# NIL RATAN KUNDU & ANR v. ABHIJIT KUN DU

- **Citation:** [2008] 11 S.C.R. 1111
- **Court:** Supreme Court of India
- **Decided:** 2008-08-08
- **Case number:** Civil Appeal No. 4960 of 2008
- **Bench:** C.K. Thakker, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nil-ratan-kundu-anr-v-abhijit-kun-du-23529
- **Pages:** 31

## Headnote

Guardians and Wards Act, 1890 - ss. 7 and 17 - Gustody of minor child - Sought by father- Father facing criminal
trial u/s 498A and 304 /PC for causing death of the mother of c
the child - Child in custody of maternal grand-parents - Courts
below granting the custody to the father - On appeal, held:
Courts below granted custody to the father without applying
principle of welfare of the child as paramount consideration -
Custody of minor being humane problem, to be solved with
D
human touch and not solely by interpreting legal provisions -
-='
'I'
The court in selecting a guardian exercises parens patriae
jurisdiction - Thus bound to consider welfare and we/I-being
of child -On the facts, courts were bound to consider the pendency of criminal case against the father - In such cases E
wishes of minor also are required to be ascert~ined by the
court - Hindu Minority and Guardianship Act, 1956 - s: 13.
Respondent filed an application under Guardians and
Wards Act, 1890 seeking custody of his minor son. The
minor child was in custody of the appellants (maternal
F
> ~
grand parents of the child). Appellants had lodged an FIR
against the respondent u/s 498A and 304 IPC for causing
death of their daughter (mother of the child). Criminal case
was pending against the respondent-father. Appellants had
got the custody of the child at the age of five years when G
he was found sick in the house of the respondent. Trial
court allowed the application holding that the respondent
).
being the father and natural guardian, the present and future of the child would be better secured in his custody.
1111
H
1112
SUPREME COURT REPORTS
[2008] 11 S.C.R.
+
A High Court upheld the order of the trial court and also drew
inference that the child had been tutored against his father. Hence the present appeal. The child, when asked by
this Court, refused to go to the respondent.
B
Allowing the appeal, the Court ·
HELD: 1.1 In the instant case, the Courts below were
>( ..
not right or justified in granting custody of the minor to
the respondent-father without applying relevant and wellsettled principle of welfare of the child as paramount conc sideration. [Para 83] [·1141-A]
1.2 In deciding a difficult and complex question as to
t
custody of a minor, a Court of law should keep in mind
relevant statutes and the rights flowing therefrom. But
such cases cannot be decided solely by interpreting leD gal provisions. It is a humane 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 sev
lecting proper guardian of a minor, the paramount conE sideration should be the welfare and well-being of the
I
child. In selecting a guardian, the Court is exercising pa-
~
rens patriae jurisdiction and is expected, n;;w bound, to
\.-
give due weight to a child's ordinary comfort, contentment,
health, education, intellectual development and favourable
F surroundings. But over and above physical comforts,
moral and ethical values cannot be ignored. They are
t· ~
equally, or even more important, essential and indispens-
;
able considerations. If the minor is old enough to form an
intelligent preference or judgment, the Court must conG sider such preference as well, though the final decision
should rest with the Court as to what is conducive to the
welfare of the minor. [Para 56] [1133 G-H] [1134 A-C]
1.3 In such cases, it is not the 'negative test' that the
....
father is not 'unfit' or disqualified to have custody of his
H son/daughter is relevant but the 'positive test' that such
NIL RATAN KUNDU & ANR. v. ABHIJIT KUN DU
1113
_.
~
~
custody would be in the welfare of the minor which is A
material and it is on that basis that the court should exercise the power to grant or refuse custody of minor in favour
of father, mother or any other guardian. [Para 62] [1135-C-D]
·~
1.4 On the facts and in the circumstances of the case,
B
both the Cou

## Text

_Characters 0–39,702 of 60,107. This is a partial read: ask again with offset=39702 for what follows._

[2008] 11S.C.R.1111
. ii
NIL RATAN KU~DU & ANR.
A
\/.
ABHIJIT KUNDU
(Civil Appeal No. 4960 of 2008)
AUGUST 8, 2008
B
.. )'
[C.K. THAKKER AND D.K. JAIN, JJ.]
