PETITIONER: ROSY JACOB Vs. RESPONDENT: JACOB A. CHAKRAMAKKAL DATE OF JUDGMENT05/04/1973 BENCH: DUA, I.D. BENCH: DUA, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A. CITATION: 1973 AIR 2090 1973 SCR (3) 918 1973 SCC (1) 840 CITATOR INFO : R 1982 SC1276 (14,19) ACT: Guardians and Wards. Act, 1890, Sec. 25-Husband's application for the custody of children-Welfare of the children is the dominant consideration. HEADNOTE: On the wife's application, judicial separation was granted under the Indian Divorce Act by the single Judge of the High Court. The custody of the eldest son was maintained with the husband while that of the daughter and the youngest son was given to the wife. In the Letters Patent Appeal preferred by the husband, the Division Bench varied the order directing handing over the custody of the daughter and the youngest son also to the husband. The principal question before the Court was whether the husband's application for the custody of the children u/s 25 of the Guardian and Wards Act, 1890, was maintainable and, if so, what are the considerations which the Court should bear in mind in exercising the discretion regarding custody of children. Allowing the appeal, HELD: (i) On the facts and circumstances of the case, namely, that the Court cannot make any order under the Divorce Act, as the daughter had attained majority, and no guardian could be appointed U/S. 19 of the Guardians and Wards Act, 1890 during the life time of the existing guardian, husband's application was competent. Welfare of the children is the primary consideration, and hyper- technicalities should not be allowed to deprive the guardian necessary assistance from the Court in effectively discharging his duties and obligations towards his ward. [932D] (ii) The controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents. The Court while exercising the discretion should consider all relevant facts and circumstances so as to ensure the welfare of the children. The contention that if the husband is not unfit to be the guardian of his minor children, then the question of their welfare does not at all arise, is misleading. If the custody of the father cannot promote the children's welfare, equally or better, than the custody of the mother, then, he cannot claim indefeasible right to their custody u/s 25 merely because there is no defect in his personal character and he has attachment for his children-which every normal parent has. As the daughter has just attained puberty and the youngest son was of the tender age, in the interest of their welfare, the mother should have the custody in preference to the father. [933D] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1295
1296 of 1972.
Appeals by special leave from the judgment and order dated
April 26, 1972 of the Madras High.Court in O.S.A. Nos. 2 and
3 of 1971.
919
K. N. Balasubramanian and Lily Thomas, for the appellant.
The respondent appeared in person.
The Judgment of the Court was delivered by
DUA, J.-The real controversy in these two appeals by special
leave preferred by the wife against her husband, lies in a
narrow compass. These appeals are directed against the
judgment and order of a Division Bench of the Madras High
Court allowing the appeals by the husband and dismissing the
cross-objections by the wife from the judgment and order of
a learned single judge of the same High Court dismissing
about 25 applications seeking diverse kinds of reliefs,
presented by one or the other party. According to the
learned single Judge (Maharajan J.) “these 25 applications
represent but a fraction of the bitterness and frustration
of an accomplished Syrian Christian couple who after making
a mess of their married life have endeavoured to convert
this Court into a machinery for wreaking private vengeance’.
This observation reflects the feelings of the husband and
the wife towards each other in the present litigation. The
short question which we are called upon to decide relates to
the guardianship of the three children of the parties and
the solution of this problem primarily requires
consideration of the welfare of the children.
The appellant, Rosy Chakramakkal (described herein as wife)
was married to respondent Jacob A. Chakramakkal (described
herein as husband) sometime in 1952. Three children were
born from this wedlock. Ajit alias Andrews,, son, was born
in 1955, Maya alias Mary was born in 1957 and Mahesh alias
Thomas was born in 1961. Sometime in 1962 the wife started
proceedings for judicial separation (O.M.S. 12 of 1962). on
the ground that the husband had inflicted upon her several
acts of physical, mental and moral cruelty and obtained a
decree on April 15, 1964. Sadasivam J., while granting the
decree directed that Ajit alias Andrews (son) the eldest
child should be kept in the custody of the husband and Mary
alias Maya (daughter) and Thomas alias Mahesh (youngest son)
should be kept in the custody of the wife. The husband was
directed to pay to the wife Rs.200/ per mensem towards the
expenses and maintenance of the wife and the two children.
The wife applied to Sadasivam J., sometime later for a
direction that Ajit alias Andrews should also be handed over
to her or in the alternative for a direction ‘that the boy
should be admitted in a boarding school. In this
application (no. 2076 of 1964) it was alleged by the wife
that the husband had beaten Ajit on the ground that he had
accepted from his mother’ (the wife) a fountain pen as a
present. This was denied by the husband but the learned
Judge, after elaborate enquiry, held that he had no doubt
that the husband had caused injuries to the boy on
920
account of his sudden out burst of temper on learning that
Ajit had received a fountain pen by way of present from his
mother on his birth day. Ajit was accordingly to be handed
over to the mother subjected to certain conditions.
