Allahabad High Court
Smt. Seema Chauhan vs Raghuvendra Singh Raghav And 2 Others on 23 October, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 18 Case :- MATTERS UNDER ARTICLE 227 No. - 7452 of 2019 Petitioner :- Smt. Seema Chauhan Respondent :- Raghuvendra Singh Raghav And 2 Others Counsel for Petitioner :- R.P.S. Chauhan Counsel for Respondent :- C.S.C.,Saurabh Singh Hon'ble J.J. Munir,J.
1. This writ petition has been filed challenging an order dated 04.07.2019, passed by the Additional Principal Judge, Family Court, Room No.3, Aligarh, rejecting an application filed under Section 10(3) of the Guardians and Wards Act, 1809 (for short the ''Act') in Pure Misc. Case no.10 of 2017, seeking to submit a declaration under Section 10(3) of the Act, with a prayer that it may be taken on record.
2. This order has come to be passed in the background of facts that the petitioner, Seema Chauhan and respondent no.1, Raghuvendra Singh Raghav are an estranged couple. They have a minor daughter, Baby Garvita Raghav. The father has filed an Application under Sections 8 and 10 of the Act, seeking to be appointed Guardian of the person of his minor daughter, and for a further relief that custody of his minor daughter be handed over to him. The said application under Sections 8 & 10 of the Act was filed before the Principal Judge, Family Court, Aligharh, where it was numbered as Pure Misc. Case no.10 of 2017. The precise prayer in the Application reads to the following effect:
"It is therefore prayed that in the interest of justice that the applicant be appointed as guardian of the person of the said minor and the custody of the minor be handed over to him and the opposite party be directed to hand over the custody of the minor to her natural father and guardian, i.e., applicant, within the time prescribed by Hon'ble Court failing which the custody of the minor be given to the applicant through process of law.
Schedule Movable & Immovable Properties Minors have no movable & immovable properties in her name.
Sd/- illegible Applicant"
3. An objection was filed to this Application on behalf of the petitioner-wife on 30.11.2018 traversing the allegations in the Application. Apart from objections on merits of the Application, an objection about the maintainability of the Application, in the form and manner it was filed, was also taken. This objection was to the effect that the mandatory procedure envisaged under Sections 10(1) and 10(3) of the Act have not been adhered to by the third respondent. This was so, according to the petitioner-wife as Sections 10(1) and 10(3), last mentioned, mandate that an Application under Section 10 must be accompanied by a declaration of willingness by the proposed guardian to act; also, the declaration must be signed by the proposed Guardian and attested by at least two witnesses under their signatures. It was urged that the Application for appointment of Guardian was improperly framed and against the law as mandated by Sections 10(1) and 10(3) of the Act, for reason also that it was not made in the prescribed proforma, apart from the fact that it was not accompanied by the required declaration. Faced with the aforesaid objection, the third respondent filed an Application on 18.12.2018, seeking permission of the Court to submit his declaration under Section 10(3) of the Act, that was attached to the Application. It was prayed that the declaration be taken on record. An affidavit for the purpose signed by the third respondent and attested by two witnesses was also filed along with the said Application. The Application dated 18.12.2018 was clearly brought to cure the irregularity alleged to have been committed by the third respondent, and pointed out in her objections by the petitioner-wife. To this Application dated 18.12.2018, an objection was filed on behalf of the petitioner-wife, dated 03.05.2019, where the objection about the form of an Application under Section 10 was raised to further sharpness, in paragraph 4 of the memorandum of objections. It was claimed that there is no provision to file a declaration under Section 10(3) of the Act, and Rule 657 of the General Rule Civil, 1957 after registration of the Application/ Petition under Section 10 of the Act.