Guardians and Wards Act, 1890 - ss. 7 and 17 - Gustody of minor child - Sought by father- Father facing criminal
trial u/s 498A and 304 /PC for causing death of the mother of c
the child - Child in custody of maternal grand-parents - Courts
below granting the custody to the father - On appeal, held:
Courts below granted custody to the father without applying
principle of welfare of the child as paramount consideration -
Custody of minor being humane problem, to be solved with
D
human touch and not solely by interpreting legal provisions -
-='
'I'
The court in selecting a guardian exercises parens patriae
jurisdiction - Thus bound to consider welfare and we/I-being
of child -On the facts, courts were bound to consider the pendency of criminal case against the father - In such cases E
wishes of minor also are required to be ascert~ined by the
court - Hindu Minority and Guardianship Act, 1956 - s: 13.
Respondent filed an application under Guardians and
Wards Act, 1890 seeking custody of his minor son. The
minor child was in custody of the appellants (maternal
F
> ~
grand parents of the child). Appellants had lodged an FIR
against the respondent u/s 498A and 304 IPC for causing
death of their daughter (mother of the child). Criminal case
was pending against the respondent-father. Appellants had
got the custody of the child at the age of five years when G
he was found sick in the house of the respondent. Trial
court allowed the application holding that the respondent
).
being the father and natural guardian, the present and future of the child would be better secured in his custody.
1111
H
1112
SUPREME COURT REPORTS
[2008] 11 S.C.R.
+
A High Court upheld the order of the trial court and also drew
inference that the child had been tutored against his father. Hence the present appeal. The child, when asked by
this Court, refused to go to the respondent.
B
Allowing the appeal, the Court ·
HELD: 1.1 In the instant case, the Courts below were
>( ..
not right or justified in granting custody of the minor to
the respondent-father without applying relevant and wellsettled principle of welfare of the child as paramount conc sideration. [Para 83] [·1141-A]
1.2 In deciding a difficult and complex question as to
t
custody of a minor, a Court of law should keep in mind
relevant statutes and the rights flowing therefrom. But
such cases cannot be decided solely by interpreting leD gal provisions. It is a humane 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 sev
lecting proper guardian of a minor, the paramount conE sideration should be the welfare and well-being of the
I
child. In selecting a guardian, the Court is exercising pa-
~
rens patriae jurisdiction and is expected, n;;w bound, to
\.-
give due weight to a child's ordinary comfort, contentment,
health, education, intellectual development and favourable
F surroundings. But over and above physical comforts,
moral and ethical values cannot be ignored. They are
t· ~
equally, or even more important, essential and indispens-
;
able considerations. If the minor is old enough to form an
intelligent preference or judgment, the Court must conG sider such preference as well, though the final decision
should rest with the Court as to what is conducive to the
welfare of the minor. [Para 56] [1133 G-H] [1134 A-C]
1.3 In such cases, it is not the 'negative test' that the
....
father is not 'unfit' or disqualified to have custody of his
H son/daughter is relevant but the 'positive test' that such
NIL RATAN KUNDU & ANR. v. ABHIJIT KUN DU
1113
_.
~
~
custody would be in the welfare of the minor which is A
material and it is on that basis that the court should exercise the power to grant or refuse custody of minor in favour
of father, mother or any other guardian. [Para 62] [1135-C-D]
·~
1.4 On the facts and in the circumstances of the case,
B
both the Courts were duty bound to consider the allega-
-
,.
tions against the respondent herein and pendency of ·
criminal case for an offence punishable under Section
498A IPC. One of the matters which is required to be considered by a Court of law is the 'character of the proposed
guardian. It is no answer to state that in case the father is c
convicted, it is open to maternal grand parents to make
an appropriate application for change of custody. Even
at this stage, the said fact ought to have been considered
and appropriate order ought to have been passed. [Para
72] [1137 C to F]
D
·-----4
Rosy Jacob v. Jacob A. Chakramakkal 1973 (1) SCC
...-t
'f
840; Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka
1982 (2) SCC 544; Surinder Kaur Sandhu (Smt.) v. Harbax
'.
Singh Sandhu 1984 (3) SCC 698; Elizabeth Dinshaw (Mrs.)
v. Arvand M. Dinshaw 1987 (1) SCC 42; Chandrakala Menon
E
(Mrs.) v. Vipin Menon (Capt) 1993 (2) SCC 6; Mausami Moitra
Ganguli v. Jayant Ganguli JT 2008 (6) SC 634; Kirtikumar
Maheshanker Joshi v. Pradip Kumar Karunashanker Joshi,
1992 (3) sec 573 - relied on.
