An Assignment

On

Guardianship

(Conflict of Laws)

Submitted To

Faculty of Law

By

Puneet Srivastava

B.A.LL.B. (H)

10th Semester

Roll No.: 09 BALLB 47

Under the guidance of

Dr. Kahkashan Y. Danyal

(Conflict of Laws)

JMI

JAMIA MILLIA ISLAMIA, NEW DELHI- 11O O252013-2014

(i)

ACKNOWLEDGEMENTS

I, Puneet Srivastava, a student of B.A. LL.B. (H), X sem., Faculty of Law,

Jamia Millia Islamia, express my gratitude towards Dr. Kahkashan Y.

Danyal, Faculty of Law, Jamia Millia Islamia, for her guidance and

constant supervision.

March 31, 2014 (Puneet Srivastava)

TABLE OF CONTENTS

S.No. TOPICS Pg. No.

Acknowledgements (i)

1. INTRODUCTION 1

2. TYPES OF GUARDIAN 2-5

2.1 Natural Guardian (Sec 6)

2.2 Testamentary Guardian (Sec 9)

2.3 De Facto Guardian

2.4 Welfare of the minor is of paramount importance (Sec 13)

3. UNDER GUARDIANSHIP AND WARDS ACT 5-12

4. CUSTODY OF A CHILD 12-17

4.1 In Custody of Abducted Child

4.2 Choice of Law

4.3 Recognition and Enforcement of Foreign Guardianship and Custody Orders

4.4 Foreign Custody Orders

4.5 Indian Law

5. UNDER HINDU MINORITY AND GUARDIANSHIP ACT 17-18

CONCLUSION (ii)

REFERENCES (iii)

1

GUARDIANSHIP

1. INTRODUCTION:

The Guardianship and Wards Act 1890 was passed to consolidate and amend all laws relating to

guardian and wards. The Hindu Minority and Guardianship Act came into force in 25 August,

1956. It purports to codify certain parts of the law relating to minority and guardianship among

Hindus. Section 2 of this act says that the provisions of this act shall be in addition to the Guardians

and Wards Act, 1890. Thus the act of 1956 is a supplemental to the act of 1890. Section 5 of the act

of 1956 says that any other law in force immediately before the commencement of this act shall

cease to have effect in so far as it is inconsistent with any of the provisions contained in this act. It

would thus be clear that the provisions of this Act of 1956 and of the Guardians and Wards act are

complimentary. But in case of repugnancy, the provisions of the act of 1956 would prevail.

2. TYPES OF GUARDIAN:

The 1956 act deals with three types of guardians:

1. Natural guardians

2. Testamentary guardians

3. Guardians appointed or declared by the courts.

According to section 4 of the act, a guardian means a person having the care of a person of a

minor or of his property or of both the person and his property. This includes:

natural guardian

guardian appointed by the will of a natural guardian (testamentary guardian)

a guardian appointed or declared by court

a person empowered to act as such by the order of Court of Wards.

This list of 4 types of guardians is not exhaustive. A person who is taking care of a minor

without authority of law, can also be a guardian under the above definition and is called a de

2

facto guardian. De facto guardians include self-appointed guardians and guardians by affinity, such

as guardians for a minor widow. However, a person does not have right to sell or deal with minor's

property if he is merely a de factor guardian as per section 11.

2.1 Natural Guardian (Sec 6):

Section 6 of HMG Act 1956 defines only three natural guardians:

For a legitimate boy or an unmarried girl, the father, and after father, the mother,

provided that the custody of a child less than 5 yrs of age will be with the mother.

For an illegitimate boy or an illegitimate unmarried girl, the mother, and after mother, the

father.

For a married woman, the husband.

It further states that no person shall be entitled to be a natural guardian of a minor if

He ceases to be a Hindu or

He renounces the world completely by becoming a hermit (vanaprastha) or an ascetic

(sanyasi).

Here, by father and mother, natural father and mother are meant. Step father or step mother do

not have any right to guardianship unless appointed by court.

