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Report No. 65

II. Present Law

20.6. Various provisions.-

Proceedings concerning custody, or guardianship of the person, or both fall under a variety of legislative or other provisions and can be instituted in a variety of modes. Amongst these are:-

(i) The Guardians and Wards Act, 1890;

(ii) The Hindu Minority and Guardianship Act, 1956;

(iii) The provisions of sections 97 and 98 of the Code of Criminal Procedure, 1973;

(iv) The writ of habeas carpus;

(v) The original jurisdiction of the Chartered High Courts to appoint guardians;

(vi) Suit in a civil court;

(vii) Matrimonial legislation, such as, section 26 of the Hindu Marriage Act, 1955 and comparable legal provisions.1

The precise question to be considered in this Chapter raises the issue as to how far an order under (vii) above can modify an order under (i) to (vi) above.

"Wardship" of a court under state legislation is another institution of the law. Under the relevant State Act, a minor may, by appropriate action, be made a ward of court under the provisions of that Act. However, in most cases, orders made under those Acts do not, in practice, affect the control of the person of the minor, and we shall not therefore go into those Acts.

1. Para. 20.2, supra.

20.7. Guardians and Wards etc., Act.-

Coming to guardianship of the person, we may state that such guardianship of the minor is governed by the relevant rules of personal law. But, under certain conditions, it can be conferred by the court in proceedings for guardianship. The principal Act on the subject is the Guardians and Wards Act, 1890. We have, in an earlier Chapter1, already discussed its provisions, so far as they are material for the purposes of this Report, For the present purpose, it will suffice to state that under section 7 of that Act, the court may appoint a person as the guardian of the person or property of a minor.

The court must be satisfied that such appointment will be for the welfare of the minor. But this appointment cannot disturb the guardianship of a person who has been appointed by a will or by other instrument or by the court or who has been declared by a court. As to the award of custody, the jurisdiction of the court under section 25 of the Guardians & Wards Act arises only where the application is for an order for the return of the ward to the custody of the guardian and where it is alleged that the ward has left or is removed from the custody of the guardian. The order for the return is made only if the minor should be made to return from the point of view of the minor's welfare.2

1. Chapter 19, supra.

2. See-

(a) Rosy Jacob v. Jacob, AIR 1973 SC 2090;

(b) Pemela Williams v. Patrick Martins, AIR 1970 Mad 427.

20.8. Hindu Minority etc., Act.-The Hindu Minority and Guardianship Act, 1956, is primarily concerned with natural guardians, and not with appointment by the court, though section 13, which deals with the principles for appointing guardians, is so worded as to apply also to guardians appointed by the court.

As to natural guardians, section 6, so far as is material, provides that the natural guardians of a Hindu minor in respect of his person are:-

(a) in the case of a boy or an 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;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;

(c) in the case of a married girl-the husband.

Under the uncodified Hindu law, where natural guardians are not alive, recourse for the appointment of the guardian1-2 must be had to the court as representing the rights of the King. The principle that the appointment of a guardian rests with the ruling power is, thus, not unknown to Hindu law.3 In modern times, this jurisdiction is exercised under the Guardians and Wards Act, the provisions whereof have been expressly saved by the Hindu Minority etc., Act.

1. Gulbai (in re:), ILR 32 Bom 560.

2. Thayammal v. Kuppanna, 1915 ILR 38 Mad 1125 (1126) (Sadasiva Ayyar, J.).

3. See the passage from Mc. Naghten's Precedents and Principles of Hindu Law, quoted in Chennapa v. Chennapa, AIR 1940 Mad 140 (Leach, C.J.).

20.9. Code of Criminal Procedure.-

The provisions of the Code of Criminal Procedure, 1973-sections 97 and 98-empower the competent Magistrate to pass orders for custody in certain cases. These sections are meant principally for cases of abducted persons and persons illegally detained for an improper purpose.

