Report No. 65
VI. Provisions in Various Acts as to Maintenance and Custody
19.16. Existing statutes-maintenance.-
It may be mentioned in this connection that the existing provisions of Indian statute law may not over all aspects of the situation. For example, as regards maintenance, the Hindu Adoption and Maintenance Act, 1956, and section 125 of the Code of Criminal Procedure, 1973-to take two important provisions-would not cover the case, since, after a judicial divorce, neither of these two legislative provisions applies. Thus, section 18 of the Hindu Adoption and Maintenance Act, 1956, provides for the maintenance of a 'Hindu wife'-which expression would not be applicable after a legally recognised foreign divorce. Section 125 of the Code of 1973 is not meant for a wife divorced judicially. -Nor would it be possible to resort to any supposed common law doctrine, imposing an obligation to maintain, because, once the marriage is regarded as having been lawfully terminated, there is no such obligation to maintain the ex-wife at common law.
Similarly, as regards the custody etc., of minor children, the other Central Acts will not cover the situation. An application for the appointment of a guardian of the person can, for example, be made under the Guardians and Wards Act, 1890, and orders for custody can also be passed under that Act in certain circumstances, but that Act is not framed with the object of dealing with the situation arising:on dissolution of the marriage. Same applies to the Hindu Minority etc. Act, 1956. Moreover, because of the very restrictive provisions contained in the various Acts-e.g. section 6, Hindu Minority and Guardianship Act1, 1956, and section 19, Guardians and Wards Act2, 1890-certain difficulties arise. These difficulties are illustrated by a few reported cases3-8.
1. Para. 19.19, infra.
2. Para. 19.18, infra.
3. Captain Rattan Amrit Singh v. Kamaljit, AIR 1961 Punj 51.
4. Sunil Kumar v. Satirani, AIR 1969 Cal 573.
5. Kamalakshmi Amma v. Bhaskar Menon, AIR 1961 Ker 154 (155), para. 2.
6. Raghavan Nayar v. Lakshmi Kutti, AIR 1961 Ker 193.
7. Kusa Parida v. Vaishnab, AIR 1966 Ori 60.
8. Avinash Devi v. Dr. Khazan Singh, AIR 1962 Punj 326, para. 19.19, infra.
19.18. Provision in Guardians etc., Act.-
In this connection, we may quote section 19 of the Guardians and Wards Act, 1890, which provides as follows:-
"19. Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person-
(a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or
(b) of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or
(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor."
Clause (b) of the section is of particular relevance.
19.19. Hindu law as to guardianship.-
In the Hindu Minority and Guardianship Act, 1956, section 6 provides (in effect), that the father has a preferential right to guardianship, though the mother has the preferential right to custody upto a certain age. By section 19(b) of the Guardians and Wards Act, 1890, (quoted above)1, it is enacted, in substance, that the Act does not authorise the court to appoint or declare a guardian of the person of a minor whose father is living, if the father is not, in opinion of the court, unfit to be the, guardian of the person of the minor. These two provisions are slightly weighted in favour of the father.
But, section 26 of the Hindu Marriage Act, 1955, which deals with orders for the custody etc., of the children in the course of, or on the termination of, the matrimonial proceedings under the Act, is on a different line. Under that section, the court may make such orders with respect to the custody, maintenance and education of minor children, as it may deem just and proper, consistently with the wishes of the child wherever possible. The contrast between the Hindu Marriage Act and the Acts relating to guardians was acted in a Punjab case2. It was pointed out that the section in the Hindu Marriage Act introduces no restriction, (in contrast with the provisions in the Guardians and Wards Act, or the Hindu Minority etc. Act) as to the orders that can be passed, and gives no special status to the minor's father.
