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Custody and Guardianship

Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228

GITHA HARIHARAN V. RESERVE BANK OF INDIA

Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228

ISSUE:

  • Whether the mother can act as a natural guardian in case of incapacity of the father with regard to Section 6 of the Act and whether it is violative of Articles 14 and 15 of the Constitution?

RULE:

  • Section 6(a), Hindu Minority and Guardianship Act, 1956
  • Section 4(b), Hindu Minority and Guardianship Act, 1956
  • Section 19, Guardian and Wards Act, 1980
  • Articles 14, 15 of the Indian Constitution
  • CEDAW and Beijing Declaration’s measures to prevent discrimination.

FACTS:

  • The petitioner, Ms. Githa Hariharan and her husband were married and a son named Rishab was born.
  • In 1984, they jointly applied to the Reserve Bank of India for 9% relief bonds in the name of their son for Rs. 20,000/- and an intimation signed by both the parents was given that the mother would act as a natural guardian for the purpose of investment.
  • The first respondent, the bank replied to the petitioners advising them either to produce the application form signed by the father of the minor or a certificate of guardianship from a competent authority in favour of the mother. 
  • The petitioner challenged the constitutional validity of Section 6 of the Hindu Minority and Guardianship Act, 1956 and Section 19 of the Guardians and Wards Act, 1980 as being violative of Article 14 and 15.
  • RBI contended that a father is the natural guardian of a legitimate son and only ‘after’ the father, the mother is the natural guardian.
  • There was another suit filed in 1991, for the custody of the child while a divorce petition was pending in the District Court of Delhi (the husband being the appellant).
  • The appellant repeatedly wrote to the petitioner asserting that he was the natural guardian of the child and no decision should be taken without his permission.
  • The petitioner in turn filed for maintenance for herself and her son. Both the appeals were jointly heard before the Supreme Court as the question of constitutionality of the above mentioned sections is common in both the cases.

HELD:

  • The court said that in cases of assault or battery, one must show the unlawful intention of the defendant or his fault. 
  • It also said that the wrongdoer is liable for all the consequences that result due to his act even if it is unforeseeable in nature.  
  • The court held in favor of the plaintiff concluding the act to be unlawful and it happened in a classroom and not in a playground where the kick could have reasonably been foreseen. 
  • Vosburg was awarded $2500 in compensatory damages. 
Categories
Custody and Guardianship

ABC v. State, 2015 SCC OnLine SC 609

ABC V. STATE

ABC v. State, 2015 SCC OnLine SC 609

ISSUE:

  • Whether it is imperative for an unwed mother to specifically notify the putative father of the child whom she has given birth to of her petition for appointment as the guardian of her child?

RULE:

  • S.7, S.11 and S.19(b) Guardians and Wards Act, 1890[GWA]. S.8 Succession Act 1925 [SA]. S.6(b) Hindu Minority and Guardianship Act, 1956

FACTS:

  • The Appellant, who adheres to the Christian faith, is well educated, gainfully employed and financially secure. She gave birth to her son in 2010, and has subsequently raised him without any assistance from or involvement of his putative father.
  • Desirous of making her son her nominee in all her savings and other insurance policies, she took steps in this direction, but was informed that she must either declare the name of the father or get a guardianship/adoption certificate from the Court.
  • She thereupon filed an application under Section 7 of the Guardians and Wards Act, 1890 (the Act) before the Guardian Court for declaring her the sole guardian of her son. Section 11 of the Act requires a notice to be sent to the parents of the child before a guardian is appointed.
  • The Appellant has published a notice of the petition in a daily newspaper, namely Vir Arjun, Delhi Edition but is strongly averse to naming the father. She has filed an affidavit stating that if at any time in the future the father of her son raises any objections regarding his guardianship, the same may be revoked or altered as the situation may require.
  • However, the Guardian Court directed her to reveal the name and whereabouts of the father and consequent to her refusal to do so, dismissed her guardianship application on 19.4.2011.
  • The Appellant’s appeal before the High Court was dismissed in limine, on the reasoning that her allegation that she is a single mother could only be decided after notice is issued to the father; that a natural father could have an interest in the welfare and custody of his child even if there is no marriage; and that no case can be decided in the absence of a necessary party.
  • She now files for an appeal at the Supreme court challenging the procedural requirement under Section 11 arguing that there were three reasons not to name the father. (1) she did not want to divulge her identity, because he was at risk of denying paternity, since she was already married. (2), such a disclosure can have an effect on his relatives because of his marital status.
    she claimed that if she were forced to reveal the name of the father, she would breach her fundamental right to privacy.