The husband preferred an appeal against the decree made in
O.A4.S. 12 of 1962 (O.S.A. 65 of 1964) and another appeal
against the order made by Sadasivam J., (in application no.
2076 of 1964 in O.M.S. 12 of 1962) directing the custody of
the eldest son Ajit to be handed over to the wife (O.S.A. 63
of 1964). On August 2, 1966 the appellate bench confirmed
the decree for judicial separation granted by Sadasivam J.,
and also issued certain, directions based on agreement of
the parties with respect to the custody of the children, as.
also reduction of the monthly maintenance payable by the
husband to the wife from Rs. 200/to Rs. 15011- p.m.,
inclusive of maintenance payable for Mahesh. According to
this order the eldest boy Ajit alias Andrews directed to
remain in the custody of the father and to be educated ‘by
him at his expense : Mahesh alias Thomas was directed to be
in the custody of the mother to be educated at her expense:
and the second child Maya alias Mary was directed to be put
in a boarding school, the expenses of her board and
education to be met in equal shares by both the parents.
The husband also undertook that ‘he will arrange to have the
presence of his mother or sister at his residence to attend
to the children whenever they are with him and never to
leave the children alone at his residence or to the care of
his servants or others”. Later both the husband and wife
presented a series of applications in the appellate court
seeking modifications of its directions. That court
ultimately made an order on February 2, 1967 modifying its
earlier directions. The modified order directed Maya to be
left in the exclusive custody of the wife who was at
liberaty to educate her in the manner she thought best at
her own cost. The appellate court also modified the
direction regarding maintenance and ordered that the husband
should pay to the wife maintenance at the rate of Rs. 200/-
p.m. as awarded by the learned single judge. Subsequently
the directions of the appellate, court regarding access of
the mother and the father to the children were also sought
by the parties to be modified to the prejudice of each
other. The matters are stated to have been heard by most of
the Judges of the Madras High Court at one stage or the
other and according to Maharajan J., ‘,he parties even tried
to secure transfer of these proceedings by making wild
allegations of partiality against some of the Judges. The
husband who is an advocate of the Madras High Court, had,
according to the wife, been filing cases systematically
against her and the wife, who, in the opinion of Maharajan
J., has the gift of the gab also argued her own cases. The
children for whose
921
welfare the parents are supposed to have been fighting as
observed by Maharajan J., are given a secondary
consideration and the quarrelling couple have lost all sense
of proportion. On account of these considerations the
learned single Judge felt that it would be a waste of public
time to consider in detail the trivialities of the
controversy pressed by both the parties to this litigation.
According to the learned single Judge the following four
points arose for his judicial determination’.
“(1) Whether by defaulting to pay the
maintenance decreed, the husband must be held
guilty of contempt and shall not be allowed to
prosecute his applications before he purges
himself of contempt?
(2) What is the proper order to pass as
regards the custody of the three children of
the marriage in the light of the events that
have occurred subsequent to the judgement of
the appellate court and under the Guardians
and Wards Act ?
(3) What is the proper order to pass as to
the access of either parent to the children in
the custody of the other?
(4) Whether in the light of the subsequent
events, the order regarding maintenance
allowance should be reduced, enhanced or.
altered in any manner and if so, how?’
On the first point the learned single Judge came to the con-
clusion that the husband could not be declined hearing
merely because he had not paid the maintenance as directed
by the matrimonial court. The amount in respect of which
the husband had defaulted payment could be recovered through
execution proceedings. On point no. 2 the learned single
Judge proceeded to consider the question of the custody of
the three children with the preliminary observation that the
controlling factor governing their custody would be their
welfare and not the rights of their parents. The eldest
child Ajit alias Andrews, according to the learned Judge,
was doing well at the school and was progressing
satisfactorily both mentally and physically. There was
accordingly no reason ‘to. transfer his custody from his
father to his mother. As regards the second child Maya
alias Mary, as she was about to attain puberty and the wife
being anxious that till she got married she must be in the
mother’s vigilant and affectionate custody she was to remain
with her mother. Mahesh alias Thomas, who was considered to
be of tender years and in the formative stage of life
requiring sense of emotional security which a mother alone
could give, was also kept in the custody of his mother.