F
Saraswathibai 8hripad v. Shripad Vasanji, ILR 1941 Born
~ ..
455: AIR 1941 Born 103; Tarun Ranjan Majumdar and Anr.
v. Siddhartha Datta, AIR 1991 Cal 76; Bimla Devi v. Subhas
'
Chandra Yadav 'Nirala' AIR 1992 Pat 76; Goverdhan Lal and
Ors. v. Gajendra Kumar AIR 2002 Raj 148; M.K. Hari G
Govindan v. A.R. Rajaram, AIR 2003 Mad 315; Kam/a Devi v.
.....
State of Himachal Pradesh AIR 1987 HP 34 - referred to.
1 ....
,._
McGrath, Re, 1893 (1) Ch 143 : 62 LJ Ch 208; Howarth
'
v. Northcott, 152 Conn 460 : 208 A 2"d 540 : 17 ALR 3rd 758-
"
referred to.
H
=i
~
1114
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
Halsbury's Laws of England, Fourth Edition, Vol. 24,
para 511; Habeas Corpus by Bailey Vol. I, page 581; American Jurisprudence, Second Edition, Vol. 39; para 31 and 148
pp. 34 and 280-81- referred to.
2.1 The trial Court ought to have ascertained the.
B wishes of the child. as to with whom he wanted to stay.
The child whose custody is in question was aged six years
when the trial Court dec_ided the matter. He was, however,
not called by the Court with a view to ascertain his wishes
as to with whom he wanted to stay. The Court was not
C right in giving the reason that none of the parties asked
for such examination by the Court. Apart from statutory
provision in the form of sub-section (3) of Section 17 of
Guardians and Wards Act, 1890, such examination also
helps the Court in performing onerous duty, in exercisD ing discretionary jurisdiction and in deciding delicate issue of custody of a tender-aged child. Moreover, the final
decision rests with the Court, which is bound to consider
all questions and to make an appropriate order keeping
in view the welfare of the child. Normally, therefore, in cusE tody cases, wishes of the minor should be ascertained
by the Court before deciding as to whom custody should
be given. In view of the fact that when this Court ascer-
. tained the wishes of the child, he refused' to go to his father, it would not be proper to give custody of the child to
F
his father-respondent. [Paras 74, 83 and 84] [1137 H, 1138
A 1141 A-8,C,D]
2.2 There is no material on record as to on what basis the inference that the child has been tutored to make
him hostile towards his father was drawn or opinion was
G formed by the High Court. [Para 70] [1136, H]
Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka,
1982 (2) sec 544 - distinguished.
Anni Besant (Mrs.) v. G. Narayaniah and Anr., 41 IA 314
H : AIR 1914 PC 41 - referred to.
+·
-~
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU
1115
.....
Case Law Reference
A
1893 (1) Ch 143
Referred to
para 25
17 ALR 3rd 758
Referred to
Para 28
AIR 1941 Born 103
Referred to
Para 41
B
~-
~·
1973 (1) sec 840
Relied on
Para 42
1982 (2) sec 544
Relied on
Para 44
Distinguished
Para 78
1984 (3) sec 698
Relied on
Para 45
c
1987 (1) sec 42
Relied on
Para 45
1993 (2) sec 6
Relied on
Para 45
JT 2008 (6) SC 634 Relied on
Para 46
D
1992 (3) sec 573
Relied on
Para 48
~
...,
AIR 1991 Cal 76
Referred to
Para 50
AIR 1992 Pat 76
Referred to
Para 51
AIR 2002 RAJ 148
Referred to
Para 53
E
AIR 2003 Mad 315
Referred to
Para 54
AIR 1987 HP 34
Referred to
Para 55
AIR 1914 PC ·41
Referred to
Para 75
F
~ 't
CIVILAPPELLATE JURISDICTILN: Civil Appeal No. 4960
of 2008
From the final Judgment and Order dated 7.12.2007 of
the High Court of Calcutta in F.M.A.T. No. 3185 of 2006
G
-._
R.K. Gupta, S.K. Gupta, Arun Yadav and A.N. Bardiyar for
,/
the Appellants.
. ,.
Jaideep Gupta, S.N. Mitra, Partha Sil, Kuna! Chatterjee
and B.K. Pal for the Respondent.
H
A
1116
SUPREME COURT REPORTS
[2008] 11 S.C.R.
The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. Leave granted.
