Guardians and Wards Act, 1890 

2019 SCeJ 419

 

 

 

Divorce and custody – Who pays? - The persons who are affected are the minor children who have been directly impacted because of the fact that their parents have not been able to resolve their differences and they have no say - The persons who are affected are the minor children who have been directly impacted because of the fact that their parents have not been able to resolve their differences. Children are very sensitive and due to the conflict of their parents if could not be resolved at the earliest, the minor children became the victim of time for which they are not at fault but indeed the sufferers. It has to be examined in different perspective also that rights of the child as a progressive approach to the best interest of the child and what is needed in the best interest of the child is the one which has to be deciphered keeping in view the principles of law on the subject but still remain a guess work. 2019 SCeJournal 419             

 

 

 Guardians and Wards Act, 1890 Section 9(1) - CPC, 1908 Order 7 Rule 11   - Minor children were not ordinary residents of Hyderabad(India) being US citizens, as envisaged under Section 9(1) of the Guardians and Wards Act, 1890 -  Resultantly, the application for custody of minor children filed before the Family Court, Hyderabad is rightly rejected by the High Court in exercise of power under Order 7 Rule 11 of CPC.2019 SCeJournal 419      

On facts,

 Parties were residing in US since  2004-2005 and their marriage was solemnized in Hyderabad in 2008, both the children were born in US on 14th March, 2012 and 13th October, 2014 and are US citizens with US passports – Appellant-LS filed application for divorce and custody of minor children in the US Court on 21st December, 2016 and order came to be passed by the US Court on 21st December, 2016 - Despite that interim order, the appellant-LS came to India on 23rd March, 2017 and within 20 days of her arrival in India, filed an application on 12th April, 2017 for custody of minor children in the Family Court, Hyderabad concealing her application for custody filed in the US Court - She also did not disclose that an order came to be passed by the US Court against her dated 22nd May, 2017after hearing the counsel for the parties - In the given facts and circumstances, we find no difficulty in upholding the opinion of the High Court that the minor children were not ordinary residents of Hyderabad(India) as envisaged under Section 9(1) of the Guardians and Wards Act, 1890. Resultantly, the application for custody of minor children filed before the Family Court, Hyderabad is rightly rejected by the High Court in exercise of power under Order 7 Rule 11 of CPC. At the same time, when the orders have been passed by the US Court, the parties cannot disregard the proceedings instituted before the US Court filed at the instance of the appellant-LS who is supposed to participate in those proceedings.      

Jasmeet Kaur Vs. Navtej Singh, 2018 (4) SCC 295 , distinguished on facts.2019 SCeJournal 419      

 

 Juvenile Justice (Care & Protection) Act, 2015, Section 2(9) - The expression “best interest of child” which is always kept to be of paramount consideration is indeed wide in its connotation and it cannot remain the love and care of the primary care giver, i.e., the mother in case of the infant or the child who is only a few years old - The definition of “best interest of the child” is envisaged in Section 2(9) as to mean “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identify, social well being and physical, emotional and intellectual development”.    Held, In our view, the best interest of the children being of paramount importance will be served if they return to US and enjoy their natural environment with love, care and attention of their parents including grandparents and to resume their school and be with their teachers and peers.   2019 SCeJournal 419      

 

 

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 Guardians & Wards Act, 1890 – The crucial factors which have to be kept in mind by the Courts for gauging the welfare of the children equally for the parent’s can be inter alia, delineated, such as (1) maturity and judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5) ability to provide continuing involvement in the community; (6) financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual. 2019 SCeJournal 419      

 

Younger Tender Year Doctrine - Child rights may be limited but they should not be ignored or eliminated since children are in fact persons wherein all fundamental rights are guaranteed to them keeping in mind the best interest of the child and the various other factors which play a pivotal role in taking decision to which reference has been made taking note of the parental autonomy which courts do not easily discard.  2019 SCeJournal 419      2019 SCeJournal 419         

 

Custody of Minor Child – Foreign Courts – Return of child to the foreign jurisdiction -  The doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc., cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child - Taking a holistic consideration of the entire case, we are satisfied that all the criteria such as comity of courts, orders of foreign court having jurisdiction over the matter regarding custody of the children, citizenship of the spouse and the children, intimate connect, and above all, welfare and best interest of the minor children weigh in favour of the respondent (SK - father) and that has been looked into by the High Court in the impugned judgment in detail - That needs no interference under Article 136 of the Constitution of India 2019 SCeJournal 419      

 

 

Guardians & Wards Act, 1890 – Role of parents  - In the present case, there is every possibility that the parties may reconcile and start over their relationship afresh, at least for the sake of happiness of their own offspring if for no other reason -  The parties are indeed mature and sensible enough to understand that the ordinary wear and tear of married life has to be put up in within the larger interests of their own happiness and of the healthy, normal growth and development of their offspring, whom destiny has entrusted to their joint parental care - Spouses must come over the temperamental disharmony which usually exists in every marriage, rather than magnifying it with impulsive desires and passions - Parents are not only caretakers, but they are instrumental in the development of their child’s social, emotional, cognitive and physical wellbeing and work harmoniously to give their children a happy home to which they are justly entitled to - We hope and trust that the parties will forget and forgive their differences and join hands together in providing the congenial atmosphere which may be good not for themselves but also for the development of their minor children.2019 SCeJournal 419      