With respect to Maya and Mahesh it was further observed that
from their educational. point of view the wife was a more
suitable
L797Sup.CT/73
922
custodian than the husband because she was running a primary
school from nursery to fifth standard with more than a
hundred pupils and was also residing in a portion or the
school premises enjoying certain facilities in her capacity
as the founder and principal of that school. The husband,
who was described as a grass widower without female
relatives to look after the children, was not preferred to
the wife as, while being with her, the children would be
living in an academic atmosphere. With respect to the
husband’s complaint that from the moral point of view the
wife was not fit to have the custody of the children,
Maharajan J., observed that earlier Sadasivam J., had dealt
with the entire evidence relating to this charge and had
found no sufficient ground for such amputations and that
they were likely to cause mental pain to the wife and affect
her health. The husband had even been held guilty of mental
and moral cruelty to the wife. The husband’s contention
that his opinion was reversed by the appellate bench was
disposed of by Maharajan J., after quoting the following
passage from the appellate judgment dated August 2, 1966
“But it is to be clearly understood that there
should be no slur on the part of either the
appellant or the respondent because of the
several proceedings in court and other
happenings outside. The decree for judicial
separation which is confirmed does not cast
any cloud on the reputation or character of
the husband or the wife. They have reached
this settlement keeping in view all the
circumstances and particularly the welfare of
their minor children.”
According to Maharajan 3., the appellate bench had felt sat-
isfied that the charge of immorality levelled by the husband
against the wife was not established because had it not been
so satisfied the bench would not have entrusted two of the
three children to the wife. The husband was in the
circumstances held by Maharajan J., disentitled to reopen
the question of the wife’s immorality. In any event,
Maharajan J., also rejected the charge of immorality as
unproved, for the same reasons which had weighed with
Sadasivam J. With respect to point no. 3 the learned single
Judge gave the following directions :
“(1) On the first Sunday of every month,
except during the school vacations, the
husband shall send Ajit alias Andrews to the
wife by 8.00 a.m. and the wife shall send back
the child by 8. p.m. the same day.
(2) The wife shall send Maya alias Mary and
Thomas alias Mahesh to the husband’s by 8 a.m.
on the last Sunday of every month, except
during the school vacations, and the husband
shall send them back by 8 p.m. the same day.
923
(3) Each party shall send the children by a
conveyance taxi, rickshaw or bus, after
prepaying the fare thereof.
(4) The wife shall send Mary alias Maya and
Thomas alias Mahesh to the husband, so hat
they might stay with him and Ajit alias
Andrews for thirty days during the summer
vacation. The exact time and dates of
departure and arrival will be fixed with
reference to the convenience of parties and
after change, of letters between them at least
one months prior to the commencement of the
vacation’ Likewise, the husband will send Ajit
to the wife to enable him to spend the whole
Dasara and Christamas vacations in the company
of his mother, sister and brother.”
On the fourth point the learned single Judge, fater
considering at length the wife’s allegations against the
husband with respect to his extravagance and inability,
reduced the quantum of maintenance payable by him to the
wife to Rs. 100/- p.m., the reduced amount being payable
with effect from January 1, 1971. The husband was directed
to pay the monthly maintenance on or before the 10th of the
succeeding month. This order was made with the observation
that the earning capacity of the wife was superior to that
of the husband.
It is un necessary to refer to the formal orders separately
passed in the various applications. Suffice it to say that
the parties were left to bear to their own costs and hope
was expressed in the coneluding para of the judgment by
Maharajan, J. that “the parties will refrain from rushing to
this court with applications of the kind that have been
dismissed and will apply themselves assiduously to the
improvement of their status in their respective professions
and to alleviation of the pain of material failure, which
has unfortunately been visited upon the three lovely and
sprightly children that they have produced.”
Contrary to the hope expressed by learned Judge, the matter
was taken to the appellate bench of the High Court under cl.
15 of the Letters Patent (O S. Appeal Nos. 2 and 3 of 1971).
The wife also pressented cross-objections against the
reduction of alimony and against directions as regards the
father’s access of Maya. A large number of applications
were presented to the Court parties praying for diverse
reliefs including action for contempt of court for
disobedience of the court’s orders. The hearing of the
appeals somewhat surprisingly lasted for more than a year
(March 1971 to March 1972). We find no justification for
such prolonged hearing on a fairly simple matter like this.
According to the Letters Patent Bench the arguments on both
sides “mainly
924
rested upon the character of each”. The husband is said to
have repeatedly accused the wife with immorality. In the
opinion of the Letters Pantent Bench “the truth or otherwise
of the matter may assume importance only for the purpose of
deciding upon the fitness of the person to ‘be the guardian
of the children”. Final orders were passed on April 26,
1972 by means of which the husband was held to be better
fitted to be the guardian of the three children and to have
their custody. This decision was stated to be based on
evidence and in view of ss. 17, 19 and 25 of the Guardians
and Wards Act. This is what one of the Judges constituting
the Letters Patent Bench (Gokul Krishnan, J.,) said in this
connection
“In our opinion, the principles to be applied
to cases of this kind will be the same both
under the Indian Divorce Act and the Guardians
and Wards Act, 1890. But since the father has
specifically filed a petition, O.P. No. 270 of
1970, under section 25 of the Guardians and
Wards Act, and that being a special law for
the purpose will certainly apply, we shall
concentrate on the Guardians and Wards Act,
1890”.