As per section 7, natural guardianship of an adopted son passes on to his adoptive father and

after adoptive father, to adoptive mother.

Position of Father

Pre- 1956, the right of the father was supreme. He could even appoint a person to act as a

guardian after his death even if the mother was alive. This is not the case now. Further, as held in

the case of Lalita vs. Ganga AIR 1973 Raj. a fathers right to guardianship is subordinate to the

welfare of the child. In the case of Githa Hariharan v. RBI AIR 1999 SC held the mother to be the

natural guardian in spite of the father being alive and further held that the word "after" means "in

3

the absence" rather than "after the life" of the father. Thus, if a father is incapable of

protecting the interests of a minor due to any reason, he can be removed from guardianship.

Position of Mother

The mother is the natural guardian of her illegitimate minors. In case of legitimate minors, the mother

has right to custody of a minor less than 5 yrs. of age. This does not mean that mother does not

have the right to custody after 5 yrs. of age. In case of Sheela vs Soli, 1981 Bom HC, it was held

that a mother's right to guardianship is not lost upon conversion to another religion if she is able

to provide proper care to the minor. Further, in Kumar vs Chethana AIR 2004, SC has held that

the mother's right to guardianship is not lost automatically after her remarriage. In all such cases,

welfare of the child has to be considered above all including the convenience and pleasure of the

parents.

Position of Husband

In Hindu shastras, husband and wife are considered to be one. Thus, it is believed that the

guardianship of a minor wife belongs to the husband. However, due to section 13, a court may revert

back the guardianship to the father or mother depending on the best interests of the minor.

However a guardian does not have a right over the joint family interest of a minor. In an undivided

family the father or other senior male member for the time being as KARTA is entitled to

manage the whole coparcenary property including the minor’s interest. Where all the coparceners

are minors the eldest of them is competent as managing member of the family to be the guardian of

his wife or child or of the wife and child of another minor member of the family. The court may in

such a case appoint a guardian of the whole of the joint family property until one of them attains

majority.1 The guardian is then bound to hand over the property to him notwithstanding the

fact that the other sons are minors.2 The mother is not entitled to the custody of the coparcenary

1 Bindaji v. Mathurabai, 30 Bom. 152; Seetha Bai v. Narasimha Shet, AIR 1945 Mad. 306- it has been held by Highcourts in India that, where the joint family consists only of minors, a guardian could be appointed in respect of the jointfamily properties of the minor members2 Ramchandra v. Krishnarao, 32 Bom 259; Chandrapal Singh v. Sarabjit Singh, AIR 1935 Oudh 334

4

interest of her minor son. But she is entitled to the custody of the person and separate property if

any, of him as his natural guardian.

Removal of a guardian:

Court has the power to remove any guardian in accordance to section 13 if-

He ceases to be a Hindu.

He becomes hermit or ascetic.

Court can remove if it finds that it is not in the best interest of the child.

2.2 Testamentary Guardian (Sec 9)

A person who becomes a guardian due to the will of a natural guardian is called a testamentary

guardian. Section 9 defines a testamentary guardian and his powers.

F o r a legitimate boy or a girl, the father, who is a natural guardian, may appoint any

person to act as the guardian of the child after the death of the father. However, if the other

is alive, she will automatically become the natural guardian and after her death, if she has not

named any guardian, the person appointed by the father will become the guardian.

A widow mother who is a natural guardian, or a mother who is a natural guardian because

the father is not eligible to be a natural guardian, is entitled to appoint a person to act as a guardian

after her death.

For an illegitimate child, the power of appointing a testamentary guardian lies only with the

mother.

The right of the guardian so appointed by will shall, where the minor is a girl, cease on her

marriage.

5

2.3 De Facto Guardian:

Section 11 says that a de facto guardian is not entitled to dispose or deal with the property of the

minor merely on the ground of his being the de facto guardian. There is controversy regarding the

status of a de facto guardian. Some HC consider that alienation by de facto guardian is void while

alienation by de jure guardian is voidable (Ashwini Kr vs Fulkumari, Cal HC 1983), while some

HC have held that both are voidable (Sriramulu' case 1949). It is now well settled that de facto

guardian does not have the right to assume debt, or to gift a minor's property, or to make reference

to arbitration.

