful purpose will be served by a copious citation of authority. The Hindu Guardianship Act, 1956 has also put the rights of the mother on an equality with those ‘of the father in relation to the custody of minors, and the tide has run more strongly against the father as the cases show.
(53) A child’s future happiness and sense of security are always important factors. On the whole facts of this easel have come to the conclusion that the children should remain with the mother and the change of custody will prove detrimental to their interests. I am also of opinion that the aspersion cast on the character of the mother is without any substance. She has not forfeited her right to custody in any manner.
(54) For these reasons the order of the Guardian Judge dated 21.7.1983 is set aside. The appeal is allowed. The custody of the children will remain with their mother, until further orders. The parties are left to bear their own costs.

custody of child under section 26 of Hindu Marriage act,1955.

 
custody of child under section 26 of Hindu Marriage act,1955.
 
Arun Lata vs Civil Judge And Ors. 
Equivalent citations: AIR 1998 All 29, II (1997) DMC 383
Author: D Seth
Bench: D Seth
ORDER
D.K. Seth, J.
1. An application for vacating the stay order was filed on behalf of opposite party No. 2. The said application was listed for orders on 20th March 1997. Mr. Govind Krishna, learned counsel for the opposite party, took a preliminary objection. He contended that under Section 28 of the Hindu Marriage Act, an appeal lies against the impugned order before the learned District Judge. Therefore, the writ petition is not maintainable. Mr. A. Kumar, appearing on behalf of the petitioner, disputed the said contention on various grounds. Since the hearing could not be completed the matter was adjourned till 9th of April 1997. On the next date, it was further adjourned till 12th May 1997. On 25th April 1997, both the learned counsel pointed out that the matter was fixed on 24th April, 1997 but by mistake the date was noted as 12th May, 1997 in the order dated 9th April, 1997. Accordingly the matter was fixed on 9th May, 1997 instead of 12th May, 1997 by an order dated 25th April, i 997 by the consent of the parties for the reasons recorded in the order dated 25th April, 1997.
2. On 9th May 1997, an application for amendment was tiled in the Court by Mr. A. Kumar, copy of the said application was served upon Mr. Govind Krishna on 24th April, 1997. Mr. Govind Krishna insisted that by reason of the interim order, the opposite party No. 2 has been suffering great prejudice. Therefore, the application for amendment may be taken up for hearing immediately. He submitted that in view of the statements made in the application for amendment which is a belated one, he does not propose to file any counter affidavit to the said application for amendment. However, he would contest the same on merit and the opposite party No. 2 does not admit any of the statements made in the said application for amendment. Mr. Govind Krishna also proposed that right from 20th March, 1997, he was insisting upon disposal of the whole matter since the writ petition is not maintainable. Therefore, he is prepared to argue on the merit of the case along with his contention in opposition to the application for amendment. Therefore, the whole matter may be heard and the same may be finally disposed of. Mr. A. Kumar agree to the proposition. By the consent of the parties, the whole matter is taken up for hearing along with the application for amendment. Both the learned counsel addressed extensively on the merits of the case in support of their respective contentions while supporting and opposing the application for amendment. The question of disposal of the application for amendment also depended, as argued by both the counsel, on the merits of the case. The question was so intricate and involved the whole dispute it was necessary to refer to the merits of the case as well. For the sake of convenience and proper understanding of the dispute, the Court had agreed to the proposal suggested by both the learned counsel as above and treats the matter with the consent of the parties as on day’s list for hearing together with the application for amendment and the application for vacating the interim order.
3. Since the facts are a little elaborate and appears to be on the marginal line of complicated one, reference to the facts would help us in grasping the emerging situation. The facts are not disputed by the learned counsel appearing on behalf of the parties. The admitted facts, as emerges from the record, are as folllows.
4. The opposite party No. 2 Arvind Kumar and the petitioner Arun Lata were married on 4th May, 1980. Arvind Kumar is a lawyer practising at Bulandshahr. He instituted a suit for divorce being Divorce petition No. 208 of 1981 in the Court of Civil Judge, Bulandshahr on 23rd July, 1981. A child out of the wedlock was born on 15th March, 1982. The suit for Divorce was decreed ex parte on 5th May, 1982 (Annexure ‘1’). In the said suit, no interim order was passed with regard to the custody or maintenance of the child. Neither any provision with regard thereto was incorporated in the decree. On 23rd May, 1994, Arvind Kumar filed an application under the Guardians and Wards Act for the custody of the child. The same was registered as Misc. Case No. 22 of 1984. Arvind Kumar had also filed Case No. 440 of 1984 for certain other reliefs against Prakash Rani and others including Arun Lata before the Special Judicial Magistrate, Bulandshahr. At this stage, Arun Lata sought for transfer of respective cases from Bulandshahr to Delhi, on which the Hon’ble Supreme Court was pleased to issue notice on Arvind by an order dated 11th July, 1984 (Annexure ‘2’). By an order dated 20th February, 1985 (Annexure ‘3’), the Transfer Petition was disposed of. In the said order, it was recorded that both the parties had agreed that all the cases filed by them against each other would forthwith be withdrawn and that Arvind Kumar will pay Rs. 200/- per month regularly for maintenance of their only son with effect from March 1, 1985. Accordingly the parties had undertaken to withdraw all the cases. In terms of the said order dated 20th February 1985 both case No. 440 of 1984 and Misc. No. 22 of 1984 were withdrawn by Arvind Kumar.