After quoting S. 19 of the Guardians and Wards Act
the learned Judge proceeded :
“It is thus clear that the special enactment
definitely states that the father is the
guardian of the minor until he is found unfit
to be the guardian of the person of the minor.
The welfare of the minor is the paramount
consideration in the matter of apointing
guardian for the person of minor, and cannot
be said to be in conflict with the terms of
section 19 of the Guardians and Wards Act
which recognize the father as the guardian.
Bear ing this in mind, we proceed to consider
as to who is fit and proper to be the guardian
for the person of the minor children in this
case.”
In his view 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. Considering these factors
it was felt that both the parties in the present case loved
their children who were happy during their stay with both of
their parents. There was in his view, absolutely no proof
as regards disqualification of the husband to be the
guardian of the minor children. It may here be pointed out
that both the Judges constituting the Letters Patent Bench
wrote separate judgments. Gokulakrishnan J., commenting on
the Judgment of Maharajan J., observed thus :
“Maharajan J. in his judgment under appeal no
doubt referred to section 19 of the Guardians
and Wards Act, but would observe that if the
Court finds that the
welfare of the minor children could be
protected only in the maternal custody, the
Court has power to put the children in the
care of custody of the mother. The learned
Judge clearly observed that Ajit, the eldest
boy, who is in the custody of the appellant,
is quite healthy and cheerful, doing well at
school and that his sojourn with the father
has not prejudicially affected him physically
or mentally. But at the same breath, the
learned Judge says that Maya and Mahesh ‘are
of tender years and in the formative stage of
their life and need a sense of emotional
security, which a mother alone can give.’In
the case of Maya and Mahesh, the learned Judge
has applied a different standard in regard to
their custody. Considering the present age of
both Maya and Mahesh and taking into
consideration the upbringing of Ajit by the
appellant having him in his custody, we are of
the view that the same amount of sense of
emotional security can be enjoyed by Maya and
Mahesh at the hands of the appellant also. The
learned Judge’s reasoning that the mother is
running a school and has also facilities to
make these two children live in the academic
atmosphere rather than with their
father, cannot have any force, in. view of
the clear and categorical principles laid down
in the various decisions noticed (supra)
and also in view of the clear intendment and
spirit of the Guardians and Wards Act, which
prescribes that father is the guardian of
his minor child unless other wise found
unfit. The academic qualification of the
mother, her financial status and the other
standards cannot at all weigh in the matter
when the appellant has not been rejected as a
person unfit to be the guardian of the
minors. If they should weigh, the poorer and
affectionate father with moderate capacity to
protect his children will be deprived of the
custody of the minor children on the flimsy
ground of ‘welfare of the minor
children’. That is how and why ‘,the welfare
of the minor children’ must be read with
‘fitness or unfitness of the father to be
guardian of the minors. Once it is found that
the father is the fit and proper person to be
the guardian of his minor children, unless it
is otherwise found that he is not fit, it must
be presumed that the children’s interests will
be properly protected by the father. As far as
the present case is concerned, when the
trial court itself has found that Ajit has
been properly looked after and brought up very
well in his academic career by the appellant,
there cannot be any difficulty in coming to
the conclusion that Maya and
9 26
Mahesh will also be looked after and protected
and imparted with proper education by the
affectionate father, the appellants
After reproducing certain observations from the judgment’,
of (i) Sadasivam J., dated April 15, 1964, (ii) Veeraswamy
1.. (as he then was) and Krishnaswami Reddy J., dated
February 1967 in C.M.P. 415 in O.S.A. nos. 63 65 of 1969,
Ramamurthy J., dated April 24, 1968 in application nos. 769
and 770 of 1968 in O.M.S. 12 of 1962 and after referring to
the view of Maharajan J., that Ajit when produced in Court
was found quite healthy and cheerful and was doing well at
school, Venkataraman J. in his concurring judgment observed
thus :-
“Regarding the other children, he gave their
custody to the mother, because he thought that
they were of tender years and needed emotional
security which a mother alone could give.
Here, with respect we must differ from the
learned Judge. We find that the father is
quite fit to have the custody of the children,
and. in law, custody of the minor children
cannot be refused to him. We are also
satisfied from what we saw of the appellant
and, heard from him during the several
hearings, that he is very deeply attached to
his children and is quite competent to have
their custody. It wilt be enough if the
mother is allowed a somewhat liberal access to
the three children.”
