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Sri Ramit Kumar Dey vs Smt. Rituparna Dey (Singha) And … on 24 January, 2019

In the High Court at Calcutta

Civil Revisional Jurisdiction

Appellate Side

The Hon’ble Justice Sabyasachi Bhattacharyya

C.O. No. 21 of 2019

Sri Ramit Kumar Dey

Vs.

Smt. Rituparna Dey (Singha) and another

For the husband‐petitioner : Mr. Debojyoti Basu,

Mr. Arunava Ganguly

For the wife‐opposite party : Mr. Gopal Chandra Ghosh,

Mr. Prasanta Banerjee

Hearing concluded on : 16.01.2019

Judgment on : 24.01.2019

Sabyasachi Bhattacharyya, J.:‐
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1. The sparring parties in the present revisional application are primarily the parents and

paternal grandmother of a three‐and‐half year old girl named ‘Aashna’. The petitioner is

the father, the opposite party no. 1 the mother and the proforma opposite party no. 2 the

paternal grandmother of the child.

2. Two cases are pending between the parties pertaining to guardianship and custody of

the child respectively. The proforma opposite party no. 2 filed an application under

Sections 8 and 10, read with Section 25 of the Guardians and Wards Act, 1890

(hereinafter referred to as “the 1890 Act”), which was registered as Act VIII Case No. 10

of 2018, now pending before the Additional District Judge, First Court at Chinsurah,

Hooghly Sadar. The prayer in the said proceeding is set out below:

“In the above circumstances your Honour may graciously be pleased to admit this

application for custody of the minor and also appointment of Guardianship of the minor

and after due hearing of the parties your Honour may kindly be pleased to appoint your

petitioner as Guardian of the minor Aashna Dey and may pass further order/orders as

your Honour may deem fit and proper for the ends of justice.”

3. On the other hand, the present opposite party no. 1, being the mother of the child, filed

an application under Section 25 of the 1890 Act, praying for the following reliefs:

“a) An order directing the O.P.’s to handover the custody of the Aashma

Dey in favour of the petitioner.

b) An order for the cost of the proceeding against the O.P.’s.

c) Any other relief or reliefs as per law and equity.”
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The said proceeding was registered as Act VIII Case No. 24 of 2018 and is at

present pending before the Additional District Judge, First Fast Track Court at

Chinsurah, District: Hooghly.

4. Both the said proceedings are being contested by the respective respondents by filing

written statements.

5. The child is now residing with the petitioner and the proforma opposite party no. 2.

6. The opposite party no. 1, in her proceeding for custody of the child, also filed an

application under Section 12 of the 1890 Act, seeking interim custody of the minor.

7. Upon an order being passed on the said application, the same was challenged in C.O.

No. 3921 of 2018, which was disposed of by this court by setting aside the impugned

order and directing the trial court to re‐hear the application for interim custody and to

adjudicate the same afresh. Certain observations pertaining to such re‐hearing were also

made therein, which have no direct relevance to the present case.

8. Subsequently, the present petitioner‐father took out an application under Section 14 of

the 1890 Act, read with Section 151 of the Code of Civil Procedure, praying for stay of

the proceedings in Act VIII Case No. 24 of 2018, upon being apprised of pendency of Act

VIII Case No. 10 of 2018, pending before a different court. The opposite party no. 1

contested the said application by filing a written objection thereto. Vide Order No. 17

dated December 19, 2018, the application under Section 14 of the 1890 Act, filed by the

petitioner, was dismissed as misconceived and misdirected. By a later order passed on
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the same date, the court fixed a subsequent date for re‐hearing of the application for

interim custody without accommodating the adjournment prayer made by the

petitioner.

9. The present revisional application has been preferred by the father/petitioner against the

said order of dismissal of the application under Section 14 of the 1890 Act.

10. The trial court proceeded on the premise that Act VIII Case No. 24 of 2018 was for

restoration of custody and was not one for appointment or declaration of guardianship

of a minor, for which Section 14 was not applicable.

11. The trial court also held that since an application for transfer under Section 24 of the

Code of Civil Procedure was pending before the District Judge at Hooghly, for

analogous hearing of the two proceedings, the two proceedings could be heard together,

in any event, subject to the decision of the said transfer application. On such grounds,

the trial Judge dismissed the application under Section 14.

