# Nirali Dixit v. State Of U.P. & Anr

- **Citation:** (2021) 10 ILRA 219
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-04
- **Case number:** FAFO No. 190 of 2021
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nirali-dixit-v-state-of-u-p-anr-46252
- **Pages:** 20

## Headnote

(A) Civil Law - The Guardians and Ward
Act, 1890: Section 7 - Civil Procedure
Code, 1908 - Section 107 r/w Order 41
Rule 33 -Practice & Procedure - Custody -
Merely by making amendment by adding the
name of the appellant before the name of the
deceased-Aditya Singh in the order dated
15.12.2020, in which the guardianship was
ordered in favour of Aditya Singh, guardianship
could not have been converted in favour of the
appellant. A fresh application is required to be
moved for fresh consideration in the light of
provisions of Section 17 of the Act which inter
alia provides the factor of age and sex of the
proposed guardian to which the courts have to
give due regard.(Para 41)

Nevertheless, after the death of the guardian, in
view of Section 42 of the Act the courts have
the power to appoint a guardian on the
application filed under Chapter II as well as on
its own motion by exercising its parens patriae
jurisdiction. (Para 48)

The
welfare
of
the
minor
requires
consideration also qua, the proposed
guardian. The welfare of the minor if
already determined qua , one guardian
cannot necessarily and automatically be
read, with respect to the new proposed
guardian, for which the court has to
consider the welfare. (Para 50)

Appeal Disposed of. (E-10)

List of Cases cited:

## Text

_Characters 0–39,705 of 65,053. This is a partial read: ask again with offset=39705 for what follows._

10 All. Nirali Dixit Vs. State of U.P. & Anr.
219

30. For the aforesaid reasons, the
appeal has got no force and is dismissed at
the admission stage.
----------
(2021)10ILR A219
APPELLATE JURISDICTION
CIVIL SIDE
DATED:LUCKNOW 04.10.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

FAFO No. 190 of 2021

Nirali Dixit ...Appellant
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Ashok Kumar Singh, Mahima Pahwa

Counsel for the Respondents:

(A) Civil Law - The Guardians and Ward
Act, 1890: Section 7 - Civil Procedure
Code, 1908 - Section 107 r/w Order 41
Rule 33 -Practice & Procedure - Custody -
Merely by making amendment by adding the
name of the appellant before the name of the
deceased-Aditya Singh in the order dated
15.12.2020, in which the guardianship was
ordered in favour of Aditya Singh, guardianship
could not have been converted in favour of the
appellant. A fresh application is required to be
moved for fresh consideration in the light of
provisions of Section 17 of the Act which inter
alia provides the factor of age and sex of the
proposed guardian to which the courts have to
give due regard.(Para 41)

Nevertheless, after the death of the guardian, in
view of Section 42 of the Act the courts have
the power to appoint a guardian on the
application filed under Chapter II as well as on
its own motion by exercising its parens patriae
jurisdiction. (Para 48)

The
welfare
of
the
minor
requires
consideration also qua, the proposed
guardian. The welfare of the minor if
already determined qua , one guardian
cannot necessarily and automatically be
read, with respect to the new proposed
guardian, for which the court has to
consider the welfare. (Para 50)

Appeal Disposed of. (E-10)

List of Cases cited:

1. Saiyad Mohanmmad Bakar El-Edroos Vs
Abdulhabib Hasan Arab & ors. (1998) 4 SCC 343

2. Smriti Madan Kansagra Vs Perry Kansagra
(2020) SCC (online) SC 887 (followed)

3. ABC Vs State (NCT of Delhi) 2015 10 SCC 1

4. Laxmi Kant Pandey Vs U.O.I .1984 AIR 469

5. Nil Ratan Kundu & ors. Vs Abhijit Kundu
(2008) 9 SCC 413 (followed)

6. Lachmi Narain & ors. Vs U.O.I. (1976) 2 SCC
953

7. Nasiruddin & ors. Vs Sita Ram Agarwal (2003)
2 SCC 577

8. Dhaninder kumar Vs Deep Chand (1991) ALJ
25 (followed)

9. Narottam Vs Tapesra (1934 ALJ 652

10. V. Ravi Chandran Vs U.O.I. & ors. (2010) 1
SCC 174 (followed)

11. Charan Lal Sahu Vs U.O.I. (1990) 1 SCC
613

(Delivered by Hon'ble Ravi Nath Tilhari, J. )

1. Heard Sri Prashant Chandra,
learned Senior Counsel, assisted by Ms.
Mahima Pahwa, learned counsel for the
appellant.

2. This appeal has been filed under
Section 47 of the Guardians and Wards
Act, 1890 (hereinafter referred to as ''the
220 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1890) challenging the judgment and
order dated 09.09.2021 passed by learned
Additional
District
and
Sessions
Judge/Special
Court,
Prevention
of
Corruption Act, court no. 2, Lucknow in
Misc. Case No. 529 of 2021 (Nirali Dixit
vs. State of U.P. and Ors.) whereby
appellant's application B-3, was rejected as
not maintainable.

