Jasmeet Kaur Vs. State (NCT of Delhi) & Anr-12/12/ 2019

SUPREME COURT OF INDIA JUDGMENTS

It was evident from the conduct of the parties that they had abandoned their domicile of origin i.e. India, had set up their matrimonial home in the U.S. and raised their daughter in that environment. When the Petitioner – wife decided not to return to the U.S. in January, 2016 she acted in her self-interest, and not in the best interest of her children. The High Court held that the children have the right to be brought up by both parents as a family in the U.S. It is in the best interest of the children that the Petitioner – wife returns to the U.S. The High Court issued directions to the Respondent – husband to ensure that once the Petitioner – wife returns to the U.S., she is not faced with any adversity or hostility by the Respondent – husband, or the American legal system.

SUPREME COURT OF INDIA

Jasmeet Kaur Vs. State (NCT of Delhi) & Anr.

Special Leave Petition (Crl.) No. 4858-4859/ 2018

Jasmeet Kaur Vs. Navtej Singh

Special Leave Petition (Civil) No. 20022/ 2019

ACTS: U/S. 9 and 7,9, 11, 25 of the Guardians and Wards Act, 1890 & S. 6 (a) of the Hindu Minority and Guardianship Act, 1956

Indu Malhotra, J.

1. The present Special Leave Petitions arise out of matrimonial disputes between the parties. SLP (Crl.) No. 4858-4859/ 2018 has been filed by the Petitioner – wife to challenge the Orders dated 06.03.2018 and 21.05.2018 passed by the High Court in a Habeas Corpus Petition (Crl) No. 725 of 2017 filed by the Respondent – husband, seeking issuance of a writ of habeas corpus for production of the children, who have been illegally abducted by the Petitioner – wife from his custody in the USA. SLP (C.) No. 20022/2019 arises out of a Guardianship Petition filed U/S. 9 of the Guardians and Wards Act, 1890 (“GWA”) by the Petitioner – wife praying for permanent and sole custody of the minor daughter – Ishnoor now aged about 7 years, and minor son – Paramvir aged about 2 years. Since both SLPs arise out of common facts, they are being disposed of by this common judgment.

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Guardianship: Institutes of Justinian

Guardianship

Let us now proceed to another division of persons. Of those who are not in the power of a parent, some are under a tutor, some under a curator, some under neither. Let us treat, then, of the class of those persons who are under a tutor or curator; for we shall thus ascertain who are they who are not subject to either. And first of persons under a tutor.

1. Tutelage, as Servius has defined it, is an authority and power over a free person, given and permitted by the civil law, in order to protect one whose tender years prevent him defending himself.

2. Tutors are those who have this authority and power, and they take their name from the nature of their office; for they are called tutors, as being protectors [i.e., tuitores] and defenders, just as those who have the care of the sacred edifices are called aeditui.

3. Parents may give tutors by testament to such of their children as have not attained the age of puberty, and are under their power. And this, without any distinction, in the case of all sons and daughters. But grandfathers can only give tutors to their grandchildren when these will not fall under the power of their father on the death of the grandfather. Hence, if your son is in your power at the time of your death, your grandchildren by that son cannot have a tutor appointed them by your testament, although they were in your power; because, at your decease, they will fall under the power of their father.

4. Posthumous children, as in many other respects, so also in this respect, are considered as already born before the death of their fathers; and tutors may be given by testament to posthumous children, as well as to children already born, provided that the posthumous children, had they been born in the lifetime of their father, would have been sui heredes, and in their father’s power.

5. But if a father gives a tutor by testament to his emancipated son, the appointment must be confirmed by the sentence of the praeses in all cases, that is, without inquiry.


 

Tejaswini Gaud and Others Vs. Shekhar Jagdish Prasad Tewari and Others – 06/05/19

Custody of child – Whether in the writ of habeas corpus filed by respondent No.1 seeking custody of the minor child from the appellants, the High Court was right in ordering that the custody of minor child be handed over to respondent No.1-father. Further question falling for consideration is whether handing over of the custody of the child to respondent No.1-father is not conducive to the interest and welfare of the minor child. Custody of the Child given to the father.

Section 6 of the Hindu Minority and Guardianship Act, 1956

SUPREME COURT OF INDIA

Tejaswini Gaud and Others Vs. Shekhar Jagdish Prasad Tewari and Others

[Criminal Appeal No. 838 of 2019 arising out of SLP (CRL.) No. 1675 of 2019]

R. BANUMATHI, J.

1. Leave granted.

2. This appeal arises out of the judgment dated 06.02.2019 passed by the High Court of Bombay in Crl.W.P. No. 5214 of 2018 in and by which the High Court held that the first respondentfather of the child being the surviving parent and in the interest of welfare of the child, the custody of the child must be handed over to the first respondent-father and issued writ of habeas corpus directing the appellants to handover the custody of the minor child to respondent No.1-father of the child.

3. Brief facts of the case are that marriage of respondent No.1 was solemnized with Zelam on 28-05-2006. During the fifth month of her pregnancy i.e. in May 2017, Zelam was detected with breast cancer. Respondent No.1 and Zelam were blessed with a girl child named Shikha on 14-08-2017. While Zelam was undergoing treatment, child Shikha was with her father respondent No.1 till November, 2017. Unfortunately, on 29-11-2017, respondent No. 1 was suddenly hospitalised and he was diagnosed with Tuberculosis Meningitis and Pulmonary Tuberculosis. While he was undergoing treatment, appellant No.1-Tejaswini Gaud – one of the two sisters of Zelam and appellant No.4-Dr. Pradeep Gaud who is the husband of Tejaswini, took Zelam along with Shikha to their residence at Mahim, Mumbai for continuation of the treatment.

Later, in June 2018, Zelam was shifted to her paternal home along with Shikha in Pune i.e. residence of appellant No.3-Samir Pardeshi, brother of Zelam. In July 2018, they were again shifted to the house of appellant No.1 in Mumbai. On 17-10-2018, Zelam succumbed to her illness. Child Shikha continued to be in the custody of the appellants in Pune at the residence of appellant No.3 till 17-11-2018. Respondent No.1-father was denied the custody of child and on 17-11-2018, he gave a complaint to 2 Dattawadi Police Station, Pune. Thereafter, respondent No.1-father approached the High Court by filing a writ petition seeking custody of minor child Shikha. Respondent No.1-father is a post-graduate in Management and is working as a Principal Consultant with Wipro Limited.

4. The High Court held that respondent No.1-father, the only surviving parent of the child is entitled to the custody of the child and the child needs love, care and affection of the father. The High Court took into account that respondent No.1 was hospitalised for a serious ailment and in those circumstances, the appellants have looked after the child and in the interest and welfare of the child, it is just and proper that the custody of the child is handed over back to the first respondent. However, the High Court observed that the efforts put in by the appellants in taking care of the child has to be recognized and so the High Court granted appellants No.2 and 3 access to the child.

5. The appellants contend that the writ of habeas corpus cannot be issued when efficacious alternative remedy is available to respondent No. 1 under Hindu Minority and Guardianship Act, 1956. It was submitted that the child was handed over to the appellants by the ailing mother of the child who has expressed her 3 wish that they should take care of the child and therefore, it is not a fit case for issuance of writ of habeas corpus which is issued only in cases of illegal detention. It is also their contention that the question of custody of the minor child is to be decided not on consideration of the legal rights of the parties; but on the sole and predominant criterion of what would best serve the interest and welfare of the minor and, as such, the appellants who are taking care of the child since more than a year, they alone would be entitled to have the custody of the child in preference to respondent No.1-father of the child.