2. The present appeal is filed against the judgment and
order passed by the Additional District & Sessions Judge, Fast
B Track, 1st Court, Barasat on July 15, 2006 and confirmed by the
High Court of Calcutta in F.M.A.T. No. 3185 of 2006 on December 7, 2007. By the impugned orders, both the Courts below
directed handing over custody of minor child Antariksh Kundu
to father-Abhijit Kundu, respondent herein.
C
Factual matrix
3. To understand the controversy in the appeal, it is appropriate if we narrate relevant facts of the case:
4. The appellants herein, (i) Nil Ratan Kundu and (ii) Smt.
D Kabita Kundu are maternal grand father and grand mother respectively of minor Antariksh, father and mother of deceased
Mithu Kundu and father-in-law and mother-in-law of Abhijit Kundurespondent herein. It is the case of the appellants that they had
a daughter named Mithu whom they gave in marriage to Abhijit
E
Kundu on August 8, 1995. The marriage was performed according to Hindu rites and ceremonies. Sufficient amount of
dowry by way of money, ornaments and other articles was given
to the respondent. According to the allegation of the appellants,
however, the respondent and his mother were not satisfied with
F
the dowry and they started torturing Mithu for bringing more
money from the appellants. On November 18, 1999, a male childAntariksh was born from the said wedlock. The appellants
thought that after the birth of son, torture on Mithu would be
stopped. Unfortunately, however, it did not so happen. Mithu was
G totally neglected and the harassment continued. She became
seriously sick. Coming to know about the ill-health of Mithu, the
appellants brought her to their house and got admitted her in a
nursing home for medical treatment. On being cured, she returned to her matrimonial home, but the demand of dowry perH sisted and physical and mental cruelty did not stop.
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU
1117
[C.K. THAKKER, J.]
5. In the night of April 9, 2004, as alleged by the appelA
lants, Mithu was brutally assaulted by the respondent and his
mother and was brought to a hospital where she was declared
dead. Immediately on the next day i.e. on April 10, 2004, appellant No.1 lodged First Information Report (FIR) against the re-
,)
)
spondent and his mother at Baran agar Police Station which was
B
registered as Case No. 90 for offences punishable under Sections 498A and 304, Indian Penal Code (IPC). The respondent
was arrested by the police in that case.
· 6. On April 18, 2004, custody of Antariksh was handed
over to the appellants. Antariksh was found in sick condition c
from the residence of the respondent. At that time, he was only
of five years. It was his maternal grand father-appellant No.1,
who maintained the child with utmost love and affection. He was
admitted to St. Xavier's Collegiate School, Kolkata which-is a
well-known and well-reputed school in the State of West BenD
gal.
"
1'
7. After due investigation of the case, on May 31, 2005,
police submitted a charge-sheet against the respondent and
his mother and the criminal case is pending. After the responE
dent was enlarged on bail, he filed an application under the
Guardians and Wards Act, 1890 (hereinafter referred to as '1890
Act') praying for custody of Antariksh. A reply was filed by the
appellants to the said application strongly objecting to the prayer
made by the respondent. It was expressly stated in the reply
that custody of child Antariksh was given to them when he was
F
' ..
-+
found in ailing condition in the house of the respondent. The
respondent and his mother had killed their daughter and a criminal case was pending and custody of Antariksh may not be given
to the father-respondent.
Trial Court's order
G
..._~
.}-
8. The trial Court, after considering the evidence on record,
allowed the application and held. that respondent was father and
natural guardian of Antariksh and the present and future of
Antariksh would be better secured in the custody of responH
1118
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
dent. Accordingly it passed an order that custody of Antariksh
be 'immediately' given to the father.
High Court's order
9. Being aggrieved by the said order, the appellants apB
preached the High Court. But the High Court also, by the order
~ -<,
impugned in the present appeal, dismissed the appeal holding
that the trial Court was right in ordering custody to be given to
the father and the said order did not suffer from infirmity. The
Division Bench of the High Court, therefore, directed the appelc lants to handover child Antariksh in the custody of his father with
visitation rights to the appellants. The said order is challenged
by the appellants-maternal grand parents of Antariksh in this
Court.
Earlier orders
D
10. On March 7, 2008, when the matter was placed for
. admission hearing, notice was issued by this Court and was
'f ..
made returnable on March 24, 2008. The Court also observed
.,....
that let the child (Antariksh) remain present in the Court on that
E day at 10.30 a.m. The learned counsel appearing for the appellants stated that the appellants would bear expenses of bringing Antariksh to the Court. Accordingly, a direction was issued
that for that purpose, custody of Antariksh may be·given to the
appellants on March 22, 2008.