3. The appellant is widow of Aditya
Singh, the elder brother of Aryan Singh
(minor)- respondent no. 2.

4. Misc. Civil Case No. 516 of 2020;
CNR No. UPLKO10092532020 was filed
by Aditya Singh, for his appointment as
Guardian of the Minor under Section 7 of
the Guardians and Wards Act, 1890 on
28.09.2020, upon the death of the parents
of the minor, which was allowed vide
judgment and order dated 15.12.2020,
appointing Aditya Singh to be the Guardian
of Aryan Singh (minor).

5. Aditya Singh also died (suicide) on
09.08.2021.

6. The appellant filed an application
B-3 under Section 151 of the Code of Civil
Procedure r/w Section 7 of the Act, 1890,
in Misc. Case No. 516 of 2020; which was
registered as Misc. Case No. 529 of 2021:
Nirali Dixit vs. State of U.P., The prayer
made was to amend/alter the order dated
15.12.2020 passed in Misc. Case no. 516 of
2020, by incorporating the word "Nirali
Dixit wife of" before the words "Aditya
Singh", in the first line of the operative
portion of the order dated 15.12.2020. The
prayer in the application B-3 is being
reproduced as under:-

"Wherefore, it is most respectfully
prayed that this Hon'ble Court may
graciously be pleased amend/altered the
order dated 15.12.2020 passed by this
Hon'ble Court in Regular suit no. 516 of
2020 by incorporating the word "Nirali
Dixit wife of" before the words Aditya
Singh, occurring in the first line of the
operative portion of the order dated
15.12.2020 and such other orders which
this Hon'ble Court may deem fit and proper
in the interest of justice."

7. The State of U.P. through District
Magistrate, Lucknow/respondent no. 1,
filed objection inter alia that the application
B-3, was not maintainable and the relief
prayed therein could not be legally granted.

8. The learned Additional District and
Sessions Judge/Special Court P.C. Act,
court no. 2, Lucknow, vide judgment and
order
dated
09.09.2021
rejected
the
application.

9. Learned court below held that
Aditya Singh was appointed guardian of
the minor, as per the provisions of the Act,
1890, after following the due procedure and
on the legal considerations. The appellantapplicant wants to be appointed the
guardian of the minor, without following
the prescribed procedure, simply by adding
her name before the name of Aditya Singh,
in Misc. Case No. 516/2020, which was
already decided on 28.09.2020. The prayer
of the appellant cannot be granted under
Section 151 C.P.C., as there is specific
provision for appointment of guardianship
under the Act, 1890 and without fulfilling
the legal requirements.

10. Sri Prashant Chandra, learned
Senior Counsel submits that Aditya Singh
was married in Canada and in consultation
with his wife-the appellant, he decided to
take the minor along with him to Canada,
10 All. Nirali Dixit Vs. State of U.P. & Anr.
221
as there was no other person to take care of
the minor and to give proper care and look
after his upbringing and to safeguard his
welfare and accordingly the application
dated 29.08.2020 under Section 7 of the
Act, 1890 was made, specifically stating
therein that to enable Aditya Singh to take
his minor brother to Canada, to procure a
dependent VISA, it was necessary to have a
formal declaration of his being a guardian
of the minor from the court. He submits
that there was no contest to such
application, except that an objection was
filed by the State/District Magistrate
Lucknow, emphasizing that the person
seeking guardianship of the minor must
ensure that the minor is properly looked
after and that it would be the sole
responsibility of the guardian, that all
requirements of the minor are fulfilled.
After publication in the newspaper and
service of notice upon the minor, through
process of the court, the matter was heard
and after considering in totality the
circumstances of the case as also the
welfare of the minor, the Court had allowed
the application of Aditya Singh, appointing
him the Guardian of the minor.