HELD:

  • The court in performing its parens patriae obligations, puts the welfare of the child above the rights of all else but also discusses the rights and legal duties of both the parents. The mother is gainfully employed and financially secure, is not unfit and, this not being a custody battle her right to guardianship is not in question.
  • In releasing the newspaper application and providing the affidavit, the court believes that the duties and rights of the father have sufficiently secured should he choose to contest such a guardianship in the future. The court hence, does not find it necessary to notify a father who has so far shown no involvement or concern in the parenting of the child.
  • The non-disclosure of the father’s identity (and consequentially the protection of the appellant’s right to privacy) in no way harms the child and in fact in this case protects the child from social stigmatisation, such as in cases where the father could publicly deny his paternity.
  • In order to protect the Child’s right to know his father the court asked the appellant to inform her son of the same, which she did, and all known details of the father were given to the court, which remain in a sealed envelope till further direction.
  • The court then explored the extent of applicability of section 11 of HGMA using two cases. S.19 of the HGMA says that another guardian cannot be appointed as long as the father is alive and fit and is supported by S.6(b) which makes the mother only the Secondary guardian. but in the Githa Hariharan case it was held that the father by indifference, an agreement, incapacity etc can be deemed to be absent for the purposes of these sections, wherein the mother becomes the natural guardian. Notification in S.11 is primarily in cases where a 3rd party seeks guardianship, like in adoption, and the natural parents need to be informed. This too was held unnecessary in the Laxmi Pandey case, if it is for the welfare of the child.
  • Since “Parents” is not defined anywhere, the court in cases of illegitimate children to refers to the “parent” who is the sole caregiver. The court thus, finds no harm in relaxing the reading of S.11, which is purely procedural, in order to uphold the intent of this act which is to protect the interests of the child.
  • It was also found that the child did not have a birth certificate, and in performing its parens patriae obligations, the court as an obiter makes it necessary for a mother to only submit an affidavit to the affect that the child is born from her womb, in order to register the child’s birth and obtain a birth certificate. It chastised the previous courts for being derelict in dismissing this plea completely, instead of engaging with the issues that threatened the welfare of the child.
  • The guardian court was directed to recall its dismissal and consider the appellant’s application for guardianship expeditiously, without requiring that notice be given to the father.
Categories
Custody and Guardianship

Aakansha Roy Rasmussen v. Adwait Anil Dixit, 2015 SCC OnLine Bom 558

AAKANSHA ROY RASMUSSEN V. ADWAIT ANIL DIXIT

Aakansha Roy Rasmussen v. Adwait Anil Dixit, 2015 SCC OnLine Bom 558

ISSUE:

  • Whether a shift in the custody of a child is in the interest of the child?

RULE:

  • Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.

FACTS:

  • The parties to this appeal are the parents of the minor girl child, who is a victim of a bitter custody battle between the parents.
  • The child who is 13 years old is studying in 8th standard at Chinmaya Vidyalaya, Boisar.
  • Being aware of the trauma faced by the child victims in such cases, the court did attempt to persuade the parties to arrive at an amicable settlement.
  • The sole intention was to alleviate the pain of the child in having to show preference to one of the parents thereby having to endure the hurt of having betrayed the other parent, whom she loves equally.
  • Having failed in this task, the court was left with no other alternative but to decide the matter on merits.
  • The marriage between the parties was dissolved by a decree of divorce by mutual consent dated 02.05.2008. The parties had mutually agreed that the custody of the child would remain with the father, while the mother would have visitation rights on every second and fourth Sunday.
  • In the due course, the mother i.e. the appellant herein migrated to Denmark and married a Danish national, while the respondent father remarried a widow having a minor daughter from the first marriage. The child continued to live with her father, stepmother, and stepsister.
  • The appellant has no issue from the second marriage with the Danish national. The marriage between the appellant and the Danish National ended in a divorce in the year 2012.
  • The appellant had come down to India on 28.11.2009. The appellant claimed that the respondent had not allowed her to meet the child. She had filed Misc. Application, for modification of consent decree relating to the access of the child. The appellant had claimed that the respondent was denying to access and was alienating the child from her. The respondent had contested the application. He had denied having violated the consent terms or having tried to alienate the daughter from the mother.
  • Upon considering the allegations made by the appellant as well as the counter-allegations leveled by the respondent, the learned Judge had held that the child was comfortable staying with the father. The learned Judge held that the appellant, being the biological mother is entitled for a reasonable access. The learned judge had, therefore, modified the terms and thereby allowed the appellant to communicate with the child telephonically or by other electronic means, and further provided access during summer and Diwali vacation.
  • The appellant claims that in the year 2012 she had come down to Mumbai to attend the funeral of her brother. During this visit, she had attempted to meet the child. She has claimed that the respondent was reluctant to allow her to meet the child. It was only after her persistent pleading, that he allowed her to meet the child for fifteen minutes in presence of his second wife.
  • The appellant claims that in the year 2013 she received an e-mail from her daughter expressing her desire to reside with her. The appellant therefore came to India and filed Misc. Application seeking custody of the minor child. The appellant also filed an interim application for grant of interim custody.
  • The learned Family Court held the welfare of the child is of paramount importance. The learned Judge therefore held that the custody of the child could be shifted from one parent to another if such shifting is in the welfare of the child.