F
11. On the returnable date, i.e. on March 24, 2008, the
Court heard learned counsel for the parties. The Court also ast
.. >
certained the wishes of Antariksh. It was, however, observed in
the order that an appropriate order would be passed on March
31, 2008, the day on which the matter was ordered to be listed
G for further hearing. It was stated that till then the custody of
Antariksh would remain with maternal grand parents. It was also
,.,......
observed that it would not ·be necessary to keep Antariksh
present in the Court on the adjourned date. On March 31, 2008,
-'i, ,
the matter appeared on the board and the learned counsel for
'
H
the parties were heard. The learned counsel for the respondent
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU
1119
[C.K. THAKKER, J.]
prayed for time to file affidavit in reply. It was also stated that the A
matter was urgent and affidavit should be filed within a very short
period. The Court, therefore, observed that let such affidavit-inreply be filed on or before April 2, 2008 and the affidavit-inrejoinder be filed on or before April 4, 2008. The matter was
r
;
adjourned to April 7, 2008. On April 7, 2008, again the Court B
heard learned counsel for the parties and felt that the matter
should be heard finally on a non-miscellaneous day and accordingly the Registry was directed to place the matter in the last
.,..
week of April, 2008. The matter was, therefore, placed on board
for.final hearing and it was heard on April 29-30, 2008.
c
Appellants' submissions
12. The learned counsel for the appellants strenuously contended that both the Courts were wholly wrong in granting custody of minor Antariksh to the respondent. It was stated that the D
approach of the Courts below was technical and legalistic rather
l
than pragmatic and realistic. It was stated that in such matters,
paramount consideration which is required to be borne in mind
by the Court is welfare of the child and nothing else. Precisely
that has not been done.
E
13. It was alleged that the respondent and his family members were after dowry and they had tortured Mithu since she
· could not bring sufficient amount of dowry. She was physically
and mentally harassed. She became ill and was admitted to
hospital by the appellants. After she was cured, she returned to F
" ~
matrimonial home, but the harassment and cruelty persisted.
Even after the birth of Antariksh, the difficulties did not come to
an end and as Mithu was unable to bring more money, as demanded by the respondent and his family members, she was
killed and criminal proceedings were initiated against the reG
spondent and his mother which are pending.
..
t14. It was further stated that the above incident had given
mental shock to minor Antariksh who was also found sick in the
house of the respondent when he was of five years of age. The
appellants broughtAntariksh with them and got him admitted in
H
1120
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
a recognized and well reputed school and he is very well settled.
In the circumstances, the Courts ought not to have passed an
order directing the appellants to handover custody of Antariksh
to the respondent.
15. It was also contended that the trial Court which exerB
cised the power under 1890 Act, did not ascertain wishes of ..
Antariksh by calling him, observing that none of the parties asked
for such examination and considering his.age, such action was
not taken. So far as the High Court is concerned, it observed
that the child had been 'tutored' to make him hostile towards his
C father. According to the counsel, there was nothing to show on
what basis the above statement had been made by the High
Court and the custody had been wrongly granted to the respondent. The said order, therefore, deserves to be set aside.
0
16. It was also argued that under 1890 Act, in appointing
or declaring a guardian of a minor, the' Court should keep in
mind the welfare of the minor being paramount consideration
having regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of
E
kin to the minor. If the niipor is old enough to form an independent
opinion or preference, the Court may consider that aspect as
well. In the instant case, the trial Court decided the matter on July
15, 2006 when Antariksh was more than six years of age. But
neither his wishes were ascertained, nor his preference was even
enquired by calling him. It was also submitted that though 'charF
acter' of the proposed guardian has to be taken into account, the
Courts below did not appreciate in its proper perspective the
fact that a criminal case was pending against. the respondent
which related to the death of mother of minor Antariksh involving
the respondent himself and his mother and by observing that if
G he would be convicted, appropriate action could be taken thereafter. The High Court also committed the same mistake. Both the
orders, therefore, are liable to be set aside.
Respondent's submissions
H
17. The learned counsel for the respondent-father, on the
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU
1121
~
[C.K. THAKKER, J.]
other hand, supported the order passed by the trial Court and
A
confirmed by the High Court. It was urged that both the Courts
below considered the relevant provisions of law, the position of
the respondent as natural guardian being father of Antariksh
and the facts in their entirety and held that there was no earthly
.. j<
reason to deprive him of custody of minor Antariksh. The Courts B
felt that minor Antariksh also should not be deprived of natural
love and affection of his father in absence of mother.