11. Sri Prashant Chandra, learned
Senior Advocate further submits that after
passing the order dated 15.12.2020, Aditya
Singh and the appellant took necessary
steps for issuance of dependent VISA for
the minor and completed all the formalities
before the Canadian authorities but the
consideration of the application was
delayed, in view of the COVID-19
pandemic, and, unfortunately, pending such
consideration, Aditya Singh died (suicide
on 09.08.2021). The appellant, in order to
take the minor to Canada, as there was no
one to look after and take care of the minor,
applied
for
the
amendment
in
the
application for grant of dependent VISA,
already filed by Late Aditya Singh, but for
such amendment also, a formal order
appointing the appellant as guardian of the
minor by the Court was required, and
consequently the application B-3 was filed
in Court in Misc. Case No. 516/2020.

12. Learned Senior Advocate submits
that the appellant is the widow of Aditya
Singh and there being an order in favour of
Aditya
Singh,
now
the
procedure
prescribed under the Act, 1890 for
appointment of guardianship, need not be
followed, as the earlier order in favour of
Aditya Singh was passed after following
the due procedure and observance of the
due procedure again, would result in delay
in grant of dependent VISA and then, there
would be nobody to look after the minor.
He further submits that in appointing the
guardian, the court exercises ''parens
patriae' jurisdiction, and is expected to give
due weight to the child's ordinary comfort
etc. and such cases are not to be decided by
following strict rules of procedure or by
precedence i.e. by insisting upon the
procedural compliance, as per the Act,
1890. Reliance has been placed on the
judgment of Hon'ble Supreme Court in the
case of Saiyad Mohammad Bakar ElEdroos vs Abdulhabib Hasan Arab And
Ors [(1998) 4 SCC 343] and Smriti Madan
Kansagra vs. Perry Kansagra [(2020) SCC
(online) SC 887].

13. I have considered the submissions
advanced and perused the material brought
on record as also the case laws cited which
will be referred shortly.

14. The points that arise for
consideration are:-

(i) Whether on the application B3 as filed by the appellant, she should have
222 INDIAN LAW REPORTS ALLAHABAD SERIES
been appointed the guardian of the minor
by allowing the prayer, as made, by
incorporating her name in the judgment
and order dated 15.12.2020 in Misc. Case
No. 516/2020 which was in favour of
Aditya Singh ?

(ii) Whether the procedure under
the Act 1890 is not required to be followed
in appointment of another guardian on the
death of a guardian appointed by the court
?

(iii) Whether the application B-3
having been rejected as not maintainable,
what further course of action, if any, was
required to be adopted by the learned court
below ?

15. All the aforesaid points are related
to each other and, therefore, are being taken
up simultaneously.

16. A brief look on the legal
provisions under the Act, 1890 is necessary
at this very stage.

17. Section 7 of the Act, 1890
provides for power of the court to order for
guardianship, which is quoted herein
below:-

"7. Power of the Court to make
order as to guardianship.--

(i) Where the Court is satisfied
that it 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.

18. Section 8 of the Act, 1890
provides as to who are the persons entitled
to apply for an order under Section 7.
Section 8 reads as under:-

"8. Persons entitled to apply for
order- An order shall not be made under
the last foregoing section except on the
application of--(a) the person desirous of
being, or claiming to be, the guardian of
the minor; or

(b) any relative or friend of the
minor; or

(c) the Collector of the district or
other local area within which the minor
ordinarily resides or in which he has
property; or

(d) the Collector having authority
with respect to the class to which the minor
belongs."

19. Section 9 of the Act, 1890
provides for the jurisdiction of the Court to
entertain application. Section 10 of the Act
1890 provides for form of application,
which reads as under:-

"10. Form of application.--(i) If
the application is not made by the
10 All. Nirali Dixit Vs. State of U.P. & Anr.
223
Collector, it shall be by petition signed and
verified in manner prescribed by the Code
of Civil Procedure, 1882 (14 of 1882)1, for
the signing and verification of a plaint, and
stating, so far as can be ascertained,--

(a) the name, sex, religion, date of
birth and ordinary residence of the minor;

(b) where the minor is a female,
whether she is married and if so, the name
and age of her husband;

(c) the nature, situation and
approximate value of the property, if any, of
the minor;

(d) the name and residence of the
person having the custody or possession of
the person or property of the minor;

(e) what near relations the minor
has and where they reside;

(f) whether a guardian of the
person or property or both, of the minor has
been appointed by any person entitled or
claiming to be entitled by the law to which
the minor is subject to make such an
appointment;

(g) whether an application has at
any time been made to the Court or to any
other Court with respect to the guardianship
of the person or property or both, of the
minor and if so, when, to what Court and
with what result;

(h) whether the application is for
the appointment or declaration of a guardian
of the person of the minor, or of his property,
or of both;

(I) where the application is to
appoint a guardian, the qualifi-cations of

the proposed guardian;

(j) where the application is to
declare a person to be a guardian, the
grounds on which that person claims

(k) the causes which have led to the
making of the application; and

(l) such other particulars, if any, as
may be prescribed or as the nature of

the
application
renders
it
necessary to state.