2.4 Welfare of the minor is of paramount importance (Sec 13):

While appointing or declaring a guardian for a minor, the count shall take into account the welfare

of the minor. No person shall have the right to guardianship by virtue of the provisions of

this act or any law relating to the guardianship in marriage if the court believes that it is not in the

interest of the minor. Thus, under this doctrine, any guardian may be removed depending on the

circumstances on per case basis and the court may appoint a guardian as per the best interests of the

minor.

3. UNDER GUARDIANSHIP AND WARDS ACT:

The secular law for appointment and declaration of guardians and allied matters, irrespective of

caste, community or religion, is Guardianship and Wards Act, 1890. Under this act,

M i n o r child, under the age of 5, are committed to the custody of mother.

Older boys to father and older girls to mother, however there is no hard and fast rule and

the paramount factor in decision is welfare of the child.

The choice of child is considered, above the age of 9 and is only held if it complies with

the fulfillment of the welfare requirements of child.

6

A mother who is proven to neglect the child in his/her infancy is not handed with the child

custody.

Gain Chand v. Smt. Sudha3

A minor son of 17 years wants to stay with his mother and does not want to go with his father.

Forcing him to go with his father would be harsh treatment to the minor as after one year when he

completes the age of majority he cannot be so compelled. Having regard to the welfare of minor.

Custody should be given to mother.

V. Maria Pushpa Janet Rajam v. G. Anantha Jayakumar4

Madras High Court considered s. 17 and s. 25 of the Guardians and Wards Act which lay down that

while appointing or declaring the guardian of a minor, the Court has to consider the welfare of

the minor. What will be the welfare of the Minor, the Court has to take note of the age, sex and

religion of the minor, the character and capacity of the proposed guardian and his relation to minor,

the wishes, if any, of a deceased parent.

Kiran A. Lakhani (Smt.) v. Shri Ajit H. Lakhani5

Mother sought custody of the minor daughter aged 13 years. Company of the mother would be

vital and important for all sides’ development of daughter when she attains the age of puberty.

Company of mother cannot be equated with the company of other members of the family of the

father. Mother being an earning mother was able to spend on daughter’s education and other

expenses. Conditional custody was directed to be given to mother.

3 AIR 2000 P&H 2084 AIR 2004 Mad 1.5 AIR 2006 NOC 276 (Bom).

7

Sheila B. Das v. P.R. Sugasree6

Father, a lawyer by profession claimed guardianship of minor girl child reaching the age of puberty.

Child, a little more than 12 years was found to highly intelligent. She is capable of making intelligent

choice as regards to her custody. Child preferred to live with her father. Child had a very good

relationship with paternal aunt living in father’s house and was able to relate to her in matters

concerning a growing girl child. Father was financially stable. He was not disqualified in any way

from being guardian. Only allegation leveled against father was his purported apathy towards the

minor. Allegations are not borne out on materials adduced. There is no sufficient material to make

father ineligible to act as guardian of the minor.

Chethana Ramatheertha v. Kumar V. Jahgirdar7

Application was made for custody of child by a parent. Parent of the child was not disqualified

from being natural guardian of minor child. Still minor’s interest can be better served if custody of

child is with other parent. Financial position of either parent of the child is good enough. Traditional

concept that father is first guardian of child should be in his custody no longer holds good. Held, on

facts, child in the instant case who was a female child should not be deprived of custody of her

mother.

Kishore v. Manju8

Willingness of the minor boy who is aged 14 years is also to be taken into consideration because he

has become sufficiently old even though a minor to come to a rational conclusion especially when

a dispute is pending in the Court in regard to his custody between his father and mother.