6. Learned counsel appearing for the appellants submitted that though the first respondent-father is a natural guardian of the minor child Shikha and has a preferential right to claim the custody of the minor child, but in matters concerning the custody of a minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party, in this case, the father. It was further submitted that Section 6 of the Hindu Minority and Guardianship Act, 1956 cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child and the welfare of the minor child has to be the 4 sole consideration. In support of his contention, the learned counsel for the appellants has placed reliance upon:-

(i) Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3 SCC 92; Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14; G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC Online Mad 472 : AIR 2005 Mad 452; L. Chandran v. Mrs. Venkatalakshmi & Another 1980 SCC Online AP 80 : AIR 1981 AP 1; Ravi Kant Keshri & Another v. Krishna Kumar Gupta and Others 1992 SCC Online All 548 : AIR 1993 All 230; Suriez v. M. Abdul Khader and Others 2017 SCC Online Kar 4935; Murari Lal Sharma and Another v. State of West Bengal and Others 2013 SCC Online 23045 : AIR 2013 Cal 213; R. Suresh Kumar v. K.A. Kavathi and Others MANU/TN/8529/2006; Athar Hussain v. Syed Siraj Ahmed and Others (2010) 2 SCC 654; Nil Ratan Kundu and Another v. Abhijit Kundu (2008) 9 SCC 413; Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi (1992) 3 SCC 573; Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42; Baby Sarojam v. S. Vijayakrishnan Nair AIR 1992 Ker 277; Abhimanyu Poria v. Rajbir Singh and Others 2018 SCC Online Del 6661 : AIR 2018 Del 127; A.V. Venkatakrishnaiah and Another v. S.A. Sathyakumar 1978 SCC Online Kar 241 : AIR 1978 Kar 220.

7. Per contra, the learned counsel appearing for the first respondent has submitted that in view of Section 6 of the Hindu Minority and Guardianship Act, 1956, father has the paramount right to the custody of the children and he cannot be deprived of the custody of the minor child unless it is shown that he is unfit to be her guardian. The learned counsel submitted that in view of his illness and the illness of the mother Zelam, mother and child happened to be in Mumbai and Pune and considering the welfare of the child, she had to be handed over to the first respondent.

It was further submitted that father being a natural guardian as per the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, the appellants have no legal right for the custody of the infant and the High Court rightly ordered the custody of the child to respondent No.1. In support of his contention, learned counsel for the respondents inter alia placed reliance upon number of judgments:-

(i) Gohar Begam v. Suggi @ Nazma Begam and Others AIR 1960 SC 93;

(ii) Smt. Manju Malini Sheshachalam D/o Mr. R. Sheshachalam v. Vijay Thirugnanam S/o Thivugnanam & Others 2018 SCC Online Kar 621;

(iii) Amol Ramesh Pawar v. State of Maharashtra & Others 2014 SCC Online Bom 280;

(iv) Marggarate Maria Pulparampil Nee Feldman v. Dr. Chacko Pulparampil and Others AIR 1970 Ker 1 (FB);

(v) Thirumalai Kumaran v. Union Territory of Dadra and Nagar Haveli 2003 (2) Mh.L.J.;

(vi) Capt. Dushyant Somal v. Smt. Sushma Somal & Others (1981) 2 SCC 277;

(vii) Syed Saleemuddin v. Dr. Rukhsana and Others (2001) 5 SCC 247;

(viii) Nirmaljit Kaur

(2) v. State of Punjab and Otherrs (2006) 9 SCC 364;

(ix) Surya Vadanan v. State of Tamil Nadu and Others (2015) 5 SCC 450;

(x) Ruchika Abbi & Anr. v. State (National Capital Territory of Delhi) and Another (2016) 16 SCC 764;

(xi) Kanika Goel v. State of Delhi through Station House Officer and Another (2018) 9 SCC 578.

8. We have carefully considered the rival contentions and perused the impugned judgment and various judgments relied upon by the parties.

9. The question falling for consideration is whether in the writ of habeas corpus filed by respondent No.1 seeking custody of the minor child from the appellants, the High Court was right in ordering that the custody of minor child be handed over to respondent No.1-father. Further question falling for consideration is whether handing over of the custody of the child to respondent No.1-father is not conducive to the interest and welfare of the minor child.

10. Section 6 of the Hindu Minority and Guardianship Act, 1956 enacts as to who can be said to be a natural guardian. As per Section 6 of the Act, natural guardian 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) is the father, in the case of a boy or an unmarried girl and after him, the mother. Father continues to be a natural guardian, unless he has ceased to be a Hindu or renounced the world.

Section 13 of the Act deals with the welfare of a minor. Section 13 stipulates that 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. Section 13(2) stipulates that no person shall be entitled to the guardianship by virtue of the provisions of the Act if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

11. Maintainability of the writ of habeas corpus:- The learned counsel for the appellants submitted that the law is wellsettled that in deciding the question of custody of minor, the 8 welfare of the minor is of paramount importance and that the custody of the minor child by the appellants cannot be said to be illegal or improper detention so as to entertain the habeas corpus which is an extraordinary remedy and the High Court erred in ordering the custody of the minor child be handed over to the first respondent-father.

Placing reliance on Veena Kapoor1 and Sarita Sharma2 and few other cases, the learned counsel for the appellants contended that the welfare of children requires a full and thorough inquiry and therefore, the High Court should instead of allowing the habeas corpus petition, should have directed the respondent to initiate appropriate proceedings in the civil court. The learned counsel further contended that though the father being a natural guardian has a preferential right to the custody of the minor child, keeping in view the welfare of the child and the facts and circumstances of the case, custody of the child by the appellants cannot be said to be illegal or improper detention so as to justify invoking extra-ordinary remedy by filing of the habeas corpus petition.

12. Countering this contention, the learned counsel for respondent No.1 submitted that in the given facts of the case, the 1 Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3 SCC 92 2 Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14 9 High Court has the extraordinary power to exercise the jurisdiction under Article 226 of the Constitution of India and the High Court was right in allowing the habeas corpus petition. The learned counsel has placed reliance on Gohar Begum3 and. Manju Malini Sheshachalam4. Contention of respondent No.1 is that as per Section 6 of the Hindu Minority and Guardianship Act, respondent No.1, being the father, is the natural guardian and the appellants have no authority to retain the custody of the child and the refusal to hand over the custody amounts to illegal detention of the child and therefore, the writ of habeas corpus was the proper remedy available to him to seek redressal.

13. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal 3 Gohar Begum v. Suggi @ Nazma Begam and others AIR 1960 SC 93 4 Smt. Manju Malini Sheshachalam D/o Mr. R. Sheshachalam v. Vijay Thirugnanam S/o Thivugnanam & Others 2018 SCC Online Kar 621 10 law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.

14. In Gohar Begum3 where the mother had, under the personal law, the legal right to the custody of her illegitimate minor child, the writ was issued. In Gohar Begum3, the Supreme Court dealt with a petition for habeas corpus for recovery of an illegitimate female child. Gohar alleged that Kaniz Begum, Gohar’s mother’s sister was allegedly detaining Gohar’s infant female child illegally. The Supreme Court took note of the position under the Mohammedan Law that the mother of an illegitimate female child is entitled to its custody and refusal to restore the custody of the child to the mother would result in illegal custody of the child.