(2) If the application is made by the
Collector, it shall be by letter addressed to
the Court and forwarded by post or in such
other manner as may be found convenient,
and shall state as far as possible the
particulars mentioned in sub-section (1).

(3) The application must be
accompanied by a declaration of the
willingness of the proposed guardian to act,
and the declaration must be signed by him
and attested by at least two witnesses."

20. Section 11 of the Act provides for
the procedure, on admission of application
which reads as under:-

"11. Procedure on admission of
application.- (1) If the Court is satisfied that
there is ground for proceeding on the
application, it shall fix a day for the hearing
thereof and cause notice of the application
and of the date fixed for the hearing--

(a) to be served in the manner
directed in the Code of Civil Procedure, 1882
(14 of 1882)1 on--

(i) the parents of the minor if they
are residing in 2[any State to which this
Act extends];
224 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) the person, if any, named in
the petition or letter as having the custody
or possession of the person or property of
the minor;

(iii) the person proposed in the
application or letter to be appointed or
declared guardian, unless that person is
himself the applicant, and

(iv) any other person to whom, in
the opinion of the Court, special notice of
the application should be given; and

(b) to be posted on some
conspicuous part of the Court-house and of
the residence of the minor, and otherwise
published in such manner as the Court,
subject to any rules made by the High
Court under this Act, thinks fit.

(2) The State Government may,
by general or special order, re- quire that
when any part of the property described in
a petition under section 10, sub-section (1),
is land of which a Court of Wards could
assume the superintendence, the Court
shall also cause a notice as aforesaid to be
served on the Collector in whose district
the minor ordinarily resides and on every
Collector in whose district any portion of
the land is situate, and the Collector may
cause the notice to be published in any
manner he deems fit.

(3) No charge shall be made by
the Court or the Collector for the service or
publication of any notice served or
published under sub-section (2)."

21. Section 12 provides for power to
make interlocutory order for production of
minor and for interim protection of person
or property of minor. Section 13 provides
for hearing of the application and evidences
on the date fixed before making an order.

22. Section 17 of the Act, 1890
provides for the matters to be considered by
the Court in appointing or declaring the
guardian. Section 17 reads as under:-

"17. Matters to be considered by
the Court in appointing guardian.--(1) In
appointing or declaring the guardian of a
minor, the Court shall, subject to the
provisions of this section, be guided by
what, consistently with the law to which the
minor
is
subject,
appears
in
the
circumstances to be for the welfare of the
minor.

(2) In considering what will be
for the welfare of the minor, the Court
shall have regard to the age, sex and
religion of the minor, the character and
capacity of the proposed guardian and his
nearness of kin to the minor, the wishes, if
any, of a deceased parent, and any
existing or previous relations of the
proposed guardian with the minor or his
property.

(3) If minor is old enough to form
an intelligent preference, the Court may
consider that preference.

3[***]

(5) The Court shall not appoint or
declare any person to be a guardian
against his will."

23. Present is a case where the
guardian of the minor- i.e. Aditya Singh
appointed by the court vide order dated
15.12.2020 died and as such Sections 41 &
42 of the Act 1890 are also relevant.
10 All. Nirali Dixit Vs. State of U.P. & Anr.
225

24. Section 41 of the Act, 1890
provides for the circumstances, under
which the powers of a guardian of the
person cease, and under Clause (a) of subSection 1, the powers of guardian cease by
his death.

25. Section 41 of the Act, 1890 reads
as under:-

Section 41 in The Guardians and
Wards Act, 1890

"41. Cessation of authority of
guardian.--

(I) The powers of a guardian of
the person cease--

(a) by his death, removal or
discharge;

(b) by the Court of Wards
assuming superintendence of the person of
the ward;

(c) by the ward ceasing to be a
minor;

(d) in the case of a female ward,
by her marriage to a husband who is not
unfit to be guardian of her person or, if the
guardian was appointed or declared by the
Court, by her marriage to a husband who is
not, in the opinion of the Court, so unfit; or

(e) in the case of a ward whose
father was unfit to be guardian of the
person of the ward, by the father ceasing to
be so or, if the father was deemed by the
Court to be so unfit, by his ceasing to be so
in the opinion of the Court.

