This article is written by Namitha Udayan. The article covers the importance of considering the welfare of minors in deciding cases concerning the custody and guardianship of minors under the Guardian and Wards Act, 1890 through a detailed analysis of the Supreme Court’s judgement in the case of Anjali Kapoor vs. Rajiv Baijal. 

Introduction 

The Guardian and Wards Act, 1890 is a comprehensive legislation that addresses the guardianship and welfare of minors. It is a secular legislation that applies to individuals of all castes and religions. While the Hindu Minority and Guardianship Act, 1956 establishes a hierarchy for guardianship, the Guardian and Wards Act, 1890 prioritises the welfare of the minor in cases related to custody and guardianship. It grants discretionary power to courts to make decisions based on the best interests of the child. Courts have consistently upheld this principle, as seen in various case laws.

It would be interesting to recall Lord Mackay’s remarks in the Hamlin Lecture, 1993, wherein he stated, “The pre-eminent qualities required of a Judge are good sound judgement based upon knowledge of the law, a willingness to study all sides of an argument with an acceptable degree of openness, and an ability to reach a firm conclusion and to articulate clearly the reasons for the conclusion”. Now, a question may arise as to why this statement is significant. The answer lies in its relevance to the application of the provisions outlined in the Guardian and Wards Act. Although the term “welfare” has not been explicitly defined under the Act, judges have effectively applied their morals and ethics in deciding cases related to the matter. This judicial approach is evident in landmark cases such as Rosy Jacob vs. Jacob A. Chakramakkal (1973), Bimla Devi vs. Subhas Chandra (1992) and Anjali Kapoor vs. Rajiv Baijal (2009).

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In the case of Anjali Kapoor vs. Rajiv Baijal (2009), the Supreme Court reaffirmed this principle by granting custody and guardianship of a minor child to her grandmother. The court believed that the child’s welfare and interests were best served by her. Such decisions highlight the courts’ commitment to prioritising the welfare of minors. It further reflects the enduring importance of the Guardian and Wards Act, 1890 in shaping the landscape of family law in India.

Details of the case

Name of the case: Anjali Kapoor vs. Rajiv Baijal (2009)

Citation: AIR 2009 SC 2821

Name of the appellant: Anjali Kapoor (grandmother of the minor)

Name of the respondent: Rajiv Baijal (father of the minor)

Case type: Special Leave Petition (Civil)

Court: Supreme Court of India

Bench: Justices H.L. Dattu and Tarun Chatterjee

Date of the judgement: April 17, 2009

Laws involved: The Guardian and Wards Act, 1890

Background of the case 

In examining the legal framework surrounding guardianship, it is essential to understand the relevant statutory provisions and the guiding principles that courts rely upon when making decisions in the best interest of the minor. The Guardian and Wards Act, 1890, along with the concept of the welfare principle, forms the bedrock of such determinations. These elements not only shape the legal discourse but also inform the courts’ approach to ensuring that the child’s welfare remains paramount. The following sections will delve into the specific provisions of the Guardian and Wards Act and explore how the welfare principle has been interpreted and applied in various judicial decisions.

Facts of the case 

The appellant’s daughter, Meghana married the respondent in 1998, and they lived together in Pune, Maharashtra. Meghana moved to her mother’s residence in Indore to deliver her child. She gave birth to a female child in 2001 and died during childbirth. The child, born prematurely, was admitted to the intensive care unit and kept in an incubator. After being discharged, the baby was taken to the appellant’s home and named ‘Anagh’’. During this period, adding to the agony, the appellant’s husband also passed away during this period. 

It was at this stage that the respondent filed a case under the Guardian and Wards Act at the Family Court in Indore, seeking custody of his daughter. He claimed that the child was not properly looked after by the appellant and that it was unsafe for her to remain in the appellant’s custody. He also stated that he had repeatedly requested for custody of the child due to the incapacity of the appellant. The appellant argued that the respondent had not visited the hospital where the child was admitted to the intensive care unit and pointed out his dire financial situation. The court, however, ruled in favour of the respondent, stating the reason that the financial status of the respondent could not be equated with incapacity. The appellant, the grandmother of the minor, then filed an appeal with the Indore High Court. 

The High Court also decided in favour of the respondent, stating that there was no significant reason to deny his plea for custody, as he was the natural guardian of the child. The court also took note of his consistent struggle to obtain guardianship despite the appellant’s opposition. Additionally, the court also noted that the appellant had suffered a financial setback owing to the demise of her husband. Aggrieved by this decision, the appellant approached the Supreme Court through a Special Leave Petition. 