1. Para. 19.18, supra.
2. Avinash Devi v. Dr. Khazan Singh, AIR 1962 Punj 326: 62 Punj LR 354 (A.N. Grover, J.).
19.20. Case law.-
The shift in emphasis in the various statutory provisions is also illustrated by a Calcutta case1. In that case, S.K. Chakravarti, J. held that though under section 19 of the Guardians and Wards Act, 1890, if the father is not unfit to be the guardian of the person of a minor aged more than 5 years, the father should be the guardian,2 still, under section 13 of the Hindu Minority and Guardianship Act, the prime and sole consideration will be the welfare of the minor. Section 19 of the Guardians and Wards Act, 1890, will, therefore, have to be read subject to section 13 of the Hindu Minority and Guardianship Act, 1956, so far as Hindus are concerned. P.N. Mookerjee, J. discussing the point at still greater length, held that section 13 of the Hindu Minority and Guardianship Act had brought about a material change, so far as Hindus were concerned.
It made it quite clear, that in all cases, irrespective of the status of the person claiming the guardianship, the welfare of the minor would be the paramount consideration. He held that under the Guardians and Wards Act, so far as the father is concerned, his claim for guardianship in the case of a boy of more than 5 years of age would be the paramount consideration. In regard to other persons claiming guardianship, the said Act put the welfare of the minor in the forefront, and made it the paramount consideration. He also added that the welfare of the minor, though not the paramount consideration in cases coming under section 19, is not altogether without significance. It will be one of the considerations, or one of the facts, to be considered in the matter of the claim of guardianship, even of the father, and as one of such considerations, it may, in the ultimate result, outweigh the otherwise paramount claim of the father.
1. Sunil Kumar v. Sati Rani, AIR 1969 Cal 573 (575, 577), paras. 10 and 13 (P.N. Mookerjee and S.K. Chakravarti, JJ.).
2. Bimla Bala, (1961) 65 Cal N 1138: ILR (1961) 2 Cal 40, referred to.
19.21. No doubt, the various provisions still leave a discretion to the Court, and, with a change in social concepts, a change in judicial attitude can be anticipated. Recently, for example, the Supreme Court has pointed out the need to have regard to the special circumstances under which the mother could be held to be the natural guardian.1
1. Jija Bai v. Pathan Khan, AIR 1971 SC 315.
19.22. U.N. Convention.-
It may be noted that the U.N. Commission on the Status of Women1 recommended the following provisions as to rights of women in regard to guardianship:
(a) Women shall have equal rights and duties with men in respect to guardianship of their minor children and the exercise of parental authority over them, including care, custody, education and maintenance;
(b) Both spouses shall have equal rights and duties with regard to the administration of the property of their minor children, with the legal limitations necessary to ensure as far as possible that it is administered in the interest of the children;
(c) The interest of the children shall be paramount consideration in proceedings regarding custody of children in the event of divorce, annulment of marriage or judicial separation;
(d) No discrimination shall be made between men and women with regard to decisions regarding custody of children and guardianship or other parental rights in the event of divorce, annulment of marriage or judicial separation.
This also shows the changed social attitude. Nevertheless, the weightage in favour of the father is obvious under the Guardians and Wards Act2.
1. 20th Session, 13th February to 6th March, 1967 (U.N. Commission on Status of Women).
2. Para. 19.18, supra.
19.23. Hindu Marriage Act.-
So much as regards the various statutory provisions relevant to guardianship. We may now note that sections 25-26 of the Hindu Marriage Act, which provide, inter alia, for orders as to custody etc., cannot be resorted to in connection with a foreign divorce, unless we provide for it. It has been held1 that the provisions of the Hindu Marriage Act can be resorted to by the court only if the marriage is dissolved under the Hindu Marriage Act, and not if the marriage is dissolved under any other Act, such as the Madras Aliyasanthana Act.
Section 15 of the Madras Marumakkathayam Act, 1932, provided that-
"the mother shall be the guardian of the person and property of her minor children if their father is dead or the marriage of their parents is dissolved."
It was held that only this provision would govern the parties, where the divorce was obtained under that Act.
1. Prema v. M. Anad Shetty, AIR 1973 Mys 69 (71), para. 17 (Dissolution under the Madras Aliyasanthana Act).