18. According to the counsel, the Courts were conscious
of the fact that a criminal case was pending against the respondent and, therefore, observed that if ultimately the respondent c
would be convicted and sentenced to jail, the appellants herein
(grand parents of the child) could move the Court for change of
custody. Such an order cannot be said to be illegal or contrary
to law and in the exercise of jurisdiction under Article 136 of the
Constitution, this Court may not interfere with it.
D
._,
)
19. Before we address ourselves to the issue regarding
custody of Antariksh, let us consider the legal position.
English Law
20. In Halsbury's Laws of England, Fourth Edition, Vol. 24,
E
para 511 at page 217 it has been stated;
"Where in any proceedings before any court the custody
. or upbringing of a minor is in question, then, in deciding
that question, the court must regard the minor's welfare
F
;
~-
as the first and paramount consideration, and may not
I
take into consideration whether from any other point of
view the father's claim in respect of that custody or
upbringing is superior to that of the mother, or the mother's
claim is superior to that of the father."
G
(emphasis supplied)
___,,,;
-}
21. It has also been stated that if the minor is of any age to
exercise a choice, the court will take his wishes into consider-·
ation. (para 534; page 229).
H
1122
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
22. Sometimes, a writ of habeas corpus is sought for cusB
c
D
E
tody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ-Court is
'welfare of the child'.
23. In Habeas Corpus, Vol. I, page 581, Bailey states;
"The reputation of the father may be as stainless as crystal;
he may not be afflicted with the slightest mental, moral or
physical disqualifications from superintending the general
welfare of the infant; the mother may have been separated
from him without the shadow of a pretence of justification;
and yet the interests of the child may imperatively demand
the denial of the father's right and its continuance with the
mother. The tender age and precarious state of its health
make the vigilance of the mother indispensable to its proper
care; for, not doubting that paternal anxiety would seek for
and obtain the best substitute which could be procured
yet every instinct of humanity unerringly proclaims that no
substitute can supply the place of her whose watchfulness
over the sleeping cradle, or waking moments of her
offspring, is prompted by deeper and holier feeling than
the most liberal allowance of nurses' wages could possibly
stimulate."
24. It is further observed that an incidental aspect, which
·has a bearing on the question, may also be adverted to. In deF
termining whether it will be for the best interest of a child to grant,
its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment.
G
H
25. In McGrath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208,
Lindley, L.J. observed;
The dominant matter for the consideration of the Court
is the welfare of the child. But the welfare of the child is not
to be.measured by money only nor merely physical comfort.
The word 'welfare' must be taken in its widest sense. The
moral or r~ligious welfare of the child must be considered
* ....
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU
1123
1'-·
[C.K. THAKKER, J.]
as well as its physical well-being. Nor can the tie of affection
A
be disregarded.
(emphasis supplied)
American Law
- ,.
26. Law in the United States is also not different. In AmeriB
(
can Jurisprudence, Second Edition, Vol. 39; para 31; page 34,
it is stated;
"As a rule, in the selection of a guardian of a minor, the
best interest of the child is the paramount consideration, c
to which even the rights of parent$ must sometimes yield".
(emphasis supplied)
27. In para 148; pp.280-81; it is stated;
"Generally, where the writ of habeas corpus is prosecuted D
~ T
for the purpose of determining the right to custody of a
child, the controversy does not involve the question of
personal freedom, because an infant is presumed to be
in the custody of someone until it attains its majority. The
Court, in passing on the writ in a child custody case, deals
E
with a matter of an equitable nature, it is not bound by any
mere legal right of parent or guardian, but is to give his or
her claim to the custody of the child due weight as a claim
founded on human nature and generally equitable and
just. Therefore, these cases are decided, not on the legal F
..,,
~-
right of the petitioner to be relieved from unlawful
imprisonment or detention, as in the case of an adult, but
on the Court's view of the best interests of those whose
welfare requires that they be in custody of one person or
another; and hence, a court is not bound to deliver a child G
into the custody of any claimant or of any person, but should,
in the exercise of a sound discretion, after careful
+
consideration of the facts, leave it in such custody as its
welfare at the time appears to require. In short, the child's
welfare is the supreme consideration, irrespective of the H
1124
SUPREME COURT REPORTS
[2008) 11 S.C.R.
A
rights and wrongs of its contending parents, although the
natural rights of the parents are entitled to consideration.