Issue involved in the case

In the present case, the court addressed the following issue regarding the guardianship and custody of the minor:

Shall the custody and guardianship of Anagh be ordered to be given to the appellant or the respondent?

Arguments by the parties 

The appellant and the respondent presented various arguments in support of their respective claims in the lower courts. However, the respondent failed to appear before the Supreme Court despite being served several notices, including a dasti notice (a notice sent by the petitioner to respondent through a court order and not by any registered postal service) and notices in two widely circulated newspapers in Pune, Maharashtra. 

Below is a summary of the arguments presented by both parties. The respondent’s arguments were made before the Family Court, Indore and Madhya Pradesh High Court (Indore Bench), as he failed to appear before the Supreme Court.

Arguments by the appellant 

The main arguments presented by the appellant before the Family Court (Indore), Madhya Pradesh High Court (Indore Bench), and the Supreme Court were as follows: 

  • The appellant submitted that the respondent had not visited the child when she was hospitalised owing to her premature birth.  
  • A contention was raised regarding the nature of the respondent’s job, which required him to be away from home most of the time. It was also submitted that he did not live with his parents, leaving no one available to care for the minor child if the custody were granted to him. 
  • The financial status of the respondent was questioned, as he had taken loans from several individuals and had even sought financial assistance from the appellant and her family to repay the same. 
  • Before the Supreme Court, the appellant raised the argument that she was financially sound and capable of caring for the child due to her successful garment business. It was also brought to the notice of the court that she had enrolled the child in a notable public school. 
  • The appellant raised concerns about the respondent’s meagre income and his parents’ declining health. 
  • The appellant’s counsel also put forward that neither the respondent nor his family members or relatives had enquired about the child after the custody order was passed. The fact that he had a second marriage and consequent loss of interest in this case was also pointed out. 

Based on these facts and circumstances, the appellant therefore claimed that the respondent was not fit to be the minor child’s guardian and granting him the custody was not conducive for the welfare of the child in question. 

Arguments by the respondent 

The main arguments presented by the respondent are as follows: 

  • The respondent claimed that as the natural guardian of the child, he was entitled to her custody and guardianship.
  • The respondent argued that the appellant did not adequately care for the child and that she was unsafe in her custody.
  • He contended that even after his constant requests for custody over the child owing to the appellant’s incapacity, she had refused to hand over the child to him. 
  • The respondent also contended that the appellant had suffered a financial setback due to the death of her husband which rendered her incapable of providing for the child.  

Laws and legal concepts discussed in Anjali Kapoor vs. Rajiv Baijal (2009)

The Guardian and Wards Act, 1890

The Guardian and Wards Act defines a ‘guardian’ as ‘a person having the care of the person of a minor or his property, or both his person and property,’ and a ‘ward’ as ‘a minor for whose person or property, or both, there is a guardian’. The second chapter of this Act outlines the sections relating to the ‘Appointment and Declaration of Guardians’. This chapter includes Sections 7 and 17, which address ‘the power of the courts to make orders as to guardianship’ and ‘the matters to be considered by the Court in the appointment of a guardian,’ respectively. Section 8 enumerates the ‘persons entitled to apply for an order’.

Section 7 of the Act expressly states that a court can issue an order appointing a guardian for a minor’s person or property, or both. Here, the primary consideration is the welfare of the minor. This section also includes provisions for the removal of any guardian who has not been appointed by the court or who is non-declared, i.e., not officially recognised. As per Section 8, a person who wishes to become a guardian or claims to be a guardian, as well as a relative or a friend, can apply to be appointed as a guardian. The Collector having jurisdiction over the area in which the minor resides, or where the minor has property, or who has authority with respect to the minor’s class can also be appointed as a guardian. Section 17 also expressly provides that the court must consider the welfare of the child when appointing or declaring a guardian. Thus, Section 7, read together with Section 17, recognises the welfare principle applied by the courts when deciding matters related to custody and guardianship. 

Welfare principle

The observation in Re McGrath (infants) by Lindley, L.J. that the word ‘welfare’ should be understood in the broadest sense, encompassing not just the physical well-being of the child but also their moral and religious welfare. This laid the foundation for what is now known as the welfare principle. Similarly, in J vs. C (an infant) (1969), Lord MacDermott emphasises that when considering all relevant factors, including the relationships, wishes of the parents, and potential risks, the decision should always prioritise what is best for the child’s welfare. 