5. Subsequently on 30th September, .1991, Arvind Kumar filed Case No. 200 of 1991 under Section 26 of the Hindu Marriage Act against Arun Lata for the custody of the said child. And 20th October, 1991 was the date fixed in the said Case No. 200 of 1991. She sent a telegram on 21st October 1991 (Annexures ‘4’ and”5′)intimating the Court that she had fallen ill and, therefore, the case may be adjourned. The said Case No. 200 of 1991 was ultimately allowed ex parte by an order dated 26th October, 1991 (Annexure ‘6’). Arun Lata filed Misc. Case No. 239 of 1991 for setting aside the ex parte order dated 26th October, 1991. On account of non-appearance of her counsel, Misc. Case No. 239 of 1991 was dismissed by an order dated 20th, November, 1992 (Annexure ‘7’). Arun Lata filed Misc. Case No. 134 of 1992 for restoration of Misc. Case No. 239 of 1991. By an order dated 14th May, 1993, on account of non-appearance of Arun Lata’s counsel. Misc. Case No. 134 of 1992 was dismissed for default. Arvind Kumar thereupon filed an application under Section 28-A for execution of the ex parte order dated 26th October, 1991. The same was registered as Execution Case No. 34 of 1993 in the Court of the Civil Judge, Bulandshahr. The said execution was allowed by an order dated 31st May, 1993 passed ex parte (Annexure ’12’). In the said order, a direction was given to the Senior Superintendent of Police, Bulandshahr to provide police assistance for bringing the child and produce him in the Court on 5th July, 1993 for delivery of custody to Arvind Kumar. For compliance of the said order, 13th August, 1993 was fixed. Arun Lata has now filed this writ petition seeking to quash the orders dated 31st May 1993 and 26th October, 1991.
6. By an order dated 12th August, 1993 passed in the present writ petition, the operation of the order dated 31st May, 1993 was stayed till further orders. It is this order which has been sought to be vacated by means of the application for vacating the interim order by Mr. Govind Krishna appearing on behalf of Arvind Kumar.
7. By an application for amendment, the following amendment has been sought to be incorporated :
“1. That in the title of the petition, wherein it has been stated that writ petition under Article 226 of the Constitution of India, should be added as “under Articles 226/227 of the Constitution of India” be added;
2. That in the grounds after ground No. G the following ground be added :
“H. Because in view of the order of the Hon’ble Supreme Court dated 20-2-1985, it was not open to the respondent to file a petition for the custody of. Master Nipun’.
3. That in the prayer clause after prayer No. V the following prayer may be permitted to be added :
VI. To issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the order dated 20-6-1992 passed in Misc. Case No. 239 of 1991 and the orders dated 13-4-1992 and 14-5-1993;
VII. To issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the ex parte decree passed in Matrimonial Petition No. 208 of 1991;
VIII. To issue a writ, order or direction in the nature of mandamus directing the respondents not to give effects the orders dated 20-5-1992, 13-4-1992 and 14-5-1993.”
8. Mr. Govind Krishna opposed the said amendment on the ground that the same having been made at such a belated stage, the amendment should not be allowed. He also contended that the amendment, if allowed, would not only change the complexion of the case made out by the petitioner, it would also change the whole nature and character of the proceedings. Mr. Kumar on the other hand, contended that amendment would neither change the complexion of the case nor would have the effect of changing the nature and character of the case. The situation is as such that the delay cannot stand in the way of allowing the amendment in the special facts and circumstances of the present case. Inasmuch as it is only another point of view on which the orders impugned could be assailed has been sought to be incorporated as ground. It is only in effect supplemental and are elaboration of the grounds already taken. The objection taken is technical since the order dated 26th October, 1991 has already been challenged. The other three orders dated 13th April, 1992, 20th may 1992 and 14th May, 1993 have been sought to be included by way of mere formalities. Therefore, the amendment should be allowed.
9. I have heard both the counsel on the question of amendment. The fact remains that it was the order dated 29th October, 1991 in execution whereof the order dated 31st May, 1993 was passed and these are the two principal orders on which the rights of the parties survive in favour of or against the one or the other. The other two orders dated 13th April, 1992 and 20th May, 1992 are the orders by which the applications for recalling the order dated 26th October, 1991 were dismissed for default. Therefore, those are only ancillary orders. In case the order dated 26th October, 1991 is set aside, then the said orders dated 13th April, 1992 and 20th May, 1992 would become redundant and/or non-est. Similarly if the order dated 26th October, 1991 is set aside, then again the ex-parte order and the execution thereof passed on 14th may, 1993 would similarly become redundant and non-est. These are pure technicalties. When the two principal orders have been challenged, simply because of a technical flaw in not challenging the said three orders, the writ petition cannot be thrown away and would very well be maintainable even without the same if on merit or otherwise the order dated 26th October, 1991 could be or is interfered with in exercise of the discretionary power under Article 226. The amendment seeks to incorporate a ground and three prayers which does not in any way change the nature and character of the proceedings. Neither it has any effect on the complexion of the case made out. Therefore, the amendment sought to be incorporated, by no stretch of imagination, could be said to be inconsistent with the pleadings.
