Manish Singh vs Pallavi

I.M. Quddusi, J.—The instant appeal has been filed by the appellant/non-applicant (father/ husband) against the order dated 7-1-2011 passed by the First Additional Principal Judge, Family Court, Raipur in Case No. 14/2010 (Pallavi Singh Vs. Manish Singh), rejecting the objection of the appellant regarding maintainability of the application for custody of the minor child, moved by the mother/wife, u/s 25 of the Guardians and Wards Act, 1890 and u/s 12 of the Act, 1890 for interim custody. The brief facts of the case are that the marriage of appellant and respondent was solemnised on 19-6-2007 at Raipur according to Hindu customs. Out of the wedlock one male child was born in the maternal home of the respondent/ wife. On 2-12-2009 the respondent/wife was ousted by the appellant from her matrimonial home and the child was forcibly kept by him. Therefore, the respondent/ wife filed an application u/s 25 of the Guardians and Wards Act, 1890 for getting custody of the minor child along with an application u/s 12 of the Act, 1890 for getting temporary custody of the minor child.

The appellant/husband filed an application on 13-9-2010 objecting the maintainability of the applications filed by the respondent/wife, which has been rejected by the Family Court by the impugned order dated 7-1-2011.

Learned Counsel for the appellant has relied upon the judgment of learned Single Judge of Kerala High Court in the case of P.N. Ramachandra Iyer Vs. S.V. Annapurni Ammal Iyer, We will consider this case at a latter stage. Before proceeding further it is necessary to mention that it is not disputed that the appellant is the father of the minor child, aged about 3 years at present and the respondent is the mother of that child, who moved the application for custody of the child. Section 6 of the Hindu Minority and Guardianship Act, 1956, which is applicable in the case of the parties before us reads thus:--

Natural guardians of a Hindu minor. - The natural guardian of a Hindu minor, in respect of the minor''s persons 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 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 expression "father" and "mother" do not include a step-father and a step-mother.

There is no dispute about the fact that the father is the natural guardian of the child but simultaneously the statute provides that the custody of the minor child who has not completed the age of five years shall ordinarily be with the mother and therefore, the question has arisen before us whether the mother can be deprived of moving an application for custody of the child when the statute provides that she is entitled ordinarily to the custody of the child who has not completed the age of five years.

Learned Single Judge of High Court of Delhi in the case of Asha Wadhwa alias Indu Vs. Prithvi Raj Wadhwa, relied on by learned Counsel for the appellant, in Para 7 observed as under:--

(7) From the order under revision it is clear that the Trial Court was concerned only with the temporary custody and protection of the minor in disposing of the application u/s 12 of the Guardians and Wards Act, 1890. It was not concerned with the permanent custody of the minor to which the mother can lay claim u/s 6 (a) of the Hindu Minority and Guardianship Act, 1956. On the view that I have taken above, the anxiety of the mother really is to obtain the custody of the minor not only temporarily but regularly till he attains the age of five years u/s 6 (a) of the Hindu Minority and Guardianship Act, 1956. The application u/s 12 of the Guardians and Wards Act, 1890 was not, therefore, suited to this prayer. The Trial Court cannot, therefore, be said to have gone wrong jurisdictionally in dismissing the application. On that finding this revision is dismissed with the observation that the claim of the mother u/s 6 (a) of the Hindu Minority and Guardianship Act, 1956 has still to be considered by the Trial Court when the application u/s 7 of the Guardians and Wards Act, 1890 comes before it for disposal. As the question is of great delicacy and urgency to both the parties, the Trial Court will no doubt dispose of the application u/s 7 as expeditiously as possible. There will be no order as to costs.

Hon''ble Supreme Court in Rosy Jacob Vs. Jacob A. Chakramakkal, has held that the Court''s power u/s 25 of the Guardians and Wards Act is to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom - if ever identical. It has been further held that where there is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare, 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. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them.

In Ms. Githa Hariharan and Another Vs. Reserve Bank of India and Another, , a three Judges Bench of Hon''ble Apex Court as per the majority view has held as under:--

We are of the view that 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 later 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 a harmonious construction of Section 4 and Section 6of the HMG Act, without causing any violence to the language of Section 6 (a) (supra).

Needless to mention that sub-section (5) of Section 8 of the Act, 1956 provides that "The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court u/s 29 of that Act".

Learned Counsel for the appellant has submitted that the language of Section 25 of the Guardians and Wards Act, 1890 shows that the application is maintainable only when the child is removed from the custody but to our opinion it is a matter of fact to be determined by the Court. On the admission stage nothing can be said. However, it may also to be noticed that merely mentioning wrong section would not disentitle the applicant and it would not amount to non-maintainability of the application moved. In the instant case, when statute provides that the custody of a child ordinarily remain with the mother up to five years according to the provision of Section 6 (a) [proviso of Section 6 (a) of the Act, 1956] the mother cannot be deprived of moving an application for custody of the child. However, we are not concerned with the merit of the case which is to be decided by the learned Court below.

Section 13 of the Hindu Minority and Guardianship Act, 1956 provides for paramount consideration of welfare of minor, which reads as under:--

Welfare of minor to be paramount consideration. - (1) In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor.

There is catena of decisions on the point of welfare of the child but we are not discussing it at this stage as the appeal has been filed only on the point of maintainability of the application moved by the respondent for custody of the child.

The decision of learned Single Judge of Kerala High Court given in the case of P.N. Ramachandra Iyer (supra), is not helpful to the petitioner as it is distinguishable on facts. In that case the age of the minor girl was 7 years, whereas in the instant case the age of the minor child is about 2-1/2 years. Further, learned Singe Judge in that case had not considered the provisions of Section 6 (a) of the Act. 1956 as there was no occasion for him to consider the provisions, considering the age of the girl child in that case.

In view of the above we are of the opinion that the application filed before learned Family Court by the respondent herein for the custody of the minor child is maintainable. Therefore, the appeal fails and is dismissed. No order as to costs. Before parting with the judgment and order it is made clear that we have not considered the merits of the case. Learned Trial Judge shall consider and decide the application filed by the mother (respondent herein), independently, without being influenced by any of the observations made by us hereinabove.