4. It was urged that a common declaration de hors the prescribed form cannot be taken on record. It was also asserted that the declaration dated 18.12.2018 is only an affidavit, which carries the signatures of the deponent, Raghuvendra Singh Raghav, identified by his counsel. It is not a declaration under Section 10(3) of the Act and in accordance with Rule 657 of the General Rule Civil, where Form no. GW-2 provides the precise language to be employed while making the required declaration under Section 10(3) of the Act, read with Rule 657, last mentioned. The declaration as set out in Form no. GW-2 has been quoted in paragraph 4 of the objection, dated 03.05.2019. The learned Judge, Family Court has, by his order dated 04.07.2019, proceeded to allow the third respondent's application, dated 18.12.2018, and taken on record his declaration in the manner and form it has been filed as an affidavit, attested by two witnesses, declining the objections of the petitioner-wife. However, the Application has been allowed subject to payment of a sum of Rs.200/- in costs. Aggrieved, this petition under Article 227 of the Constitution has been filed by the wife.
5. A reading of the Application filed under Sections 8 and 10 of the Act by the third respondent leads this Court to conclude that the Application though labeled as one under Sections 8 and 10 of the Act, is in the substance not an Application for appointment of a Guardian. This Court must remark that neither Section 8 or Section 10 afford remedy to a party, or power to the Court to appoint a Guardian. The power of the Court to appoint a guardian flows from Section 7. Section 7 of the Act reads:
"7. Power of the Court to make order as to guardianship.--(1) Where the Court is satisfied that is for the welfare of a minor that an order should be made--
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian, the court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act."
6. Section 8 refers to the powers under Section 7 and prescribes persons eligible to invoke that power. Likewise, Section 10 speaks about the form of an Application for appointment of a guardian, again referable to the remedy and the power to appoint a guardian, available to the Court under Section 7 of the Act. Thus, an Application or Petition under Section 8 or 10, would always be a Petition under Section 7, and not under Section 8 or 10, that are machinery provision designed to give effect to the right of a party to seek appointment as guardian of the person or property of a minor, or a declaration that he is such a guardian. Sections 8 and 10 of the Act, by no means, are the repository of jurisdiction of the Court to appoint a guardian; a fortiori these provisions are not the resort of remedy to a party who seeks to be appointed guardian of the person or property of a minor.
7. The substance of the Application filed by the third respondent shows it to be one under Section 7 of the Act, and not under Section 8 or 10. Section 7 of the Act occurs in Chapter II of the Act. Chapter II deals with appointment and declaration of guardians. It is in a situation where the Court is satisfied that it is for the welfare of the minor that a guardian be appointed of his person or property, or both, or that a person discharging those obligations de facto be declared his guardian that this power or corresponding remedy comes into play. The entire scheme of Chapter II of the Act relating to appointment of Guardian would, therefore, not be applicable to what are known to law as natural guardians. The father or the mother fall in the category of natural guardians.
8. This Court must remark here that formerly it was the father who was always regarded to be the natural guardian, and not the mother; at least the mother could not be the natural guardian, so long the father was alive. Now, in changing times with the outlook of the law and the constitutional creed eschewing discrimination on grounds of sex, the mother and father would stand on the same footing. Both, the mother and father to the understanding of this Court would be natural guardians. In this context, reference may be made to the decision of a three Judge Bench of their Lordships of the Supreme Court in Githa Hariharan (Ms) and another vs. Reserve Bank of India and another, (1999) 2 SCC 228. In that case, challenge was laid to the constitutional validity of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Act on ground that the same brought about invidious discrimination based only on sex of the parent, inasmuch as, the mother was placed in an inferior position, vis-a-vis, the father on ground of her sex alone. This was so as under Section 6 of the Act, 1956, the natural guardian of the minor was the father in the first instance, and after him the mother. In Githa Hariharan (Ms) and another(supra) dealing with the aforesaid challenge, the statute was read down to place the mother and the father on the same plane. It was held in Githa Hariharan (Ms) and another (supra):
"5. Since challenge to the constitutionality of Section 6(a) of the HMG Act and Section 19(b) of the GW Act was common in both cases, the writ petitions were heard together. The main contention of Ms Indira Jaising, learned Senior Counsel for the petitioners is that the two sections, i.e., Section 6(a) of the HMG Act and Section 19(b) of the GW Act are violative of the equality clause of the Constitution, inasmuch as the mother of the minor is relegated to an inferior position on the ground of sex alone since her right, as a natural guardian of the minor, is made cognizable only "after" the father. Hence, according to the learned counsel, both the sections must be struck down as unconstitutional.