(2) The powers of a guardian of
the property cease--

(a) by his death, removal or
discharge;

(b) by the Court of Wards
assuming superintendence of the property
of the ward; or

(c) by the ward ceasing to be a
minor.

(3) When for any cause the
powers of a guardian cease, the Court may
require him or, if he is dead, his
representative to deliver as it directs any
property in his possession or control
belonging to the ward or any accounts in
his possession or control relating to any
past or present property of the ward.

(4) When he has delivered the
property or accounts as required by the
Court, the Court may declare him to be
discharged from his liabilities save as
regards any fraud which may subsequently
be discovered."

26. Section 42 of the Act, 1890
provides that when a guardian appointed or
declared by the court is discharged or,
under the law to which the ward is subject,
ceases to be entitled to act, or when any
such guardian or a guardian appointed by
Will or other instrument is removed or dies,
the Court, of its own motion or on
application under Chapter II, may, if the
ward is still a minor, appoint or declare
another guardian of his person or property,
or both, as the case may be.

27. Section 42 of the Act, 1890 reads
as under:-

"42. Appointment of successor
to guardian dead, discharged or removed-
When a guardian appointed or declared by
226 INDIAN LAW REPORTS ALLAHABAD SERIES
the Court is discharged, or, under the law
to which the ward is subject, ceases to be
entitled to act, or when any such guardian
or a guardian appointed by Will or other
instrument is removed or dies, the Court, of
its own motion or on application under
Chapter II, may, if the ward is still a minor,
appoint or declare another guardian of his
person or property, or both, as the case
may be."

28. Now the Court proceeds to
consider some case laws on the subject.

29. In ABC vs. State (NCT of Delhi)
[2015 10 SCC 1], the Hon'ble Supreme
Court has held that in the matter of
appointment or declaration of guardian of
the minor, the Court is called upon to
discharge its parens patriae jurisdiction.
Upon a guardianship petition, being laid
before the Court, the child concerned ceases
to be in the exclusive custody of the parents;
thereafter, until the attainment of majority,
the child continues in curial curatorship. In
Smriti
Madan
Kansagra
vs.
Perry
Kansagra [(2020) SCC (online) SC 887],
the Hon'ble Supreme Court held that it is a
well-settled principle of law that the courts
while exercising parens patriae jurisdiction
would be guided by the sole and paramount
consideration of what would best subserve
the interest and welfare of the child, to
which all other considerations must yield.
The welfare and benefit of the minor child
would remain the dominant consideration
throughout. In Laxmi Kant Pandey vs.
Union of India [1984 AIR 469], the Hon'ble
Supreme Court held that the welfare of the
child takes priority above all else, including
the rights of the parents. In Nil Ratan
Kundu and Others vs. Abhijit Kundu
[(2008) 9 SCC 413], it was held that it is the
welfare of the minor and of the minor alone,
which is the paramount consideration.

30. In Nil Ratan Kundu (supra), the
Hon'ble Supreme Court has held in
paragraphs 41 to 45, which are as under:-

"41. In Saraswatibai
Shripad
Ved v. Shripad Vasanji Ved [AIR 1941 Bom
103 : ILR 1941 Bom 455] , the High Court
of Bombay stated : (AIR p. 105)

"... It is not the welfare of the
father, nor the welfare of the mother, that is
the paramount consideration for the
Court. It is the welfare of the minor and of
the minor alone which is the paramount
consideration; (emphasis supplied)

42. In Rosy
Jacob v. Jacob
A.
Chakramakkal [(1973) 1 SCC 840] , this
Court held that the object and purpose of
the 1890 Act is not merely physical custody
of the minor but due protection of the rights
of the ward's health, maintenance and
education. The power and duty of the court
under the Act is the welfare of the minor. In
considering the question of welfare of a
minor, due regard has of course to be given
to the right of the father as natural
guardian, but if the custody of the father
cannot promote the welfare of the children,
he may be refused such guardianship. The
Court further observed that merely because
there is no defect in his personal care and
his attachment for his children, which every
normal parent has, he would not be
granted custody. Simply because the father
loves his children and is not shown to be
otherwise undesirable does not necessarily
lead to the conclusion that the welfare of
the children would be better promoted by
granting their custody to him. The Court
also observed that children are not mere
chattels, nor are they toys for their parents.
The absolute right of parents over the
destinies and the lives of their children, in
the modern changed social conditions,
10 All. Nirali Dixit Vs. State of U.P. & Anr.
227
must yield to the consideration of their
welfare as human beings so that they may
grow up in a normal balanced manner to
be useful members of society and the
guardian court in case of a dispute between
the mother and the father, is expected to
strike a just and proper balance between
the requirements of the welfare of the
minor children and the rights of their
respective parents over them.