UK’s Children Act of 1989 provides a list of factors to be considered before making any order with respect to a child. These factors include the child’s wishes and feelings, their physical, educational, and emotional needs, their age and sex, and the capability of parents to meet those needs. While this list is not exhaustive, courts in India may take these factors into account while deciding cases regarding the welfare of a child. 

The welfare principle, as defined by Black’s Law Dictionary, refers to the ‘resources and conditions needed for healthy and comfortable living’. This principle has been adopted and expanded through various judgements in India. For example, in Fulkumari Bibee vs. Budh Singh Dhudhuria and Anr. (1914), it was held that the interest, well-being, health, education, and happiness of the minor ought to be the main and paramount consideration for the court when selecting the guardian of a minor. In R.V. Srinath Prasad vs. Nandamuri Jayakrishna & Ors, (2001), the court observed that a balance must be struck between the attachment and sentiment of the parties towards the minor child, with the welfare of the minor being of paramount importance.  

Judgement in Anjali Kapoor vs. Rajiv Baijal (2009) 

The Supreme Court allowed the appeal, granting custody of the minor child to the appellant till the time the child attains the age of majority, i.e., turns eighteen years of age. In order to reach this decision, the court took several key judgements into consideration, which are listed below.

Precedents referred to in the case

The Supreme Court, while deciding the case, considered the following precedents and factors.

  • Sumedha Nagpal vs. State of Delhi (2000): It was held that the father is the natural guardian of a minor child unless he is found to be unfit. It was also held that in deciding such questions, paramount consideration should be given to the welfare of the child, and such a question cannot be decided merely based upon the parties’ rights under the law. 
  • Rosy Jacob vs. Jacob A. Chakramakkal (1973): The court identified two key factors which must be considered while deciding on the fitness of a guardian. They are:

(i) The father’s fitness or otherwise to be the guardian, and

(ii) The interests of the minors.

The court, while deciding this case, also held that children are not mere chattels nor are they mere playthings for their parents.

  • Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw and Another (1986): The court observed that whenever a question relevant to the custody of a minor child arises, the matter is to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the child rather than the legal rights of the parties involved. 
  • Muthuswami Chettiar and Another vs. K.M. Chinna Muthiswami Moopanar (1934): The Madras High Court held that if a minor has lived with his/her grandparents or near relatives from a tender age, and during that period, the minor’s father has shown little to no concern over the minor’s affairs, then these set of affairs will have considerable bearing on the decision of the court. The Supreme Court agreed with this view.
  • Re McGrath (infants) (1893): The Supreme Court also considered this UK Court of Appeal ruling to decide the case at hand.
  • Walker vs. Walker (1981): The Supreme Court of Georgia, in this case, decided that ‘welfare is an all-encompassing word’ and that includes material welfare within its meaning. It was also considered by the Apex Court. 

In addition to the above precedents, the court took into account the thirty-ninth volume of the second edition of American Jurisprudence, wherein it is mentioned that the court may consult the child in matters as to its custody if the child has sufficient judgement.

It is hence evident from the precedents that the ‘welfare’ of the minor must be understood in its broadest sense and is of utmost importance in determining guardianship and custody. Therefore, the guardianship and custody of the minor may be awarded to the appellant if it best serves the welfare of the child, even if she is not the natural guardian.

Rationale behind the judgement

The Supreme Court observed that the father of the child is the natural guardian unless he is disqualified by unfitness. The court emphasised that when making decisions like this, the welfare of the minor child is the most important factor to be considered, and such a question cannot be determined solely based on the rights of the parties involved. The court said so while reiterating the principle set forth in the case Sumedha Nagpal vs. State of Delhi (2000). The court also cited various precedents to underline the importance of the ‘welfare’ of the minor when determining guardianship, which has been enlisted above.

The court thoroughly examined the competency of both the appellant (the grandmother) and the respondent (the father) in terms of who should be awarded the custody and guardianship of the minor child. In this case, the appellant had been the primary caregiver since the child’s birth, especially during the critical period when the child was admitted to the intensive care unit of the hospital. The photographs submitted to the court, which were undisputed, put to view the extent of love, care, and fondness the grandmother has for the child. The fact that Anagh was enrolled in a reputable public school was also noted as a significant factor in the child’s welfare. These factors were held to have a persuasive and significant hold over the question of guardianship. The emotional bond between the appellant and the minor child was another critical factor considered by the court. 

