the custody of petitioner. On more than one occasion this Court
interviewed the corpus and the parents. The corpus is presently
adamant and is not willing to go with parents at any cost. It is reported
that earlier also she left the parents without information which created
a havoc to the parents. In this factual backdrop, the question is
whether this Court should forcibly give custody to the parents.
18. The Madras High Court (Full Bench) in T. Sivakumar's case
(supra) opined that if minor girl expresses her desire not to go with her
parents the Court may order her to be kept in a Children Home etc. It
is also noteworthy that a minor girl between her 15 to 18 years of age
floats into a state of puberty, a state of innocence and yet lacking in
mature understanding more guided by “attractions”. The state of mind
can hardly be described as mature. If that be not so, she can hardly
leave her parents for a new entrant in her life, without being mindful of
what the type of such new entrant in the life is.
19. In this factual backdrop, I do not deem it proper to forcibly
handover the corpus to the petitioner/parents. This may cause more
harm than good.
In this view of the matter, I deem it proper to issue following
directions:-
(i) The Incharge of Nari Niketan Centre shall give
sympathetical, compassionate and educative treatment to the corpus
with a view to provide her room to come out of the crisis and distress.
(ii) The official respondents shall ensure that the corpus is
given counselling by trained persons on regular basis, atleast once in
a week. It will be the choice of the official respondents to provide
counselling either at Nari Niketan Centre or take the corpus to
'Parivaar Paramarsh Kendra' in adequate security.
(iii) After four weeks and on completion of four counsellings,
the status would be reassessed by this Court.
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE SUJOY PAUL
WRIT PETITION NO. 4683/2012 (habeas corpus)
Manohar Jatav vs.State of Madhya Pradesh
and others
(26/07/2012)
In this habeas corpus petition filed by the father of
Sangeeta (herein after called “corpus”), it was stated that she was
taken away by respondent No. 6. Pursuant to the direction of this
Court, the corpus was produced before this Court. The corpus
engaged Shri Pradeep Katare as her counsel. It was stated by Shri
Katare that corpus solemnised marriage with respondent No. 6 and
she does not want to go with her parents. During the preliminary
hearing of this matter and awaiting the ossification test report, she
was sent to Nari Niketan.
2. Learned counsel for the petitioner relied on the Primary Board
Marksheet of 2007 (Annexure P-2), which shows that the date of birth
of corpus is 15.03.1995. As per the ossification report also, corpus
was found to be minor.
3. Shri Katare heavily relied on Section 6(c) of the Hindu Minority
and Guardianship Act, 1956 (herein after called “1956 Act”) to submit
that as per this provision even the minor married girl is required to be
handed over to her husband. He also relied on Section 19(a) and
Section 17 of the Guardians and Wards Act, 1890 (herein after called
“1890 Act). On the strength of these provisions, it is stated that the
natural guardian of a Hindu minor girl after marriage is her husband.
By placing reliance on 1956 Act, it is stated that the Court is required
to see the wish of the girl also. However, Shri Katare has not disputed
that the corpus is a minor girl.
4. Per Contra, Shri M.S. Rawat, learned counsel for the petitioner
relied on Section 12 of the Child Marriage Restraint Act, 1929 and
Section 6 of 1956 Act to submit that such marriage cannot be
recognized. Shri Rawat and Shri Vijay Sundaram, learned Panel
Lawyer vehemently argued that there is no material to show that even
a marriage had taken place. Shri Sundaram submits that respondent
No. 6 was arrested and is in custody in Crime No. 75/12 and offences
under Section 363 and 366 of IPC are registered against him for
forcefully and without authority of law taking away the corpus. He
submits that the corpus was wrongfully detained by respondent No. 6.
5. I have also heard Shri H.D. Gupta, learned senior counsel as
amicus curiae.
6. In the light of aforesaid submissions, the question is whether
this Court while exercising its writ jurisdiction under Article 226 of the
Constitution is bound by the aforesaid sections of 1956 Act and 1890
Act ? Another question is what is the main consideration for deciding
the custody of a minor in a habeas corpus writ petition ? Whether writ
Court is mechanically bound by the provisions of 1956 or 1890 Act ?