10. The application has been originally inscribed as one under Article
226. By amendment it was also sought to be inscribed alternatively as one under Article 227. Whether the application is maintainable under Article 226 or 227 would be dealt with later on. Whether this Court will exercise its discretion either under Article 226 or 227 would also be gone into subsequently. For the purpose of allowing the amendment, it is not required to go into those questions, it is the jurisdiction which is being sought to be invoked. In case a particular kind of proceedings is not maintainable and a different kind of proceeding lies in respect thereof, the Court has jurisdiction to convert the one into the other subject to limitation and Court-fee, as the case may be. This question will also be gone into later on when the question of maintainability as has been raised by Mr. Govind Krishna will be dealt with. At this stage, in view of the legal propostion that this Court has jurisdiction in appropriate cases to convert a proceeding from one into the other, for the sake of deciding the question of amendment, it is not required to be gone into the said question. Subject to the objection taken on the question of maintainability of the writ petition and its conversion into one under Article 227, the amendment as a whole is hereby allowed and shall be deemed to be incorporated in the writ petition.
11. Mr. Govind Krishna contends that the jurisdiction under Article 220 and Article 227 are altogether different. The petitioner has to make a choice which jurisdiction he seeks to invoke. It is an option exercised by the petitioner. If opted for one, the other shall be deemed to have been waived by the petitioner. By way of amendment, he cannot opt for the other since been waived. The petitioner cannot opt for both on being indecisive. In such cases, he contends that though the Court has jurisdiction to convert the one into the other, the Court should not exercise its discretion in favour of the petitioner which he had deliberately given up earlier. Secondly he contends that the scope of Article 226 and 227 cannot go together and, therefore, an application cannot be treated to be an application under either one or the other.
12. Under Article 220, the High Court exercises the jurisdiction conferred on it by the Constitution to issue writs against any person. The exercise of writs are restricted by the restraint exercised by the Court upon itself. Writ as it originally conceived was available against the State and the authority within the meaning of Article 12. The concept of authority under Article 12 has been widely expanded by various judicial pronouncements and has developed to an extent as it stands today. By reason of development in law, the horizon of Article 12, has been extended not only to include the State and the other authorities but also the agencies and instrumentalities of the State (See Ramanna Daya Ram Shetty v. International Airport Authority of India, AIR 1979 SC 1628, Ajay Hasis v. Khalid, AIR 1981 SC 487 and Central Inland Water Transport Corporation v. Brojo Nath Ganguli, AIR 1986 SC 1571).
13. The organs of the sovereign has been divided into three-legislature, executive and the jurisdicary. Article 12 while defining “the State” included the Government and parliament of India and the Government and the Legislature of each of the States and local and other authorities within the territory of India or under the control of the Government of India. This definition has been included in Part III in relation to Fundamental Rights. Whereas in Part V dealing with the Union in Chapter I, it mentions Executive and in Chapter II it mentions Parliament. While Judiciary has been dealt with in Chapter IV. Similarly in Part VI dealing with the States, Chapter II deals with the Executive while Chapter III relates to the State Legislature and Chapter V deals with the High Courts in the States. Fundamental rights are available against the State. These fundamental rights are enforced under Article 226 through High Courts. The Courts while discharging judicial functions is not a State and no fundamental right is available against the judiciary when it discharges judicial functions. The Judiciary may be State in relation to a certain class of people when it exercises administrative functions over them. Judiciary cannot be State for enforcement of fundamental rights in its relation with the litigants who come for enforcement of their rights through judiciary. That was the reason, despite existence of Article 226, immediately thereafter Article 227 has been engrafted conferring overall superintending power on the High Court over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. Similarly Article 32 has been engrafted in relation to the Apex Court. The learned counsel for the opposite party contends that since the order impugned is an order passed by a Civil Court, it is not amenable to writ jurisdiction particularly when the dispute is a dispute between two private persons, as has been held in the case of Matthan Singh v. II Additional District Judge, Meerut, (1996)1 All Rent Cas 117.
14. The question was considered in the case of Ganga Saran v. Civil Judge Hapur, AIR 1991 All 114 by a Full Bench of this very Court in which the principle was laid down to the extent that writ will lie against an order passed by the Civil Court where “either appeal or revision under Section 115, C.P.C. is available to the High Court because of the amendment of Section 115, C.P.C. at Allahabad on the same principle on which the jurisdiction under Article 226 is exercised provided that there has been violation of fundamental principles law and the relief sought for is not a relief which the other side is not obliged to perform in discharge of his public duty. The decision in the case of Matthan Singh (supra) is not an independent decision but is an understanding on the reading of the ratio decided by the Full Bench in the case of Ganga Saran (AIR 1991 All 114) (supra).
15. In the present case, the relief sought against the order does not emanate from any obligation to perform anything in discharge of public duty by either of the parties. The lis is between two private persons, none of whom is obliged to discharge any public duty in relation to the dispute concerned. There is no lis against the Judge or the Judiciary, while discharging judicial function, the Courts decide dispute between the parties. It never becomes a party to the lis and there being provisions for appeal and revision either under Section 115, C.P.C. or under Article 227, as the case may be, the jurisdiction under Article 226 can not be invoked, even though the test of violation of fundamental principles of law is satisfied. Therefore, in the facts and circumstances, of the case, the application under Article 226 of the Constitution of India is not maintainable against the orders impugned.
16. The learned counsel for the opposite party contends that if the application itself is not maintainable, there cannot be any scope of allowing an amendment in a non-maintainable proceeding. If the Court does not have the jurisdiction to entertain the writ petition, in that event, it cannot assume jurisdiction to amend the said writ petition in respect of which the Court cannot exercise jurisdiction. The scope of the two Articles being altogether different, the amendment if allowed altogether changes the nature and character of the proceedings.