The Supreme Court held that Kaniz having no legal right to the custody of the child and her refusal to make over the child to the mother resulted in an illegal detention of the child within the meaning of Section 491 Cr.P.C. of the old Code. The Supreme Court held that the fact that Gohar had a right under the Guardians and Wards Act is no justification for denying her right under Section 491 Cr.P.C. The Supreme Court observed that Gohar Begum, being the natural guardian, is entitled to maintain the writ petition and held as under:-

“7. On these undisputed facts the position in law is perfectly clear. Under the Mohammedan law which applies to this case, the appellant is entitled to the custody of Anjum who is her illegitimate daughter, no matter who the father of Anjum is. The respondent has no legal right whatsoever to the custody of the child. Her refusal to make over the child to the appellant therefore resulted in an illegal detention of the child within the meaning of Section 491.

This position is clearly recognised in the English cases concerning writs of habeas corpus for the production of infants. In Queen v. Clarke (1857) 7 EL & BL 186: 119, ER 1217 Lord Campbell, C.J., said at p. 193: “But with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian; and when delivered to him, the child is supposed to be set at liberty.” The courts in our country have consistently taken the same view. For this purpose the Indian cases hereinafter cited may be referred to. The terms of Section 491 would clearly be applicable to the case and the appellant entitled to the order she asked.

8. We therefore think that the learned Judges of the High Court were clearly wrong in their view that the child Anjum was not being illegally or improperly detained. The learned Judges have not given any reason in support of their view and we are clear in our mind that view is unsustainable in law. ……..

10. We further see no reason why the appellant should have been asked to proceed under the Guardian and Wards Act for recovering the custody of the child. She had of course the right to do so. But she had also a clear right to an order for the custody of the child under Section 491 of the Code. The fact that she had a right under the Guardians and Wards Act is no justification for denying her the right under Section 491. That is well established as will appear from the cases hereinafter cited.”

(Underlining added)

15. In Veena Kapoor1, the issue of custody of child was between the natural guardians who were not living together. Veena, the mother of the child, filed the habeas corpus petition seeking custody of the child from her husband alleging that her husband was having illegal custody of the one and a half year old child. The Supreme Court directed the District Judge concerned to take down evidence, adduced by the parties, and send a report to the Supreme Court on the question whether considering the interest of the minor child, its mother should be given its custody.

16. In Rajiv Bhatia5, the habeas corpus petition was filed by Priyanka, mother of the girl, alleging that her daughter was in illegal custody of Rajiv, her husband’s elder brother. Rajiv relied on an adoption deed. Priyanka took the plea that it was a fraudulent document. The Supreme Court held that the High Court was not entitled to examine the legality of the deed of adoption and then come to the conclusion one way or the other with regard to the custody of the child.

17. In Manju Malini4 where the mother filed a habeas corpus petition seeking custody of her minor child Tanishka from her sister and brother-in-law who refused to hand over the child to the mother, the Karnataka High Court held as under:-

“24. The moment respondents 1 and 2 refused to handover the custody of minor Tanishka to the petitioner the natural and legal guardian, the 5 Rajiv Bhatia v. Govt. of NCT of Delhi and others (1999) 8 SCC 525 13 continuation of her custody with them becomes illegal detention. Such intentional act on the part of respondent Nos.1 and 2 even amounts to the offence of kidnapping punishable under S.361 of IPC. Therefore there is no merit in the contention that the writ petition is not maintainable and respondent Nos.1 and 2 are in legal custody of baby Tanishka.”

18. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued wherein the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise, a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

19. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.

20. In the present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondent father is a natural guardian of the minor child and is having the legal right to claim the custody of the child. The entitlement of father to the custody of child is not disputed and the child being a 15 minor aged 1½ years cannot express its intelligent preferences. Hence, in our considered view, in the facts and circumstances of this case, the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India.

21. Custody of the child – removed from foreign countries and brought to India:- In a number of judgments, the Supreme Court considered the conduct of a summary or elaborate enquiry on the question of custody by the court in the country to which the child has been removed. In number of decisions, the Supreme Court dealt with habeas corpus petition filed either before it under Article 32 of the Constitution of India or the correctness of the order passed by the High Court in exercise of jurisdiction under Article 226 of the Constitution of India on the question of custody of the child who had been removed from the foreign countries and brought to India and the question of repatriation of the minor children to the country from where he/she may have been removed by a parent or other person.

In number of cases, the Supreme Court has taken the view that the High Court may invoke the extraordinary jurisdiction to determine the validity of the detention. However, the Court has taken view that the order of 16 the foreign court must yield to the welfare of the child. After referring to various judgments, in Ruchi Majoo6, it was held as under:-

“58. Proceedings in the nature of habeas corpus are summary in nature, where the legality of the detention of the alleged detenu is examined on the basis of affidavits placed by the parties. Even so, nothing prevents the High Court from embarking upon a detailed enquiry in cases where the welfare of a minor is in question, which is the paramount consideration for the Court while exercising its parens patriae jurisdiction. A High Court may, therefore, invoke its extraordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of the minor depending upon how the Court views the rival claims, if any, to such custody.

59. The Court may also direct repatriation of the minor child to the country from where he/she may have been removed by a parent or other person; as was directed by this Court in Ravi Chandran (2010) 1 SCC 174 and Shilpa Aggarwal (2010) 1 SCC 591 cases or refuse to do so as was the position in Sarita Sharma case (2000) 3 SCC 14. What is important is that so long as the alleged detenu is within the jurisdiction of the High Court no question of its competence to pass appropriate orders arises. The writ court’s jurisdiction to make appropriate orders regarding custody arises no sooner it is found that the alleged detenu is within its territorial jurisdiction.”

22. After referring to various judgments and considering the principles for issuance of writ of habeas corpus concerning the minor child brought to India in violation of the order of the foreign court, in Nithya Anand7, it was held as under:- 6 Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479 7 Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454 17

“46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration.

The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.”

23. In Sarita Sharma2, the tussle over the custody of two minor children was between their separated mother and father. The Family Court of USA while passing the decree of divorce gave custody rights to the father. When the mother flew to India with the children, the father approached the High Court by filing a habeas corpus petition. The High Court directed the mother to handover the custody to the father. The Supreme Court in appeal observed that the High Court should instead of allowing the habeas corpus petition should have directed the parties to initiate appropriate proceedings wherein a thorough enquiry into the interest of children could be made.

24. In the recent decision in Lahari Sakhamuri8, this court referred to all the judgments regarding the custody of the minor children when the parents are non-residents (NRI). We have referred to the above judgments relating to custody of the child removed from foreign country and brought to India for the sake of completion and to point out that there is a significant difference in so far the children removed from foreign countries and brought into India.

25. Welfare of the minor child is the paramount consideration:- The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child.

26. After referring to number of judgments and observing that while dealing with child custody cases, the paramount consideration should be the welfare of the child and due weight should be given to child’s ordinary comfort, contentment, health, 8 Lahari Sakhamuri v. Sobhan Kodali 2019 (5) SCALE 97 19 education, intellectual development and favourable surroundings, in Nil Ratan Kundu9, it was held as under:-

“49. In Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148 the High Court observed that it is true that the father is a natural guardian of a minor child and therefore has a preferential right to claim the custody of his son, but in matters concerning the custody of a minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party. Section 6 of the 1956 Act cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child. It was also observed that keeping in mind the welfare of the child as the sole consideration, it would be proper to find out the wishes of the child as to with whom he or she wants to live.

