This article has been written by Nishant Vimal, a 3rd-year student of Symbiosis Law School, Hyderabad. This article discusses Section 13 of the Hindu Minorities and Guardianship Act, 1956 and various judicial pronouncements that have been provided.

Introduction

Guardianship is a concept given under the Hindu Minority and Guardianship Act, 1956 where a guardian is appointed to take care of a person who is a minor. This means that the person is below 18 years or is incapable of taking care of himself or handling his own affairs and hence requires assistance, support or supervision. Under such a situation, a guardian is appointed to take care of the minor and his property.

Courts have always considered the child’s interest, comfort and relationship with the parent or a third party who would have custody for the child’s welfare. To decide upon the child guardianship and custody issues, there are several laws that have been set up. Section 13 of the Hindu Minorities and Guardianship Act lays down that the welfare of the child is of paramount importance in these issues.

Children’s Act, 1989 is formulated to state down some of the factors that are necessary to be kept in mind for the welfare of the child in a matter of guardianship or custody. This law is enacted in the United Kingdom and hence has been in various instances used in India. It revolves around the question of custody and guardianship of children, where they are getting the best care, having all the facilities either within their own families or in any other family. This Act also lays down provisions for maintenance of the child, if any family which is bound to the provisions of this Act, is committing any default.

There is the United Nations Conventions on the Rights of the Child (UNCRC). It is a human rights protocol which lays down various rights of children like social, political, civil and cultural. This convention has 54 articles which deal with child rights and direct the state to take action against any such violation. Courts in India have to adhere to all of the provisions before giving the custody or  guardianship rights to any person. This convention is to be honoured by all the countries that are signatories to this treaty. A total of 195 countries have signed the CRC, giving it the status of the most widely ratified International Human Rights Treaty.

Welfare Principle under Hindu Minorities and Guardianship Act, 1956

Section 13 of the Hindu Minorities and Guardianship Act, 1956 states about the welfare principle while taking a child or any person who requires taking care of himself or his property in guardianship. The statute lays down that any guardian who is appointed either by the parents, will or by the statute, has to be appointed after taking in consideration that the appointment is made for the welfare and in the best interest of the child and would not cause any harm to the child.

Gaurav Nagpal vs. Sumedha Nagpal (1), in this case, it was held that the welfare of the child is of utmost importance and rights of the parents under the statute for the time being in force or what the parties say, all comes second fiddle. The Court has to give weightage to the child’s wishes, his satisfaction with the guardian, health, educational needs and relationship with the guardian, physical comfort, and religious values are also to be noted. All these has to be given equal consideration, if not placed above than the other.

What are the factors that are to be taken into account?

1. Wishes of the child when the child has the capacity to make demands for his benefit.
   1. Age of the child is a primary factor while considering whether guardianship should be given to a particular person. If the child is of a very young age, a mother is usually appointed as the guardian.
   2. Gender of the child is to be kept in mind during the appointment of a guardian. When the child is a female, it is necessary that the guardian has a female in his/her house.
   3. Any medications that the child may require, the information should be conveyed to the person getting the guardianship.
   4. Religious and Cultural consideration is to be taken before the appointment of a guardian. Usually, guardianship of a child is given to a person of the same religion so that the child grows in his own religious beliefs.
   5. Previous experience in handling a child is taken into account. Priority is given to the people who have already taken care of children and know their routine and will be capable of taking care properly.
   6. Guardianship is given to a person who does not have any record of any charges of civil or criminal nature against him which may have resulted in him to be prohibited by law to be having custody of anyone.
   7. Financial Standing of the family of the person demanding the guardianship. Court usually prefers a person who can maintain his family including the child.

Damage to the child- In the case of Jackson v Jackson (2), the court held that the custody should be with the mother after the father wanted to take the children to Australia with him. The contention from the mother was that the children could suffer from probable emotional damage. The court considered a lot of aspects in this case like the advantages of moving to Australia as contended by the father, the behaviours of both the parents, status quo, and then after that the bench comprising of Five judges felt that even though the children had no problem with either parent, they would like the custody of the mother more, and hence the court arrived at a unanimous decision.

 Medications that the child may require- In the case of Mercein v. People, the court handed over the custody of a three-year old girl to her mother as she was too sick to be taken care by father. Here also the  court delivered its decision based on the ‘best interest of the child’.

 Religious and cultural consideration- In a landmark case, it was held that the religious and cultural considerations are to be given a lot of consideration. In this case, there was a South African child who was in custody of a couple living in Britain. The court held that the child needs to be grown among his own culture and among the people of his own culture. Guardianship was given to a South African couple after coming to the conclusion that this was best for the child and here the court laid emphasis on customary practices than any other ground.

Any charges of civil or criminal nature– Kriti Kumar Joshi v. Pradeep Kumar Joshi (3), this case was a perfect example where the guardianship was given after considering any criminal charges. The facts of the case revealed the death of the mother and the father was undergoing a trial under Section 498A of the Indian Penal Code, 1860 that states about ‘cruelty’. Also, the statements given by the children proved that the mother was ill-treatment by the father. The court held that the custody of the children will be given to the maternal uncle i.e. the brother of the deceased mother.