6 AIR 2006 SC 13437 AIR 2003 NOC 590 (Kant).8 2000 AIHC 3683.

8

Ram Kumar Yadav v. Pratibha Jadav9

Minor was found unequivocally unwilling to reside with his father even for a short period. Court

declined to grant custody of the minor in favour of the father.

R.V. Srinath Prasad v. Nandarani Jayakrishna10

Though father is the natural guardian, the said legal right is subject to the provisions of s. 17 of the

Act which emphasizes that the Court should be guided by the sole consideration of the welfare and

wish of the minor. Neither affluence nor capacity to provide comfortable living should cloud the

consideration.

Jaiprakash Khadria v. Shyam Sundar Agarwalla11

Effluence of party seeking guardianship cannot be the sole criteria for making appointment.

G. Eva Mary Elezabath v. Jayaraj12

The orders relating to custody of children are by the very nature not final but are

interlocutory in nature and subject to modification at any future time upon proof of change of

circumstances requiring change of custody but such change in custody must be proved to be in the

paramount interest of the child.

Goverdhan Lal v. Gajendra Kumar13

Father made an application for custody of minor son. Mother died when the son was just about

three months old. Since then son was being looked after and taken care of by maternal grandparents.

Three years after the death of the wife, husband contracted second marriage and out of the said

wedlock a daughter was born. The son was 14 years old when the father made the application for

9 AIR 2002 MP 44.10 (2001) 4 SCC 71.11 AIR 2000 SC 217212 AIR 2005 Mad 452.13 AIR 2002 Raj 148.

9

the custody of the son. The son was pursuing his studies and was properly taken care of by the

grandparents. Statement made by the son in Court that he is willing to live with maternal

grandparents and not with his father. Father and son are foreigners to each other. Court held that the

welfare and interest of son will be better served in custody of his maternal grandparents than his

father. Order of Family Court handing over his custody to father was set aside.

Section 17 of this act deals with the matters that is to be considered by the court in appointing a

guardian. The welfare of the child is considered to be of paramount importance. In considering the

welfare of the child the court has to look into certain factors such as the sex and religion of the

minor, the capacity and character of the proposed guardian and his nearness of kin to the minor.

Apart from this the court also considers the wishes of the child under sub-sec (3) as also the wishes

of the parents.

Thus the court is not entirely free to appoint whomsoever it thinks would give to the minor the

best advantages in life. The appointment is to be for the welfare of the minor, consistently with the

law to which the minor is subject.14

The correct rule under this section may be stated thus: one has to see who out of the several

applicants has a preferential right to be appointed guardian of the minor under the personal law of

the minor. If that person is unfit he may not be appointed. Even though that person may not be

unfit, yet when, compared to other person there are weighty considerations against his

appointment such other person will be appointed. But if the considerations are not very weighty and

there is merely a slight preference in favour of that other person, the guardian pointed out by

the personal law of the minor should be preferred. If however, none of the applicants is a guardian

under the personal law, the court can appoint anyone who appears to be most suitable.

Appointment under this section can be altered from time to time as circumstances require. If in

future the applicant for guardianship can show that he is no longer unfit and has taken an interest in

the welfare of the minor, he can apply to the court again.15

14 In re, Ghulam Mohamed ILR(1942) Kar 363; 205 IC 403; AIR 1942 Sind 15415 Haliman Khatoon v. Ahmadi Begum, AIR 1949 All 627.

10

Ravi Garg v. Bharti Garg16

Minor male children about 12-13 yrs of age filed petition through their mother for temporary custody

of the minors. Guardian judge passed order giving temporary custody to mother.

Revisional application was filed by the father in the High Court for modification of the said order.

High Court considering all the facts of the case, modified the order directing the children to stay

with their father for one month. The said order will be operative till final order to be passed by

guardian judge.

Surinder Kaur v. Harbans Singh17

Father asked for custody of child who is to attain majority very soon. Child intends to appear at the

pre-engineering final examination to be held next year. The court held that mother being

educationalist would prove to be the guiding figure in helping the child to take a decision. His

custody was allowed to remain with the mother till he attains majority. Father would have absolute

right of visitation to child. In the interest of the child, court also directed both the parents to deposit

some amount in his name so that he can prosecute his studies even after attaining age of majority. It

was also directed that policy of medical insurance of child would be taken out by both the spouses.