On the other hand, the court took note of the living conditions and financial difficulties of the respondent, including his borrowing from a number of individuals and his meagre income. The respondent’s utter lack of concern was reflected in the fact of his non-appearance before the Apex Court, despite repeated notices. Additionally, the fact that the respondent had remarried, which could place the child under the care of a stepmother, was a factor that weighed in favour of the appellant. 

The court held that the right of the natural guardian to have custody of the child is not absolute and that it is subject to the condition that it is appropriate for the well-being and comfort of the child. The fact that the child had formed an emotional bond and attachment with the members of the appellant’s family was also a key consideration while formulating the judgement. 

After duly considering all these factors, the court concluded that the welfare and best interests of the child would be best served if her custody were entrusted to the appellant. Consequently, the custody of the minor was awarded to the appellant, and the impugned order was set aside.

Analysis of the case

The judgement of the court and the cited precedents clearly underscore that the welfare of the child is paramount in decisions regarding custody and guardianship. In the current case, although the natural guardian, the father, is present in the picture, the appellant has approached the court seeking custody of the minor under Section 8 of the Guardian and Wards Act, 1890, which granted her the authority to plead the same. The court carefully analysed the facts and circumstances of the case to decide where the best interests of the minor lie.

The ‘welfare principle’ is a progressive and humane approach to guardianship, allowing the court to consider each case individually, assess the facts, evaluate the circumstances, and make a decision that best serves the child’s welfare. It is well-established that the welfare of the minor is the ultimate guiding principle in such matters.  

In this case, although the respondent initially showed enthusiasm in seeking custody, he lost interest after his second marriage. His contentions about the appellant’s alleged incapacity and financial difficulties were effectively refuted by the appellant. On the other hand, the appellant constantly strived to be awarded custody and guardianship, demonstrating her commitment to the child’s welfare. The minor, who has been under her grandmother’s care and protection since birth, especially considering her days in the intensive care of the hospital, would surely be served to the best of her interests, by remaining in the custody and guardianship of her grandmother. This was considering their strong bond and the love and care the grandmother provides. Despite the respondent’s claims that the appellant had lost both her daughter and her husband, the appellant provided a supportive and nurturing environment for the child. She cares deeply for the child, as evidenced by the photographs she produces. These facts substantiate that the interests of the minor would be best served in her custody.

Therefore, in the present case, in light of its facts and circumstances, the court rightly vested guardianship and custody with the grandmother, recognising that this decision best protects the minor’s welfare and interests. The judgment sets a thoughtful and compassionate precedent, aligning with the welfare principle. It ensures robust protection for the child’s well-being and rights. 

Conclusion 

The case Anjali Kapoor vs. Rajiv Baijal provides valuable insight into the application of the welfare principle as established by the Guardian and Wards Act, 1890. It tells us how the court interprets legislation with the interest of the public in mind. Here, the welfare of the child is considered the key criterion for deciding the case, instead of merely reading the law in the strict sense. This precedent underscores the principle that justice is best served by considering the child’s needs and circumstances comprehensively. 

Frequently Asked Questions (FAQs)

What is meant by the welfare of a minor child?

The ‘welfare’ of a minor child refers to the conditions and resources needed for their healthy and comfortable living. This includes their well-being, health, education, and happiness. Courts in India consider factors such as the child’s needs, wishes, and the ability of potential guardians to meet those needs.

Can any other relative of a minor be appointed as a guardian in the presence of a natural guardian?

Yes, a court can appoint another relative as a guardian if it believes the child’s best interests would be served. This has been established in cases like Muthuswami Moopamar and Anjali Kapoor, where guardianship was granted to relatives other than the natural guardian.

What factors do courts consider when deciding custody and guardianship?

Courts evaluate the child’s needs, such as their physical, emotional, and educational requirements, along with the child’s wishes and the capabilities of the prospective guardians.

How does the court determine if a guardian is unfit?

The court assesses a guardian’s ability to meet the child’s needs and their overall suitability based on their conduct, living conditions, and involvement in the child’s life.

Can the welfare principle be applied in cases other than custody and guardianship?

Yes, the welfare principle can also be applied in other legal matters involving minors, such as adoption and child protection cases, to ensure the child’s best interests are prioritised.

How does a court balance the welfare principle with parental rights?

Courts aim to balance parental rights with the child’s best interests by considering how each parent can meet the child’s needs and the overall impact on the child’s well-being.

References 

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