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issac Joti Sen Vs. Sunita Sen - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 416 of 1980
Judge
Reported in21(1982)DLT424; 1982(3)DRJ212
ActsGuardian and Wards Act, 1890 - Sections 47
Appellantissac Joti Sen
RespondentSunita Sen
Advocates: D.N. Vohra and; S.S. Shukla, Advs
Cases ReferredOm Parkash v. Pushpa
Excerpt:
.....reading these three sections together it is well established that in giving the custody of the minor child the welfare of the minor is the paramount consideration. if the respondent is declared guardian of the minor within the meaning of section 7 of the act she would be entitled to the custody as well. margarete maria pulparamil and another, air1973ker100 the mother had failed to comply with certain terms on which custody of minors was entrusted to her in preference to their father but it was held on facts and circumstances of the case, that the welfare and interests of the children would be best served by their being permitted to remain with the mother. pushpa, 1975 r l r 29 wherein it has been held that a child is not a pawn in the game of litigation between parents to be tossed..........this appeal and on 8th december, 1980 at the time of admission of the appeal the custody of the minor child was handed over by the appellant to the respondent.(2) learned counsel for the appellant submits that the order of the guardian judge is without jurisdiction and that the custody of the child cannot be transferred as he had been in the custody of the child up to december, 1980. the appellant has not challenged the finding of the guardian judge that it was in the interest and welfare of the minor to remain in the custody of the mother. he has raised the legal question that unless a father is declared unlit section 19(b) of the act, no person other than the father of the minor could be appointed or declared as a guardian. he further submits that a guardian is entitled to the.....
Judgment:

Sultan Singh, J.

(1) This appeal under Section 47 of the Guardian and Wards Act, 1980 (hereinafter referred to as 'the act') challanges the judgment and order dated 27th Novombar 1980 of the Guardian judge holding that the rsspondent was entitled to the custody of the minor but dismissing her application for her appointment or declaration as guardian of the minor. Briafly the facts arc that the appellant and the respondent were married according to Christian Rites at Chirst Church, I-Butler Road, Delhi on 16th June 1976. A female child was born out of said wedlock on 29th May, 1977. Her name is Leena Priti Sen. She was born at St. Stephen Hospital, Tis Hazari, Delhi. The respondent lived with the appellant till June, 1978. It is alleged that she was turned out of the matrimonial home by the appellant and the child was snatched from her with the result that she had to leave alone the matrimonial home and to take shelter with her parents. On 19th September, 1978 the respondent filed the petition under Section 7 of the Act for declaring her to be the guardian of the female child, namely, Leena Priti Sen and to grand the care and cuatody of the minor to her. The respondent sought declaration and custody on the ground that the minor was of a very tender age and except she none else could look after her and she being below the age of five years, her custody should ordinarily be with the mother. The appellant resisted the proceedings pleading that the respondant was never turned out of her matrimonial home by him, that he was a fit person to act as guardian to keep the child in his custody, The Guardian Judge after recording evidence held that the appellant, father of the minor, was not unfit to be the guardian of the person of the minor and thereforee the petition for declaration of the respondent as guardian was dismissed in view of Section 19(b) of the Act. As regards custody of the minor, the Guardian Judge concluded after discussing the evidence on record that it was in the interest and walfare of the child, to remain in the custody of the mother i.e. the respondent. The Guardian Judge dismissed the respondent's petition for getting her declared as guardian but allowed her petition for the custody of the minor. The appellant father challenges the order granting custody of the minor to the respondent. The respondent by filing cross-objections challenges the order of the Guardian Judge refusing to declare her as the guardian of the minor. The father filed this appeal and on 8th December, 1980 at the time of admission of the appeal the custody of the minor child was handed over by the appellant to the respondent.

(2) Learned counsel for the appellant submits that the order of the Guardian Judge is without jurisdiction and that the custody of the child cannot be transferred as he had been in the custody of the child up to December, 1980. The appellant has not challenged the finding of the Guardian Judge that it was in the interest and welfare of the minor to remain in the custody of the mother. He has raised the legal question that unless a father is declared unlit Section 19(b) of the Act, no person other than the father of the minor could be appointed or declared as a guardian. He further submits that a guardian is entitled to the custody of the minor and that respondent being not a guardian is not entitled to the custody of the ward. Learned counsel for the respondent on the other hand submits that the custody of the word should remain wiih the mother if the court holds that it would be for the welfare of the ward. He Submits that it is not necessary to determine whether the father was unfit to be the guardian of the person of the minor. He furthar submits that the female child is of tender age and tharefore the custody should be with the mother.