Kanhari Venugopalan v. K.V. Beena18

Mother made an application for custody of daughter aged about 10 years, who was residing with

her father in view of separation of parents. Having regard to age and gender and considering that

she has attained adolescence, she might be in need of close parental guidance including

monitoring of her psychological changes. Mother’s constant presence can instill in minors mind

qualities of fidelity. Reference to religion as guiding factor also favors decision to grand custody to

16 AIR 2003 NOC 411(Del).17 AIR 2003 NOC 263 (P&H).18 AIR 2007 NOC 291 (Ker).

11

mother. A division bench of kerela high court held though father continues to be the legal guardian,

mother is entitled to custody of daughter.

Poolakkal Ayisakutty v. Parat Abdul Samad,19

Mother of the minor child had committed suicide. Grandmother of the child with whom the child

was residing was diabetic patient and was dependant on her another daughter. Father is entitled to

custody of son considering his welfare. Mere fact the father remarried and had children in that

wedlock is not a ground to deny custody to him. Grandmother of the child made an application

for grant of custody to him. Grandmother of the child made an application for grant of custody

of child on the ground that as per provision of Muslim law father was not entitled to custody. Kerala

High Court held that personal law cannot be read in isolation of provisions of Guardians and Wards

Act. The overriding consideration is welfare of child. Custody granted to father considering the

welfare of the child is not improper.

Lekshmi v. Vasantha Kumari.20

In a Kerala case, application was made by paternal grandmother for custody of the minor. Father

has died before the minor was born. Mother remarried. Since birth minor was looked after by mother

extremely well. Welfare of the child is of prime importance in matter of appointment of guardian.

Law also recognizes guardianship of mother in absence of father. Mere fact that the mother has

married a person belonging to another religion, by itself, is not a ground to take away custody of

child from her. More so when she was source of income to maintain child in still in minor’s mind

qualities of fidelity. Reference to religion as guiding factor also favours decision to grant custody

of mother. A Division Bench of Kerala High Court held though father continues to be legal guardian,

mother is entitled to custody of daughter.

Ram Kawal Yadav v. Sm. Pratibha Yadav21

19 AIR 2005 Ker 68.20 AIR 2005 Ker 249.

21 AIR 2002 MP 44

12

Application was made by the father for custody of minor son. Minor aged more than 14 years was

found unequivocally unwilling to reside with the father even for short period. Minor was living with

his mother and sisters since birth. Directing him to be given to the custody of father would result in

change of family, cultural and social environment. For the last many years prior to the filing of

application under s.125, Cr.P.C, the mother had been maintaining the minor boy and her two

daughters. Therefore it cannot be said that interest of the minor would not be served in case she filed

an application for maintenance.

4. CUSTODY OF A CHILD:

Child custody is the word which we hear in family courts, when the spouses are taking the divorce

and fighting for the physical custody of their child. The child custody is the custody of the children

who is below the age of 18 years. The matter of child custody comes in front of the court when

there is the divorce or annulment of the marriage. Family law courts generally base decisions on the

best interests of the child or children, not always on the best arguments of each parent.

Legal custody means that either parent can make decisions which affect the welfare of the child,

such as medical treatments, religious practices and insurance claims. Physical child custody means

that one parent is held primarily responsible for the child's housing, educational needs and food. In

most cases, the non-custodial parent still has visitation rights.

Though all matrimonial laws provides a provision regarding custody of child, but the real power lies

under Guardian and Wards Act-1890. Guardian and wards court are empowered to determine the

issue of child custody.