20.10. Habeas corpus.-

The writ of habeas corpus is sometimes resorted to for obtaining orders as to custody of minors. The underlying principle1 it the protection and well-being of the person brought before the court.2

At common law, once out of a father's or guardian's control, a minor could be resorted only by the issue of a writ of habeas corpus requiring the person in charge of the minor to produce him and justify his detention. If the child were over the age of discretion (fourteen for boys and sixteen for girls a writ would not issue to the father or guardian as a matter of right against the wishes of the minor.3

In India also, the guardian is entitled to custody of the person of the minor, which he may vindicate either by a writ of habeas corpus or by an application under section 25 of the Guardians and Wards Act, 1890, unless his rights are modified by special law or by an order of the court.

1. Sarahibi v. Abdul Razzak, (1911) 12 Bom LR 891.

2. Gohar Begum v. Suggi, AIR 1960 SC 93 (96), para. 10.

3. See-

(a) R. v. Clarke, Re Race, (1857) 119 ER 1217;

(b) R. v. Hawes ex p. Barford, (1860) 3 E&E 332;

(c) R. v. Greenhill, (1836) 111 ER 922 (927).

20.11. Chartered High Courts.-

Then, in the exercise of its special jurisdiction, a Chartered High Court may make any order it thanks fit in the matter of the guirdianship of a minor. The Chartered High Courts have special or inherent jurisdiction conferred upon them by their Charters or Letters Patents, which no other Courts possess. They enjoy such jurisdiction apart from the Guardians and Wards Act, 1890, that, is to say, in addition to the jurisdiction conferred by that Act upon a High Court in its ordinary civil jurisdiction. We are referring to these High Courts as Chartered High Courts, because they have this jurisdiction by virtue of their Charter or Letters Patent. The jurisdiction referred to above is wide.

For example, it is now well-settled that under Hindu law, a guardian cannot properly be appointed in respect of the infant's interest, in the property of an undivided Mitakshara family1. But the Chartered High Courts can exercise this power. This jurisdiction stands expressly saved by section 3 of the Guardians and Wards Act, 1890, in the case of the High Courts established under the statute, the High Courts Act (34 and 25 Vic., c. 104). It was provided by section 9 of the High Court Act2 that the High Court shall exercise all such power as shall be granted by the Letters Patent, and, except as otherwise provided therein, it shall have and exercise all jurisdiction vested in the Supreme and Sudder Courts.

Clause 17 of the Letters Patent of 1865, stated that the High Court shall have the like power with respect to infants and other in the province as was vested in the High Court immediately prior to the publication of the Letters Patent, i.e., the power that it had under clause 16 of the Letters Patent of 1862, which had stated that the Court should have the same jurisdiction as was then vested in the Supreme Court. The power vested in the Supreme Court were the same as those possessed by the Courts of Chancery in England-see clause 25 of the Charter of 1774, establishing the Supreme Court at Fort William, Clause 32 of the Charter of 1800, constituting the Supreme Court at Madras and Clause of the Charter of 1823 relating to the Supreme Court at Bombay.

As was observed by the Madras High Court in Annie Besant v. Narayaniah, (1913) 25 MLJ 661 (686): AIR 1915 Mad 157, (White, C.J. and Oldfield, J.). "the jurisdiction in connection with the estates and persons of minors is the jurisdiction which was exercisable by the Lord Chancellor in England acting for the sovereign as parens patriae, when the Supreme Court was instituted."

In England, the Court of Chancery has always had the power of appointing guardians for infants on a proper case being made, whether such infants have property or not 3-4

1. Gharibullah v. Khalap Singh, 1903 ILR 25 All 407: LR 30 IA 165 (PC).

2. The High Courts Act, 24 & 25 Vic., C. 104.

3. Spence (in re:), 2 Phil 247 (252).

4. Flynn (in re:), 2 Do G&Sm 457 (481) NIC.

20.12. Wardship.-

This jurisdiction is often referred to as jurisdiction to make a person "ward of court". Wardship of court differs from other types of orders, inasmuch as if a child is made a ward of court, the custody vests in the court. Of course, for practical reasons, care and control of the child is given to an individual-it can, in appropriate cases, be given to a local authority in modern times, but the person or authority so placed in charge will be in the nature of an agent of the court, responsible solely for the day-to-day supervision of the ward. He or it must keep the court informed of the progress of the case, and may always turn to the court for guidance and assistance.1