7. Before dealing further, it is profitable to quote the aforesaid
provisions relied upon by Shri Katare, which reads as under:-
Sec. 6(c) of 1956 Act:
“6. Natural guardians of a Hindu minor.-- The
natural guardian of a Hindu minor, in respect of the
minor's person as well as in respect of the minor's
property (excluding his or her undivided interest in joint
family property), are--
(c) in the case of a married girl – the husband:
provided that no person shall be entitled to act as
the natural guardian of a minor under the provisions of
this section--
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced
the world by becoming a hermit (varaprastha) or an
ascetic (yati or sanyasi)..” 3
Sec. 17 and 19(a) of 1890 Act:
17. Matters to be considered by the Court in
appointing guardian.-(1) In appointing or declaring the
guardian of a minor, the Court shall, subject to the
provision of this section, be guided by what, consistently
with the law to which the minor is subject, appears in the
circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of
the minor, the Court shall have regard to the age, sex
and religion of the minor, the character and capacity of
the proposed guardian and his nearness of kin to the
minor, the wishes, if any, of a deceased parent, and any
existing or previous relations of the proposed guardian
with the minor or his property.
(3) If minor is old enough to form an intelligent
preference, the Court may consider that preference.
(4) Omitted by Act 3 of 1951, Sec. and Sch.
(5) The Court shall not appoint or declare any
person to be a guardian against his will.
19(a) of a minor who is married female and whose
husband is not, in the opinion of Court, unfit to be
guardian of her person; or.”
8. The questions are no more res integra. The Apex Court in
(2008) 9 SCC 413 (Nil Ratan Kundu and another Vs. Abhijit Kundu),
has held that in determining the question as to whom should be given
the custody of a minor child, the paramount consideration is “welfare
of child” and not the rights of the parents under a statute for the time
being inforce. It is noteworthy that in various countries the legal
position and principles governing the field are almost same i.e. welfare
of the child is paramount consideration for the purpose of custody. It
is apt to quote few of them:-
“In Halsbury's Laws of England, 4
th
Edn., Vol. 24,
Para 511 at p.217 it has been stated:
“511......Where in any proceedings before
any court the custody or upbringing of a minor is in
question, then, in deciding that question, the court must
regard the minor's welfare as the first and paramount
consideration, and may not take into consideration
whether from any other point of view the father's claim in
respect of that custody or upbringing is superior to that
of the mother, or the mother's claim is superior to that of
the father.”
In Habeas Corpus, Vol. I, p. 581, Bailey states:
“The reputation of the father may be as
stainless as crystal; he may not be afflicted with the
slightest mental, moral or physical disqualifications from
superintending the general welfare of the infant; the
mother may have been separated from him without the
shadow of a pretence of justification; and yet the
interests of the child may imperatively demand the
denial of the father's right and its continuance with the
mother. The tender age and precarious state of its
health make the vigilance of the mother indispensable to
its proper care; for, not doubting that paternal anxiety
would seek for and obtain the best substitute which
could be procured yet every instinct of humanity
unerringly proclaims that no substitute can supply the
place of her whose watchfulness over the sleeping
cradle, or waking moments of her offspring, is prompted
by deeper and holier feeling than the most liberal
allowance of nurses' wages could possibly stimulate.”
In McGrath (infants), Re Lindley, L.J. Observed:
(Ch p. 148):
“.......The dominant matter for the
consideration of the court is the welfare of the child. But
the welfare of a child is not to be measured by money
only, nor by physical comfort only. The word welfare
must be taken in its widest sense. The moral or religious
welfare of the child must be considered as well as its
physical well-being. Nor can the ties of affection be
disregarded.”
The Law in the United States is also not different.
In American Jurisprudence, 2
nd
Edn., Vol. 39, Para 31,
p. 34, it is stated:
“As a rule, in the selection of a guardian of
a minor, the best interest of the child is the paramount
consideration, to which even the rights of must some
times yield.”
