Mst. Rubeena vs Ab. Qayoom Malik

Gh. Hasnain Massodi, J.—Whether a mother is competent to maintain an application u/s 25 of the Guardians and Wards Act 1977 Svt for

return of ward(s) to her custody, is the short controversy involved in this petition.

The Appellant, mother of Master Naveed aged 4= years and Ms. Aiman aged below three years, approached the Court of Learned Ist.

Additional District Judge, Srinagar with an application u/s 25 of the Guardians and Wards Act, 1977 Svt. (hereinafter called the Act) for the return

of Master Naveed and Miss Aiman to her custody on the ground that they were removed from her custody by their father/Respondent herein and

she was better placed to take care of her wards as compared to Respondent.

The Appellant's case before the Learned Trial Judge was that the wards were removed by the Respondent from her custody on 8.11.2009 and

were thereafter in custody of the Respondent. The Appellant in her application, after tracing the history of marital discord, insisted that the

Appellant under Muslim Shariat Law governing the parties in the matter of Guardianship, had a right to have custody of her male child till he attains

the age of seven years and the female child till she attains the age of puberty and thus, the Appellant had a right to ask for return of her children to

her custody. The Appellant insisted that as her son was four years of age and daughter was only of 2= years of age, the Appellant's right of hizanet,

was to be respected by the Respondent. The Appellant pleaded that she was a house wife and always at her residence and thus able to take

adequate care of her minor children, whereas Respondent being a tailor by profession having a shop at Rajbagh, Srinagar at a distance of 15.

K.ms' from the house was not in a position to take good care of the children.

The application was resisted by the Respondent on the ground that it was not maintainable and only course open to the Appellant was to press

into service Sectior 7 of the Act. The Respondent put blame for differences and disagreement that afflicted marital relationship on the Appellant

and her confrontationist behavior. The Appellant was accused to have exposed the Respondent and his family members to discomfort,

inconvenience and torture. The Respondent claimed to have better right to the custody of his children having regard to his status of natural guardian

of the minors and disputed that there was any cause for return of the custody of the minors.

The Learned Trial Judge restricted the consideration of the application to its maintainability and did not go into the question of welfare of the

minors or whether the welfare of the minors warranted return of the minors to the Appellant. Learned Trial Judge recorded agreement with the

contention of the Counsel for the Respondent and held the application u/s 25 of the Act to be not maintainable. Reason that persuaded Learned

Trial Judge to hold the application u/s 25 of the Act not maintainable, finds expression in the following observations of the court:

Jurisdiction of a Court to grant relief to a suitor depends upon the pleadings made by her/him in this behalf and in view of the Petitioners limited

pleadings in the present case seeking only change in custody of the minor wards and nothing beyond that, thus no jurisdictional competence lies in

this Court to grant the relief as prayed by the Petitioner.

From the above observations, it appears that the Appellant's application u/s 25 of the Act was thrown out at the very threshold on the following

grounds:

i. That the application did not disclose that the wards had left or were removed from the custody of the Appellant by the Respondent.

ii. That the Appellant did not aver in the application u/s 25 of the Act that custody of the minors with the Appellant would be for the welfare of the

minors.

The Learned Trial Judge before arriving at the conclusion that the application u/s 25 of the Act was not maintainable and merited to be

dismissed, observed as under:

In view of the settled legal position, since as per the record available on the file especially the petition preferred by the Petitioner u/s 25 of the

Guardian and Wards Act, it lacks the ingredients of the said section as it has not been incorporated in the petition that the wards had left or have

been removed from the custody of the Petitioner by the Respondent who is their natural guardian and that too in absence of the pleadings to the

effect that the custody of the minor wards with the Petitioner is for their welfare which is basic object of the said section disentitle the Petitioner to

maintain the instant petition. As such the instant petition u/s 25 of the Guardian and Wards Act is misconceived and is not maintainable....