(3) The order of the trial court was passed on 27th November, 1980. It is admitted that on 30th April, 1981 the appellant-father filed a petition for judicial separation against the respondent under sections 22 and 23 'of the Indian Divorce Act which is still pending.

(4) The short point for decision in this case is: whether the mother can claim the custody of the minor child even if she is not declared to be the guardian and whether the costody can be granted to the mother even if it is not held that the father was unfit to be the guardian of the person of the minor. Sections 17, 19 and 25 of the Act are as under:

'17(1)In appointing of declating the guardian of a minor, the court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor , the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any of a dacessed parent, and any existing or previous of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference) the court may consider that preference. (4) The court shall not appoint or declare any person to be a guardian against his will.'

'19.Nothing in this Chapter shall authorise the court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a court of wards, or to appoint or declare a guardian of the person- (a) of a minor who is a married female and whose husband is not, in the opinion of court, unfit to be guardian of her person, or, (b) of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor, or, (c) of a minor whose property is under the superitendence of a Court of Wards competent to appoint guardian of the person of the minor.'

'25(1)If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order may cause to be arrested and to be delivered into the custody of the guardian. (2) For the purpose of arresting the ward, the court may exercise the power conferred on a Magistrate of the first class by Section 100 of the Code of Criminal Procedure, 1882. (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship'.

(5) Reading these three sections together it is well established that in giving the custody of the minor child the welfare of the minor is the paramount consideration. Under Section 17(1) of the Act the personal law of the minor is also subordinate to the consideration of the welfare of the minor. Under Section 17(2) of the Act with a view to determine the welfare of the minor the court shall have regard to the age sex, nearness of relation and capacity of the proposed guardian besides other factors. Under Section 19(b) of the Act the Guardian Court is not to appoint or declare guardian of the minor whose father is not unfit to be guardian of the person but under Section 25(1) of the Act if the court is of the opinion that it will be for the welfare of the ward, its custody may be given to the guardian. The word 'guardian' is not restricted to the natural guardian or declared guardian. The word 'guardian' under Section 4(2) of the Act means a person having the care of the person of a minor or of his property, or of both his person and property. The respondent has alleged that she was turned out from the matrimonial home in June, 1978 and the child was snatched from her. In other words, the fatherappellant refused to hand over the child aged about one year and one month in June) 1978 to the respondent-mother. Refusal by father to hand over the child on demand by the mother amounts to removal of the child from the custody of the mother. This refusal by the father entitles the mother to apply for the custody of the minor. Although the petition for declaration and custody was filed under Section 7 of the Act, but the prayer is specific for her declaration as guardian of the minor and for the custody of the child. If the respondent is declared guardian of the minor within the meaning of Section 7 of the Act she would be entitled to the custody as well. If she is not declared to be the guardian as such under Section 7 of the Act she can have only the custody of the minor within the meaning of Section 25(1) of the Act. There have been number of cases where in giving, custody of a minor child father's rights were superseded in consideration of the welfare principle. The female child in the instant case is now about 4' years. She needs a sense of emotional security which the mother alone can give. She has been in the custody of the respondent since December, 1930. In Rosy Jacob v. Jacob A. Chakramakkal, : [1973]3SCR918 it has been held that the controlling consideration governing the custody of the children is the welfare of the children and not the right of their parents. In the fact and circumstances of that case, the custody of daughter more than 13 years of age and that of a minor son was considered to be more beneficial with the mother rather than with the father. In Dr. Chacko Putparampil and another v. Margarete Maria Pulparamil and another, : AIR1973Ker100 the mother had failed to comply with certain terms on which custody of minors was entrusted to her in preference to their father but it was held on facts and circumstances of the case, that the welfare and interests of the children would be best served by their being permitted to remain with the mother. In other words the paramount consideration was the welfare of the minors. In Pamela Williams v. Patrick Cyril Martin, : AIR1970Mad427 the father refused to return the child on demand by the mother and it was held that it amounts to removal and entites mother to apply for custody of the minor. In Munnibai v. Dhanush : AIR1959Bom243 after the mother was divorced the father re-married and the minor child was a girl of two and a half years old and nothing was shown suggesting that the mother was unfit to have the custody of the child, it was held that the mother should have the custody of the child in preference to the father. In Roman Konderan v. Ayyappan Panchali, : AIR1959Ker396 it has been observed that in a contest between the mother and the father regarding the custody of a child of tender age the court in the interests of the child will prefer the mother to the father. In Medai Dalavoi T. Kumaraswami v. Medai Dalavoi Rajamunal, : AIR1957Mad563 the father was not permanently unfit but the custody of the children was given to the mother considering, the welfare of the minors. In Appu Men'n v. Janaki Amma, Air 1937 T C 39 it has been held that custody should not be given to the father, he cannot get it merely because the hapyens to he the father. The father's right is not absolute it is circumscribed by considerations of the welfare of the minor. In Samuel Stephen Richard V. Stella Richard, : AIR1955Mad451 the custody of a girl aged 13 years was given to the mother in perference to father, and it was held that the mother would have the interest of the minor at heart. In Zynab Bi alias Bibijan v. Mohammad Chouse Mohideen, : AIR1952Mad284 the children were of tender age and it was held to be sufficient to entrust to the custody to the mother. In Venkataraman Ayyangar v. Thulasi Ammal, : AIR1950Mad320 it has been observed that the word, guardian' in Section 25 of the Act includes a natural guardian or even a de facto guardian. It has been further observed that the mother who was not in fact having the care of the person of the minor is entitled to apply under Section 25 of the Act. In Kaliappa Goundan v. Valliammal, Air 1949 Madras 608 father re-married and mother was appointed of her minor girl aged ..8' years and and was given custody till she attained age of 18 years. The father was also allowed to visit child at all convenient times. In Mohammad Saddiq and another v. Wafati, Air 1948 Oudh 51 it has been held that the rule that the father has got the natural right to the custody of his children is not a rigid and inflexible rule and must give was where the minor's a welfare demands otherwise. In Saraswatibai Shripad Ved v. Shripad Vasanji Ved : AIR1941Bom103 it has been observed that the paramount consideration in the matter of a custody of a minor of tender age is the interest of the child rather than the rights of the parents. In Mt. Parem Kaur and others v. Banarsi Das, Air 1934 Lah 1003 it has been held that for purposes of Section 25 of the Act it was not necessary that the applicant should be a lawful guardian under the personal law. In the instant case custody of the female child remained with the appellant- father from June, 1978 to 19th September, 1978 when the proceedings for custody were file. During the pendency also the child remained with the father till December, 1980. In other words the father alone had the custody of the minor child for a period of one year and three months only. The child has not attained the age of five years even today. It if in evidence that the respondent-mother of the minor child is a teacher in queen's Marry School and she has got the child admitted in the said school.