43.Again,
in Thrity
Hoshie
Dolikuka v. Hoshiam
Shavaksha
Dolikuka [(1982) 2 SCC 544] , this Court
reiterated that the only consideration of the
court in deciding the question of custody of
a minor should be the welfare and interest
of the minor and it is the special duty and
responsibility of the court. Mature thinking
is indeed necessary in such situation to
decide what will enure to the benefit and
welfare of the child.

44. In Surinder
Kaur
Sandhu v. Harbax Singh Sandhu [(1984)
3 SCC 698 : 1984 SCC (Cri) 464] this
Court held that Section 6 of the Hindu
Minority and Guardianship Act, 1956
constitutes the father as a natural
guardian of a minor son. But that
provision
cannot
supersede
the
paramount consideration as to what is
conducive to the welfare of the minor.
(See also Elizabeth Dinshaw v. Arvand
M. Dinshaw [(1987) 1 SCC 42 : 1987
SCC
(Cri)
13]
and Chandrakala
Menon v. Vipin Menon [(1993) 2 SCC 6 :
1993 SCC (Cri) 485] .)

45. Recently,
in Mausami
Moitra
Ganguli v. Jayant
Ganguli [(2008) 7 SCC 673 : JT (2008) 6
SC 634] , we have held that the first and
the paramount consideration is the
welfare of the child and not the right of
the parent. We observed : (SCC p. 678,
paras 19-20)

''19. The principles of law in
relation to the custody of a minor child
are well settled. It is trite that while
determining the question as to which
parent the care and control of a child
should be committed, the first and the
paramount consideration is the welfare
and interest of the child and not the
rights of the parents under a statute.
Indubitably,
the
provisions
of
law
pertaining to the custody of child
contained in either the Guardians and
Wards Act, 1890 (Section 17) or the
Hindu Minority and Guardianship Act,
1956 (Section 13) also hold out the
welfare of the child as a predominant
consideration. In fact, no statute, on the
subject, can ignore, eschew or obliterate
the vital factor of the welfare of the
minor.

20. The question of welfare of the
minor child has again to be considered in
the background of the relevant facts and
circumstances. Each case has to be decided
on its own facts and other decided cases
can hardly serve as binding precedents
insofar as the factual aspects of the case
are concerned. It is, no doubt, true that
father is presumed by the statutes to be
better suited to look after the welfare of the
child, being normally the working member
and head of the family, yet in each case the
court has to see primarily to the welfare of
the child in determining the question of his
or her custody. Better financial resources
of either of the parents or their love for the
child
may be one of
the
relevant
considerations but cannot be the sole
determining factor for the custody of the
child. It is here that a heavy duty is cast on
the court to exercise its judicial discretion
judiciously in the background of all the
228 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant facts and circumstances, bearing
in mind the welfare of the child as the
paramount consideration."

31. In paragraph 52 of the case of Nil
Ratan
Kundu
(supra),
the
Hon'ble
Supreme Court summarised the principles
of the custody of minor children, which
reads as under:-

"Principles governing custody of
minor children

52. In our judgment, the law
relating to custody of a child is fairly well
settled and it is this : in deciding a difficult
and complex question as to the custody of a
minor, a court of law should keep in mind
the relevant statutes and the rights flowing
therefrom. But such cases cannot be
decided solely by
interpreting
legal
provisions. It is a human problem and is
required to be solved with human touch. A
court while dealing with custody cases, is
neither bound by statutes nor by strict rules
of
evidence
or
procedure
nor
by
precedents. In selecting proper guardian of
a minor, the paramount consideration
should be the welfare and well-being of the
child. In selecting a guardian, the court is
exercising parens patriae jurisdiction and
is expected, nay bound, to give due weight
to a child's ordinary comfort, contentment,
health, education, intellectual development
and favourable surroundings. But over and
above physical comforts, moral and ethical
values cannot be ignored. They are equally,
or we may say, even more important,
essential and indispensable considerations.
If the minor is old enough to form an
intelligent preference or judgment, the
court must consider such preference as
well, though the final decision should rest
with the court as to what is conducive to
the welfare of the minor."

32. In Smriti Madan Kansagra vs.
Perry Kansagra [(2020) SCC (online) SC
887], the Hon'ble Supreme court has held
in paragraphs 94-103, which are as under:-

"94. The issue which has arisen
for our consideration is as to what should
be the dispensation to be followed with
respect to the custody of the minor childAditya who is now 11 years of age, till he
attains the age of majority in 7 years' time.