“Generally, where the writ of habeas corpus
is prosecuted for the purpose of determining the right to
custody of a child, the controversy does not involve the
question of personal freedom, because an infant is
presumed to be in the custody of someone until it
attains its majority. The Court, in passing on the writ in a
child custody case, deals with a matter of an equitable
nature, it is not bound by any mere legal right of parent
or guardian, but is to give his or her claim to the custody
of the child due weight as a claim founded on human
nature and generally equitable and just. Therefore,
these cases are decided, not on the legal right of the
petitioner to be relieved from unlawful imprisonment or
detention, as in the case of an adult, but on the Court's
view of the best interests of those whose welfare
requires that they be in custody of one person or
another; and hence, a court is not bound to deliver a
child into the custody of any claimant or of any person,
but should, in the exercise of a sound discretion, after
careful consideration of the facts, leave it in such
custody as its welfare at the time appears to require. In
short, the child's welfare is the supreme consideration,
irrespective of the rights and wrongs of its contending
parents, although the natural rights of the parents are
entitled to consideration.
An application by a parent, through the
medium of a habeas corpus proceeding, for custody of a
child is addressed to the discretion of the court, and
custody may be withheld from the parent where it is
made clearly to appear that by reason of unfitness for
the trust or of other sufficient causes the permanent
interests of the child would be sacrificed by a change of
custody. In determining whether it will be for the best
interest of a child to award its custody to the father or
mother, the Court may properly consult the child, if it
has sufficient judgment.”
In Howarth v. Northcott it was stated:
“In habeas corpus proceedings to
determine child custody, the jurisdiction exercised by
the Court rests in such cases on its inherent equitable
powers add exerts the force of the State, as parens
patriae, for the protection of its infant ward, and the very
nature and scope of the inquiry and the result sought to
be accomplished call for the exercise of the jurisdiction
of a Court of equity.”
“The employment of the forms of habeas
corpus in a child custody case is not for the purpose of
testing the legality of a confinement or restraint as
contemplated by the ancient common law writ, or by
statute, but the primary purpose is to furnish a means by
which the court, in the exercise of its judicial discretion,
may determine what is best for the welfare of the child,
and the decision is reached by a consideration of the
equities involved in the welfare of the child, against
which the legal rights of no one, including the parents,
are allowed to militate.”
9. In section 4 of 1890 Act, the word “minor” is defined. As per the
definition, minor is a person, who has not attained the age of majority.
Word “guardian” means a person having the care of the person of a
minor or his property or both. “Ward” is defined as a minor for whose
person or property or both, there is a guardian. Section 7 provides
power of the Court to make order as to guardianship. Section 8 of the
Act enumerates the person entitled to apply for an order as to
guardianship. Section 19 prohibits the Court from appointing guardian
in certain cases. In Hindu Minority and Guardianship Act, 1956, the
definition of “minor” and “guardian” is almost peri materia to the 1890 6
Act. Section 6 (c) of 1956 Act is heavily relied by Shri Katare which
deals with “natural guardian of a Hindu minor”. However, to determine
the questions involved in this matter, Section 13 of the 1956 Act is
relevant:-
“13. Welfare of minor to be paramount
consideration.- (1) In the appointment or declaration of
any person as guardian of a Hindu minor by a court, the
welfare of the minor shall be the paramount
consideration.
(2) No person shall be entitled to the
guardianship by virtue of the provisions of this Act or of
any law relating to guardianship in marriage among
Hindus, if the Court is of opinion that his or her
guardianship will not be for the welfare of the minor.”
(Emphasis Supplied)
10. A bare perusal of Section 13 shows that the Courts are
equipped with the power even under the said Act to decide the
custody of the minor child irrespective of other provisions in the Act
and for deciding the same, welfare of the child is the paramount
consideration. Section 26 of Hindu Marriage Act, 1955 provides for
custody of children and declares that in any proceeding under the said
Act, the Court could make, from time to time, such interim orders as it
may deem just and proper with respect to the custody, maintenance
and education of minor children.