17. The second contention of the counsel for the opposite party, as above does not stand to reason because of the fact that the nature of the proceeding is in substance a revision. While exercising writ jurisdiction, the High Court exercises its power of revision. It does not sit on appeal but a review of the manner in which the decision was made. The jurisdiction exercised under Article 227 is also a revisional jurisdiction. In exercise of Article 227, the High Court does not sit on appeal but revises or reviews the process making the decision or the jurisdiction or otherwise. Therefore, in substance the jurisdiction exercised under Article 226 and under Article 227 are substantially a revisional jurisdiction. The only difference is that the revision under Article 226 is exercised against the State or other authorities falling within the ambit of Article 12 while jurisdiction under Article 227 is that of superintendence over the Courts and Tribunals within the territory over which the High Court exercises its jurisdiction. It is only the authority whose order is being revised makes the distinction or difference as to which revisional power would be exercised by the High Court (226 or 227). Therefore, by reason of conversion of application from one under Article 226 to one under Article 227 does not change the nature and character of the proceeding. It remains are visional proceeding in either of the two cases. So far as the first part of the above contention of the opposite party is concerned, the same cuts at the root of the jurisdiction of the High Court to convert one into other. By now it has been a settled principle of law that the High Court has power to convert an appeal into a revision or a revision into an appeal subject to limitation and Court-fees, as the case may be. In the present case, neither under Article 226 or under Article 227, there is any provision provided for limitation. Though, however, delay in invoking the jurisdiction is a factor to be taken into consideration, similarly the question of Court-fee also docs not pose any hindrance in the present case inasmuch as the Court-fees in respect of an application under Articles 226 and 227 are one and the same.
18. The contention of the counsel for the petitioner that by reason of such amendment, the Court is creating jurisdiction in itself which it did not possess when the application was originally made. The Court cannot create jurisdiction through amendment in an application which was not maintainable as it stood when the amendment is being made.
19. The above contention is not acceptable because of the reason that the Court cannot create jurisdiction if it does not possess the same. Here by reason of amendment, no jurisdiction is created. The High Court is in possession of different jurisdictions under Article 226 and under Article 227. It is exercising in its discretion as to which jurisdiction it would exercise. The power of superintendence as conferred by Article 227 is ingrained in the High Court. This power of superintendence includes power of judicial revision to get the inferior Courts and Tribunal within the bound of their authority to see that they do what their duty requires and that they do it in a legal manner (See D.N. Banerjee v. R.K. Mukherjee, 1953 SCR 302 : (AIR 1953 SC 58). The power of judicial superintendence conferred by Article 227 is not limited by technical rules which govern the exercise of the power to issue writ to certiorari under Article 226. The power under Article 226 can be exercised only on an application of a party. But the power under Article 227 may be exercised by the Court also suo motu (See Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1995) 1 SCR 1104 : (AIR 1955 SC 233). The power under Article 227 is exercised by the Court in its discretion and cannot be claimed as of right by any party. Though there is no period of limitation prescribed for such application which may be refused inter alia on the ground of unreasonable delay which is not explained by special circumstances and particularly were by reason of delay the position of the opposite party has changed. Therefore, even if the High Court in its discretion thinks it can interfere with the matter is exercise of its power of superintendence, there the conversion would not affect materially the jurisdiction conferred on the High Court itself which is already in existence. That apart in the case of The Reliable Water Supply Service of India (P) Ltd. v. Union of India, AIR 1871 SC 2083 the High Court’s power to convert one into other has been recognised.
20. In the present case two orders have been challenged one dated 31st May, 1993 and the other 26th October, 1991. The writ petition was moved on 12th August, 1993 having been affirmed on 16th July, 1993. Therefore, so far as the order dated 31st May, 1993 is concerned, there was no question of delay. But so for as the order dated 26th October, 1991 is concerned, the same stands explained by reason of the statements made in the petition itself that two attempts to set aside order had failed and that in what circumstances the order dated 31st May, 1993 was passed. Therefore, it cannot be said that the delay remains unexplained particularly when from one order impugned in the petition, there is no delay at all. Therefore, I have not been able to persuade myself to agree with the contention of the learned counsel for the opposite party in this regard.
21. Now on the question of merit, the counsel for the opposite party contends that since both the orders impugned are orders either passed under Section 26 or flows from it, an appeal lies under Section 28 of the Hindu Marriage Act to the learned District Judge because of Section 19 of the Family Courts Act. Therefore, even if the High Court has power of superintendence under Article 227, even then it cannot convert the application under Article 227 into one under appeal since the appeal lay before the learned District Judge and not before the High Court. Alternatively he argues that even if the application under Article 226 is converted into under Article 227, the same cannot be exercised when there is an alternative forum by means of an appeal.
22. Admittedly if an adequate alternative remedy lay and if the same has not been availed of, the jurisdiction under Article 227 cannot be invoked as has been held in the case of Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza, AIR 1976 SC 2446 (Para 6), wherein it is further observed :
“It is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where despite the existence of an alternative legal remedy, the High Court may interfere in favour of the applicant.”
23. In the case of Shanker Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 : 1969 (2) SCC 74 (78) it was held that if two remedies were open and the party had exhausted one it would not be sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court. But in the present case, the other mode of relief has not been invoked or exhausted. Hence it is a case where the Court has to exercise one or the other of the modes if one does not apply and the other does. Therefore, it has to be looked into as to how far the contention of the counsel for the opposite-party works in favour of his contention or against that of the counsel for the petitioner.