With respect to alimony the appellate bench concluded that
the wife was managing her school very successfully; she had
purchased a mini-bus and also possessed wet lands in her
village The husband on the other hand was not getting on
well in his profession which he attributed to the present
litigation : his house at Adyar was stated to be under
mortgage and he had practically sold everything in his
native village with the exception of one, or one-and-half
acres of land. In view of the financial position of the
wife and the husband and in view of the fact that all the
three children were to be in the custody of the husband the
appellate bench considered it unnecessary for the’ husband
to pay any maintenance to the wife. The payment of the
arrears of alimony was also suspended as the appellate bench
considered itself empowered to do so under the
proviso to s. 37 of the Indian Divorce Act. In so far as
access of the wife to’ the children is concerned a detailed
order was passed by the bench about the right of the wife to
take the daughter with her during the summer and Christmas
vacations and also during several days every month,
particularly during the periods. We do not consider it
necessary to state in full the details of that order. With
respect to Ajit and
927
Mahesh also a detailed order was made fixing the precise
days and even time when the wife could bring the children
from the father to stay with her. In the event of any
difficulty in getting custody of the children from the wife,
it was ordered at the instance of the husband, that he could
take the police help on the strength of the High Court
judgment. We find it extremely difficult to appreciate this
direction. Orders from the Court in execution would have
‘been more appropriate. Police intervention in such
personal domestic differences in the present case, where
parties belong to educated respectable families should have
been avoided.
In this Court a preliminary objection to the hearing of the
wife’s appeal was raised by the husband, who, being an
advocate, personally addressed us in opposing these appeals.
Indeed in June, 1972 he had presented Civil Miscellaneous
Petitions Nos. 4188 and 4189 of 1972 for revoking special
leave, and it was these applications which he pressed before
us at the outset. These lengthy applications covering
nearly 50 pages mainly contain arguments on the merits and
there is hardly any cogent ground made out justifying
revocation of the special leave. It is no, doubt open to
this Court to revoke special leave when it transpires that
special leave had been secured by the appellant on
deliberate misrepresentation on a material point having a
bearing on the question of granting such leave. The
extraordinary discretionary power vested in this Court by
the Constitution under Act, 136 is in the nature of a
special residuary power exercisable in its judicial
discretion outside the purview of ordinary law in cases
where the needs of justice demand interference. Being
discretionary power intended only to Promote the cause of
justice when there is no other adequate remedy, this Court
expects those seeking resort to this reserve. of
constitutional power for securing justice to be absolutely
fair and frank with this Court in correctly stating the
relevant facts and circumstances of the case. In the event
of a party making a misrepresentation on a point having a
bearing on the question of the exercise of judicial
discretion and thereby-trying to over-reach this Court the
party forfeits the claim to the discretionary relief : the
same is the case when such misrepresentation is discovered
by this Court and brought to its notice after the grant of
special leave and this Court is competent and indeed it
considers it proper to revoke the special-leave thus
Obtained. But the misrepresentation must be deliberate and
on a point having such relevance to the question of special
leave that if true facts were known this Court would leave
in all Probability declined special leave. Applying this
test to the, present case we arc unable to find any such
deliberate misrepresentation by the, appellant indicating
intention to mislead or over-reach this Court. The points
to which our attention was drawn seem to relate to the
merits of the controversies between the parties which would
fall for
928
determination on the hearing of the appeal after considering
the arguments pro and con. The preliminary objection thus
fails and must be disallowed.
Turning to the merits of these appeals, it may be pointed
out that with the exception of O.P. No. 270 of 1970 filed by
the husband under S. 25 of the Guardians and Wards Act all
the other applications presented by the parties and disposed
of by Maharajan J., were off-shoots of O.M.S. 12 of 1962 in
which the wife had obtained a decree for judicial
separation. The first contention raised on behalf of the
appellant was that O.P. No. 270 of 1970 did not lie. It was
strenuously pressed by Shri Balasubaramania lyer the counsel
for the appellant wife that the husband’s application under
s. 25, Guardians and Wards Act was not competent because
none of the children had been illegally removed from the
lawful custody of their father, the custody of the two
children having been lawfully entrusted to the wife in
proceedings to which the husband was a party. It was
emphasised in this connection that the custody of the girl
Maya and of the boy Mahesh had been lawfully entrusted to
,the wife by a competent Court and unless there is actual
physical removal of the children from the custody of the
father, S. 25 would. not be attracted.
Now the first thing to be notified is that this objection as
to the competence of the application under S. 25 is in the
nature of a preliminary objection. But it was not raised
either before the learned single Judge or before the Letters
Patent Bench in the manner in which it is pressed before us.
In this Court also in the special leave appeal the objection
seems to be based on the argument that the Guardians and
Wards Act would be inapplicable to cases where orders have
been made in. matrimonial proceedings, and s. 19 of the
Guardians and Wards Act cannot control the custody or
children given by a consent decree under the Indian Divorce
Act. However, as the objection was stated to pertain to
jurisdiction we allowed the parties to address us on this
point.
For determining the question of competence of the husband’s
application under s. 25 of the Guardians and Wards Act (18
of 1890) it is necessary to examine the scheme of that Act
as also the relevant provisions of the Indian Divorce Act.
The Guardians and Wards Act was enacted in order to
consolidate and amend the law relating to Guardian and Ward.
