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Report No. 83

7.14. Person not having actual custody.-

The second question to be considered with reference to section 25 is, whether a person who never had actual custody of the child1 can take proceedings under the section. According to the Allahabad,2 Bombay,3 Nagpur4 and Patna5 view, such proceedings cannot be entertained.

Other High Courts 6-7 however, adopt a more liberal interpretation and hold that even if a child has never been in the actual custody of a guardian, yet the guardian has constructive custody, and also, that refusal by a person to return the minor to such guardian amounts to "refusal to return" within the meaning of the section.

According to a recent Andhra case,8 the word "removal" is not limited to physical removal constructive removal clearly falls within its ambit. In a Punjab case9 where both the parents lived together and subsequently a minor son of 6 years was taken away by the mother, it was held that there was a constructive removal of the child from the father's custody and the father had a right to apply under section 25.

Some of the earlier decisions on the subject are reviewed in the undermentioned ruling.10 The conflict as to the scope of "custody" in section 25 was also noted in a recent Delhi case,11 but the question was not decided, not being necessary for disposal of the case.

As we shall mention later,12 the interpretation relying on "constructive custody" has received the implied approval of the Supreme Court.

1. Para. 5.12, supra.

2. Latif v. Shakoora, AIR 1973 All 441.

3. Achrotlal v. Chimanlal, AIR 1916 Born 129.

4. Dhan Kumari v. Mahendra, AIR 1923 Nag 199 (200).

5. Abassi Begum v. Mustafa, 52 LC 998 (1001) (Pat).

6. (a) Jwala Prasad v. Bachu La!, AIR 1942 Cal 215;

(b) Basant Kaur v. Gian Singh, AIR 1939 Lah 339;

(c) Ibrahim v. Ibrahim, AIR 1917 Mad 612;

(d) Geeta v. Ratan, AIR 1966 MP 221 (222), para. 5.9.

7. See also Punjab and Andhra cases, infra.

8. Kota Karreema v. Kota Paravathamma, (1978) 1 An WR 425.

9. Sunda Devi v. Rajpat Koushal, (1978) 80 Punj LR 143.

10. Sushila v. Kunwar Krishna, AIR 1948 Oudh 226 (266, 270), para. 18.

11. Akhtar Begum v. Jamshed Munir, AIR 1979 Del 67 (70), para. 10 (March) (Prakash Narain J.).

12. Para. 7.15, infra.



The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back




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