12. It is argued by learned counsel for the petitioner that the first premise of the impugned

order, that no question of guardianship was involved in the application of the opposite

party no. 1, was erroneous in law. In this context, learned counsel cites a judgment

reported at (2010) 2 SCC 654 [Athar Hussain vs. Syed Siraj Ahmed and others]. It is

submitted, by placing reliance on the said judgment, that the Supreme Court held that

the paramount consideration in custody matters was the welfare and well‐being of the

child. The same consideration also applied in selecting a proper guardian of a minor.
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13. Learned counsel for the petitioner next cites a judgment reported at AIR 1999 SC 1149

[Ms. Githa Hariharan and another vs. Reserve Bank of India and another], wherein it was held

inter alia that while both the parents are duty‐bound to take care of the person and

property of their minor child and act in the best interest of the minor’s welfare, in all

situations where the father is not in actual charge of the affairs of the minor either

because of his indifference or an agreement between him and the mother (oral or

written) and the minor is in the exclusive care and custody of the mother, or the father

for any reason is unable to take care of the minor because of his physical and/or mental

incapacity, the mother can act as natural guardian of the minor and all her actions

would be valid even during the life time of the father, who would be deemed to be

‘absent’ for the purposes of Section 6 (a) of the Hindu Minority and Guardianship Act

and Section 19(b) of the 1890 Act. Similar parameters, according to learned counsel for

the petitioner, were applied in the context of the entire Act, governing guardianship and

custody.

14. Learned counsel for the petitioner next cites a Single Bench judgment of the Bombay

High Court, (Nagpur Bench) reported at AIR 1979 Bombay 156 [Mohammad Shafi vs.

Shamim Banoo] and argues that in the said judgment, the guardianship of the person

seeking custody under Section 25 of the 1890 Act was taken into consideration while

adjudicating upon such prayer of custody.

15. The petitioner next cites a judgment reported at (1973) 1 SCC 840 [Rosy Jacob vs. Jacob A.

Chakramakkal]. In the said judgment it was opined by the Supreme Court that Section 25
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of the 1890 Act contemplates not only actual physical custody but also constructive

custody of the guardian, which term includes all categories of guardians. The object and

purpose of the provision was ex facie to ensure 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, and that the section demands reasonably

liberal interpretation so as to effectuate that object. The unfitness of the father for

purpose of custody was looked into in the said case.

16. Learned counsel for the petitioner lastly relies on the provisions of Section 25 of the 1890

Act.

17. It is submitted that the question of guardianship is implicit in Section 25 of the 1890 Act

as well and no order can be passed under the said provision without appreciating the

question of guardianship of the minor.

18. It is further submitted on behalf of the petitioner that Chapter III of the 1890 Act

depends on Chapter II thereof. As such, Section 25 is dependent on yardsticks stipulated

in Section 7, the said provisions pertaining to custody and guardianship respectively.

19. It is further argued that, in order to grant custody of a minor to a person, the said person

has to be either a natural guardian or a court‐appointed guardian of the minor.

20. While deciding a matter under Section 25, the court has to take into account the

provisions of Section 19 of the 1890 Act, which stipulate the situations when a guardian

cannot be appointed by the court.

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21. In such view of the matter, it is argued that the application of the opposite party no. 1

also involved questions of appointment/declaration of a guardian and thus came within

the purview of Section 14 of the 1890 Act.

22. In controverting such arguments, learned counsel for the opposite party no. 1 submits

that whatever might be the considerations in passing an order of custody, either under

Section 25 or under Section 12 of the 1890 Act, such applications could not be termed to

be “proceedings for the appointment or declaration of a guardian of a minor”, as

envisaged in Section 14 of the 1890 Act. Only an application to invoke the power of the

court under Section 7 of the said Act could be termed to be so, since Section 7 was the

sole provision in the 1890 Act providing for appointment or declaration of guardians.

23. It is further submitted that any incidental consideration regarding guardianship, in a

proceeding for custody of a minor, could not render such a proceeding one for

appointment or declaration of guardian.

24. It is further submitted on behalf of the opposite party no. 1 that none of the judgments

cited on behalf of the petitioner support the proposition advanced by the petitioner, as

regards proceedings under Section 25 of the 1890 Act being akin to proceedings for

appointing or declaring a person to be a guardian.

25. In such view of the matter, it is argued that the revisional application ought to be

dismissed.