Generally speaking, Guardian and Wards Court have power to grant:

Permanent Custody

Interim Custody

Visitation Right

Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime

Criterion before awarding final custody in favour of one spouse as against the other is welfare of the

child. Important factors, amongst other, which are considered by the Court in awarding custody are:

13

a. Education of the father

b. Education of the Mother

c. Family background of the Husband which includes financial and educational background.

d. Family background of the Wife

e. Financial Background of the Husband and Wife

f. Wishes of the minor

g. Better chances of overall development of personality of child.

h. Conduct of the parties

Interim Custody is awarded by the Court during the pendency of the case before it. Generally,

the Court awards interim custody when such an order does not affect the overall development of the

child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium

between the husband and wife and also keeps a vigilant eye that the child should not become shuttle

cock between warring spouses. While awarding interim custody, Court has power to impose certain

conditions which could be deposition of passport of minor, if any and/or direct the party to deposit

its own passport so that the child could not be removed from the jurisdiction of the Court.

Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other,

after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian

law is clear on the point that proper development of the child is possible only after the child is

showered with the love and affection of both the father and mother. Once the permanent custody

is granted to one of the spouse, other parent has an inalienable right to meet the child one or twice a

week or as directed by the Court. The object of law is that the emotional bond between child and

father or mother, as the case may be, should not be snapped.

In nut shell, we can say that welfare of the child is the paramount consideration before the court

while adjudicating the claims of husband and wife over the child.

4.1 In Custody of Abducted Child

In Re and another (Minors) No. 222, the mother had abducted the children with acquiescence of the

father from Australia to England. In English Court, the Father applied for the return of the child to

22 (1993) All ER 272

14

Australia. The Court held that after considering all facts and circumstances of the case and welfare

of the children, it would not be proper for the court to order the return of the children.23 B v. B24 is a

case where a child was abducted by the Mother to England from Canada while it was ward of the

Canadian Court. The Court ordered return of the child to Canada’s on father’s application.25

In Re G26, the English Court gave access to the father to the children living in England as per order

of Ontario Court. The children were removed to England with consent of Ontario Court.

In some cases, our Courts have taken the view that the ordinary residence of the minor is the place,

where he is found. These are the cases, where the minor being parentless has no residence at all.

After the death of the parents, if the child is brought up by someone of its relations, or in orphanage

or mission, or someone removes him from the place, it would be right to say that the place where the

child was living before his removal is the place of his ordinary residence.

In Chimanlal v. Rajaram,27 where an orphan child was living at Kolhapur with his paternal uncle and

was later on removed by the maternal uncle to Poona. The case can be explained on the basis of

acquiescence of the paternal uncle in the removal of the child to Poona.

It is submitted that ordinary residence of the minor may be accepted as a basis of jurisdiction

internationally, though in exceptional cases, in case of emergency, jurisdiction may be assumed on

the presence or nationality of the child. It should also be accepted that in matters relating to minors,

the Court exercises a large amount of discretion and in a given case, it may choose to exercise its

jurisdiction or it may decline to do so- the welfare of the minorbeing the paramount consideration.

4.2 Choice of Law

So far, the English Courts have taken the position that whenever they have jurisdiction in matters

relating to guardianship and custody, they apply the English domestic law.28 They have declined to

apply the Law of Domicile29 and it seems that they would also not apply the law of nationality.

23 The Court considered the Convention on Civil Aspects of International Child Abduction 1980 and the ChildAbduction and Custody Act, 198524 (1993) 2 All ER 144 the court said that it sees no reason not to comply with the mandatory requirement of Article 13of the Convention.25 Re 5(1993)2 All ER: Re T (1993) 3 All ER 12726 (1993) 3 All ER 65727 1937 Bom. 15828 Johnstone v. Beattie, (1843) 10 Cl. & F. 42; Re R’s Settlement, (1940) Ch. 54; McKee v. Mckee, (1951) A.C. 352(P.C.)29 Johnstone v. Beattie, cited above

15

In Indian Law, there is no direct decision on the question of choice of law, but it seems to be clear

that our Courts have been applying lex fori. In India, lex fori is apart from the Guardians and Wards

Act, 1890, the personal law of the child. It is submitted that if we should accept ordinary residence

as the basis of jurisdiction, unless its application is not in the welfare of the child.