An application by a parent, through the medium of a
habeas corpus proceeding, for custody of a child is
B
addressed to the discretion of the court, and custody may
be withheld from the parent where it is made clearly to
~ "-.-
"'·
appear that by reason of unfitness for the trust or of other
sufficient causes the permanent interests of the child would
be sacrificed by a change of custody. In determining
whether it will be for the best interest of a child to award
c
its custody to the father or mother, the Court may properly
consult the child, if it has sufficient judgmenf'.
(emphasis supplied)
28. In Howarth v. Northcott, 152 Conn 460 : 208 A 2"d 540
D : 17 ALR 3rd 758; it was stated;
"In habeas corpus proceedings to determine child custody,
"T r
the jurisdiction exercised by the Court rests in such cases
on its inherent equitable powers and exerts the force of.
the State, as parens patriae, for the protection of its infant
E
ward, and the very nature and scope of the inquiry and the
result sought to be accomplished call for the exercise of
the jurisdiction of a court of equity".
29. It was further observed;
F
"The employment of the forms of habeas corpus in a child
custody case is not for the purpose of testing the legality
-t
'-"
of a confinement or restraint as contemplated by the
ancient common law writ, or by statute, but the primary
purpose is to furnish a means by which the court, in the
G
exercise of its judicial discretion, may determine what is
best for the welfare of the child, and the decision is
reached by a consideration of the equities involved in
the welfare of the child, against which the legal rights of
+
no one, including the parents, are allowed to militate".
H
(emphasis supplied)
---
'
.,,
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU
1125
[C.K. THAKKER, J.]
30. It was also indicated that ordinarily, the basis for issuA
ance of a writ of habeas corpus is an illegal detention; but in the
case of such a writ sued out for the detention of a child, the law
is concerned not so much with the illegality of the detention as
with the welfare of the child.
Indian Law
31. The legal position in India follows the above doctrine.
B
There are various statutes which give legislative recognition to
these well-established principles. It would be appropriate if we
examine some of the statutes dealing witli the situation. Guard- c
ians and Wards Act, 1890 consolidates and amends the law
relating to guardians and wards. Section 4 of the Act defines
"minor" as a person who has not attained the age of majority.
"Guardian" means a person having the care of the person of a
minor or of his property, or of both his person and property. 0
"Ward" is defined as a minor for whose person or property or
both, there is a guardian. Chapter II (Sections 5 to 19) relates to
appointment and declaration of guardians. Section 7 deals with
'power of the Court to make order as to guardianshio' and reads
.
'
asunde~
•
7. Power of the Court to make order as to guardianship.-
(1) Where the Court is satisfied that it is for the welfare of
a minor that an order should be madeE
(a)
appointing a guardian of his person or property, or
both, or
F
(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 G
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
H
1126
SUPREME COURT REPORTS
[2008) 11 S.C.R.
A
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.
.
.
32. Section 8 of the Act enumerates persons entitled to
apply for an order as to guardianship. Section 9 empowers the
B
Court having jurisdiction to entertain an application for guardianship. Sections 10 to 16 deal with procedure and powers of
Court. Section 17 is another material provision and may be re;
produced;
c
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 subj~ct, appears in the circumstances
D
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,
E
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
F
preference, the Court may consider that preference.
''-1
* * * * *
(5) The Court shall not appoint or declare any person to
be a guardian against his will.
G
(emphasis supplied)
33. Section 19 prohibits the Court from appointing guardians in certain cases.
34. Chapter Ill (Sections 20 to 42) prescribes duties, rights
H and liabilities of guardians.
."'(
'
r
.,..
":"
+ .,,-
'"'
\.
.'
-·
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU
1127
[C.K. THAKKER, J.]
35. Hindu Minority and Guardianship Act, 1956 (hereinafA
ter referred to as "1956 Act") is another equally important statute relating to minority and guardianship among Hindus. Section 4 defines "minor" as a person who has not completed the
age of eighteen years. "Guardian" means a person having the
care of the person of a minor or of his property or of both his
B
persons and property, and inter alia includes a natural guardian. Section 2 of the Act declares that the provisions of the Act
shall be in addition to, and not in derogation of 1890 Act.
36. Section 6 enacts as to who can be said to be a natural
guardian. It reads thus;
C
6. Natural guardians of a Hindu Minor.-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 0
property), arei
(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;
E
(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
F
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 G
world becoming a hermit (vanaprastha) or an
ascetic (yati or sanyasi).