(6) Learned counsel for the appellant refers to P.N. Ramachandra lyer v. S.V.Annapurni Ammal, : AIR1964Ker269 where it has been hold that an application under Section 25 of the Act for the custody of a child against the father is not maintainable in law unless she has been appointed guardian of the child by the court, that the mother is not a natural guardian of such child but the father is. In view of the pronouncements of various High Courts that a mother is entitled to apply for the custody of the minor even if she had not been declared to be the guardian, with respect, I would prefer to follow them in preference to the judgment of Kerala High Court.

(7) Learned counsel for the appellant refers to Om Parkash v. Pushpa, 1975 R L R 29 wherein it has been held that a child is not a pawn in the game of litigation between parents to be tossed from one side to another like a chattel. In that case an ex-parte order under Section 25 of the Act about the custody of the child was set aside. This court held that the child not be automatically restored to other by way of restitution under Section 144 of the Code of Civil Procedure. It was further held that Section 144 of the Code of Civil procedure was not applicable to the proceedings under the Act. The appellant does not get any help from this judgment.

(8) I am thereforee of the view that there is no legal bar in giving the custody of the female child to the mother-respondent even if she has not been declared to be a guardian of the child. The respondent was turned out from the matrimonial home in.June, 1978 and now proceedings for judicial separation are pending under the Indian Divorce Act. It would thereforee be in the interest and welfare of the female child the the custody of Leena Priti Sen should remain with the respondent mother.The appellant however submits that he may be allowed to spend time with the child on every Second Sunday of the English calendar month. At the time of delivery of the custody of the child to the respondent mother on 8th December, 1980 the parties had agreed that the respondent would bring the child to the Church to spend time with appellant. I accordingly direct that the custody of the minor child shall remain with the respondent but the child will be brought to the Christ Church, Butler Road, Near Old Subzi Mandi, Delhi on every Second Sunday of the month. The appellant and his parents may come to the Church at 11.30 A.M. and spent time with the minor Leena Priti Sen in the Church premises 1.00 P.M.

(9) As regards the cross objection filed by the respondent claiming a declaration to be a guardian of the minor, no infirmity in the judgment of the Guardian Judge has been pointed out. The appellant father is not permanently unfit to be a guardian of the persons of the minor. As the child is of tender age the custody has been given to the mother.

(10) There is thus no merit either in the appeal of the appellant father or in the cross objections of the respondent mother. The appeal and the cross objections are dismissed with no order as to costs.


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