50. Again, in M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315 the Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to “human touch”. The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience. 51. In Kamla Devi v. State of H.P. AIR 1987 HP 34 the Court observed:

“13. … the Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a child’s ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court’s view of the best interests of the child whose welfare requires that he be in custody of one parent or the other.” 9 Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 20

52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child.

In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.”

27. Reliance was placed upon Gaurav Nagpal10, where the Supreme Court held as under:-

“32. In McGrath, (1893) 1 Ch 143, Lindley, L.J. observed: (Ch p. 148) The dominant matter for the consideration of the court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word ‘welfare’ must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the tie of affection be disregarded.”

(emphasis supplied)

………

50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis 10 Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 21 on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case (2008) 7 SCC 673, the court has to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.

51. The word “welfare” used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.

28. Contending that however legitimate the claims of the parties are, they are subject to the interest and welfare of the child, in Rosy Jacob11, this Court has observed that:-

“7. …. the principle on which the court should decide the fitness of the guardian mainly depends on two factors:

(i) the father’s fitness or otherwise to be the guardian, and

(ii) the interests of the minors.” ……..

“15. …. The children are not mere chattels : nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. The approach of the learned Single Judge, in our view, was correct and we agree with him. The Letters Patent Bench on appeal seems to us to Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 22 have erred in reversing him on grounds which we are unable to appreciate.”

29. The learned counsel for the appellants has placed reliance upon G. Eva Mary Elezabath12 where the custody of the minor child aged one month who had been abandoned by father in church premises immediately on death of his wife was in question. The custody of the child was accordingly handed over to the petitioner thereon who took care of the child for two and half years by the Pastor of the Church. The father snatched the child after two and a half years from the custody of the petitioner. The father of the child who has abandoned the child though a natural guardian therefore was declined the custody.

30. In Kirtikumar Maheshankar Joshi13, the father of the children was facing charge under Section 498-A IPC and the children expressed their willingness to remain with their maternal uncle who was looking after them very well and the children expressed their desire not to go with their father. The Supreme Court found the children intelligent enough to understand their well-being and in the circumstances of the case, handed over the custody to the maternal uncle instead of their father.

31. In the case at hand, the father is the only natural guardian G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC Online Mad 472 13 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi (1992) 3 SCC 573 23 alive and has neither abandoned nor neglected the child. Only due to the peculiar circumstances of the case, the child was taken care of by the appellants. Therefore, the cases cited by the appellants are distinguishable on facts and cannot be applied to deny the custody of the child to the father.

32. The child Shikha went into the custody of the appellants in strange and unfortunate situation. Appellants No.1 and 2 are the sisters of deceased Zelam. Appellant No.4 is the husband of appellant No.1. All three of them reside at Mahim, Mumbai. Appellant No.3 is the married brother of Zelam who resides in Pune.

During the fifth month of her pregnancy, Zelam was diagnosed with stage 3/4 breast cancer. Zelam gave birth to child Shikha on 14-08-2017. On 29-11-2017, respondent No.1 collapsed with convulsions due to illness. Upon his collapse, he was rushed to hospital where he was diagnosed with Tuberculosis Meningitis and Pulmonary Tuberculosis. He was kept on ventilator for nearly eight days, during which period, appellants took care of Zelam and the child. The first respondent had to undergo treatment in different hospitals for a prolonged period. From 29-11-2017 to June 2018, Zelam and Shikha stayed at the residence of appellant’s in Mumbai. During this period, 24 Zelam underwent masectomy surgery. Zelam later relapsed into cancer and decided to get treatment from a doctor in Pune and therefore, shifted to appellant No.3’s house at Pune with Shikha and Zelam passed away on 17-10-2018. After recovering from his illness, the respondent visited Pune to seek custody of the child.

But when they refused to hand over the custody, the father was constrained to file the writ petition seeking custody of the child. The child Shikha thus went to the custody of the appellants in unavoidable conditions. Only the circumstances involving his health prevented the father from taking care of the child. Under Section 6 of the Act, the father is the natural guardian and he is entitled to the custody of the child and the appellants have no legal right to the custody of the child. 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.

33. As observed in Rosy Jacob11 earlier, the father’s fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. The welfare of the child shall include various factors like ethical upbringing, economic well-being of the guardian, child’s ordinary comfort, contentment, health, education etc. The child Shikha lost her mother when she was just fourteen months and is now being deprived from the love of her father for no valid reason. As pointed out by the High Court, the father is a highly educated person and is working in a reputed position. His economic condition is stable.

34. The welfare of the child has to be determined owing to the facts and circumstances of each case and the court cannot take a pedantic approach. In the present case, the first respondent has neither abandoned the child nor has deprived the child of a right to his love and affection. The circumstances were such that due to illness of the parents, the appellants had to take care of the child for some time. Merely because, the appellants being the relatives took care of the child for some time, they cannot retain the custody of the child. It is not the case of the appellants that the first respondent is unfit to take care of the child except contending that he has no female support to take care of the child. The first respondent is fully recovered from his illness and is now healthy and having the support of his mother and is able to take care of the child.

35. The appellants submit that handing over of the child to the first respondent would adversely affect her and that the custody can be handed over after a few years. The child is only 1½ years old and the child was with the father for about four months after her birth. If no custody is granted to the first respondent, the court would be depriving both the child and the father of each other’s love and affection to which they are entitled. As the child is in tender age i.e. 1½ years, her choice cannot be ascertained at this stage. With the passage of time, she might develop more bonding with the appellants and after some time, she may be reluctant to go to her father in which case, the first respondent might be completely deprived of her child’s love and affection. Keeping in view the welfare of the child and the right of the father to have her custody and after consideration of all the facts and circumstances of the case, we find that the High Court was right in holding that the welfare of the child will be best served by handing over the custody of the child to the first respondent.

36. Taking away the child from the custody of the appellants and handing over the custody of the child to the first respondent might cause some problem initially; but, in our view, that will be neutralized with the passage of time. However, till the child is settled down in the atmosphere of the first respondent-father’s house, the appellants No.2 and 3 shall have access to the child initially for a period of three months for the entire day i.e. 08.00 AM to 06.00 PM at the residence of the first respondent. The first respondent shall ensure the comfort of appellants No.2 and 3 during such time of their stay in his house. After three months, the appellants No.2 and 3 shall visit the child at the first respondent’s house from 10.00 AM to 04.00 PM on Saturdays and Sundays. After the child completes four years, the appellants No.2 and 3 are permitted to take the child on every Saturday and Sunday from the residence of the father from 11.00 AM to 05.00 PM and shall hand over the custody of the child back to the first respondent-father before 05.00 PM. For any further modification of the visitation rights, either parties are at liberty to approach the High Court.

37. The impugned judgment of the High Court dated 06.02.2019 in Crl.W.P. No. 5214 of 2018 is affirmed subject to the above directions and observations. The appellants shall hand over the custody of the child to the first respondent-father on 10.05.2019 at 10.00 AM at the residence of the first respondent. Keeping in view the interest of the child, both parties shall co-operate with each other in complying with the directions of the Court. This appeal is accordingly disposed of.

J. [R. BANUMATHI]

J. [R. SUBHASH REDDY]

New Delhi;

May 06, 2019

Ms. Githa Hariharan and another Vs Reserve Bank of India and another[ALL SC 1999 FEBRUARY]

KEYWORDS:-natural guardian-

c

DATE:-17-02-1999.