24. The counsel for the opposite party contends that an appeal lies under Section 28 of the Hindu Marriage Act from an order passed under Section 26 of the said Act before the Court such appeal lay from an order passed by the Court. According to him, by reason of Section 19 of the Family Courts Act, the order has been passed by the learned Civil Judge who is conferred with the jurisdiction under the Family Courts Act. Ordinarily an appeal lies to the District Judge from an order passed by the Civil Judge. Therefore, in terms of Section 28, the appeal lies to the District Judge and not to the High Court. Therefore, there is no scope for conversion of the proceedings into one under appeal.
25. The above proposition does not appeal to me for the simple reason that under Section 19 of the Hindu Marriage Act, every petition under the said Act is to be presented before the District Court as defined in Section 3(b) thereof being the principal Civil Court of original jurisdiction or any other Civil Court notified by the State Government. An appeal from the principal Civil Court of original jurisdiction lies to the High Court as is understood from the scheme as expressed in Section 28 of the said Act. The issue is further clarified in a clear and unambiguous expression used in Section 19 of the Family Courts Act providing therein that an appeal shall lie from every judgment and order of a Family Court to the High Court notwithstanding anything contained in the Code of Civil Procedure or in any other law. The jurisdiction exercised by the Civil Judge is conferred by reason of Section 7 of the Family Courts Act as established under Section 3 of the said Act. Therefore, it cannot be said that the High Court cannot invoke its power to convert a revision into a memo of appeal or vice versa as sought to be urged by the learned counsel for the opposite party.
26. Section 26 of the Hindu Marriage Act provides as follows :
“26. Custody of children. — In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose; make from time to lime, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made”.
27. The said Section postulate that the Court may pass interim orders or may make provision in the decree with regard to the custody, maintenance and education of the minor children consistently with their wishes, wherever possible. Where such provision is made either by way of an interim order or in the decree, in such cases, after the decree, further applications can be made in respect of the custody, maintenance and education. By such decree or interim order and for such purpose, the proceeding for obtaining such decree shall be deemed to be pending. The Court may also revoke, suspend or vary such orders and provisions previously made. The scheme of the Section clearly indicates that the power under Section 26 can be exercised by way of interim order in the pending proceeding or while disposing of any such application made therein before the decree is passed or at the time of passing the decree by incorporating such provision in the decree itself, such provision can also be made. The power under Section 26 can also be exercised after the decree is passed only if such orders were passed previous to the decree either by way of interim order or in the decree itself, it is clear from the expressions used that only on these conditions as referred to above, the Court can exercise jurisdiction under Section 26. In view of the clear and unambiguous expression used, it does not postulate any other contingency. Inasmuch as if no order towards that end is made either by way of interim order or otherwise in the pending proceeding or it is not incorporated in the decree itself, in that event, the Court cannot assume jurisdiction to decide an application under Section 26 of the Act after the decree is passed, namely, whereafter the proceeding terminates and does not remain pending, the deeming clause postulates deemed pendency only in cases where provisions were made either by interim order or otherwise during the pendency of the proceeding or in the decree itself and not otherwise. My above view finds support from the clear and unambigous expression used in the Section itself. The expression “previously made” read with the expression “such provisions …………… as might have been made by such decree or interim orders’, there is no scope for any ambiguity i n the scheme itself. The language is very clear and simple There cannot be any other meaning because of the expression used in the said Section. When the meaning of a statute is available on a true construction by the plain meaning, the Court cannot add or substract anything therefrom. The principle of interpretation does not permit the Court to find out any other meaning when the language is clear, unambigous, sure and simple. In the present case, the language and expression used in Section 26 is clear, simple, unambigusous, sure and certain.
28. Section 26 does not confer an independent right to any person. It is a right conferred on the parties to a litigation litigating under the Hindu Marriage Act only in a pending proceeding and the proceeding deems to be pending as mentioned above. If no proceeding is pending, Section 26 does not create any right for initiation of a proceeding independent of a proceeding under the said Act.
29. It is also not contended by the counsel for the opposite party that the said proceeding is a suit or proceeding in relation to the Guardians and Wards Act and independent of the earlier proceedings for divorce. But, however, in the order dated 26th October, 1991, it is recorded that the opposite party was she guardian of the child according to the Hindu Minority and Guardianship Act and, therefore, he is entitled to the guardianship and custody of the child. The learned counsel for the opposite party contended that the earlier application for the custody of the child was under the Guardian and Wards Act or under the Hindu Minority and Guardianship Act. The order dated 20th February, 1985 records that the cases filed by each of them against the other will forthwith be withdrawn. The parties had undertaken to withdraw all the cases. Accordingly Arvind Kumar had withdrawn the cases. After having withdrawn, he is precluded from making any further application. The order, however, refers to an order dated 5th September, 1991, wrongly printed as 5th September, 1993, passed by the Apex Court but no such order is being produced before this Court. Even in the written statement filed by the counsel for the opposite party, no reference has been made to the order dated 5th September, 1991 except that the opposite party had filed Case No. 200 of 1991 under Section 26 of the Hindu Marriage Act in connection with Matrimonial Case No. 208 of 1991. Therefore, it is not a proceeding within the meaning of Section 7(1), Explanation (g) of the Family Courts Act. On the other hand, it was clearly a miscellaneous proceeding as asserted by the counsel for the opposite party under Section 26 of the Hindu Marriage Act filed in connection with the said Original Matrimonial Case No. 208 of 1991. The jurisdiction of the Family Court is confined in respect of the suits in proceedings of the nature referred to in the Explanation to Sub-section (1) of Section 7 and not otherwise, Clause (g) of the Explanation to Sub-section (1) of Section 7 refers to “a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, a minor.” The jurisdiction of the Family Court having been specifically provided, it can assume jurisdiction in respect of suits or proceedings, the nature whereof does not fall within one or other of the Clauses (a) to (g) of the said explanation. The Family Court cannot assume jurisdiction in respect of any other proceeding. Though the Family Court could exercise jurisdiction under Section 26 in a proceeding of the nature contemplated in Clause (a), hut because of Section 26 of the Hindu Marriage Act, no application under Section 26 could be made before the Family Court in connection with the proceeding of the nature contemplated in Clause (a) since no such proceeding is pending before the said Court which had already stood terminated by the passing of the decree. An application under Section 26 of the Hindu Marriage Act does not fall within the category provided in Section 7(1)(g) of the Family Courts Act.