In a case, there were charges of attributing to the death of the wife and the father was charged with Cruelty under Section 498A of the Indian Penal Code, 1860. Hon’ble Supreme Court inquired into the matter and later observed that the child was not willing to into the custody of the father and was happy in the custody of the grandparents. Court held that the custody of the children will not be given to the father as it would be detrimental for the welfare of children which is the deciding factor in giving custody or guardianship to anyone. These were the facts and holding of the case Nil Ratan Kundu & Anr. Vs  Abhijit Kundu, (4).

Gender of the child- Mohan Kumar Rayana v. Komal Mohan Rayana, the court witnessed a question over the child names Anisha. The respondent who was the mother of the child contended that for the benefit of the child, she should be given the guardianship of the child. It was observed by the court that the petitioner i.e. father was a very successful businessman and was having obligations to go abroad quite often and hence could not devote a lot of time for the child. Although, the child had no problems with either of her parents, and she enjoyed the company of both of her parents and her utmost desire was that her parents should come back together after the divorce. But, the court laid emphasis on the fact that the child was a girl and reasonably would require the company of her mother. The court granted visitation rights to the father. A famous quote can be used for a practice such as this which was given by Cardinal Mermillod. He said that “A mother is she who can take the place of all others, but whose place no one else can take”.

There are only a few times when the mother is removed from guardianship and this is when there are exceptional circumstances suggesting any, foul behaviour, default of duties on part of the mother. In the case of Atharv Hussain v. Syed Siraj Ahmed (5), the court held that the court is supposed to examine whether the child is in the lawful custody or not. The court has to inquire if in a given situation the custody is with a third person who is not a natural guardian as a natural guardian would always have a legal right to the custody of the child. The biological mother is one such natural guardian. On the ascertainment of this fact, there are only a few times when guardianship is changed and only in exceptional cases, there can be a removal of guardianship of the child from the mother.

Financial Standing- In the case of Tarun Ranjan Majumdar v. Siddhartha Datta (6), the court emphasised on the fact that one of the grounds given above is not to be considered as the only ground and court has to apply all the possible grounds to ensure the best for the child. In this case, it was contended by the father that he has the legal right to the custody of his child. The child had been in guardianship of his maternal parents and there was no such fact of them not treating the child right and hence it cannot be assumed that the father’s financial standing would enhance the child as the current guardians are fulfilling every duty. Also, it is a well-established custom that if one is under the guardianship of someone, that guardianship shall not be disturbed for any reason that may be presented before the court. If the court feels that the reasons suffice, the guardianship of the child is not disturbed even if a legal guardian has approached the court for his legal right.

In order for this ground to apply, it is to be ensured by the courts and the judges that the charges are true or not, otherwise, it will cause the miscarriage of justice for the rightful guardian of a child if the false charges were framed on him/her. In the case of Ravi Dadu v. Seema Gupta (7), mother of the minor son of age 4 was seeking custody of the child from the grandmother of the child who was given the custody of the child after the death of the father under suspicious circumstances. The mother was charged with Section 306 read with Section 34 of the Indian Penal Code, 1860 i.e. abetment of suicide and common intention. The Court observed that even though the grandparents had the capability to maintain the child, they opined that financial standing alone cannot be the sole factor deciding the welfare of the family, and also considering the fact that the mother was acquitted of all charges by other court. The Court held that it would be better if the custody of the child is given to the mother as she is the best person to take care of the minor’s needs and best for his upbringing.

Section 13 demands the courts to make sure that the welfare of the child is taken as it the most important and is of ‘paramount consideration’. This is sometimes called the ‘welfare principle’ or the ‘paramountcy principle’.

According to Article 1 of UNCRC (United Nations Convention on Rights of Child), “a child means every human being below the age of eighteen years unless, under the law applicable to the child, the majority is attained later.” All countries are required to adhere to and are bound to incorporate the laws mentioned in this convention while deciding the custody or guardianship of the child. Article 3 of the UNCRC states that all individuals and all the respective authorities, be it private or public, must consider the “best interests of a child” before taking any decision. This article must be read with Article 12 of this convention for deciding the best interests of a child. “This article directs all institutions, courts of law, administrative or legislative bodies, parents, legal guardians etc. to take actions by giving priority to the best interests of the child.”

McDermott’s Explanation

Justice Lord McDermott laid down the famous interpretation for welfare principle in the case of J v. C (Infant) (8) in which he explained how judges should consider exercising their discretion to check if the child is to be given to someone for guardianship. He gave the meaning and interpretation for the word ‘paramount’ for which he stated that in a list of items that are to be considered by every judge before giving the custody of the child to anyone, there are some things that the court has to place on top as their priority. After considering all the affecting factors in a guardianship like relationships, wishes of child or parents, choices of both and etc. The Court has to consider the welfare of the child as the top priority and then give the guardianship rights to someone.