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26. Since the interests of the proforma opposite party no. 2 are on the same footing as the

petitioner and the petitioner has not sought any relief against the proforma opposite

party no.2, this court does not deem it necessary to direct service of notice on the latter.

27. As such, the question which arises for consideration is, whether proceedings under

Section 25 of the Guardians and Wards Act, 1890 can be construed as “proceedings for

the appointment or declaration of a guardian of a minor” as envisaged in Section 14 of

the said Act.

28. To answer the aforesaid question, the language of Sections 7, 12, 14, 19 and 25 of the

1890 Act is to be looked into. As such, the said sections are set out below:

“Guardians and Wards Act, 1890:‐

7. Power of the Court to make order as to guardianship. ‐ (1) Where the Court is satisfied

that it is for the welfare of a minor that an order should be made –

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian, the court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been

appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by

the Court, an order under this section appointing or declaring another person to be guardian in

his stead shall not be made until the powers of the guardian appointed or declared as aforesaid

have ceased under the provisions of this Act.

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12. Power to make interlocutory order for production of minor and interim protection of

person and property. ‐ (1) The Court may direct that the person, if any, having the custody of

the minor, shall produce him or cause him to be produced at such place and time and before such

person as it appoints, and may make such order for the temporary custody and protection of the

person or property of the minor as it thinks proper.

(2) If the minor is a female who ought not to be compelled to appear in public, the direction under

sub‐section (1) for her production shall require her to be produced in accordance with the customs

and manners of the country.

(3) Nothing in this section shall authorise ‐

(a) the Court to place a female minor in the temporary custody of a person claiming to be

her guardian on the ground of his being her husband, unless she is already in his custody

with the consent of her parents, if any, or

(b) any person to whom the temporary custody and protection of the property of a minor

is entrusted to dispossess otherwise than by due course of law any person in possession of

any of the property.

14. Simultaneous proceedings in different Courts. ‐ (1) If proceedings for the appointment or

declaration of a guardian of a minor are taken in more Courts than one, each of those Courts

shall, on being apprised of the proceedings in the other Court or Courts, stay the proceedings

before itself.

(2) If the Courts are both or all subordinate to the same High Court, they shall report the case to

the High Court, and the High Court shall determine in which of the Courts the proceedings with

respect to the appointment or declaration of a guardian of the minor shall be had.
10

(3) In any other case in which proceedings are stayed under sub‐section (l),the Courts shall report

the case to, and be guided by such orders as they may receive from, their respective State

Governments.

19. Guardian not to be appointed by the Court in certain cases. ‐ 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, other than a married female, whose father or mother 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.

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 the 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 (10 of 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.”

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29. Section 14 makes it clear that the pre‐condition of invoking the same would be that

proceedings for the appointment or declaration of a guardian of a minor are taken out in

more courts than one.

30. In such context, it is seen that only Section 7 of the 1890 Act uses the language as

contemplated in Section 14 and makes provision for appointing a guardian of a minor’s

person or property, or both, or declaring a person to be such a guardian.

31. Section 25, on the other hand, pertains to the title of a guardian to custody of a ward.

The scope of Section 25 commences when a ward leaves or is removed from the custody

of a guardian of her/his person. In such a situation, the court, if it is of opinion that it

will be for the welfare of the ward to return to the custody of the guardian, may make an

order for her/his return. The rest of the said section is incidental to such power and

provides for the modalities to enforce the same. It has further been provided in Sub‐

Section (3) of Section 25 that the residence of a ward against the will of her/his guardian

with a person who is not her/his guardian does not itself terminate the guardianship.

32. The reference to ‘guardian’ and ‘guardianship’ in Section 25 do not ipso facto render the

said provision to be one for appointment or declaration of a guardian, but only indicates

that the said provision can only be attracted when custody is removed from the

guardian of the minor. This pre‐supposes that in the event of removal of custody from

anyone other than the guardian, the section cannot be invoked. As such, the reference to

‘guardian’ and ‘guardianship’ is only to define the precise arena of operation of orders

of custody.

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33. On the other hand, Section 12 of the 1890 Act operates in the field of interlocutory orders

for production of minor and interim protection of person and property of the minor. The

said section, although interlocutory in nature, empowers the court to direct any person

having the custody of the minor to produce the minor at such place and time and before

such person as it appoints and to make orders for temporary custody and protection of

the person or property of the minor as it thinks proper. Sub‐Section (3) of Section 12 lays

down certain fetters to such power but do not contemplate any adjudication as to

guardianship as such.