  • The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category

AIR 1999 SC 1149 : (1999) 1 SCR 669 : (1999) 2 SCC 228 : JT 1999 (1) SC 524 : (1999) 1 SCALE 490

(SUPREME COURT OF INDIA)

Ms. Githa Hariharan and another Appellant
Versus
Reserve Bank of India and another Respondent

With

Dr. Vandana Shiva Appellant
Versus
Jayanta Bandhopadhyaya and another Respondent

(Before : Dr. A. S. Anand, C.J.I., M. Srinivasan And U. C. Banerjee, JJ.)

Writ Petn. (Civil) No. 489 of 1995 WITH Writ Petn. (C) No. 1016 of 1991, Decided on : 17-02-1999.

Guardian And Wards Act, 1890—Section 19(b)—Mother of minor can act as natural guardian during life time of her husband—Word “after” in Section 6(a) of Hindu Minority and Guardianship Act has to be read to mean “in the absence of father” to make consistent with constitutional safeguard of gender equality.

The word “after’ need not necessarily mean “after the lifetime”. In the context in which it appears in Section 6(a), it means “in the absence of”, the word ‘absence’ therein referring to the father’s absence from the care of the minor’s property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor, even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognised natural guardian, can act validly on behalf of the minor as the guardian.

Hindu Minority And Guardianship Act, 1956—Section 6(a)—Guardianship—Mother of minor can act as natural guardian during life time of her husband—Word “after” in Section 6(a) of Hindu Minority and Guardianship Act has to be read to mean “in the absence of father” to make consistent with constitutional safeguard of gender equality.

The word “after’ need not necessarily mean “after the lifetime”. In the context in which it appears in Section 6(a), it means “in the absence of”, the word ‘absence’ therein referring to the father’s absence from the care of the minor’s property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor, even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognised natural guardian, can act validly on behalf of the minor as the guardian.

Counsel for the Parties:

Ms. Indra Jaisingh, Sr. Advocate, Sanjay Parikh, Ms. Anitha Shenoy, Sanjoy Ghosh, Abinash Kumar Misra, Advocates, with her for Petitioners

H. N. Salve, Sr. Advocate, H. S. Parihar, Kuldeep S. Parihar, Ajit Pudussery and Ms. C. K. Sucharita, Advocates, with him, for Respondents.

Judgement

Dr. A. S. ANAND, C. J. I—We have had the advantage of reading the draft judgment of our learned Brother Banerjee, J. While agreeing with the conclusion, we wish to add our own reasons.

2. The facts in W. P. (C) No. 489/95 are shortly as follows:The first petitioner is the wife of the second petitioner. The first petitioner is a writer and several of her books are said to have been published by Penguin. The second petitioner is a Medical Scientist in Jawaharlal Nehru University, New Delhi. They jointly applied to the Reserve Bank of India (first respondent) on 10-12-1984 for 9% Relief Bonds in the name of their minor son Rishab Bailey for ` 20,000/-. They stated expressly that both of them agreed that the mother of the child, i.e., the first petitioner would act as the guardian of the minor for the purpose of investments made with the money held by their minor son. Accordingly, in the prescribed form of application, the first petitioner signed as the guardian of the minor. The first respondent replied to the petitioners advising them either to produce the application form signed by the father of the minor or a certificate of guardianship from a competent authority in favour of the mother. That lead to the filing of this writ petition by the two petitioners with prayers to strike down Section 6(a) of the Hindu Minority and Guardianship Act, 1956, (hereinafter referred to as HMG Act) and Section 19(b) of the Guardians and Wards Act, 1890 (hereinafter referred to as GW Act) as violative of Articles 14 and 15 of the Constitution and to quash and set aside the decision of the first respondent refusing to accept the deposit from the petitioners and to issue a mandamus directing the acceptance of the same after declaring the first petitioner as the natural guardian of the minor.

3. In the counter affidavit filed on behalf of the first respondent, it is stated that the first petitioner is not the natural guardian of the minor son and the application was not rightly accepted by the bank. It is also stated that under Section 6(a) of the HMG Act the father of a Hindu minor is the only natural guardian. The first respondent prayed for the dismissal of the writ petition.

4. In W. P. (C) No. 1016/91, the petitioner is the wife of the first respondent. The latter has instituted a proceeding for divorce against the former and it is pending in the District Court of Delhi. He has also prayed for custody of their minor son in the same proceeding. According to the petitioner, he had been repeatedly writing to her and the school in which the minor was studying, asserting that he was the only natural guardian of the minor and no decision should be taken without his permission. The petitioner has in turn filed an application for maintenance for herself and the minor son. She has filed the writ petition for striking down Section 6(a) of the HMG Act and Section 19(b) of the GW Act as voilative of Articles 14 and 15 of the Constitution.

5. Since, challenge to the constitutionality of Section 6(a) of HMG Act and Section 19(b) of GW Act was common in both cases, the writ petitions were heard together. The main contention of Ms. Indira Jai Singh learned senior counsel for the petitioners is that the two sections i.e. Section 6(a) of HMG Act and Section 19(b) of GW Act are violative of the equality clause of the Constitution, inasmuch as the mother of the minor is relegated to an inferior position on ground of sex alone since her right, as a natural guardian of the minor, is made cognisable only ‘after’ the father. Hence, according to the learned counsel both the sections must be struck down as unconstitutional.

6. Section 6 of the HMG Act reads as follows:

“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 expression “father” and “mother” do not include a step-father and a step-mother”.

7. The expression ‘natural guardian’ is defined in S. 4(c) of HMG Act as any of the guardians mentioned in Section 6 (supra). The term ‘guardian’ is defined in S. 4(b) of HMG Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of ‘guardian’ and ‘natural guardian’ do not make any discrimination against mother and she being one of the guardians mentioned in S. 6 would undoubtedly be a natural guardian as defined in Section 4(c). The only provision to which exception is taken is found in Section 6(a) which reads “the father, and after him, the mother”. (underlining ours). That phrase, on a cursory reading, does give an impression that the mother can be considered to be natural guardian of the minor only after the life time of the father. In fact that appears to be the basis of the stand taken by the Reserve Bank of India also. It is not in dispute and is otherwise well settled also that welfare of the minor in the widest sense is the paramount consideration and even during the life time of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of Court, where to do so would be in the interest of the welfare of the minor.

8. Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a Court of law, the word ‘after’ in the Section would have no significance, as the Court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as guardian of the minor during the lifetime of the father, without the matter going to Court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of S. 6(a) (supra). In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the lifetime of the father and not during his lifetime.

9. Is that the correct way of understanding the section and does the word ‘after’ in the Section mean only ‘after the lifetime’? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender-equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. Did the Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on grounds of sex? In our opinion – No. It is well settled that if on one construction a given statute will become unconstitutional, whereas on another construction, which may be open, the statute remains within the constitutional limits, the Court will prefer the latter on the ground that the Legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions.

10. We are of the view that the Section 6(a) (supra) is capable of such construction as would retain it within the Constitutional limits. The word ‘after’ need not necessarily mean ‘after the lifetime’. In the context in which it appears in Section 6(a) (supra), it means ‘in the absence of’, the word ‘absence’ therein referring to the father’s absence from the care of the minor’s property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognised natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of harmonious construction of S. 4 and S. 6 of HMG Act, without causing any violence to the language of S. 6(a) (supra).