Lord Justice Dunn in another case relied on this explanation and interpretation by McDermott and laid down in a case that the welfare of the child is to be given priority and has to be of paramount consideration when the question of guardianship arises. Judges have to lay emphasis on the items mentioned above under the welfare principle and then grant custody to a particular person. For the question of whether the surname of the child will change or not, will depend upon the circumstances of each case. If the court feels it is important for the child to maintain ties with his paternal family, remarriage of mother and etc. they can order for the continuance of surname of the child or not. Changing the surname of the child is according to the discretion of the judges.

In Raj Kumar Gupta v. Barbara Gupta (9), the court held that unless there is no firm ground to change the guardianship of a child from one person to another, the Courts should not do it as it can cause some damage to the child and Lord McDermott’s observation was relied here, as even a small change in the guardianship can cause any mental harm to the child and it should only be done when the circumstances are such that without the change in guardianship, welfare of the child is endangered.

Is interest of the child the sole criteria?

The interest of the children is not the sole consideration. Instead, all the other factors are to be added up along with the wishes of the child. The other factors need to be of the nature that fulfil the purpose of the welfare principle.

Wishes of the child are of even more importance than the demands of the parents. However, it does not mean that it is the sole criteria as it has not been provided in the statute. All other questions whether the prioritizing of child’s belief is not in any way unfair to the wishes of the parents.

When shall the welfare principle be applied?

The courts and the judges are required to be taking into consideration the aspect of the welfare of the child as to how will he be taken care of, whether he will be getting required facilities like education, food, proper upbringing in the guardianship of another person.

Justice Bracewell in a case explained what ’upbringing’ means. He stated that the bringing up, taking care for, timely treatment if needed, all education needs and instruction to the child, all added means that the child is being brought up. This is irrespective of the fact that the child has biological parents or substitute parents i.e. guardian or next friend, etc. This word has a wide scope and can be used as any one of the applications.

Welfare principle is not just to be applied in the cases where there is a dispute between the parents, but it has been seen in the above mentioned case of J v. C that even in a dispute relating to any issue involving the parents and any third party, this principle is to be applied by the judges. For example, there has been an issue of guardianship between the parents and the testamentary guardians. Court has to apply this principle to see what’s best for the child.

When shall the welfare principle not be applied?

Section 1 of the Children’s Act, 1989 states that the welfare principle should be applied only when the question is of the upbringing of the child or any issue relating to the property or any income arising from that property. Any other issue that is brought up in front of the court, the judges and the court shall not apply this principle as it is expressly mentioned in the statute. However, the judges are given the discretion to consider the welfare of the child but it is not required to make it a priority.

Also, it has been noticed that the welfare principle is not to be applied by the judges where a decision is to be on the arrest or detention of a parent for breach of a court order connected to the child.

In a recent case of Purvi Mukesh Gada v. Mukesh Popatlal Gada, it was held that welfare principle will be the top in a list of all other pros and cons that have to be considered by the court. In this case, the court gave custody of the child to the mother as the child was performing well in academics and hence it was concluded that even though the child had no problem with the father, the guardianship being with mother will be better for their performance academically.

In times when it is better for any other court to try the matter about the custody or guardianship of the child, the court should not take the onerous duty to decide upon that matter. In the case of Surya Vadanan v. State of Tamil Nadu (10), the court gave guidelines to the mother to bring the children to the United Kingdom for which the expenses will be paid by the father. The court observed that the children were living in India for a period of 2 years and had settled down in the lifestyle in India, hence it was for their welfare that they shall be allowed to live in India and it is to be ensured that all the things mentioned in the guidelines are complied with. Any failure to compliance of the guidelines on part of the mother will result in a transfer of custody to the father who can then take the children to the UK. She was later required to put up a strong stand before the foreign court in the UK. As the courts were not closely related to the facts, it was left to the foreign courts to ascertain other factors like social and cultural aspects for the welfare of the children.

Conclusion

Through all these years, the interpretation of Section 13 of the Hindu Minorities and Guardianship Act, 1956 has changed. In the recent judgements as listed above, the dynamics surrounding this concept of ‘Welfare Principle’ has been laid down in different ways and it is important to do so to ensure what is best for the child which is the substance of this statute. Through this article, the reader will get to know the grounds for considering the welfare principles, when and when not to consider this principle. There are various judicial pronouncements mentioned to expand the answer to different situational questions that the reader may have.

References

1. (2009) 1 SCC 42.
2. [2001] ZASCA 139.
3. AIR 1992 SC 1447.
4. 2008 (3) RCR 936 (SC).
5. (2010) 2 SCC 654.
6. AIR 1991 Cal 76.
7. 2015(3) RCR 153 (SC).
8. HL 19 Feb 1969.
9. AIR 1989 Cal 165.
10. AIR 2015 SC 2243.