Calcutta High Court
Sm. Sibani Banerjee vs Tapan Kumar Mukherjee on 8 March, 1989
Equivalent citations: AIR1990CAL4, 93CWN1041, I(1990)DMC199, AIR 1990 CALCUTTA 4
ORDER A.M. Bhattacharjee, J.
1. While decreeing dissolution of the marriage between the parties by mutual consent under S. 28 of the Special Marriage Act, 1954, in terms of the joint-petition filed by the parties, the Court made the said petition also a part of the decree. As a result, it was also decreed, as agreed between the parties in paragraph 5 of the joint-petition, that "the custody of the child", then aged 5 years and few days, "will remain with the mother till the child attains majority", that "for the purpose of education of the said child, the petitioner there, the mother-appellant) will act as the guardian till the age of majority of the child and the respondent (i.e. the father) cannot have any objection in the matter", but that "for all other purposes, the respondent shall remain the natural guardian". It was also agreed, and accordingly decreed, that the respondent shall have the opportunity to meet the child "on every Sunday for 2 hours from 10 a.m. to 12 noon" at the residence of a named common Mend and "the petitioner, i.e. the mother and/or her representative shall take the child at 10 a.m.'' at the said place on every Sunday "without fail".
2. In the petition, labelled as one under S. 25 read with S. 12 of the Guardians and Wards Act. 1890, whereon the impugned order assailed in this appeal has been passed, the respondent, the quondam-husband, has prayed that the appellant, the quondam wife, be directed to produce the minor child before the Court and that necessary orders be passed enabling the respondent to keep the minor in his custody. The petition is based mainly on two grounds, namely, the appellant-mother has failed and neglected to comply with that part of the Order requiring her to make the child available to the respondent-father every Sunday at the agreed place, and that such an Order is necessary for the welfare of the child, who is not being properly looked after by the appellant-mother who has married again and is now residing with her second husband at the latter's place of residence. The respondent has also admitted about his own second marriage and a further affidavit has been filed before us by the appellant, after the conclusion of arguments, alleging that the said second wife has also died as a result of poisoning and while the appellant has alleged the same to be a case of suicide, there is an oblique hint that the local people claim that the second wife was murdered by the respondent and/or his family members. In view of the order that we propose to pass for the reasons stated hereunder, we need not and do not take any notice of this alleged subsequent event sought to be introduced by the said further affidavit.
3. If the respondent is aggrieved because of the appellant's failure to comply with that portion of the Order forming part of the decree for divorce requiring the appellant to make the child available to the respondent every Sunday for 2 hours at the agreed place, he has his remedy under S. 39A of the Special Marriage Act, whereunder all decrees and orders made by the Court in any proceeding under Chaps. V and VI of the Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its Original Civil Jurisdiction for the time being are enforced. No remedy, therefore, can obviously lie under S. 25 of the Guardians and Wards Act, which can be invoked only for the return of a child who has left or is removed from the custody of a guardian of his person.
4. Here the custody of the child was given to the appellant-mother under the order of the Court. True the order was passed on the basis of mutual agreement between the parties, but the same having been made part of the decree, no longer rests on agreement alone. It is true that if a guardian by voluntary agreement vests another person with the custody of his child, he may revoke such an agreement. This is settled law since the leading decision of the Privy Council in Annie Besant v. Narayaniah AIR 1914 PC 41 where it was also nevertheless ruled that if and when such delegated authority relating to custody has been acted upon in such a way as to create associations or give rise to expectations on the part of the child, which it would be undesirable in its interest to disturb and to disappoint the child thereby, the Court may interfere to prevent its revocation. The reason is that in this jurisdiction, what governs the Courts more is not the law or legal rights flowing therefrom, but the welfare and interest of the minor. But once such a custody has been decreed or ordered by the Court, and, therefore, does not rest on the guardian's extra-cural agreement alone, the latter cannot alter or revoke such custody unilaterally and extra-judicially, but can only move the Court, which passed the decree or the order, for revocation, variation or suspension of the order, as provided under S. 38 itself. A guardian cannot invoke the provisions of S. 25 of the Guardians and Wards Act solely for the purpose of alteration or revocation of an order of custody made by a competent Court, even if such revocation or alteration is proved to be necessary for the welfare of the minor.
5. For invocation of S. 25 of the Guardians and Wards Act, the sine qua non is a ward leaving or being removed from the custody of his guardian. And even then, an order for return of the child is not a matter of course, but may be made by the Court only when it is further satisfied that such return would be conducive to the welfare of the ward. It is true that detention of a ward by one against the wish of its guardian may in law amount to removal of the ward from the custody of the guardian within the meaning of S. 25 of the Guardians and Wards Act. But where, as here, the appellant-mother has been entrusted with the custody of the child by and under an order of the competent Court and the child is all along, since such order, in her custody, retention of the ward in such custody granted by the Court cannot, so long the order remains in force, amount to any removal of the child, even if such retention is now against the will of the legal guardian. As already indicated, if the respondent-father feels that there have been such developments of subsequent events which might warrant an alternation or revocation of the earlier order of custody in favour of the appellant-mother, he may, if so advised, move for the same in the Court which made the order. But an application under S. 25 of the Guardians and Wards Act was entirely misconceived and the trial Court also went entirely wrong in invoking and applying the provisions thereof.
6. We accordingly allow the appeal, set aside the impugned order but make no order as to costs. We, however, make it clear that this shall not prevent the respondent-father from taking such steps as he may be advised for the enforcement of the terms of the earlier order relating to custody as provided in S. 39A of the Special Marriage Act or for revocation, suspension or variation of the order as provided in S. 38 of the Special Marriage Act. A copy of this order, along with the records, if any, to go down at once.
Ajit Kumar Nayak, J.
7. I agree.
8. Appeal allowed.