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 Kahkashan Y. Y. Danyal Danyal (Conflict of Laws) JMI
JAMIA MILLIA ISLAMIA, ISLAMIA, NEW NEW DELHIDELHI- 11O O25 2013-2014
ACKNOWLEDGEMENTS
I, Puneet Puneet Srivastava, Srivastava, a student student of B.A. B.A. LL.B. (H), X sem., Faculty Faculty of Law, Law, Jamia Millia Islamia, express my gratitude towards Dr. Kahkashan Y. Faculty of Law, Law, Jamia Millia Islamia, Islamia, for her her guidance guidance and Danyal, Danyal, Faculty constant supervision.
March 31, 2014
(Puneet Srivastava)
(i)
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)
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 1
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 2
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 High courts in India that, where the joint family consists only of minors, a guardian could be appointed in respect of the joint family properties of the minor members 2 Ramchandra v. Krishnarao, 32 Bom 259; Chandrapal Singh v. Sarabjit Singh, AIR 1935 Oudh 334 3
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.
4
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. 5
•
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 Jayakumar 4
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 208 AIR 2004 Mad 1. 5 AIR 2006 NOC 276 (Bom). 4
6
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. Jahgirdar 7
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 1343 AIR 2003 NOC 590 (Kant). 8 2000 AIHC 3683. 7
7
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 Kumar 13
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. (2001) 4 SCC 71. 11 AIR 2000 SC 2172 12 AIR 2005 Mad 452. 13 AIR 2002 Raj 148. 10
8
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 15
In re, Ghulam Mohamed ILR(1942) Kar 363; 205 IC 403; AIR 1942 Sind 154 Haliman Khatoon v. Ahmadi Begum, AIR 1949 All 627. 9
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. Beena 18
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). AIR 2003 NOC 263 (P&H). 18 AIR 2007 NOC 291 (Ker). 17
10
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 20
21
AIR 2005 Ker 68. AIR 2005 Ker 249. AIR 2002 MP 44 11
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: 12
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 13
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 Child Abduction and Custody Act, 1985 24 (1993) 2 All ER 144 the court said that it sees no reason not to comply with the mandatory requirement of Article 13 of the Convention. 25 Re 5(1993)2 All ER: Re T (1993) 3 All ER 127 26 (1993) 3 All ER 657 27 1937 Bom. 158 28 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 14
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 s trictly 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. (1861) 9. H.L.C. 440 32 Ibid at P. 469 15 31
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. 352 34 (1951) A.C. 352 35 Ibid at p. 365 36 1970 Ker. 1. ; Surinder Kaur v. Harbax Singh, AIR 1984 S.C. 1224 37 (1966) 2. All. E.R. 886 38 (1967) 2 All. E.R. 881 39 (1968) 3 All. E.R. 441 40 ILR 1984 I P. & H. I. 41 AIR 1987 S.C. 3 16
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 43
AIR 1985 P.& H. 103 K.S. Mohan v. Sandhya Mohan, AIR 1993 Mad. 59 17
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.
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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 right s 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.
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REFERENCES
BOOKS:
1. Diwan, Paras, Private International Law (12th Edition, 1992) 2. Dicey and Morris, The Conflict of Laws (Vols. 1, 2 with Supp., 12 th Edition, 1993)
Articles:
1. http://www.thehindu.com/opinion/op-ed/child-custody-law-in-india-alitigant-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
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