Explanation.-ln this section, the expressions "father'' and
"mother" do not include a step-father and a step-mother.
H
1128
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[2008] 11 S.C.R.
A
37. Section 8 enumerates powers of natural guardian.
B
c
Section 13 is extremely important provision and deals with welfare of a minor. The same may be quoted in extenso;
13. Welfare of minor to be paramount consideration.
'•
(1)
In the appointment or 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
virtu~ 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.
(emphasis supplied)
D
38. Section 26 of the Hindu Marriage Act, 1955 provides
for custody of children and declares that in any proceeding under the said Act, the Court could make, from time to time, such
interim orders as it might deem just and proper with respect to
custody, m'aintenance and education of minor children, consisE tently with their wishes, wherever possible.
39. The principles in relation to the custody of a minor child
are well settled. In determining the question as to who should
be given custody of a minor child, the paramount consideration
is the 'welfare of the child' and not rights of the parents under a
F
statute for the time being in force.
Case Jaw
40. The aforesaid statutory provisions came up for consideration before Indian Courts in several cases. Let us deal with
G few decisions wherein the courts have applied the principles relating to grant of custody of minor children by taking into account
their interest and well-being as paramount consideration.
41. In Saraswathibai Shripad v. Shripad Vasanji, ILR 1941
H
Born 455 : Al R 1941 Born 103; the High Court of Bombay stated;
' -+-
NIL RATAN KUN DU & ANR. v. ABHIJIT KUNDU
1129
~
[C.K. THAKKER, J.]
"It is not the welfare of the father, nor the welfare of the
A
mother that is the paramount consideration for the Court.
It is the welfare of the minor and the minor alone which
is the paramount consideration."
I.
(emphasis supplied)
B
I
'I
42. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1
SCC 840, this Court held that object and purpose of 1890 Act
is not merely physical custody of the minor but due protection of
the rights of ward's health, maintenance and education. The
power and duty of the Court under the Act is the welfare of mi- c
nor. In considering the question of welfare of 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.
43. The Court further observed that merely because there D
,..
1
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 E
promoted by granting their custody to him. The Court also observed that children are not mere chattels nor are they toys for
their parents. Absolute right of parents over the destinies and
the lives of their children has, in the modem changed social
conditions must yield to the considerations of their welfare as
F
'
... _
human beings so that they may grow up in a normal balanced
/'
manner to be useful members of the 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 welfare of the minor children and the rights of G
~
their respective parents over them.
~
44. Again, in Thrity Hoshie Dolikuka v. Hoshiam ·
J
Shavaksha Dolikuka, (1982) 2 SCC 544, this Court reiterated
t
that only consideration of the Court in deciding the question of
custody of minor should be the welfare and interest of the miH
1130
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[2008] 11 S.C.R.
A
nor. 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.
45. In Surinder Kaur Sandhu (Smt.) v. Harbax Singh
Sandhu, (1984) 3 SCC 698, this Court held that Section 6 of
8
the Hindu Minority and Guardianship Act, 1956 constitutes 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 (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42;
C Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2
sec 6].
46. Recently, in Mausami Moitra Ganguli v. Jayant
Ganguli, JT (2008) 6 SC 634, we have held that the first and
0
the paramount consideration is the welfare of the child and not
the right of the parent.
E
F
G
H
47. We observed;
"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
are predominant consideration. In fact, no statute on the
subject, can ignore, eschew or obliterate the vital factor of
the welfare of the minor. 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 th~ case are concerned. It is, no doubt, true
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU
1131
•
[C.K. THAKKER, J.]
that father is presumed by the statutes to be better suited
A
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
B
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 al the relevant facts and circumstances, c
bearing in mind the welfare of the child as the paramount
consideration."
\
48. In Kirtikumar Maheshanker Joshi v. Pradip Kumar
~
Karunashanker Joshi, (1992) 3 SCC 573, custody of two minor children was sought by father as also by maternal uncle.
D
.
~
Mother died unnatural death and the father was facing charge
under Section 498-A, Indian Penal Code. Children were staying with maternal uncle. Before this Court, both the children expressed their desire to stay with maternal uncle and not with the
father.
E
49. Considering the facts and circumstances and bearing
in mind the case pending against the father and rejecting his
prayer for custody and granting custody to the maternal uncle,
the Court stated;
.. ...
F
"After talking to the children, and assessing their state of
mind, we are of the view that it would not be in the interest
and welfare of the children to hand over their custody fo their
father Pradipkumar.