95. It is a well-settled principle of
law that the courts while exercising parens
patriae jurisdiction would be guided by the
sole and paramount consideration of what
would best subserve the interest and
welfare of the child, to which all other
considerations must yield. The welfare and
benefit of the minor child would remain the
dominant consideration throughout.

96. The courts must not allow the
determination to be clouded by the inter se
disputes between the parties, and the
allegations and counter-allegations made
against each other with respect to their
matrimonial life. In Rosy Jacob v. Jacob A
Chakarmakkal1 this Court held that:

"15...The children are not mere
chattels : nor are they mere playthings for
their parents. Absolute right of parents
over the destinies and the lives of their
children has, in the modern changed social
conditions, yielded to the considerations of
their welfare as human beings so that they
may grow up in a normal balanced manner
to be useful members of the society.

 (emphasis supplied)

97. A three Judge bench of this
Court in V. Ravichandran (2) v. Union of
India2 opined:
10 All. Nirali Dixit Vs. State of U.P. & Anr.
229

"27...it
was
also
held
that
whenever a question arises before a Court
pertaining to the custody of a minor
child, the matter is to be decided not on
considerations of the legal rights of the
parties, but on the sole and predominant
criterion of what would serve the best
interest of the minor." (emphasis supplied)

98. Section 13 of the Hindu
Minority and Guardianship Act, 1956
provides that the welfare of the minor must
be of paramount consideration while
deciding custody disputes. Section 13
provides as under:--

"13. Welfare of minor to be
paramount consideration

(1)
In
the
appointment
of
declaration of any person as guardian of a
Hindu minor by a court, the welfare of the
minor
shall
be
the
paramount
consideration.

(2) No person shall be entitled to
the guardianship by virtue of the provisions
of this Act or of any law relating to
guardianship in marriage among Hindus, if
the court is of opinion that his or her
guardianship will not be for the welfare of
the minor."

99. This
Court
in Gaurav
Nagpal v. Sumedha Nagpal3 held that the
term "welfare" used in Section 13 must be
construed in a manner to give it the widest
interpretation. The moral and ethical
welfare of the child must weigh with the
court, as much as the physical well-being.
This
was
reiterated
in Vivek
Singh v. Romani Singh4, wherein it was
opined that the "welfare" of the child
comprehends an environment which would
be most conducive for the optimal growth
and development of the personality of the
child.

100. To decide the issue of the
best interest of the child, the Court would
take into consideration various factors,
such as the age of the child; nationality of
the child; whether the child is of an
intelligible age and capable of making an
intelligent preference; the environment and
living conditions available for the holistic
growth and development of the child;
financial resources of either of the parents
which would also be a relevant criterion,
although not the sole determinative factor;
and future prospects of the child.

101. This Court in Nil Ratan
Kundu v. Abhijit
Kundu5 set
out
the
principles governing the custody of minor
children in paragraph 52 as follows:

"Principles governing custody of
minor children

52. In our judgment, the law
relating to custody of a child is fairly well
settled and it is this : in deciding a difficult
and complex question as to the custody of a
minor, a court of law should keep in mind the
relevant statutes and the rights flowing
therefrom. But such cases cannot be decided
solely by interpreting legal provisions. It is a
human problem and is required to be solved
with human touch. A court while dealing with
custody cases, is neither bound by statutes
nor by strict rules of evidence or procedure
nor by precedents. In selecting proper
guardian of a minor, the paramount
consideration should be the welfare and wellbeing of the child. In selecting a guardian,
the court is exercising parens patriae
jurisdiction and is expected, nay bound, to
give due weight to a child's ordinary comfort,
contentment, health, education, intellectual
230 INDIAN LAW REPORTS ALLAHABAD SERIES
development and favourable surroundings.
But over and above physical comforts, moral
and ethical values cannot be ignored. They
are equally, or we may say, even more
important,
essential
and
indispensable
considerations. If the minor is old enough to
form an intelligent preference or judgment,
the court must consider such preference as
well, though the final decision should rest
with the court as to what is conducive to the
welfare of the minor."

102. Section 17 of the Guardian
and Wards Act, 1890 provides:

"17. Matters to be considered by
the Court in appointing guardian

(1) In appointing or declaring the
guardian of a minor, the Court shall, subject
to the provisions of this section, be guided by
what, consistently with the law to which the
minor
is
subject,
appears
in
the
circumstances to be for the welfare of the
minor.