The background in which the conclusion was drawn by the Learned Trial Judge spelt out in above observation makes it imperative to have a

look on the application u/s 25 of the Act. The Appellant in Para 2 of the application pleaded that the minors were in custody of the Respondent

with effect from 8.11.2009 implying thereby that till the aforesaid date, the minors were in her custody. The Appellant proceeded to plead in Para

3 of her application as under:

... the Respondent has snatched the above said female child who is presently 2- years old from her lap. It is worth to mention here that the above

said female minor daughter is milk sucking baby.

The Appellant had thus sufficiently pleaded in her application that the minors were removed from her custody five days before the Appellant

approached the Court for return of their minors. Again the Appellant did plead in her application that it was in the interest of welfare of minors that

minors were returned to the Appellant. It would be advantageous to extract hereunder Para 5 of the application:

That since the Petitioner is a house wife lady and is always at her home, as such the Petitioner is able to take every care of the minor children.

However the Respondent being a tailor by profession having a shop a Rajbagh Srinagar which is approximately more than 15 km's. away from his

house, as such the Respondent is not able to take care of said children.

In view of the above background, the conclusion, that neither any averment was made in the application regarding minors having ""left"" or

removed"" from the custody of the Appellant nor was it specifically averred that welfare of minors requires their return to the Appellant, is arrived

at by the learned Trial Judge, unmindful of and oblivious to the pleadings. It remains to be known what was required more to convince the learned

Trial Judge that ingredients of Section 25 of the Act were pleaded by the Appellant.

The attention is now to go to second and most important aspect of the matter. The contention of the counsel for the Respondent before the

learned Trial Judge appears to have been that the mother is not competent to file an application u/s 25 of the Act and that the mother at the most

can ask in terms of section 7 of the Act to be appointed guardian of personal, property or both of the minor(s) Section 25 of the Act comes into

play when the ward ""leaves"" or is removed from the custody of ""Guardian of his person"". Section 4(2) defines Guardian ""as a person having the

care of the person of minor or his property, or of both his person and property"". Section 4(2) thus, speaks of 'care' in contradistinction to

'custody'. It follows that the word ""Guardian"" has been given a wider meaning than the ""legal"" or ""natural guardian"" and the emphasis is on ""care of

the minor"". It is not thus, restricted to physical aspect of the custody of person of the minor. The expression ""guardian of his person"" in Section 25

is thus wide enough to include a person having care of the person of minor and even a de-facto guardian. The mother of the minor having care of

the person of the minor thus falls within the purview of word ""guardian"" u/s 25 of the Act. Again the word ""leaves or is removed"" does not

necessarily imply that the mother having care of her child must be living separately at a different place with the minor(s) and it is from such place

that the minor must leave or be removed from her custody. The expression ""leaves or is removed"" from the custody may very well include a

situation where the mother is thrown out from her marital home and her minor child (children) forcibly retained and not allowed to go with the

mother. Section 7 and Section 25 of the Act deal with two different situations. Section 7 read with Section 19 of Act empowers the Court to

appoint guardian of person or property or both of minor, if the court is satisfied that such an order is to be made for the welfare of the minor unless

the father of the minor in living in which case the Court is to further record satisfaction that in its opinion father of the minor is unfit to be guardian of

the person of the minor. Section 25 of the Act visualizes a completely different situation. It empowers the Court to return the ward(s) to the

custody of guardian, if the ward leaves or is removed from the custody of such guardian and return of the ward(s) in the opinion of the Court

would be for the welfare of the ward(s). It follows that mother of the minor having care of the person of the minor, can in terms of Section 25 of

the Act approach the Court with an application for return of the minor, who has left or has been removed from her custody and convince the court

that the requirement of welfare of the minor warrants return of the minor to her custody. The law laid down in AIR 1934 392 (Oudh) to which the

reference is made by the learned Trial Judge in the impugned order, was considered in number of subsequent cases including 1971 Kar LJ 361

and Mohammad Shafi Vs. Shamin Banoo, . Observations made in AIR 1934 392 (Oudh) were held to be obiter and to deal with the significant

requirement of Section 25 of the Act namely removal from the custody of the guardian. In Mohammad Shafi Vs. Shamin Banoo, , the Court while

holding that the mother was competent to make application u/s 25 of the Act, observed that:

...for purposes of the Guardian and Wards Act and for purposes of Section 25, the Guardians and Wards Act does not seem to insist or require,

that it would not be enough for the person to have the care of the minor but also that he must be a legal guardian. It seems to me with respect that

his Lordship read more into Section 4(2) and the requirements of Section 25. I am unable to follow this line of reasoning, particularly since it seems

to me that if the Legislature wanted to exclude all persons who were not legal guardians from making an application u/s 25, it was very easy to do

so by either incorporating such limiting words in Section 25 or Section 4(2) of the Guardians and Wards Act itself. It seems to me that the

Legislature has advisedly not done so and has used a wider expression as person having the care of the minor.

The law on the subject has been reiterated in AIR 1988 Orissa 1979 where in almost identical circumstances, the learned Judge observed that:

The word ""guardian"" has been defined in Section 4(2) to mean a person having the care of the person of the minor or of his property, or of both his

person and property. This has nothing to do with the personal law of the Mohamedans. It is too well settled that the provisions of the Guardians

and Wards Act apply equally to the Hindu and Mohamedans. In fact the term 'guardian' used in the said section would mean against all whether

testamentary, certificated, natural of de facto and is not confined to statutory guardian alone. A Muslim mother having the care of a son of two

years old would be the child's guardian within the Section 4 (2) of the Act and when the child is taken away from her by the father who is the

natural guardian of the child, the mother has a right of Hizanat under Mohamedans Law and therefore, she would be fully entitled to apply u/s 25 of

the Act....

The Courts are under a constitutional obligation to secure justice in all its forms and manifestations to one and all including the disempowered

insular sections of the society. The women for historical reasons have been at the bottom of the barrel, disempowered and marginalized for ages

together. The endeavour of the Courts while interpreting and enforcing law must be to interpret law in such a manner that a level play field is

provided to the women, and gender equality, promoted. In Ms. Githa Hariharan and Another Vs. Reserve Bank of India and Another, ""gender

equality"" has been held to be one of the basic principle of our constitution. It has been held that the ""normal rules of interpretation shall have to bow

down to the provisions of the constitution."" The Supreme Court while referring to the international instruments the Convention on the Elimination of

All Forms of Discrimination Against the Women (""CEDAW"") and the Beijing Declaration, which direct all State parties to take appropriate

measures to prevent discrimination of all forms against women and to which India is a signatory, held that 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. The Supreme

Court held expression ""and after him"" in Section 6 of the Hindu Minority and Guardianship Act, not to mean that the mother shall be natural

guardian of boy or unmarried girl only after the death of the father, but to include a situation where the father is indifferent to the affairs of the minor

or the mother has been allowed to be completely incharge of the minor. It was held that the expression ""and after him means"" absence of the father

not only because the father not being alive but also because of some other reasons. The Court interpreting Section 6 of Act, having regard to the

imperatives of gender equality held the mother to be a natural guardian within the meaning of Section 6 of the Act even when the father of the child

was alive. The Court held that ""a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided....

The learned Trial Court in the present case while declaring the Appellant not to be entitled to ask for the return of the minors in the interest of

their welfare appears to have lost sight of its constitutional obligation and the mandate of law.

Viewed thus, the Appellant was competent to make an application u/s 25 of the Act for return of the custody of her minor children and was

not required to make an application u/s 7 of the Act, as held by the learned Trial Judge. The order dated 08-12-2009 impugned in the appeal is

edificed on erroneous grounds and is, accordingly, set aside. The matter is remanded to learned Trial Judge for its disposal in accordance with law.

The parties shall cause their appearance before the Court below on 12-3-2010. Copy of the order be sent down.

Appeal, alongwith connected CMP, is disposed of.