11. The above interpretation has already been adopted to some extent by this Court in Jijabai Vithalrao Gajre v. Pathankhan (1970) 2 SCC 717 . The appellant in that case filed an application before the concerned Tehsildar under the provisions of Bombay Tenancy and Agricultural Lands (Vidharba Region) Act, 1958 for after notice to him on the ground of personal requirements. The Tehsildar found that the application was maintainable and within time but held that the lease deed executed by the tenant in favour of the appellant’s mother during his minority when his father was alive was not valid. However, the Tehsildar took the view that it could be considered as a lease created after April 1, 1957 and therefore the tenant could be dislodged. The application was granted on that ground. On appeal, the appellate authority and in further revision, the Tribunal confirmed the findings. The aggrieved tenant filed a writ petition under Article 227 of the Constitution challenging the said orders. The High Court held that the lease was valid on the ground that the mother was the natural guardian because the father was not taking any interest in his minor daughter’s affairs and refused to grant the relief of possession but held that the appellant was entitled to resume a portion of the land leased for personal cultivation. Consequently, the matter was remanded. That judgment of the High Court was challenged in this Court. The Division Bench of this Court found that it was the mother who was actually managing the affairs of her minor daughter who was under her care and protection and though the father was alive, he was not taking any interest in the affairs of the minor. In the words of the Bench :

“. . . . . . . We have already referred to the fact that the father and mother of the appellant had fallen out and that the mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956), the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under S. 6 the natural guradians of the Hindu minor in respect of minor’s person as well as minor’s property are the father and after him the mother. The position in Hindu Law before the enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.”

(Emphasis supplied)

Consequently, the Bench dismissed the appeal. The interpretation placed by us above in the earlier part of this judgment on Section 6(a) (supra) is, thus, only an expansion of the principle set out by the Bench in Jijabai Vithalrao Gajre (supra).

12. Our attention has been drawn to a later judgment of another Bench of this Court in Pannilal v. Rajinder Singh (1993) 4 SCC 38. In that case, some property belonging to the respondents therein was sold when they were minors by their mother acting as their guardian to the appellant under a registered sale deed. Upon attaining majority, the respondents sued the appellant for possession of the land on the ground that the sale having been made without the permission of the Court was void. The appellant relied heavily on the fact that the sale deed was attested by the father of the respondents and contended that it should be deemed to be a sale validly made by the legal guardian of the respondents. It was also argued that the sale was for legal necessity as well as for the benefit of the respondents. The trial Court found that there was no reliable evidence on record to show that the sale was made for legal necessity or for the benefit of the respondents and having been effected without the permission of the Court was voidable. Ultimately the trial Court held the same to be void and granted a decree as prayed for by the respondents. That was affirmed by the District Court and the High Court. In this Court the Division Bench observed that in view of the concurrent findings, the sale was in any event voidable. Dealing with the question whether the sale could be considered to have been effected by (the father) natural guardian of the minors, (though actually made by the mother) because father had attested the sale deed, the Court referred to the judgment in Jijabai Vithalrao Gajre (supra) and observed:

“In this behalf our attention was invited to this Court’s judgment in Jijabai Vithalrao Gajre v. Pathankhan (1970) 2 SCC 717 . This was a case in which it was held that the position in Hindu law was that when the father was alive he was the natural guardian and it was only after him that the mother became the natural guardian. Where the father was alive but had fallen out with the mother of the minor child and was living separately for several years without taking any interest in the affairs of the minor, who was in the keeping and care of the mother, it was held that, in the peculiar circumstances, the father should be treated as if non-existent and, therefore, the mother could be considered as the natural guardian of the minor’s person as well as property, having power to bind the minor by dealing with her immovable property.”

Emphasis supplied)

Distinguishing the facts in Jijabai Vithalrao Gajre (supra), the Court observed that there was no evidence to show that the father of the minor-respondents was not taking any interest in their affairs or that they were keeping in the care of the mother to the exclusion of the father. An inference was drawn from the factum of attestation of the sale deed that the father was very much ‘present’ and in the picture. The Bench held that the sale by the mother notwithstanding the fact that the father had attested the deed, could not be held to be a sale by the father and natural guardian, satisfying the requirements of Section 8. Confirming the decree of the court below, the Bench opined:

“The provisions of Section 8 are devised to fully protect the property of a minor, even from the depredations of his parents. Section 8 empowers only the legal guardian to alienate a minor’s immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the Court has been obtained. It is difficult, therefore, to hold that the sale was voidable, not void, by reason of the fact that the mother of the minor respondents signed the sale deed and the father attested it.”

13. Thus, on the facts of Pannilal’s case (supra) even if the sale had been made by the father, it could have been annulled for want of permission from the Court. It is, thus, evident from the two paragraphs extracted above, that the conclusion in Pannilal’s case (supra) turned mainly on the fact that the sale was not supported by legal necessity; was not for the benefit of the minor and the same had been effected without the permission of the Court. That judgment, therefore, does not run counter to the interpretation now placed by us on Section 6 (supra), as that case was decided on its peculiar facts and is clearly distinguishable.

14. The message of international instruments – Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (“CEDAW”) and the Beijing Declaration, which directs all State parties to take appropriate measures to prevent discrimination of all forms against women is quite clear. India is a signatory to CEDAW having accepted and ratified it in June, 1993. The interpretation that we have placed on Section 6(a) (supra) gives effect to the principles contained in these instruments. The domestic courts are under an obligation to give due regard to International Conventions and Norms for construing domestic laws when there is no inconsistency between them. (See with advantage – Apparel Export Promotion Council v. A. K. Chopra, Civil Appeal Nos. 226-227 of 1999 decided on January 20, 1999.

15. Similarly, Section 19(b) of the GW Act would also have to be construed in the same manner by which we have construed Section 6(a) (supra).

16. While both the parents are duty bound to take care of the person and property of their minor child and act in the best interest of his welfare, we hold 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 purpose of S. 6(a) of HMG Act and Section 19(b) of GW Act.

17. Hence, the Reserve Bank of India was not right in insisting upon an application signed by the father or an order of the Court in order to open a deposit account in the name of the minor particularly when there was already a letter jointly written by both petitioners evidencing their mutual agreement. The Reserve Bank, now ought to accept the application filed by the mother.

18. We are conscious of the fact that till now many transactions may have been invalidated on the ground that the mother is not a natural guardian, when the father is alive. Those issues cannot be permitted to be reopened. This judgment, it is clarified, will operate prospectively and will not enable any person to reopen any decision already rendered or question the validity of any past transaction, on the basis of this judgment.

19. The Reserve Bank of India and similarly placed other organisations, may formulate appropriate methodology in the light of the observations made above to meet the situations arising in the contextual facts of a given case.

20. In the light of what we have said above, the dispute between the petitioner and the first respondent in Writ Petition No. 1016 of 1991 as regards custody and guardianship of their minor son shall be decided by the District Court, Delhi, where it is said to be pending.

21. The Writ Petitions are disposed of in the aforesaid manner but without any order as to costs.

22. Banjerjee, J—Though nobility and self-denial coupled with tolerance mark the greatest features of Indian womanhood in the past and the cry for equality and equal status being at a very low ebb, but with the passage of time and change of social structure the same is however no longer dormant but presently quite loud. This cry is not restrictive to any particular country but world over with variation in degree only. Article 2 of the Universal Declaration of Human Rights (as adopted and proclaimed by the General Assembly in its resolution No. 217A (III)) provided that everybody is entitled to all rights and freedom without distinction of any kind whatsoever such as race, sex or religion and the ratification of the convention for elimination of all forms of discrimination against women (for short CEDAW) by the United Nations Organisation in 1979 and subsequent acceptance and ratification by India in June 1993 also amply demonstrate the same.