34. Looking into Section 19 of the 1890 Act, the said section only lays down restrictions as to

the authority of 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 a person. The said provision is also not directly related to an adjudication

under Section 25 or Section 12 of the 1890 Act.

35. The best argument which could be advanced by the present petitioner was that the

question of guardianship of the person from whose custody the minor is removed

might, in cases where such a dispute arise, be incidentally involved in a custody

proceeding. However, Sections 25 and 12 of the 1890 Act do not involve any direct

consideration as to appointing or declaring the person in whose custody the minor has

gone, as guardian of the minor. Moreover, while deciding an application for custody, the

court will consider the welfare of the ward and considerations of guardianship pale into

insignificance as such. Thus, any incidental finding as to whether the person, from
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whose custody the minor leaves or from whose custody she/he is removed, is a guardian

of the minor, cannot, by any stretch of imagination, convert a proceeding under Section

25 or Section 12 of the 1890 Act into one for declaration or appointment of guardian as

envisaged in Section 7 of the 1890 Act.

36. Returning to the language of Section 14 of the 1890 Act, it is abundantly clear that the

said section can be invoked only if proceedings for the appointment or declaration of a

guardian of a minor (which is only provided for in Section 7 of the said Act) are taken in

more courts than one. Hence, the several proceedings pending in more than one courts

all have to be for appointment or declaration of a guardian of a minor. Only in such a

case, obviously to avoid multiplicity of proceedings and conflict of decisions affecting

the life and welfare of the minor, the said provision was contemplated by the legislature.

37. In the event a proceeding for appointment or declaration of guardianship is filed in

some court and other courts receive applications for custody, those cannot be equated or

brought on the same footing for the purpose of implementing the purpose behind

Section 14 of the 1890 Act.

38. Such a situation can be conveniently handled under Section 24 of the Code of Civil

Procedure, subject to discretion of the court concerned, as rightly observed by the trial

court in the present case.

39. Looking into the judgments cited by the petitioner, none of those apply to the present

case.

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40. Rather, in Athar Hussain (supra), particularly in paragraph nos. 31, 34 and 41, the

Supreme Court categorically held that the question of custody was distinct from that of

guardianship, which is in direct contradiction with the proposition sought to be

advanced by the present petitioner.

41. As far as Githa Hariharan (supra) is concerned, the entire decision revolves around the

question of guardianship and there is no indication in the said judgment as to the

Supreme Court having equated proceedings for custody with that for appointment or

declaration of guardians.

42. In Mohammad Shafi (supra), a learned Single Judge of the Bombay High Court was

considering the conditions to be satisfied for an adjudication under Section 25 of the

1890 Act. While so considering, there was a stray remark as to the definition of the word

“guardian” in Section 4(2) of the said Act. Such a stray reference cannot at all be said to

be a precedent on the proposition that custody applications are equivalent to

applications for declaration or appointment of guardians.

43. Rosy Jacob (supra), which was also referred to in Athar Hussain (supra), was decided

clearly on considerations as to custody under Section 25 of the 1890 Act. Paragraph no.

15 of the said judgment, which has been particularly relied on by the petitioner, lays

down that the object and purpose of Section 25 is to ensure the welfare of the minor or,

which necessarily involves due protection of the right of his guardian to properly look

after the ward’s health, maintenance and education. Hyper‐technicalities, it was held,

should not be allowed to deprive the guardian the necessary assistance from the court in
15

effectively discharging his duties and obligations towards his ward so as to promote the

latter’s welfare. It was further held by the Supreme Court in paragraph no. 12 of the

cited judgment that the Supreme Court was unable to accede to the respondent’s

suggestion that his application (for custody) should be considered to have been

preferred for appointing or declaring him as a guardian. Such proposition is

diametrically opposite to the contention of the petitioner in the instant case and as such,

cannot come to the aid of the petitioner in any manner.

44. In the aforesaid circumstances, the trial court was well within its jurisdiction to refuse

the prayer of the petitioner under Section 14 of the 1890 Act. Accordingly, C.O. No. 21 of

2019 is dismissed, thereby affirming the order of the trial court.

45. There will be no order as to costs.

46. Urgent certified website copies of this order, if applied for, be made available to the

parties upon compliance with the requisite formalities.

( Sabyasachi Bhattacharyya, J. )

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