11. A bare perusal of a development of law on this subject shows
that it is the welfare of the child and not the rights of the parents which
will decide the question of custody. This view has been taken by
Bombay High Court way back in AIR 1941 Bombay 103 (Sarswatibai
Ved Vs. Shripad Ved). The Apex Court in (1973) 1 SCC 840 (Roxy
Jacob Vs. Jacob A. Chakramakkal), held that the object and principle
of 1890 Act is not merely providing physical custody of minor but due
protection of the rights of the ward's maintenance and education. The
power of the different Court under the Act is to ensure welfare of the
minor. The same view is taken in (1982) 2 SCC 544 (Thrity Hoshie
Dolikuka Vs. Hoshiam Shavaksha Dolikuka); (1984) 3 SCC 698 (Smt.
Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and another) and
(2008) 7 SCC 673 (Mausami Moitra Ganguli Vs. Jayant Ganguli).
12. In Nil Ratan Kundu (Supra), the Apex Court in Para 52 and 57
has held as under:-
“52.........A Court while dealing with custody
cases, is neither bound by statutes nor by strict rules of
evidence or procedure nor by precedents. In selecting
proper guardian of a minor, the paramount
consideration should be the welfare and well-being of
the child. In selecting a guardian, the Court is exercising
parens patriae jurisdiction and is expected, nay bound,
to give due weight to a child's ordinary comfort,
contentment, health, education, intellectual
development and favourable surroundings.”
57. In our opinion, in such cases, it is not the
“negative test” that the father is not “unfit” or disqualified
to have custody of his son/daughter that is relevant, but
the “positive test” that such custody would be in the
welfare of the minor which is material and id is on that
basis that the Court should exercise the power to grant
or refuse custody of a minor in favour of the father, the
mother or any other guardian.”
13. In a recent judgment reported in (2011) 6 SCC 479 (Ruchi
Majoo Vs. Sanjeev Majoo), the Apex Court again followed the
aforesaid principle of law i.e. the welfare of the minor is the paramount
consideration for the courts while exercising its parens ratriae
jurisdiction.
14. On the basis of aforesaid principles laid down by various courts,
it is clear that the welfare of the child is the paramount consideration
for the Court and in exercise of powers under Article 226 of the
Constitution (habeas corpus), this Court is not bound by the
enactments and is required to see the welfare of the child.
15. In a recent judgment by the full Bench of Madras High Court
reported in AIR 2012 Madras 62 (T. Sivakumar v. Inspector of Police,
Thiruvallur Town Police Station & Ors.), opined as under:-
“If it is accepted that as per S. 6 (c) of the Hindu
Minority and Guardianship Act, the husband of a female
child shall be the natural guardian, it will only amount to
giving premium for the offence committed by the male.
When the law aims at eradicating the evil menace of
child marriages, declaring the adult male who marries a
female child, as her natural guardian would only defeat
the very object of the Act. A law cannot be interpreted
so as to make it either redundant or unworkable or to
defeat the very object of the Act. Thus, by committing an
offence punishable under S. 9 of the Act, the adult male
cannot acquire the legal status of the natural guardian of
the female child. S. 6 (c) of the Hindu Minority and
Guardianship Act must be held to have been impliedly
repealed by the Prohibition of Child Marriage Act.
Therefore, an adult male who marries a female child in
violation of S. 3 of the Prohibition of Child Marriage Act
shall not become the natural guardian of the female
child.
After the advent of the Prohibition of Child
Marriage Act since the male contracting party to a child
marriage does not attain the full status of the husband
until the child attains the eligible age, like a husband of
a full fledged valid marriage and consequentially since
he is not the guardian of the female child of such child of
such child marriage, he is not entitled for the custody of
the minor. If a different interpretation is adopted to say
that such husband is entitled for the custody of minor
wife it will only defeat the very object of the Act. Even if
the female child expresses her desire to go to his
custody he shall not be entitled to custody.