But as provided by s.3, this Act is not to be construed,
inter alia ,to take away any Power possessed by any High
Court. According to s.4, which is the definition section, a
“minor’ is a Person who, under the provisions of the Indian
Majority Act, 1875 is to be deemed not to have attained his
majority. Under S. 3 of that Act this age is fixed at 18
years, except for those, for whose person or property or
both
929
a guardian has already been appointed by a court of justice
(other than a guardian for a suit under Chapter XXXI,
C.P.C.) and for whose property, superintendence has been
assumed by a Court of Wards, for whom it is fixed at 21
years. A “ward” under this Act means a minor for whose
person or property or both there is a guardian and
“guardian” is a person having the care of the person of a
minor or of his property or both. Chapter 11 of this Act
(18 of 1890), consisting of ss.5 to 19 (s. 5 applicable to
European British subjects has since been repealed, deals
with the Appointment and Declaration of Guardians. Section
7 empowers the Court to make orders as to guardianship where
it is satisfied that it is for the welfare of the minor that
an order should be made appointing his guardian or declaring
a person to be such guardian. Section 7(3) places certain
restrictions with respect to cases where guardians have been
appointed by will or other instrument or appointed or
declared by court. Section 8 provides for persons entitled
to apply under s. 7 : they include Collectors as specified
in cls. (c) and (d). Sections 9 to 11 provide for
jurisdiction of. courts, form of applications and procedure
on admission of applications. Section 12 provides for
interlocutory orders subject to certain restrictions. Next
important sections are ss. 17 and 19. Section 17 which
provides for the matters to be considered by the court in
appointing or declaring guardian reads :
“17. Matters to be considered by the Court in
appointing guardian.
(1)In appointing or declaring 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 the welfare of
the minor, the Court shall have regard to the
age, sex and religion of the minor, character
and capacity of the proposed guardian and his
nearness of kin to the minor, the wishes, if
any, of the deceased parent, and any existing
or previous relations 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.”
Section 19, which prohibit the Court from
appointing guardians in certain cases, reads :
“19. Guardians not to be appointed by the
Court
in certain cases
930
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 property
of a minor whose property is under the super-
intendence 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 the
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
superintendence of a Court of Wards competent
to appoint a guardian of the person of the
minor.”
Chapter III (ss. 2O to 42) prescribes duties, rights and
liabilities of, guardians. Sections 20-23 (General
provisions) do not concern us. Section 20 provides for the
fiduciary relationship of guardian towards his wards and S.
22 provides for remuneration of guardians appointed or
declared by the Court. Sections 24 to 256 deal with
“‘Guardian of the person”. Under s. 24 the guardian is
bound, inter alia, to look to his ward’s support, health and
education. Section 25 which is of importance for our
purpose provides for “Title of Guardian to custody of Ward”
and reads
“25. Title of guardian to custody of ward :
(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 for
his return, and for the purpose of enforcing
the order may cause the ward 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.”
Sections 27 to 37 deal with “Guardian’s Property” and
Sections 38 to 48 deal with”‘Termination of Guardianship”.
Chapter IV (ss. 43 to 51) is the last chapter dealing with
supplementary provisions.
931
Now it is clear from the language of S. 25 that it is
attracted only if a ward leaves or is removed from the
custody of a guardian of his person and the Count is
empowered to make an order for,the return of the ward to his
guardian if it is of opinion that it will be for the,
welfare of the, ward to return to the custody of his
guardian. The Court is entrusted with a judicial discretion
to order return of the Ward to the custody of his guardian,
if it forms an opinion that such return is for the ward’s
welfare. The use of the words “ward” and “guardian” leave
little doubt that it is the guardian who, having the care of
the person of his ward, has be-In deprived of the same and
is in the capacity of guardian entitled to the custody of
such ward, that can seek the assistance of the Court for the
return of his ward to his custody. The guardian
contemplated by this section includes every kind of guardian
known to law. It is not disputed that, as already noticed,
the Court dealing with the proceedings for judicial
separation under the Indian Divorce Act, (4 of 1869) had
made certain orders with respect to the custody, maintenance
and education of the three children of the parties. Section
41 of the Divorce Act empowers the Court to make interim
orders with respect to the minor children and also to make
proper provision to that effect in the decree : s. 42
empowers the Court to make similar orders upon application
(by petition) even after the decree. This section expressly
embodies the legislative recognition of the ,fundamental
rule that the Court as representing the State is vested with
the power as also the duty and responsibility of making
suitable orders for the custody, maintenance and education
of the minor children to suit the changed conditions and
circumstances. It is, however, noteworthy that under Indian
Divorce Act the sons of Indian fathers cease to be; minors
on attaining the age of 16 years and their daughters cease
to be minors on attaining the age of 13 years : s. 3(5).
