DATE OF JUDGEMENT :
11th October 1940
JUDGES :
John Beaumont, Kt., B Wadia
PARTIES :
Shripad Vasanji Ved (Plaintiff/appellant)
Saraswatibai Shripad Ved (Respondent)
SUBJECT
The following judgement deals with the custody of a two year old minor child under the Guardians and Wards Act which talks about the custody of a minor in various circumstances. The appeal was put forward by the father of the child to attain the custody and the question before the High Court of Bombay was whether the custody should be going to the mother or the father of the child.
OVERVIEW
The case deals with the custody of a minor who is of two years of age.
The appeal is put forward by the father of the minor, on the decision which was given by Justice Kania on the petition which was filed by him to regain the custody of his child under section 25 of the Guardians and Wards Act.
The father claimed that the child was kidnapped by an uncle of his wife, whereas an affidavit given by that uncle stated that the child was taken by a servant to his mother’s house.
The act under which the father has claimed the custody emphasises on the interest and the welfare of the child rather than the interest of the parents.
The parents of the minor are not living together and won’t do so even in future because the father has married another woman.
Section 19(b) does consider the father to be a natural guardian of the child, it however is controlled by Section 17 which focuses on the welfare of the child.
IMPORTANT PROVISIONS
The Guardians and Wards Act, 1890 :
Section 17 (1) – when appointing someone as the guardian of a minor, the court has to make sure that while appointing someone or declaring someone as the guardian of the minor, the court shall, while subjecting to the provisions which are mentioned under this section, be guided by what, is considered to be for the welfare of the minor, considering the minor as a subject.
Section 19 (b) – this section states that the court must not appoint an individual as the guardian of the minor whose father is alive and the court holds the opinion that he is not unfit to be the guardian of the minor.
Section 25 (1) – it states that if either a ward leaves or is removed from the custody of their guardian, and if the court feels that the welfare of the child will lie in returning to the custody of the guardian then the court can issue an order for the ward to return to the guardian and for this purpose they can also arrest the ward to bring them under the custody of the guardian.
ISSUES
- Whether the mother was still sick and not capable of taking care of the child?
- Whether the welfare of the child was to stay with the father or not?
- Whether the father will ever have a chance to attain the custody of the child?
ANALYSIS OF THE JUDGEMENT
This case is about a custodial dispute between the parents of a minor. The parents were married in the year 1936 and they gave birth to the minor in the month of October in the year 1938. However, after giving birth to the child, the mother contracted tuberculosis and had to be moved away for her treatment and because of the same reason, the child stayed with his father, in his mother’s (father’s mother) house.
The mother of the child was discharged a year later and was advised to say in the hill station for a period of time, after this she moved back to Bombay (in 1940) considering herself to be free of her illness. On the 29th day of May in the same year, the child who was out with a servant in attendance was taken to his mother at her parent’s house and has been in the custody of his mother since then. The father of the child claimed that he was kidnapped by an uncle of his wife. This uncle later gave an affidavit stating that he did not kidnap the child and the child had been taken to the mother’s home by the servant, the servant did not issue any affidavit whatsoever.
The father of the child has now appealed that the child must be returned to him.
- 1 The father of the minor appealed that the health of the mother has not fully recovered and it would not be safe to send the minor child in her custody. However, the evidence which has been presented before the honourable court suggests otherwise. She had been discharged from the sanatorium where she was being treated and upon her final examination the doctor stated that no traces of tuberculosis were found. Thus, the court stated that there is no reason to state that it will not be safe to give the custody of the child to the mother. The court further stated that the evidence at present does not necessitate that the health of the mother should be examined, however if in future her ailment returns, the father will have the right to apply for custody of the minor and at that time he can also ask the court to get her examined by an independent doctor and submit the reports in-order to retain the custody of the child. The court also stated that since there is no evidence to state that the mother will not be able to take proper care of the child and since her parents have the resources to maintain the child thus there is no reason that the custody should not be given to her.
- When the question arises that if the welfare of the child would remain with his father, in that case the court stated that since the father had already entered into a marriage with another woman who is considered to be of seventeen years of age then it might not be the best to hand the custody of the minor to the father. It was s because, taking the general human behaviour and psychology into consideration the natural mother is considered to be the best guardian of the child and a step-mother would not be able to nurture the child and take care of the child or provide him with the same love, empathy and compassion which a child needs naturally in the same way as the natural mother of the child. Another point being that the father will be engaged into other occupational activities and so might not be able to take care of the child in the best possible way and might hand it over to someone else. Even though it was stated by the court in the case of “Besant vs. Narayaniah” that the father is the natural guardian of the child in their minor years and the guardianship is in the nature of sacred trust. The 19th Section of the Guardian and Wards Act, 1890 also talks about the recognition of the father being the natural guardian of a child, it is however important to understand that this act in its whole lays emphasis on the welfare of the child mentioned under the 17th Section. Another case of “Bai Tara v. Mohanlal” was the one to state that it is the welfare of the minor alone which should be given paramount importance in the cases of custody and also at a tender age, the child requires the personal care of the mother and it should be considered as a primary condition for the welfare of the minor. The court stated that the mentioned case must be applied to the case at hand with an even greater force because the minor is younger in the case at hand.
- The question about if the father would ever have the custody of the child has also been answered by the court. The court stated that the custody of a child is always of a temporary nature no matter who it is being granted to. The court also stated that the father will not be removed from the guardianship of the child. He is and will remain the natural guardian but when laying emphasis on the fact that where will the welfare of the child lie, the court is satisfied that the custody shall remain with the mother of the child at present and the father will be allowed to meet the child and arrangements can be made for the same. The court also further mentioned that if in future a situation arises where the welfare of the child will not lie with the mother, then to focus solely on the welfare of the child and to ensure it the father can apply for the custody of the child if he is able to prove that on any other just and reasonable grounds.
CONCLUSION
The court has made a fair and just decision by granting the custody of the minor to the mother and allowing the father to meet the minor. Since, the minor is of a very tender age it is natural that the child would want the love, care and warmth of a mother and also because it has been proved that she is not sick or unfit to take care of her child anymore. Granting the custody to the father wouldn’t have been the best possible decision because he himself has entered into a marriage with a minor who might not have the well developed understanding and sense of maturity within her to take the best care of the child and being the step-mother, there does exist a chance that she might not be completely vested into the nurturing and growth of the child as much as the natural mother would be. This would impact the overall welfare of the child and defy the sense of granting the custody to the parent. The court has not been biased to the father because he will have the rights to meet the child and can also claim for the custody of the child if he is able to prove that granting the custody of the child to the mother would be against the welfare of the child, using just and reasonable grounds.