30. Therefore, in the facts and circumstances of the case, the Family Court could not have assumed jurisdiction to decide the said application under Section 26 of the Hindu Marriage Act and try Matrimonial Suit No. 208 of 1991 which was not pending in the facts and circumstances of the case. As such the order passed is wholly without jurisdiction. Therefore, it is amenable to the jurisdiction exercised by this Court under Article 226 of the Constitution of India.
31. Now on the facts it is alleged by the petitioner that she was not being represented by the counsel engaged by her on the date when her applications were dismissed. She alleges that such a situation was brought in by reason of the influence exercised by the husband who happened to be a practising lawyer in the said Court. The husband had initiated the proceeding for divorce even without waiting for the birth of the child. The child was born only in March, 1982 whereas the ex parte decree was obtained on 5th May, 1982. The husband has alleged that he was not aware of the birth of the child till 1991. The husband never cared either for the wife or for the child and filed the suit for divorce in July 1981 and sought for guardianship and custody of the child after long 9 years when he had withdrawn his earlier petition in 1985. That he was not aware of the birth of the child is a misstatement on the face of the record that he had made an application for the custody of the child under the Guardians and Wards Act in May, 1984 which he had ultimately withdrawn.
32. That apart the impugned order dated 26th October, 1991 does not show that the wishes of the child was ever attempted to be taken into consideration. While deciding the case, the Courts had been exercising the jurisdiction of the Family Court which has been established with the object at bringing in a conciliation in the relation of the families as provided in Section 9 of the said Act which requires the Court to endeavour for settlement of the dispute. The word ‘endeavour’ occurred in Section 9(1) being preceded by the word ‘every’ signifies great importance in respect of the duty cast on the Court to bring about reconciliation. My attention has not been drawn to any such attempt to have been made towards reconciliation or any attempt to settle the dispute. The order impugned or any other order does not show that the wishes of the child was taken into account.
33. It is a settled principle of law that the paramount consideration for the custody of a minor child is the welfare and well being of the child and other considerations are subordinate. There is no rule of law that rights and wishes of parents should prevail over other considerations’. Such rights and wishes are recognised by nature and the society. But such rights are capable for administering to the welfare of the child. The parental rights remain qualified and not absolute for the purpose of investigation. Concern has been expressed by the Courts out of growing experience that serious harm may be caused even to any children by change in the custody, a difficulty which cannot be resolved by purely theoretical considerations. The mere desire of a parent should be subordinate to the consideration of the welfare of the child. In Rosy Jacob v. Jacob, AIR 1973 SC 2090, it was held :–
“The Court will generally refuse to give the custody of minor children to the guilty party, whether husband or wife. The section gives a wide discretion to the Court to make such orders as it may deem just and proper and whenever a marriage is dissolved or an order for judicial separation is made, it becomes the duty of the Court to take into consideration the welfare of the children which is of the paramount importance. The wishes of the mother or the father to have the custody of the child, cannot override the consideration of the welfare of the child.”
34. In Hari Chand Rattan Chand v. Virabala, (1974) 15 Guj LR 499: (AIR 1975 Guj 150), it has been held :
“Where the minor has a settled home the Court is not to pass a mechanical order removing the child to another home without consulting the parents and ascertaining the wishes of the minor. The Court has also to see that happiness of a child is linked with his associates, his work, his school and finally on his home, where he gets all the love and affection needed for his proper growth.”
35. Where the application for custody of her minor male child below the age of five years has been made by the wife in the course of proceeding for judicial separation instituted by her, the custody should be entrusted to her unless there are special circumstances suggesting that the welfare of the minor demanded otherwise. In a case before Delhi High Court, Suraj Prakash v. Santosh, 1979 Mad LR 161, it was held, “the rule of law of five years is a guiding factor but the pivotal factor is the benefit and well being of the minor. It is in the interest of the minors that they are allowed to remain in the custody of the mother till there is change in circumstances.” Though the section requires that wherever possible the wishes of the minor children should be consulted by the Court before passing any order under the section, particularly in the matter of their custody but I.D. Dua, J. who delivered the judgment in Chander Prabha v. Prem Nath, AIR 1969 Delhi 283 held that in a case of conflict between father and mother when the child is below five years of age, the mother has been rightly endowed with a preferential claim in regard to the child’s custody as in such cases the child is not capable of forming any intelligent preference and expressing it. In case of a child of tender age, care of the child will be taken much better if he is kept with his mother. In Mohini v. Virender, 1976 HLR 305 (sic), the Supreme Court held :
“The modern trend seems to be that in case of conflict between the mother and father regarding the custody of a child of tender age, preference should be given to the mother in the interest and welfare of the child. Age of the child cannot be held to be the Sole deciding factor regarding his custody and in a case where the age of the boy was eleven years, custody of the child was given to the mother as the welfare of the child warranted it so.”