The Court under the Divorce Act would thus be incompetent
now to make any order under ss. 41 and 42 with respect to
the elder son and the daughter in the present case.
According to the respondent husband under these
circumstances he cannot approach the Court under the
Divorce, Act for relief with respect to the custody of these
children and now that those children have ceased to be
minors under that Act, the orders made by that Court have
also. lost their vitality On this reasoning the husband
claimed the right to invoke S. 25 of the Guardians and Wards
Act : in case this section is not applicable, then the
husband contended, that his application (O.P. 270 of 1970)
should be, treated to be an application under S. 19 of the
Guardians and Wards Act or under any other competent section
of that Act so that he could Let the custody of his
children, denied to him by the wife. The label on the
application, he argued, should be treated as
932
a matter of mere form and, therefore, immaterial. The
appellant’s counsel on the other hand contended that the
proper procedure for the husband to adopt was to apply under
s.7 of the Guardians and Wards Act. Such an application, if
made, would have been tried in accordance with the
provisions of that Act. The counsel added that ss. 7 and 17
of that Act also postulate welfare of ,the minor in the
circumstances of the case, as the basic and primary
consideration for the Court to keep in view when appointing
or declaring a guardian. The welfare of the minors in the
present case, according to the wife, would be best served it
they remain in her custody.
In our opinion, S. 25 of the Guardians and Wards Act
contemplates not only actual physical custody but also cons-
tructive custody of the guardian which term includes all
categories of guardians. The object and purpose of this
provision being ex facie to ensure the welfare of the minor
ward, which necessarily involves due protection of the right
of his guardian ,to properly look after the ward’s health,
maintenance and ,education, this section demands reasonably
liberal interpretation so as to effectuate that object.
Hyper-technicalities should not be allowed to deprive the
guardian the necessary assistance from the Court in
effectively discharging his duties and obligations towards
his ward so as to promote the latter’s welfare. If the
,Court under the Divorce Act cannot make any order with
respect to the custody of Ajit alias Andrew and Maya alias
Mary and it is not open to the Court under the Guardians and
Wards Act to appoint or declare guardian of the person of
his children under s. 19 during his life-time, if the Court
does not consider him unfit, then, the only provision to
which the father can have resort for his children’s custody
is S. 25. Without, therefore, laying down exhaustively the
circumstances in which s. 25 can be invoked, ‘in our
opinion, on the facts and circumstances of this case the
husband’s application under S. 25 was competent with respect
to the two elder children. The Court entitled to consider
all the disputed questions of fact or law properly raised
before it relating to these two children. With respect to
Mahesh alias Thomas. however, the Court under the Divorce
Act is at present empowered to make suitable orders relating
to his custody, maintenance and education. It is,
therefore, somewhat difficult to impute to the legislature
an intention to set up, another parallel Court to deal with
the question of the custody of a minor which is within the
power of a competent Court under the Divorce Act. We are
unable to accede to the respondent’s suggestion that his
application should be considered to have been preferred for
appointing or declaring him as a guardian. But whether the
respondent’s prayer for custody of the minor children be,
considered under the Guardians and Wards Act or under the
Indian Divorce Act, as observed
933
by Maharajan J., with which observation we entirely agree,
“the controlling consideration governing the custody of the
children is the welfare of the children concerned and not
the right of their parents” It was not disputed that under
the Indian Divorce Act this is the controlling
consideration. The Court’s power under s.25 of the
Guardians and Wards Act is also, in our opinion, 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. The contention that if the
husband is not unfit to be the guardian of his minor
children, then, the question of their welfare does not at
all arise is to state the proposition a bit too broadly may
at times be somewhat misleading. It does not take full
notice of the real core of the statutory purpose. In our
opinion, the dominant consideration in making orders under
s.25 is the welfare of the minor children and in considering
this question due regard has of course to be paid to the
right of the father to be the guardian and also to all other
relevant factors having a bearing on the minor’s welfare.
There is a presumption that a minor’s parents would do their
very best to promote their children’s welfare and, if
necessary, would not grudge any sacrifice of their own
personal interest and pleasure. This presumption arises
because of the natural, selfless affection normally expected
from the parents for their children. From this point of
view, in case of conflict or dispute between the mother and
the father about the custody of (their children, the
approach has to be somewhat different from that adopted by
the Letters Patent Bench of the High Court in this case.
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. If the custody of the
father cannot promote their welfare equally or better than
the custody of the mother, then, he cannot claim
indefeasible right to their custody under s.25 merely
because there is no defect in his personal character and he
has attachment for his children which every normal parent
has. These are the only two aspects pressed before us,
apart from the stress laid by the husband on the allegations
of immorality against the wife which, in our firm opinion,
he was not at all justified in contending. Such
allegations, in view of earlier decisions, had to be
completely ignored in considering the question of custody of
the children in the present case. The father’s fitness from
the point of view just mentioned
934
cannot over-ride considerations of the welfare of the minor
children. No doubt, the father has been presumed by the
statute ,generally to be better fitted to look after the
children-being normally the earning member and head of the
family-but the Court has in each-case to see primarily to
the welfare of the children in determining the question of
their custody, in the background of .all the relevant facts
having a bearing on their health, maintenance and education.