(2) In considering what will be for
the welfare of the minor, the Court shall have
regard to the age, sex and religion of the
minor, the character and capacity of the
proposed guardian and his nearness of kin to
the minor, the wishes, if any, of a deceased
parent, and any existing or previous relations
of the proposed guardian with the minor or
his property.

(3) If the minor is old enough to
form an intelligent preference, the Court may
consider that preference.

(4) deleted

(5) The Court shall not appoint or
declare any person to be a guardian
against his will." (emphasis supplied)

103. In the present case, the issue
of custody of Aditya has to be based on an
overall consideration of the holistic growth
of the child, which has to be determined on
the basis of his preferences as mandated by
Section
17(3),
the
best
educational
opportunities which would be available to
him, adaptation to the culture of the
country of which he is a national, and
where he is likely to spend his adult life,
learning the local language of that country,
exposure to other cultures which would be
beneficial for him in his future life."

33. Thus, Section 7(1) (a) of the Act,
1890 provides that where the Court is
satisfied that it is for the welfare of a minor
that an order should be made appointing a
guardian of his person or property or both,
or declaring a person to be such a guardian,
the Court may make an order accordingly.
Section 8, however, specifically provides
that an order shall not be made under
Section 7, except on the application of (a)
the person desirous of being, or claiming to
be the guardian of the minor or (b) any
relative or friend of the minor; or (c) the
Collector of the District or other local area
within which the minor ordinarily resides
or in which he has property; or (d) the
Collector having authority with respect to
the class to which the minor belongs.
Section 8, therefore, clearly provides that
no order under Section 7 shall be passed
except on an application by the person or
authority as mentioned in clause (a) to (d).
The form of the application is to be as per
Section 10, according to which if the
application is not made by the Collector, it
shall be by petition signed and verified in
the manner prescribed by the Code of Civil
Procedure, for the signing and verification
of a plaint, and stating, so far as can be
ascertained,
the
points/information
as
mentioned in Clauses (a) to (l). As per sub
10 All. Nirali Dixit Vs. State of U.P. & Anr.
231
Section (3) of Section 10, the application
must be accompanied by a declaration of
the willingness of the proposed guardian to
act, which declaration must be signed by
the proposed guardian and attested by at
least two witnesses.

34. In the matter of appointment of
guardian, Section 8 specifically provides
that ''no such order under Section 7 shall be
passed except on the application'. Use of
such language shows clearly the legislative
intent that the provision is mandatory. In
the case of Lachmi Narain and Others vs.
Union of India and Ors. [(1976) 2 SCC
953], Hon'ble Supreme Court has held that
if the provision is couched in prohibitive or
negative language, it can rarely be
directory, the use of peremptory language
in a negative form is per se indicative of the
intent that the provision is to be mandatory.
In Nasiruddin and Others vs. Sita Ram
Agarwal [(2003) 2 SCC 577], the Hon'ble
Supreme Court has held that it is also
equally well settled that when negative
words are used the courts will presume that
the intention of the legislature was that the
provisions are mandatory in character. In
view of this Court, the requirements of the
application, if not filed by the District
Magistrate,
in
confirmity
with
the
provisions of Section 10 of the Act,
providing requisite information, as in
Clauses (a) to (l) accompanied by a
declaration of the willingness of the
proposed guardian to act, signed by the
proposed guardian and attested by two
witnesses, are with an object, in the interest
of the child to secure his welfare. In
Dhaninder
Kumar
vs.
Deep
Chand
[(1991) ALJ 25], this Court followed the
Division Bench in Narottam vs. Tapesra
[(1934 ALJ 652] in which it was held that
"a Judge is not authorized by law, in the
absence of an application for appointment
of a guardian to pass an order appointing
the guardian of a minor. But, once an
application has been filed in accordance
with the provisions of Section 10, the
jurisdiction of the court comes into play. In
Dhaninder Kumar (supra), in view of
Section 8 it was held that "What appears is
that the Judge cannot suo moto appoint a
guardian of a minor, but when an
application for appointment is before the
Judge, he can, considering the welfare of
the minor appoint even a non-applicant
provided he consents to his appointment.

35. It is also well settled that the
welfare of the child is of paramount
consideration. In ABC vs. State (NCT of
Delhi) (supra), the Hon'ble Supreme Court
has further held that as the intention of the
Act is to protect the welfare of the child the
applicability of Section 11 which is
procedural
would
have
to
be
read
accordingly. There is no harm or mischief
in relaxing its requirements to attain the
intendment of the Act, if the child's welfare
is in peril.