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  1. Guardian and Wards Act, 1890 (8 of 1890) - Upon a guardianship petition being laid before the Court, the concerned child ceases to be in the exclusive custody of the parents; thereafter, until the attainment of majority, the child continues in curial curatorship. (S.C.)(183) PLR
  2. Guardian and Wards Act, 1890 (8 of 1890) S.  4(1) - There is nothing in the Act of 1890, forbidding the applicability of Civil Procedure Code to proceedings under the Act of 1890 - Civil Procedure Code, 1908 (V of 1908). (174) PLR
  3. Guardian and Wards Act, 1890 (8 of 1890) S.  7, 11 - Child - Unwed mother - Specifically notify the putative father of the child whom she has given birth to of her petition for appointment as the guardian of her child - The common perception would be that three competing legal interests would arise, namely, of the mother and the father and the child. (S.C.)(183) PLR
  4. Guardian and Wards Act, 1890 (8 of 1890) S.  7 - Minor was only about 2-1/2 years of age when the parties obtained the decree for the dissolution of their marriage by mutual consent under Section 13-B of the  Act - Husband neither reserved his visiting rights to his minor daughter nor he kept open the point of her custody - Rather, petitioner/wife in those proceedings has stated that all the disputes have been settled and nothing remains towards the respondent/husband and even on behalf of the  child - Application for custody moved by husband after child is being provided education by the respondent herein and even the second husband of the respondent is treating the minor child as his own daughter - Application dismissed - Order upheld. (173) PLR
  5. Guardian and Wards Act, 1890 (8 of 1890) S.  9 - Is a special Act, containing the special provisions, relating to the guardians and wards - Section 9 of this Act postulates that if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides - The provisions of this Act have preference over general law of territorial jurisdiction. (174) PLR
  6. Guardian and Wards Act, 1890 (8 of 1890) S.  9(1) - Residence - A reasonable meaning of `residence' would mean dwelling in a place for some continuous time - The word `ordinarily resides' in sub Section 1 of Section 9 may include a temporary residence, if minor has been residing there for considerable length of time - Words "ordinarily resides" would mean a regular, normal, a settled home or a regular place of abode, which can be distinguishable from a temporary or a forced stay - If a minor child has been removed either by stealth or by compulsion and kept at a different place than the house of a natural born, the same cannot be said to be a place where the child `ordinarily' resides. (174) PLR
  7. Guardian and Wards Act, 1890 (8 of 1890) S. 11 - Is purely procedural; we see no harm or mischief in relaxing its requirements to attain the intendment of the Act - Given that the term "parent" is not defined in the Act, we interpret it, in the case of illegitimate children whose sole caregiver is one of his/her parents, to principally mean that parent alone. Held, that Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts, who are the natural guardians of their illegitimate children by virtue of their maternity alone, without the requirement of any notice to the putative fathers. It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation. Held, further, that Section 11 is procedural; we see no harm or mischief in relaxing its requirements to attain the intendment of the Act. Given that the term "parent" is not defined in the Act, we interpret it, in the case of illegitimate children whose sole caregiver is one of his/her parents, to principally mean that parent alone. Guardianship or custody orders never attain permanence or finality and can be questioned at any time, by any person genuinely concerned for the minor child, if the child's welfare is in peril. The uninvolved parent is therefore not precluded from approaching the Guardian Court to quash, vary or modify its orders if the best interests of the child so indicate. There is thus no mandatory and inflexible procedural requirement of notice to be served to the putative father in connection with a guardianship or custody petition preferred by the natural mother of the child of whom she is the sole caregiver. (S.C.)(183) PLR
  8. Guardian and Wards Act, 1890 (8 of 1890) S. 25, 10(3) - Petition under Section 25 of the Act has already been entertained by the Court and it has rightly exercised its discretion in allowing the application filed by the respondent under Section 10(3) of the Act during its pendency and has rightly dismissed the application filed by the petitioners for dismissal of the original petition on the ground of its non-compliance. (178) PLR
  9. Guardian and Wards Act, 1890 (8 of 1890) S. 26 - Also take serious note of the Father, without notifying or taking the permission of the Civil Judge, leaving its jurisdiction along with minor - Prima facie this undermines the authority of the Court and it may even tantamount to contempt of court. Section 26 of the G&W Act has been violated and that too by a person who has not been appointed as the guardian - Relocation is now a well known legal concept. Since movement of persons from one place to another or one State to another State of the Country or even from one Country to another Country of the Globe is no longer a rarity - Father ought not to have left the jurisdiction of Court in Goa which was discharging its duties as parens patirae.  (S.C.)(180) PLR
  10. Guardian and Wards Act, 1890 (8 of 1890) S. 26 - Minor studying in Ludhiana - Children are US Citizens by birth - Therefore, for their mental and emotional developments, it is required that they should visit their motherland and be acquainted with its environment and also meet their mother - Moreover, the decree incorporating the settled conditions was passed by the US Court and in case of violation, the same can always be enforced by US Court or the Police Department of USA - Mother petitioner has agreed to bear the traveling expenses of the children and also their boarding and lodging expenses and ensure their safe return on the date ordered by this Court - Visitation to USA allowed.  (182) PLR