4.3 Recognition and Enforcement of Foreign Guardianship and Custody Orders

At one time, English Courts held the view that a foreign order of appointment of guardian in regard

to a minor residing in England would not be given any effect.30 Although English Courts still adhere

to the principle that welfare of children is paramount consideration and although they still adhere to

the rule that orders relating to children are not final and can be changed at the Discretion of the Court

on change of circumstances, they have abandoned the extreme position of not giving effect to any

foreign order of guardianship or custody, however this does not mean that foreign orders will be

given effect without scrutiny. The essential and paramount fact before the Court is still the promotion

of the welfare of the children, which is the uppermost consideration, to which consideration all others

yield. In Stuart v. Bute31, where recognition to foreign guardianship order was given, the Court said,

‘There is but one subject, which ought to be kept strictly in view and that is the interest of the infant.32

The present position in English Law seems to be that English Courts ordinarily give effect to foreign

guardianship orders, though foreign custody orders are scrutinised more closely and examined on

the touchstone of welfare of children more rigorously.

4.4 Foreign Custody Orders

It seems that the position of the persons in whose favour, a custody order has been made by a foreign

Court and whose position is not challenged before an English Court is same as that of a foreign

guardian, viz., they can exercise their right in the same manner and with the same limitations as

foreign guardians. But in case their position is challenged in English Courts, then the Courts have

invariably exercised the wide powers conferred on them under Sec. 1, Guardianship of Minors Act,

1971. In other words, they have not hesitated in the least in passing new orders on this basis that the

30 Ibid. Where an order of Scottish Court appointing a guardian was ignored by the English Court.31 (1861) 9. H.L.C. 44032 Ibid at P. 469

16

welfare of children is the paramount consideration; they have done so even if the order of the foreign

Court is an order of competent Court.33

The Privy Council in Mckee v. Mckee34 observed: ‘Such an order (foreign custody order) has not

force of foreign judgement. Comity demands not its enforcement, but its grave consideration. This

distinction… rests on the peculiar character of jurisdiction and the fact that an order providing for

custody of an infant cannot be in its natural final.’35

4.5 Indian Law

In respect of recognition of foreign custody and guardianship orders, the Indian law is in its formative

stage. These are few Indian precedents and in practically all of them, the decision has been rendered

on the basis of English precedent. In Margrett v. Chakoo36, the Kerala High Court rendered the

decision on the basis of Re H.,37 Re E.,38 and Re T.39 An Indian Christian domiciled in India went to

West Germany for higher studies and married there a German domiciled woman. Two children, a

boy and a girl were born in this marriage. But the marriage broke down and the mother obtained a

decree of divorce from a German Court and also an order of custody of children in her favour.

Subsequently defying the order of German Court, he flew to India with children. He did not inform

the mother of the children either before leave Germany or after arriving in India. However, the

mother was able to track down the whereabouts the children and came to India and filed an

application for the custody of the children and permission to take the children to take them out of

India. Nair J. of the Kerala High Court said the Court would recognise the German order of custody

and give effect to it as to do, so would be in the welfare of the children. In Elizabeth Dinshow v.

Arvind,40 on similar facts, the Supreme Court quoted with approval Wilmer L.J. join Re H. Infants:41

the sudden and authorised removal of children from one country to another is far too frequent in

these days, if and as if, seems to me, it is the duty of all Courts in all countries to do all that they can

33 Re B’s Settlement, (1940) Ch. 54; Re Kernot, (1965) Ch. 217. The privy council took this view in Mckee v. Mckee,(1951) A.C. 35234 (1951) A.C. 35235 Ibid at p. 36536 1970 Ker. 1. ; Surinder Kaur v. Harbax Singh, AIR 1984 S.C. 122437 (1966) 2. All. E.R. 88638 (1967) 2 All. E.R. 88139 (1968) 3 All. E.R. 44140 ILR 1984 I P. & H. I.41 AIR 1987 S.C. 3

17

do to ensure that the wrongdoer does not gain an advantage by their wrongdoing. The same view

Punjab and Haryana High Court took in Mrs. Kuldeep Sidhu v. Charan Singh42.

