National Commission for Protection of Child Rights
The Union of India has enacted the Commissions for Protection of Child Rights Act, 2005, and as per Section 3 of the said Act, the National Commission for Protection of Child Rights has been constituted and as per Section 15 of the Act, the Commission can conduct inquiry with regard to violation of Child rights of a serious nature or contravention of provisions of any law for the time being in force.
On question of child Custody
In Halsbury’s Laws of England, Fourth Edition, Vol. 24, para 511 at page 217 it has been stated;
“Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor’s welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father’s claim in respect of that custody or upbringing is superior to that of the mother, or the mother’s claim is superior to that of the father.”
In Howarth v. Northcott, 152 Conn 460 : 208 A 2nd 540 : 17 ALR 3rd 758; it was stated;
“In habeas corpus proceedings to determine Child custody, the jurisdiction exercised by the Court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the Protection of its infant ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity”.
It was further observed;
“The employment of the forms of habeas corpus in a Child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statute, but the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the Child, and the decision is reached by a consideration of the equities involved in the welfare of the Child, against which the legal rights of no one. Including the parents, are allowed to militate”.
Guardians Act, consolidates and amends the law relating to guardians and wards. Section 1 of the said Act defines “minor” as a person who has not attained the age of majority. “Guardian” means a person having the care of the person of a minor or of his property, or of both his person and property. “Ward” is defined as a minor for whose person or property or both, there is a guardian. Chapter II (Sections 5 to 19 of Guardians Act) relates to appointment and declaration of guardians. Section 7 thereof deals with ‘power of the Court to make order as to guardianship’ and reads as under :
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.
Section 8 of the Guardians Act enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain an application for guardianship. Sections 10 to 16 deal with procedure and powers of Court. Section 17 is another material provision and may be reproduced;
“17. Matters to be considered by the Court in appointing guardian. – (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(5) The Court shall not appoint or declare any person to be a guardian against his will. (Emphasis supplied)
Section 19 prohibits the Court from appointing guardians in certain cases.
Chapter III (Sections 20 to 42) prescribes duties, rights and liabilities of guardians.
The Act is another equally important statute relating to minority and guardianship among Hindus. Section 4 defines “minor” as a person who has not completed the age of eighteen years. “Guardian” means a person having the care of the person of a minor or of his property or of both his persons and property, and inter alia includes a natural guardian. Section 2 of the Act declares that the provisions of the Act shall be in addition to, and not in derogation of 1890 Act.
Section 6 enacts as to who can be said to be a natural guardian. It reads thus;
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 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.
Section 8 enumerates powers of natural guardian. Section 13 is extremely important provision and deals with welfare of a minor. The same may be quoted in extenso;
Welfare of minor to be paramount consideration.
(1) In the appointment or 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. (emphasis supplied)
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.
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.
Evidence of a Child witness
The evidence of a Child witness is required to be evaluated carefully as the Child may be swayed by what others may tell him or her as the Child is an easy pray to tutoring. Wisdom requires that the evidence of Child witness must find adequate corroboration before it is relied on [State of U.P. vs. Ashok Dixit and Anr. JT 2000 (2) SC 107.
Child rape cases are cases of perverse lust for sex where even innocent Children are not spared in pursuit of the sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of social stigma attached thereto. According to some surveys, there has been steep rise in the Child rape cases. Children need special care and Protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal Protection to these Children. Their physical and mental immobility call for such Protection. Children are the natural resource of our country. They are country’s future. Hope of tomorrow rests on them. In our country, a girl Child is in a very vulnerable position and one of the modes of her exploitation is rape besides other mode of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well considered and well analyzed judgment of the trial court on the grounds like non-examination of other witnesses, when the case against the respondent otherwise stood established, beyond any reasonable doubt was not called for. The minor contradiction of recovery of one or two underwear was wholly insignificant.
When a young Child is taken to a hospital by his parents and the Child is treated by the doctor, the parents would come within the definition of consumer having hired the services and the young Child would also become a consumer under the inclusive definition being a beneficiary of such services. The definition clause being wide enough to include not only the person who hires the services but also the beneficiary of such services which beneficiary is other than the person who hires the services, the conclusion is irresistible that both the parents of the Child as well as the Child would be consumer within the meaning of Section 2(1)(d)(ii) of the Act and as such can claim compensation under the Act. The Consumer Protection Act confers jurisdiction on the Commission in respect of matters where either there is defect in goods or there is deficiency in service or there has been an unfair and restrictive trade practice or in the matter of charging of excessive price. The Act being a beneficial legislation intended to confer some speedier remedy on a consumer from being exploited by unscrupulous traders, there provisions thereof should receive a liberal construction.
INDEX OF STATUTES
- Bonded Labour System (Abolition) Act, 1976
- Child Labour (Prohibition and Regulation) Act, 1986
- Child Labour (Prohibition and Regulation) Rules, 1988
- Children (Pledging of Labour) Act, 1933
- Commission For Protection of Child Rights Rules, 2006
- Commissions for Protection of Child Rights (Amendment) Act 2006
- Commissions for Protection of Child Rights Act, 2005
- Factories Act, 1948
- Guardians and Wards act 1890
- Hindu Minority and Guardians Act 1956
- Immoral Traffic (Prevention) Act, 1956
- Juvenile Justice (Care and Protection of Chidlren) Rules, 2007
- Juvenile Justice (Care and Protection of Children) Act, 2000
- Juvenile Justice (Care and Protection of Children) Amendment Act, 2011
- Juvenule Justice (Care and Protection of Children) Amendment Act, 2006
- Medical Termination of Pregnancy Act, 1971
- Mines Act, 1952
- National Food Security Act, 2013
- Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994
- Prohibition of Child Marriage Act 2006
- Protection of Children From Sexual Offences Act, 2012
- Protection of Children From Sexual Offences Rules, 2012
- Right of Children to Free and Compulsory Education Act 2009
- Right of Children to Free and Compulsory Education Rules , 2010
- The Juvenile Justice (Care and Protection of Children) Act 2015,Rules, 2016
- The Juvenile Justice (Care And Protection Of Children) Act, 2015
- Young Persons (Harmful Publication) Act, 1956
- The Child and Adolescent Labour (Prohibition and Regulation) Act 1986
- U.P. Children Act, 1951