Being a jurisdiction flowing from the Crown's prerogative and exercisable on the merits of each individual case, the jurisdiction transcends purely territorial limits as well as difference of race. Latey J.2 traces the origin of this wardship jurisdiction as follows:

"All subjects owe allegiance to the Crown. The Crown has a duty to protect its subjects. This is and always has been specially so towards minors, that is to say, now the young under the age of 18. And it is so because children are especially vulnerable. They have not formed the defences inside themselves which other people have, and therefore, need special protection. They are also a country's most valuable asset for the future. So the Crown as parens patriae delegated its powers and duty of protection to the Courts."

1. See Cross Wards of Court, 83 LQR 201.

2. Rex (a minor), (1975) 1 All ER 697.

20.13. Thus, it has been held that the original side of the Calcutta High Court1 has jurisdiction to entertain an application for the appointment of a guardian of the person of a minor who ordinarily resides within its ordinary original civil jurisdiction as also those resident within the Bengal Division of the Presidency who are "British subjects". The jurisdiction over infants under clause 17 of the Letters Patent, preserved by section 3 of the Guardians and Wards Act, is operative on the person and estate of all infants within Bengal Division of the Presidency2 in regard to British subjects. The Guardians and Wards Act does not take away this special jurisdiction of the High Court. Section 3 of the Act provides that "nothing in this Act shall be construed to affect or take away power possessed by any High Court established under the Statutes 24 and 25 Victoria, Chapter 104. (An Act for establishing High Courts of Judicature in India)." The power is also saved by the Hindu Minority and Guardianship Act.3

1. Lovejoy Patel! (in re:), ILR (1943) 2 Cal 554: AIR 1944 Cal 433 (438, 439) (Das, J.).

2. Taruchandra Ghose (in re:), AIR 1930 Cal 598 (Lord Williams, J.).

3. See section 12, Hindu Minority and Guardianship Act, 1956.

20.14. Chartered High Courts.-

Subject to the paramount consideration being the welfare of the minor and his estate, a chartered High Court may, in the exercise of its special jurisdiction referred to above make any order which it deems fit.1 Its jurisdiction being independent of the Guardians and Wards Act, a chartered High Court is not restricted by the specific provisions of that Act.

1. Raja of Vizianagaram v. Secretary of State for India, ILR 1937 Mad 383: AIR 1937 Mad 51 (76).

20.15. Suits for custody.-

Apart from proceedings of the nature mentioned above, it would appear that a suit can be filed for custody. How far such a suit can be filed by the father is a matter for controversy. According to the Bombay view1, a suit by a father for the custody of his child is maintainable, especially since because of section 19 of the Guardians and Wards Act, no remedy at the instance of the father exists under that Act. According to the Madras High Court2, on the other hand, a mofussil Court other than the District Court has no jurisdiction to entertain a suit by a father for the custody of his minor child. We need not go into further details of this controversy. But the proposition that in certain circumstances a suit for custody can lie is not in dispute. Such a suit is expressly mentioned in the Provincial Small Causes Courts Act.3

1. Acharajlal v. Chimantal, 1916 ILR 40 Born 600 (605).

2. Sathi v. Ramandi, 1919 ILR 42 Mad 647: 37 Mq 93: AIR 1920 Mad 937 (FB).

3. See Provincial Small Causes Courts Act, 1887, Article 37-"A suit for custody of a minor".

20.16. Ancillary orders in matrimonial cases.-

Finally, matrimonial legislation usually contains provisions empowering the court to pass orders for the custody of children of the marriage both during the pendency and on the termination of matrimonial proceedings. When matrimonial relief is decreed, custody is granted specifically by the court as a concomitant to such relief, on such relief, on such terms as the court may deem just. An example in point is the provision1 in section 26, Hindu Marriage Act, 1955.

1. See Chapter 19, supra, and the opening paragraphs of this Chapter.

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