23. We the people of this country gave ourselves a written Constitution, the basic structure of which permeates equality of status and thus negates tender bias and it is on this score, the validity of Section 6 of the Hindu Minority and Guardianship Act of 1956 has been challenged in the matters under consideration, on the ground that dignity of women is a right inherent under the Constitution which as a matter of fact stands negatived by Section 6 of the Act of 1956.

24. In order, however, to appreciate the contentions raised, it would be convenient to advert to the factual aspect of the matters at this juncture. The facts in WP (c) No. 489 of 1995 can be stated as below:-

25. The petitioner and Dr. Mohan Ram were married at Bangalore in 1982 and in July 1984, a son named Rishab Bailey was born to them. In December, 1984 the petitioner applied to the Reserve Bank of India for 9% Relief Bond to be held in the name of their minor son Rishab along with an intimation that the petitioner No. 1 being the mother, would act as the natural guardian for the purposes of investments. The application however was sent back to the petitioner by the RBI Authority advising her to produce the application signed by the father and in the alternative the Bank informed that a certificate of guardianship from a Competent Authority in her favour, ought to be forwarded to the Bank forthwith so as to enable the Bank to issue Bonds as requested and it is the communication from the RBI authorities, which is stated to be arbitrary and opposed to the basic concept of justice in this petition under Article 32 of the Constitution challenging the validity of Section 6 of the Act as indicated above.

26. The factual backdrop in WP (c) No. 1016 of 1991 centres round a prayer for custody of the minor son born through the lawful wedlock between the petitioner and the first respondent. Be it noted that a divorce proceeding is pending in the District Court of Delhi and the first respondent has prayed for custody of their minor son in the same proceeding. The petitioner in turn, however, also has filed an application for maintenance for herself and the minor son. On further factual score it appears that the first respondent has been repeatedly writing to the petitioner, asserting that he was the only natural guardian of the minor and no decision should be taken without her permission. Incidently, the minor has been staying with the mother and it has been the definite case of the petitioner in this petition under Article 32 that in spite of best efforts of the petitioner, the father has shown total apathy towards the child and as a matter of fact is not interested in welfare and benefit of the child excepting however claiming the right to be the natural guardian without however discharging any corresponding obligation. It is on these facts that the petitioner moved this Court under Article 32 of the Constitution praying for declaration of the provisions of Section 6(a) of the Act read with Section 19(b) of the Guardian and Wards Act as violative of Articles 14 and 15 of the Constitution.

27. Since, challenge to the constitutionality of S. 6 of the Act is involved in both the matters, the petitions were heard together.

28. Ms. Indira Jaisingh, appearing in support of the petitions strongly contended that the provisions of Section 6 of the Act seriously disadvantage woman and discriminate man against woman in the matter of guardianship rights, responsibilities and authority in relation to their own children.

29. It has been contended that on a true and proper interpretation of Section 4 and the various provisions thereunder and having due regard to the legislative intent, which is otherwise explicit, question of putting an embargo for the mother in the matter of exercise of right over the minor as the guardian or ascribing the father as the preferred guardian does not arise, but unfortunately however, the language in S. 6 of the Act runs counter to such an equality of rights of the parents to act as guardian to the minor child.

30. For convenience sake however section 6 of the Act of 1956 is set out hereinbelow:

“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.”

31. Be it noted that the Hindu Minority and Guardianship Act of 1956 has been engrafted on the statute book by way of an amendment and codification of certain parts of the law relating to minority and guardianship among Hindus. It is not out of place to mention also that Hindu law being one of the oldest known system of jurisprudence has shown no signs of decrepitude and it has its values and importance even today. But the law makers however thoguht it prudent to codify certain parts of the law in order to give a fruitful meaning and statutory sanction to the prevailing concept of law having due regard to the social and economic changes in the society. It is on this perspective however certain aspects of the law as it stood prior to the codification ought to be noted.

32. As regards the concept of guardianship both the parents under the Hindu law were treated as natural guardians, of the persons and the separate property of their minor children, male or female except however that the husband is the natural guardian of his wife howsoever young she might be and the adopted father being the natural guardian of the adopted son. The law however provided that upon the death of the father and in the event of there being no testamentary guardian appointed by the father, the mother succeeds to the natural guardianship of the person and separate property of their minor children. Conceptually, this guardianship however is in the nature of a sacred trust and the guardian cannot therefore, during his lifetime substitute another person to be the guardian in his place though however entrustment of the custody of the child for education or purposes allying may be effected temporarily with a power to revoke at the option of the guardian.

33. The codification of this law pertaining to guardianship however brought about certain changes in regard thereto, of which we will presently refer, but it is interesting to note that prior to the enactment, the law recognised both de facto and de jure guardian of a minor. A guardian-de facto implying thereby one who has taken upon himself the guardianship of a minor-whereas the guardian de-jure is a legal guardian who has a legal right to guardianship of a person or the property or both as the case may be. This concept of legal guardian includes a natural guardian:a testamentary guardian or a guardian of a Hindu minor appointed or declared by Court of law under the general law of British India.

34. Incidentally, the law relating to minority and guardianship amongst Hindus is to be found not only in the old Hindu law as laid down by the smritis, shrutis and the commentaries as recognised by the Courts of law but also statutes applicable amongst others to Hindus, to wit, Guardian and Wards Act of 1890 and Indian Majority Act of 1875. Be it further noted that the Act of 1956 does not as a matter of fact in any way run counter to the earlier statutes in the subject but they are supplemental to each other as reflected in Section 2 of the Act of 1956 itself which provides that the Act shall be in addition to and not in derogation of the Acts as noticed above.

35. Before proceeding further, however, on the provisions of the Act in its true perspective, it is convenient to note that lately the Indian Courts following the rule of equality as administered in England have refused to give effect to inflexible application of paternal right of minor children. In equity, a discretionary power has been exercised to control the father’s or guardian’s legal rights of custody, where exercise of such right cannot but be termed to be capricious or whimsical in nature or would materially interfere with the happiness and the welfare of the child. In re Mc Grath (1893) 1 Ch 143 Lindley, L. J., observed:

“The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word ‘welfare’ must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well being. Nor can the ties of affection be disregarded.” Lord Esher, M. R. in the Gyngall (1893) 2 QB 232 stated:

“The Court has to consider therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child so far as it can be said to have any religion, and the happiness of the child. Prima facie it would not be for the welfare of the child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. If a child is brought up, as one may say from its mother’s lap in one form of religion, it would not, I should say be for its happiness and welfare that a stranger should take it away in order to alter its religious views. Again, it cannot be merely because the parent is poor and the person who seeks to have the possession of the child as against the parent is rich, that, without regard to any other consideration, to the natural rights and feelings of the parent, or the feelings and views that have been introduced into the heart and mind of the child, the child ought not to be taken away from its parent merely because its pecuniary position will be thereby bettered. No wise man would entertain such suggestions as these.” The English law therefore has been consistent with the concept of welfare theory of the child. The Indian law also does not make any departure, therefrom. In this context, reference may be made to the decision of this Court in the case of J. V. Gajre v. Pathankhan (1970) 2 SCC 717 in which this Court in paragraph 11 of the report observed:

“We have already referred to the fact that the father and mother of the appellant had fallen out and that the mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956), the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under S. 6 the natural guardians of a Hindu minor in respect of the minor’s person as well as the minor’s property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.”