The minor girl cannot be allowed to walk away
from the legal guardianship of her parents. But, it she
expressed her desire not to go with her parents,
provided in the opinion of the Court she has capacity to
determine, the Court cannot compel her to go to custody
of her parents and instead, the Court may entrust her in
the custody of a fit person subject to her volition
Similarly if the minor girl expresses her desire not to go
with her parents, provided in the opinion of the Court
she has capacity to determine, the Court may order her
to be kept in a children home set up for children in need
of care and protection under the Provisions of the
Juvenile Justice (Care and Protection) Act and at any
cost she shall not be kept in a special home or
observation home meant for juveniles in conflict with law
established under the Juvenile Justice (Care and
Protection) Act, 2000. In such a case Ss. 17 and 19 of
Guardian and Wards Act can be taken for guidance.”
On the basis of aforesaid judgments it is crystal clear that this
Court is not required to mechanically apply the various provisions of
the Act. The welfare of the child is the dominant consideration and
therefore, the reliance placed on the aforesaid acts by Shri Katare is
of no assistance to him. More so, when there is no material before this
Court to show that even a marriage between corpus and respondent
No. 6 had taken place. Respondent No. 6 is behind the bars. Thus, in
the considered opinion of this Court, there is no question of giving
custody of corpus to respondent No. 6.
16. This Court is conscious of the fact that the children are not
merely chattels or toys, and therefore, they cannot be directed to be
handed over mechanically by taking assistance of a Statute. The full
Bench of Madras High Court opined that Section 6(c) of Hindu
Minority and Guardianship Act must be held to have been impliedly
repealed by the Prohibition of the Child Marriage Act. It was further
held that an adult male who marries a female child in violation of
Section 3 of Prohibition of Child Marriage act shall not become the
natural guardian of female child.
17. Now the crucial question is whether the corpus can be given to
the custody of petitioner. On more than one occasion this Court
interviewed the corpus and the parents. The corpus is presently
adamant and is not willing to go with parents at any cost. It is reported
that earlier also she left the parents without information which created
a havoc to the parents. In this factual backdrop, the question is
whether this Court should forcibly give custody to the parents.
18. The Madras High Court (Full Bench) in T. Sivakumar's case
(supra) opined that if minor girl expresses her desire not to go with her
parents the Court may order her to be kept in a Children Home etc. It
is also noteworthy that a minor girl between her 15 to 18 years of age
floats into a state of puberty, a state of innocence and yet lacking in
mature understanding more guided by “attractions”. The state of mind
can hardly be described as mature. If that be not so, she can hardly
leave her parents for a new entrant in her life, without being mindful of
what the type of such new entrant in the life is.
19. In this factual backdrop, I do not deem it proper to forcibly
handover the corpus to the petitioner/parents. This may cause more
harm than good.
20. This Court had an advantage to hear Shri M.P.S. Raghuvanshi,
learned Additional Advocate General on the question whether any
counselling facilities are available at Gwalior. Learned Additional
Advocate General informed and undertook that the said facility is
available at 'Parivaar Paramarsh Kendra' and necessary
arrangements will be made in the event the counselling is directed by
the Court. In my considered opinion, in the present state of affairs and
mindset of corpus, it will not be proper to handover her to the
petitioner/parents. She needs counselling so that she can improve
from her present state of mind and emotional crisis.
21. In this view of the matter, I deem it proper to issue following 10
directions:-
(i) The Incharge of Nari Niketan Centre shall give
sympathetical, compassionate and educative treatment to the corpus
with a view to provide her room to come out of the crisis and distress.
(ii) The official respondents shall ensure that the corpus is
given counselling by trained persons on regular basis, atleast once in
a week. It will be the choice of the official respondents to provide
counselling either at Nari Niketan Centre or take the corpus to
'Parivaar Paramarsh Kendra' in adequate security.
(iii) After four weeks and on completion of four counsellings,
the status would be reassessed by this Court.
Consequently, the aforesaid directions be forthwith
implemented from the week commencing 30
th
of July, 2012. The
Registry is directed to list this matter on 31
st
August, 2012. Till such
time the corpus will be retained in Nari Niketan Centre.
List on 31
st
August, 2012.
A typed copy of this order be given to learned Additional
Advocate General for necessary compliance.
(Sujoy Paul)
Judge
ac/-
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