HELD:

  • The High court of Bombay held that, the child could live with her mother in Denmark as she herself requested to do so. The court says that the child though 13 years of age, was capable of making this decision.
  • The court held that the mother could not be deprived of the custody of the child merely on the ground that she had chosen to pursue her career in a foreign country.
  • The court order that:
  • The appellant shall ensure that the child spends both the vacations with the respondent in India.
  • The appellant shall bear the traveling expenses towards the cost of one trip of the child.,
  • The respondent is also permitted to keep in touch with the child through electronic media or social networks.
  • The respondent is also permitted to visit the child at Denmark as and when he desires, subject to giving advance notice of the visit to the appellant.
Categories
Custody and Guardianship

Vivek Singh v Romani Singh, CA No. 3962 of 2016, SC. 13 February, 2017

VIVEK SINGH V. ROMANI SINGH

Vivek Singh v. Romani Singh, CA No. 3962 of 2016, SC. 13 February, 2017

ISSUE:

  • Whether the father or the mother was entitled the guardianship of the child?

RULE:

  • Section 13 of the Hindu Minority and Guardianship Act, 1956
    13.Welfare of minor to be paramount consideration. –
    (1) In the appointment of 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.

FACTS:

  • Vivek and Romani were an army officer and teacher at Kendriya Vidyalaya respectively, who were married in November 2007.
  • They soon began to face matrimonial discord. In August 2010, the fight reached such a stage where the respondent was forced to leave the matrimoial house.
  • The effect of disruptions between the two came down heaviest upon their daughter, who was only two years old at the time. When the respondent was leaving the matrimonial house, she tried taking the child with her, but the appellant did not allow her to do so.
  • It was upon this that the respondent has filed a petition for guardianship and custody of the child at a family court in New Delhi.
  • The judge was of the opinion that the appellant was fit to take custody of the child. The mother then appealed to the high court, which allowed the appeal and decided in favor of the mother, stating that she was more apt to take care of a five year old girl than the father.
  • An important fact to note is that during the pendency of the high court’s verdict, custody of the girl remained with Mr. Vivek, the appellant in this appeal. However, after the verdict was delivered, custody was transferred to the mother, while the father had been given specific visitation rights.
  • The appellant however did not comply with these rules, because of which he was charged with contempt, the consequence for which was that the court’s verdict had been stayed. As a result of this, the child continued to remain in the custody of the father for an extended period of time, and the respondent’s (mother’s) visitation rights had been restored.

HELD:

  • The core of the appellant’s argument was that the child had stayed with him for a long period of time. The court however observed that the child was able to stay with her father for an extended period of time solely because the appellant was charged with contempt, hence leading to a stay on the verdict initially been given by the high court.
  • In this way, the appellant was to be the beneficiary of his own wrongs, which was something the court could not permit. During the psychological analysis conducted by the court, it was unearthed that the child wished to continue living with her father so as avoid deviance with her ongoing lifestyle.
  • Normally, this would serve as a deciding factor in any case, but the court deemed that this was only one side of the picture. Since the moment of the separation, the respondent made it clear that she wished to have custody of her daughter.
  • For the reasons mentioned earlier, this however was not able to happen, as a result of which the girl remained in the custody of her father. The girl thus was void of the experience of growing up with her mother.
  • To quote, “A child, who has not seen, experienced or lived the comfort of the company of the mother is, naturally, not in a position to comprehend that the grass on the other side may turn out to be greener.”
    The court then proceeded to emphasize on the effect and importance of a mother on the development of a child.
  • It was acknowledged that despite the mother’s natural advantage in this kind of scenario, it is entirely possible that for the child’s welfare, the father would be better suited to take care of the child.
  • This however would be possible only when “the playing field is level to both parents.” In this particular case, the field itself undoubtedly tilts towards the mother. Her being a teacher at the respected Kendriya Vidyalaya will have several positive implications on the upbringing of the child, especially if the child were to study in the same school.
  • On the other hand, the appellant being an army officer has no such positive implications on the child.
  • To the contrary, this would imply that the husband would be able to spend far lesser time with his daughter. Keeping these circumstances in mind, the court awarded the mother with guardianship and custody of her daughter.
    The court further made provisions to ensure that the daughter was enlisted in Kendriya Vidyalaya, where the respondent was teaching.