The family is normally the heart of our society and for a
balanced and healthy growth of children it is .highly
desirable that they got their due share of affection and
care from both the parents in their normal parental home.
Where, however, family dissolution due to some unavoidable
circumstances becomes necessary the Court has to come to a
judicial decision on the question of the welfare of the
children on a full consideration 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 posit-ion to guarantee
better health, education and maintenance for them. 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 have erred in
reversing him on grounds which we are unable to appreciate.
At the bar reference was made to a number of decided cases
on ‘the question of the right of, father to No appointed or
declared as guardian and to be granted custody of his minor
children under s. 25 read with S. 19 of the Guardians and
Wards Act. Those decisions were mostly decided on their own
peculiar facts. We have, therefore not considered it
necessary to deal with them. To the extent, however, they
go against the view we have taken of s. 25 ,of the Guardians
and Wards Act, they must be held to be wrongly ,decided.
The respondent’s contention that the Court under the Divorce
Act had granted custody of the two younger children to the
935
wife on the ground of their being of tender age, no longer
holds good and that, therefore, their custody must be handed
over to him appears to us to be misconceived. The age of
the daughter at present is such that she must need the
constant company of ,I grown-up female in the house
genuinely interested in her welfare. Her mother is in the
circumstances the best company for her. The daughter would
need her mother’s advice and guidance on several matters of
importance. It has not been suggested at the bar that any
grown-up woman closely related to Maya alias Mary would be
available in the husband’s house for such motherly advice
and guidance. But this apart, even from the point of view
of her education, in our opinion, her custody with the wife
would be far more beneficial than her custody with the
husband. The youngest son would also’ in our opinion, be
much better looked after by his mother than by his father
who will have to work hard to take a mark in his profession.
He has quite clearly neglected his profession and we have no
doubt that if he devotes himself’ wholeheartedly to it he is
sure to find his place fairly high tip in the legal
profession.
The appellant’s argument based on estoppel and on the orders
made by the court under the Indian Divorce Act with respect
to the custody of the children did not appeal to us. All
orders relating to the custody of the minor wards from their
very nature must be considered to be temporary orders made
in the existing circumstances. With the changed conditions
and Circumstances, including the passage of time, the Court
is entitled to vary such orders if such variation is
considered to be in the interest of the welfare of the
wards. It is unnecessary to refer to some of the decided
cases relating to estoppel based, on consent decrees. cited
at the bar. Orders relating to custody of wards even when
based on consent are liable to be varied by the Court, if
the welfare of the wards demands variation.
We accordingly allow the appeal with respect to the custody
of the two younger children and setting aside the judgment
of the Letters Patnet Bench in this respect, restore that of
the learned single Judge who, in our view, had correctly
exercised his discretion under s. 25 of the Guardians and
Wards Act, The directions given by him with respect to
access of the parties to their children are also restored.
As regards alimony, no doubt. the Letters Patent Bench was,
in our opinion, not quite right in withholding payment of
the alimony already fallen due and in arrears. But in view
of the fact that the financial position of the wife is far
superior to that of the husband who according to his own
submission. has yet to establish himself in his profession,
we do not consider it just and proper to
936
interfere with that order under Art. 136 of the
Constitution. With respect to the alimony, therefore, the
appeal fails and is dismissed. We also direct that the
parties should bear their own costs throughout. ,
Before concluding we must also express our earnest hope, as
was done by the learned single Judge, that the two spouses
would at least for the sake of happiness of their own off-
spring if for no other reason, forget the past and turn a
new leaf in their family life, so that they can provide to
their children a happy, domestic home, to which their
children must be considered to be justly entitled. The
requirement of indispensable tolerance and mental
understanding in matrimonial life is its basic foundation.
The two spouses before us who are both educated and cultured
and who come from highly respectable families must realise
that reasonable wear and tear and normal jars and shocks of
ordinary married life has to be put up with in 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. Incompatibility of
tamprament has to be endeavored to be disciplined into
compatibility and not to be magnified by abnormal impluses
or impulsive desires and passions. The husband is not
disentitled to a house and a housewife, even though the wife
has achieved the status of an economically emancipated
woman; similarly the wife is not a domestic slave, but a
responsible partner in discharging their joint, parental
obligation in promoting the welfare of their children and in
sharing the pleasure of their children’s company. ‘Both
parents have, therefore, to cooperate and work harmoniously
for their children who should feel proud of their parents
and of their home, bearing in mind that their children have
a right to expect from their parents such a home.
S.B.W. Appeal allowed in part.
937