5. UNDER HINDU MINORITY AND GUARDIANSHIP ACT:

The Hindu Minority and Guardianship Act 1956 (HMGA) and Guardians and Wards Act, 1890

(GWA). These Acts are to be read together and implemented in the matter of child custody and

appointment of guardian for the minor.

Custody of a minor is also subordinate to section 13, which declares the welfare of the child to be

of paramount interest. Regarding a child, who is at the age of discretion, his wishes are also to be

considered, though his wishes may be disregarded in his best interest.

Under this section the word ‘welfare’ means both material and spiritual welfare of the minor.

According to The Hindu Minority and Guardianship Act, 1956, normally the mother is considered

to be fit to have the custody of the child if the age of the child is below 5yrs. But when circumstances

are exceptional and when there are strong reasons to make the mother unfit to have custody, it is

the paramount duty of the court to remove the minor child below 5yrs from the custody of the

mother and entrust the same to the father.43 In case of a minor child above 5yrs the father is given

preference of custody.

Between the step mother and step grandmother, the step mother will be given preference because the

step mother is under the control of the father.

In Kumar v. Chethana AIR 2004, SC has held that mother's remarriage is not a sufficient cause in

itself to lose custody of a minor. It was further held that convenience of the parents is irrelevant.

42 AIR 1985 P.& H. 10343 K.S. Mohan v. Sandhya Mohan, AIR 1993 Mad. 59

18

To ensure the welfare of the child, the custody may even be given to the third person as was given

to the mother and grandfather by SC in case of Poonam v. Krishanlal AIR 1989.

In the case of Re Madhab Chandra Saha 1997, father was never active in the interest of a minor

and after a long time demanded the guardianship. His claim was rejected.

In the case of Chakki v. Ayyapan 1989, a mother who says she will keep living with friends and

may beget children from others, was not considered appropriate for custody in the minor's

interest.

(ii)

CONCLUSION

The laws governing child custody in India are the Guardians and Wards Act 1890 and the

Hindu Minority and Guardianship Act 1956. The Hindu Minority and Guardianship Act states

that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in

respect of the minor’s property in the case of a boy or 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’. There are numerous connotations this can take, some of

these are: that the law reflects our patriarchal social structure and that small children are always

better off with the mother. Matters are also complicated by a legal process that does not view

legal guardianship to be co- terminus with physical custody of a child.

The Supreme Court of India has consistently held that in deciding cases of child custody ‘the

first and paramount consideration is the welfare and interest of the child and not the rights of

the parents under a statute.’ But it does appear that when a marriage fails either party, male or

female uses the child to browbeat the opposite partner into submission. In the emotional battle

of parents the child is often held hostage by whosoever has physical custody. India urgently

needs legislative and judicial action to prevent either parent from alienating the child from the

estranged partner. An interim measure can always be that a parent who deliberately alienates

the child from the other has his or her rights for custody weakened; the underlying assumption

always being that it is never healthy for a child to be denied the love and guidance of a

biological parent.

Therefore, the need of the present times regarding the care, protection and bright future of

children regarding guardianship is to make some serious amendments in the laws governing

child custody in India which could strengthen the safe custody of children keeping in mind that

these laws do not hamper their rights so that these children can have a better future, which will

help our country to become developed from a developing nation.

(iii)

REFERENCES

BOOKS:

1. Diwan, Paras, Private International Law (12th Edition, 1992)2. Dicey and Morris, The Conflict of Laws (Vols. 1, 2 with Supp., 12th

Edition, 1993)

Articles:

1. http://www.thehindu.com/opinion/op-ed/child-custody-law-in-india-a-litigant-perspective/article4371934.ece

WEBSITES REFERRED:

1. http://www.childlineindia.org.in/Guardians-and-Wards-Act-1890.htm

2. http://www.legalserviceindia.com/article/l35-Guardianship.html