36. The Society is in evolution and has been changing. Old concepts and thoughts are being replaced by new concepts and thoughts. The concept of penance and penance only by the Weaker section of the society viz. the women folk has undergone a change. If the men folk could remarry and the children could carry on with the father then how it would be conceived to be a taboo if the wife remarries and the child or children carries with her. The attitude and outlook of a fast changing developing society has to keep abreast the developed situation if it is good for the reorganised family. Law is for the society. Society is not for law. Therefore, the law has to keep itself abreast with the changes through evolutions and be alive to suit the needs to maintain a healthy and peaceful society vis-a-vis the family. Therefore, orders in this respect are to be passed with due, care and caution having regard to the facts and circumstances of the case.
37. The fact remains that the decree was passed ex parte on 5th May, 1982 on the Divorce petition filed on 23rd June, 1981 while the child was born some time in March, 1982. Therefore, there was no scope for anything to be provided either by way of interim order or any decree with regard to the custody, maintenance and education of the child. The learned counsel for the opposite party has not been able to show anything that the decree contained any provision with regard to the custody, maintenance or education of the child nor he has shown anything that there was any interim order in respect thereof. The application under Section 26 being Case No. 208 of 1991 was filed some times in 1991 long after the decree. By reason of such application, the Court had no jurisdiction to entertain the same since the proceedings for obtaining the decree could deem to be pending only when such orders are provided either in the interim order or in the decree. If no provision in respect of custody etc. is made either in the interim order or in the decree for the purpose of Section 26, the proceeding terminates with the passing of the decree. By no stretch of imagination, it can be deemed to be pending under Section 26 in view of the specific expression used, as indicated above.
38. If the Court does not have jurisdiction and the application is entertained by misconceived notion and the jurisdiction is exercised though it had none, the order is a nullity. In absence of any jurisdiction, the order can, in no way, be treated to be an order in exercise of such jurisdiction. Therefore, the order in the present case, by no stretch of imagination, could be said to be an order passed under Section 26 of the Hindu Marriage Act and, therefore, no appeal can lie against such order under Section 28(2). The order under Section 26 as has been made appealable under Sub-section (2) passed in proceeding under the Hindu Marriage Act indicates by reason of expression used in the said Sub-section (2) that the said order is to be passed as contemplated within the meaning of Section 26 only when the same is an interim order. Such orders can be appealable even if passed after the decree provided the proceeding is deemed to be pending on satisfaction of the conditions as mentioned in Section 26. Once the decree is passed without any provision either by way of order passed on interlocutory application or in the decree itself, in that event, the decree becomes final and it cannot be revived for the purpose of being deemed to be pending by filing of any application subsequent to the decree. Section 26 is provided for passing order of custody by way of interlocutory measure in a matrimonial proceeding. The relief with regard to the custody and maintenance of a child is provided in the Guardianships and Wards Act and in the Hindu Minority Guardianship Act, 1956. Such relief can be had independently, even without a matrimonial proceeding under the Hindu Marriage Act or any other Marriage Act, under the provision either under the Guardians and Wards Act or under the provision of the Hindu Minority and Guardianship Act, as the case may be. Only to avoid multiplicity of proceedings. Section 26 has been engrafted for the intention of granting relief with regard thereto if a proceeding is pending. But as soon the proceeding terminations, Section 26 cannot be available. If such an interpretation is given, in that event, it will be a parallel statute with those of the Guardianship and Wards Act and the Hindu Minority and Guardianship Act. Such an interpretation would be preposterous. The phrase “orders made by the Court in any proceedings under this Act under Section 25 or Section 26 clearly indicates that such appeal lies against the order passed under Section 26 in a pending proceeding and not otherwise. Therefore, in the present case, the impugned order, in the facts and circumstances of the case, not being an order under Section 26 passed in a proceeding under the said Act, since none were pending, is not appealable under Sub-section (2). The proceedings, not being one under Section 7(1)(g) of the Family Courts Act or a proceeding arising out of one under Section 7(1)(a), the order impugned is also not appealable under Section 19 of the Family Courts Act.
39. The fact as disclosed above is s o aggrevating, it is the duty of the Court to activate itself to put the things straight when the process are patently staring on the face of it as an abuse of it. It is the duty of the High Court to keep the subordinate Court within the limit of its jurisdiction even suo motu when such matters arc brought to its notice. Both Article 227 of the Constitution and Section 115 may be exercised without any application. Such observations is supported by the view expressed in the case of Jatindra Mohan Nandy v. Krishnadas Nandy, 56 Cal WN 858 : AIR 1953 Cal 34 (Para 6 of AIR) wherein it was held :–
“In any event this Court is perfectly competent to see that proper orders are made when the matter comes up in revision before this Court. The mere fact that the plaintiffs did not move should not stand in the way of this Court making an order in accordance with law, as all the necessary parties are represented before us.”
40. Mr. Justice P.N. Mookherji, in the case of Mahendra Dutta and Co. (P.) Ltd. v. Uma Charan Lal, (1964) 68 Cal WN 179 (DB), presiding over the Division Bench had laid down :
“It is hardly arguable that a point, which goes to the root of the Court’s jurisdiction cannot be taken in a revision application if the said point has not been urged before the trial Court. That will practically nullify the revisional powers of this Court in very appropriate cases in many instances. If the trial Court has passed an order, which it had no jurisdiction to make, or which was made in the irregular or illegal exercise of its jurisdiction. This Court will be failing in its duty if it does not revise the same simply because the point of jurisdiction was not taken in the trial Court. It is of course true the exercise of the revisional power of this Court is a matter of discretion and this discretion should be exercised in favour of the petitioner only in appropriate cases. But it will be wholly inequitable and wholly against established principle, if the exercise of this discretion is to be refused merely on the ground that a point of jurisdiction, going to the root of the matter, cannot be entertained or allowed by this Court, simply because it was not taken in the trial Court.”
