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Report No. 83

7.16. Need for amendment of section 25 as to constructive custody.-

It appears to us that it is desirable to expressly amend the language of the section in this regard, so as to reflect the true and just position. There can hardly be any doubt about the soundness of such an approach. It would be strange if the law, while providing for and insisting on the due discharge by a guardian of his duties towards his ward, should deny him the means of discharging those duties.1 In this connection, we may refer to the following observations of the Supreme Court2:-

"In our opinion, section 25 of the Guardians and Wards Act contemplated not only actual physical custody but also constructive custody of the guardian which term includes all categories of guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly took after the ward's health, maintenance and education, this section demands reasonably liberal interpretation so as to effectuate that object.

Hyper-technicalities should not be allowed to deprive the guardian of the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote the latter's welfare. If the court under the Divorce Act cannot make any order with respect to the custody of Ajit alias Andrew and Maya alias Mary and it is not open to the Court under the Guardians and Wards Act to appoint or declare guardian of the person of his children under clause 19 during his lifetime, if the Court does not consider him unlit, then, the only provision to which the father can have resort for his children's custody is section 25.

Without, therefore, laying down exhaustively the circumstances, in our opinion, on the facts and circumstances of this case the husband's application under section 25 was competent with respect to the two elder children. The Court was entitled to consider all the disputed questions of fact or law properly raised before it relating to these two children.

With respect to Mahesh alias Thomas, however, the Court under the Divorce Act is at present empowered to make suitable orders relating to his custody, maintenance and education. It is, therefore, somewhat difficult to impute to the Legislature an intention to set up another parallel Court to deal with the questions of the custody of a minor which is within the power of a competent Court under the Divorce Act.

We are unable to accede to the respondent's suggestion that his application should be considered to have been preferred for appointing or declaring him as a guardian. But whether the respondent's prayer for custody of the minor children be considered under the Guardians and Wards Act or under the Indian Divorce Act, as observed by Maharajan J., with which observation we entirely agree, 'the controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents'.

It was not disputed that under the Indian Divorce Act this is the controlling consideration. The Court's power under section 25 of the Guardians and Wards Act is also, in our opinion, to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions, to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom-if ever-identical.

The contention that if the husband is not unfit to be the guardian of his minor children, then, the question of their "welfare does not at all arise is to state the proposition a bit too broadly and may at times be somewhat misleading. It does not take full notice of the real core of the statutory purpose. In our opinion, the dominant consideration in making orders under section 25 is the welfare of the minor children3 and the considering this question due regard has, of course, to be paid to the right of the father 'to be' the guardian and also to all other relevant factors having a bearing on the minor's welfare.

There is a presumption that a minor's parents would do their very best to promote their children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children. From this point of view, in case of conflict or dispute between the mother and the lather about the custody of their children, the approach has to be somewhat different from that adopted by the Letters Patent Bench of the High Court in this case.

There is no dichotomy between the illness of the father to be entrusted with the custody of his minor children and considerations of their welfare. The father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances, if the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under section 25 merely because there is no defect in his personal character and he has attachment for his children-which every normal parent has."

1. Cf observations in Musheb Hussain v. Jawaid (Mt.), AIR 1918 Oudh 376.

2. Jacob v. Jacob, AIR 1973 SC 2090 (2098).

3. Emphasis added.

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

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