6. Section 6 of the HMG Act reads as follows:
"6. The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), 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:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.--In this section, the expressions ''father' and ''mother' do not include a stepfather and a stepmother.""
7. The expression "natural guardian" is defined in Section 4(c) of the HMG Act as any of the guardians mentioned in Section 6 (supra). The term "guardian" is defined in Section 4(b) of the HMG Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of "guardian" and "natural guardian" do not make any discrimination against mother and she being one of the guardians mentioned in Section 6 would undoubtedlybe a natural guardian as defined in Section 4(c). The only provision to which exception is taken is found in Section 6(a) which reads "the father, and after him, the mother". (emphasis ours) That phrase, on a cursory reading, does give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime of the father. In fact, that appears to be the basis of the stand taken by the Reserve Bank of India also....
8. Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a court of law, the word "after" in the section would have no significance, as the court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as the guardian of the minor during the lifetime of the father, without the matter going to the court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of Section 6(a) (supra)....
9. Is that the correct way of understanding the section and does the word "after" in the section mean only "after the lifetime"? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. Did Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on the grounds of sex? In our opinion -- No. It is well settled that if on one construction a given statute will become unconstitutional, whereas on another construction which may be open, the statute remains within the constitutional limits, the court will prefer the latter on the ground that the legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions.
10. We are of the view that Section 6(a) (supra) is capable of such construction as would retain it within the constitutional limits. The word "after" need not necessarily mean "after the lifetime". In the context in which it appears in Section 6(a) (supra), it means "in the absence of", the word "absence" therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of a harmonious construction of Section 4 and Section 6 of the HMG Act, without causing any violence to the language of Section 6(a) (supra).
9. Appointment of a person as a guardian, or declaration of a person acting as a de facto guardian to be a guardian properly so called, or de jure guardian is one matter, and custody of the minor quite another. A reading of the Petition filed in this case which is a fall out of estrangement of the husband and wife, who happen to be the father and the mother of the minor, Baby Garvita, shows that it is a Petition for her custody as the parents are not staying together. This kind of a petition seeking custody of the minor is taken care of by Section 25 of the Act. Section 25 of the Act occurs in Chapter III which speaks about duties, rights and liabilities of guardians. Section 25 is extracted infra:
"25. Title of guardian to custody of ward.--(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by Section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."
10. The jurisdiction under Section 25 is invocable where a ward leaves or is removed from the custody of a guardian of his person. In a case like that if the Court is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, the Court may make an order for his/ her return, and for the purpose of enforcement of the order cause the ward to be arrested and delivered into the custody of the guardian, to employ the phraseology of the statute. It is the aforesaid power that comes into play when the father and mother who are both natural guardians, are physically separated by estrangement and the question is who should have the custody. This kind of a situation is not one that requires the exercise of power for appointment of a guardian of the person or property of the minor, but the exercise of power as to which of the two guardians should have custody. Traditionally, Courts in India have accepted, followed and invoked jurisdiction under Section 25 of the Act to decide custody disputes between estranged couples relating to their children. In this connection, reference made to the decision of the Madhya Pradesh High Court in Kalimunnisa vs. Shah Salimkhan Rehmankhan, ILR[1977]MP239. In the aforesaid decision, the father and the mother of the minor were an estranged couple where the father had remarried and raised a family. The minor had been taken care of by his mother who did not remarry. Upon the minor turning seven years, the father made an application under Section 10 of the Act praying that he be appointed guardian of the minor and the minor be placed in his custody. The application was granted by the Trial Court. On appeal, a preliminary objection was raised on behalf of the minor's mother to the effect that the respondent to the appeal being the father of the minor was his natural guardian under the personal law applicable to parties. It was, therefore, not open to the father to file an application under Section 7 of the Act, seeking appointment or declaration as a guardian. The Court in Kalimunnisa (supra) answered the said question thus:
Shri K.M. Agrawal, learned counsel for the appellant raised a preliminary objection that since the respondent being the father of the minor is his natural guardian under the personal law, it was not necessary for him to file an application under section 7 for appointing and declaring him as his guardian and, therefore, the entire proceedings are misconceived. There is no doubt some force in this contention. It was not necessary for the respondent to file an application for declaring or appointing him as guardian. The proper course for him was to file an application under section 25 of the Act for obtaining custody of the minor. From the language of this section it no doubt appears that it is attracted only where a ward leaves or is removed from the custody of a guardian but the repudiation by a person in charge of a minor of the right of the guardian to resume the custody of the minor amounts to removal within the meaning of this section. In Brijendra Narayan Ganguly v. Chinta Haran Sarker MANU/MP/0059/1961 : 1961 MPLJ 208 it was held that the act of the non-applicants in repudiating the right of the applicants to resume custody of the child amounted to 'removal' within the meaning of section 25 of the Act. Thus, the application filed by the respondent in the lower Court may be treated as an application under section 25 of the Act and dealt with accordingly.
11. A clue to the fact that a natural guardian, like one of the two parents is generically different from a guardian who is appointed as such under Section 7 of the Act or declared to be so when he is acting de facto is to be found in sub-Section (2) of Section 7 of the Act. Sub-Section (2) of Section 7 quoted (supra) shows that an order under Section 7 operates to remove any guardian who has not been appointed by will or other instrument, or appointed or declared by the Court. The said provision makes it explicit that a natural guardian simply does not fit into the scheme of Chapter II, or falls within the category of persons who seek appointment or declaration as guardian by invoking powers of the Court under Section 7 of the Act.
12. It is quite another matter that if a person who is not a natural guardian is appointed a guardian of a minor's person or property, or both, or declared to be so, a guardian who has not been appointed by will or other instrument, or appointed or declared by the Court, stands removed from that status. Sub-Section (3) of section 7 of the Act further makes this distinction clear by mandating that a guardian appointed by will or other instrument, or appointed or declared by the Court, if the ward given to his care has another guardian appointed for him, whether of his/ her property or person or both, or declared to like effect by an order made under Section 7 shall not be so appointed unless powers of the guardian appointed or declared by the Court by an earlier order ceased in accordance with the provisions of the Act. There is no such embargo in case of appointment of guardian of the person or property of a minor, or both, who is in the guardianship of his natural guardian. This scheme clearly makes a dichotomy between natural guardians and persons other than natural guardians, envisaged under Chapter II, particularly, under Section 7 of the Act. The power to seek appointment or declaration as a guardian is, therefore, generically different from the remedy available to a natural guardian to seek the custody of his ward.
13. A reading of the petition in this case in substance shows by the relationship of parties to be one for the custody of the minor, and not for appointment of a guardian under Section 7 of the Act. The petition is clearly referable to Section 25 of the Act, and not Section 7. The reference to Sections 8 and 10 of the Act as the substantive provisions under which the petition has been filed is plainly misconceived. This being the position, the rights of the parties involved and the remedy which they have in substance invoked is one under Section 25 of the Act and not under Section 7. Therefore, objections as to maintainability based on Section 10(3) of the Act read with Section 657 of the General Rules Civil, 1957, all of which are referable to proceedings under Section 7 of the Act, are completely misplaced.
14. This Court, therefore, for reasons very different from those that have weighed with the Court below, concurs in the conclusion reached by the learned Family Judge.
15. The petition fails and is dismissed. Costs easy.
16. Let a copy of this judgment be forwarded forthwith to the concerned Family Court by the Office through the Principal Judge, Family Court, Aligarh.
Order Date :- 23.10.2019 Anoop