“……It seems to us that when the Rule comes up for final hearing before this Court, it is open to this Court, if it finds that the Rule should succeed on some ground, not initially taken, or on a ground, which it was not issued that is, on a ground other taken the one, on which it was issued to consider the same and allow the application after of course, giving other party proper opportunities to meet the said objection. The Court, it seems to us, is not so powerless and its powers are not so limited as to preclude it from doing justice between the parties in the exercise of its revisional powers, merely because the Rule was not issued at the initial stage on the particular ground or grounds concerned. Indeed, in every rule issued by this Court, we have the residuary clause, “such other or, further order as to this Court may deem fit and proper.” In our view, those words are comprehensive and wide enough to include all appropriate revisional grounds and to allow this Court to interfere in a proper case even on a ground which was not taken at the time the rule was issued, or upon which the Rule was not initially issued. In the other words, such interference may well be made even on a ground other than the one on which the Rule was issued.
In short, in a matter of this kind, where a question of jurisdiction is involved, to deprive a party of suitable relief under the revisional powers of this Court on the ground that the particular objection was not taken in the trial Court, or that even if it was taken in the trial Court, as Rule was issued on that ground, would be to de feat the ends of justice and, in any view, such a restricted interpretation of the scope of the revisional powers of this Court would not be consistent either with law or with the principles of justice, or with precedents or authority.”
41. Following the said two decisions the Hon’ble Mr. Justice N.K. Mitra in the case of M/s. Dwarika Das Raghubir Prasad Chaudhary, (1987) 1 Cal LJ 479.
“The High Court is not so powerless and its powers are not so limited to preclude it from doing justice between the parties in the exercise of revisional powers, merely because Rule was not issued at the initial stage on the particular ground or grounds concerned.”
42. Similar view was taken following the above decisions in the case of Ratan Muni Jain Intermediate College, Agra v. Director of Education (Secondary), Allahabad, AIR 1997 All 163.
43. The facts of the present case, as disclosed above, are such as this Court is required to intervene because of the reason that proceedings in which the impugned orders were passed were wholly outside the scope and jurisdiction of the learned single Judge, as has been observed earlier. Therefore, the impugned orders dated 26th October, 1991 and 31st May, 1993 (Annexures ‘6’ and ’12’) are hereby set aside.
44. In the result, this revision application under Article 227 of the Constitution is allowed.
There will, however, be no order as to costs

child custody law india

Child Custody Laws India

Hindu Minority and Guardianship Act, 1956

Hindu Minority and Guardianship Act, 1956

An Act to amend and codify certain parts of the law relating to minority and guardianship among Hindus. BE it enacted by Parliament in the Seventh Year of the Republic of India as follows:-
1 . Short title and extent.- (1) This Act may be called the Hindu Minority and Guardianship Act, 1956. (2) It extends to the whole of India except the State of Jammu Kashmir and applies to Hindus domiciled in the territories to which this Act extends who are outside the said territories. 2 . Act to be supplemental to Act 8 of 1890.- The provisions of this Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of, the Guardians and Wards Act, 1890 (8 of 1890). 3 . Application of Act.- (1) This Act applies- (a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. (b) to any person who is a Buddhist, Jaina or Sikh by religion and (c) to any person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi, or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:- (i) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (ii) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhists, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and (iii) any person who is convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. (2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
(3) The expression ‘Hindu’ in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act, applies by virtue of the provisions contained in this section. 4 . Definitions.- In this Act,- (a) “minor” means a person who has not completed the age of eighteen years; (b) “major” means a person having the care of the person of a minor or of his property or of both his person and property, and includes- (i) a natural guardian, (ii) a guardian appointed by the will of the minor’s father or mother, (iii) a guardian appointed or declared by a court, and (iv) a person empowered to act as such by or under any enactment relating to any court of wards; (c) “natural guardian” means any of the guardians mentioned in section 6. 5 . Over-riding effect of Act.- Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. 6 . Natural guardians of a Hindu minor.- The natural guardians of a Hindu, minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father; (c) in the case of a married girl-the husband; Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section- (a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi) Explanation.- In this section, the expressions ‘father’ and ‘mother’ do not include a step-father and a step-mother. 7 . Natural guardianship of adopted son.- The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother. 8 . Powers of natural guardian.- (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the court,- (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him. (4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular- (a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof. (b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and (c) an appeal lie from an order of the court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court. (6) In this section, “Court” means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the
local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate. 9 . Testamentary guardians and their powers.- (1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both. (2) An appointment made under sub-section (1) shall have not effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian. (3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both. (4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property or in respect of both. (5) The guardian so appointed by will has the right to act as the minor’s guardian after the death of the minor’s father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will. (6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage. 10 . Incapacity of minor to act as guardian of property.- A minor shall be incompetent to act as guardian of the property of any minor. 11 . De facto guardian not to deal with minors property.- After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor. 12 . Guardian not to be appointed for minors undivided interest in joint family property.- Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest: Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court the welfare of the minor shall be the paramount consideration.
13 . Welfare of minor to be paramount consideration.- (1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.