36. Obviously, a rigid insistence of strict statutory interpretation may not be conducive for the growth of the child, and welfare being the predominant criteria, it would be a plain exercise of judicial power of interpreting the law so as to be otherwise conducive to a fuller and better development and growth of the child.

37. Incidentally the Constitution of India has introduced an equality code prohibiting discrimination on the ground of sex and having due regard to such a mandate in the Constitution, is it justifiable to decry the rights of the mother to be declared a natural guardian or have the father as a preferred guardian? Ms. Indira Jaisingh answers it with an emphatic ‘no’ and contended that the statute in question covering this aspect of the Personal law has used the expression ‘after’ in Section 6(a) but the same cannot run counter to the constitutional safeguards of gender justice and as such cannot but be termed to be void and ultra vires the Constitution.

38. Be it noted here that the expressions ‘guardian’ and ‘natural guardian’ have been given statutory meanings as appears from section 4(b) wherein guardian is said to mean a person having the care of the person of a minor or his property and includes:

(i) natural guardian;

(ii) a guardian appointed by the will of the minor’s father or mother,

(iii) a guardian appointed or declared by Court, and

(iv) a person empowered to act as such by or under any enactment relating to any Court of wards;

39. It is pertinent to note that sub-section (c) of Section 4 provides that a natural guardian means a guardian mentioned in Section 6. This definition section, however obviously in accordance with the rule of interpretation of statute, ought to be read subject to S. 6 being one of the basic provisions of the Act and it is this Section 6 which records that natural guardian of a Hindu minor, in the case of a boy or an unmarried girl, is the father and after him the mother. The statute therefore on a plain reading with literal meaning being ascribed to the words used, depicts that the mother’s right to act as a natural guardian stands suspended during the lifetime of the father and it is only in the event of death of the father, the mother obtains such a right to act as a natural guardian of a Hindu minor – It is this interpretation which has been ascribed to be having a gender bias and thus opposed to the constitutional provision. It has been contended that the classification is based on marital status depriving a mother’s guardianship of a child during the life time of the father which also cannot but be stated to be a prohibited marker under Article 15 of the Constitution.

40. The whole tenor of the Act of 1956 is to protect the welfare of the child and as such interpretation ought to be in consonance with the legislative intent in engrafting the statute on the Statute Book and not de hors the same and it is on this perspective that the word ‘after’ appearing in section 6A shall have to be interpreted. It is now a settled law that a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided unless of course, the same makes a violent departure from the Legislative intent-in the event of which a wider debate may be had having due reference to the contextual facts.

41. The contextual facts in the decision noticed above, depict that since the father was not taking any interest in the minor and it was as good as if he was non-existing so far as the minor was concerned, the High Court allowed the mother to be the guardian but without expression of any opinion as regards the true and correct interpretation of the word ‘after’ or deciding the issue as to the constitutionality of the provision as contained in S. 6(a) of the Act of 1956 – it was decided upon the facts of the matter in issue. The High Court in fact recognised the mother to act as the natural guardian and the findings stand accepted and approved by this Court. Strictly speaking, therefore, this decision does not lend any assistance in the facts of the matter under consideration excepting however that welfare concept had its due recognition.

42. There is yet another decision of this Court in the case of Panni Lal v. Rajinder Singh (1993) 4 SCC 38 wherein the earlier decision in Gajre’s case was noted but in our view Panni Lal’s case does not lend any assistance in the matter in issue and since the decision pertain to protection of the properties of a minor.

43. Turning attention on the principal contention as regards the constitutionality of the legislation, in particular Section 6 of the Act of 1956 it is to be noted that validity of a legislation is to be presumed and efforts should always be there on the part of the law courts in the matter of retention of the legislation in the statute book rather than scrapping it and it is only in the event of gross violation of constitutional sanctions that law courts would be within its jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise and it is on this perspective that we may analyse the expressions used in Section 6 in a slightly more greater detail. The word ‘guardian’ and the meaning attributed to it by the legislature under S. 4(b) of the Act cannot be said to be restrictive in any way and thus the same would mean and include both the father and the mother and this is more so by reason of the meaning attributed to the word as “a person having the care of the person of a minor or his property or of both his person and property. . . . .” It is an axiomatic truth that both the mother and the father of a minor child are duty bound to take due care of the person and the property of their child and thus having due regard to the meaning attributed to the word ‘guardian’ both the parents ought to be treated as guardians of the minor. As a matter of fact the same was the situation as regards the law prior to the codification by the Act of 1956. The law therefore recognised that a minor has to be in the custody of the person who can sub-serve his welfare in the best possible way – the interest of the child being paramount consideration.

44. The expression ‘natural guardian’ has been defined in S. 4(c) as noticed above to mean any of the guardians as mentioned in S. 6 of the Act of 1956. This section refers to three classes of guardians viz., father, mother and in the csae of a married girl the husband. The father and mother therefore, are natural guardians in terms of the provisions of S. 6 read with S. 4(c). Incidentally it is to be noted that in the matter of interpretation of statute the same meaning ought to be attributed to the same word used by the statute as per the definition section. In the event, the word ‘guardian’ in the definition section means and implies both the parents, the same meaning ought to be attributed to the word appearing in section 6(a) and in that perspective mother’s right to act as the guardian does not stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tantamount to a violent departure from the legislative intent. Section 6(a) itself recognises that both the father and the mother ought to be treated as natural guardians and the expression ‘after’ therefore shall have to be read and interpreted in a manner so as not to defeat the true intent of the legislature.

45. Be it noted further, that gender equality is one of the basic principles of our Constitution and in the event the word ‘after’ is to be read to mean a disqualification of a mother to act as a guardian during the lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional mandate and would lead to a differenciation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution is supreme and the statute shall have to be in accordance therewith and not de hors the same. The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category and in that view of the matter the word ‘after’ shall have to be interpreted in terms of constitutional safeguard and guarantee so as to give a proper and effective meaning to the words used.

46. In our opinion the word ‘after’ shall have to be given a meaning which would sub-serve the need of the situation viz., welfare of the minor and having due regard to the factum that law courts endeavour to retain the legislation rather than declaring it to be a void, we do feel it expedient to record that the word ‘after’ does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as ‘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 and it is only in the event of such a meaning being ascribed to the word ‘after’ as used in S. 6 then and in that event the same would be in accordance with the intent of the legislation viz. welfare of the child.

47. In that view of the matter question of ascribing the literal meaning to the word ‘after’ in the context does not and cannot arise having due regard to the object of the statute, read with the constitutional guarantee of gender equality and to give a full play to the legislative intent, since any other interpretation would render the statute void and which situation in our view ought to be avoided.

48. In view of the above, the Writ Petition (c) No. 489 of 1995 stands disposed of with a direction that Reserve Bank authorities are directed to formulate appropriate methodology in the light of the observations, as above, so as to meet the situation as called for in the contextual facts.

49. Writ Petition (c) No. 1016 of 1991 also stands disposed of in the light of the observations as recorded above and the matter pending before the District Court, Delhi, as regards custody and guardianship of the minor child, shall be decided in accordance therewith.

50. In the facts of the matters under consideration there shall however be no order as to costs.