# ROSY JACOB v. JACOB A. CHAKRAMAKKAL

- **Citation:** [1973] 3 S.C.R. 918
- **Court:** Supreme Court of India
- **Decided:** 1973-04-05
- **Case number:** Civil Appeals Nos. 1295 & 1296 of 1972
- **Bench:** A. Alagir!Swami, I. D. Dua, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rosy-jacob-v-jacob-a-chakramakkal-6581
- **Pages:** 19

## Headnote

Guardians and Wards Act, 1890, Sec. 25-Husbond's application for
the custody oj children-Welfare of the children is the dominant consi·
deration.
On the wife's application, judicial separation was granted under the
Indian Divorce Act by the single Judge of the High Court. The custody
of the eldest son was maintained with the husband while that of the daughter and the youngest son was given to the wife. In the Letters Patent
Appeal preferred by the husband, the Division Bench varied the order
directing handing over the custody of the daughter and the youngest son
also to the husband.
The principal question before the Court was whe·
ther the husband's application for the custody of the children u/s 25 of
the Guardian and Wards Act, 1890, was maintainable and, if so, what
are the considerations which the Court should bear in mind in exercising
the discretion regardin11 custody of children.
Allowing the appeal,
HELD : (i) On the facts and circumstances of the case, namely, that
the Court cannot make any order under the Divorce Act, as the daughter
had attained majority, and no guardian could be appointed u/s. 19 of
the Guardians and Wards Act, 1890 during the life time of the existing
guardian, husband's application was competent.
Welfare of the children
is the primary consideration, and hyper-technicalities should not be allowed to deprive the guardian necessary assistance
from the Court in
effectively discharging his duties and
obligations
towards
his
ward.
l932D]
(ii) The controlling consideration g0veming the custody of the children is the welfare of the children concerned and not the right of their
parents.
The Court while exercising the discretion should consider all
relevant
facts and circumstances
so as to ensure the welfare of the
children.
The contention that if the husband is not unfit to be the guardian of
his minor children. then the question of their welfare does not at all
arise, is misleading.
If the custody of the father cannot promote
the
children's welfare, equally or better. than the custody of the mother,
then. he cannot claim indefeasible right to their -custody u/s 25 merely
because there is no defect in his personal character and he has attachment
for his children-which every normal parent has.
As the daughter has
just attained puberty and the youngest son was of the tender age, in the
interest of their welfare, the mother should have the custody in preference to the father.
.[933DJ
• CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1295
& 1296 of 1972.
Appeals by special leave from the judgment and order dated
April 26, 1972 of the Madras High Court in O.S.A. Nos. 2 and
3 of 1971.
918
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ROSY JACOB v. J. A. CHAKRAMAKKAL (Dua,].)
919
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K. N. Balasubramanian and Lily Thomas, for the appellant.
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The respondent appeared in person.

## Text

_Characters 0–39,970 of 52,424. This is a partial read: ask again with offset=39970 for what follows._

ROSY JACOB
v.
JACOB A. CHAKRAMAKKAL
April 5, 1973
[A. ALAGIR!SWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.]
Guardians and Wards Act, 1890, Sec. 25-Husbond's application for
the custody oj children-Welfare of the children is the dominant consi·
deration.
On the wife's application, judicial separation was granted under the
Indian Divorce Act by the single Judge of the High Court. The custody
of the eldest son was maintained with the husband while that of the daughter and the youngest son was given to the wife. In the Letters Patent
Appeal preferred by the husband, the Division Bench varied the order
directing handing over the custody of the daughter and the youngest son
also to the husband.
The principal question before the Court was whe·
ther the husband's application for the custody of the children u/s 25 of
the Guardian and Wards Act, 1890, was maintainable and, if so, what
are the considerations which the Court should bear in mind in exercising
the discretion regardin11 custody of children.
Allowing the appeal,
HELD : (i) On the facts and circumstances of the case, namely, that
the Court cannot make any order under the Divorce Act, as the daughter
had attained majority, and no guardian could be appointed u/s. 19 of
the Guardians and Wards Act, 1890 during the life time of the existing
guardian, husband's application was competent.
Welfare of the children
is the primary consideration, and hyper-technicalities should not be allowed to deprive the guardian necessary assistance
from the Court in
effectively discharging his duties and
obligations
towards
his
ward.
l932D]
(ii) The controlling consideration g0veming the custody of the children is the welfare of the children concerned and not the right of their
parents.
The Court while exercising the discretion should consider all
relevant
facts and circumstances
so as to ensure the welfare of the
children.
The contention that if the husband is not unfit to be the guardian of
his minor children. then the question of their welfare does not at all
arise, is misleading.
If the custody of the father cannot promote
the
children's welfare, equally or better. than the custody of the mother,
then. he cannot claim indefeasible right to their -custody u/s 25 merely
because there is no defect in his personal character and he has attachment
for his children-which every normal parent has.
As the daughter has
just attained puberty and the youngest son was of the tender age, in the
interest of their welfare, the mother should have the custody in preference to the father.
.[933DJ
• CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1295
& 1296 of 1972.
Appeals by special leave from the judgment and order dated
April 26, 1972 of the Madras High Court in O.S.A. Nos. 2 and
3 of 1971.
918
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ROSY JACOB v. J. A. CHAKRAMAKKAL (Dua,].)
919
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K. N. Balasubramanian and Lily Thomas, for the appellant.
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The respondent appeared in person.
The Judgment of the Court was delivered by
DUA, J.-The real controversy in these two appeals by special
leave preferred by the wife against her husband, lies in a narrow
compass.
These appeals are directed against the judgment and
order of a Division Bench of the Madras High Court allowing the
appeals by the husband and dismissing the cross-objections by the
wife from the judgment and order of a learned single judge of the
same High Court dismissing a~out 25 applications seeking diverse
kinds of reliefs, presented by one or the other party. According
to the learned single Judge (Maharajan J.) "these 25 applications
represent but a fraction of the bitterness and frustration of an
accomplished Syrian Christian couple who after making a mess
of their married life have endeavoured to convert this Court into
a machinery for wreaking private vengeance". This observation
reflects the feelings of the husband and the wife towards each
other in the present litigation. The short question which we are
called upon to decide relates to the guardianship of the three
children of the parties and the solution of this problem primarily
requires consideration ·of the welfare of the children.
The appellant, Rosy Chakram.akkal (described her~ as wife)
was married to respondent Jacob A. Chakramakkal (described
herein as
husband) sometime in 1952.
Three children were
born from this wedlock. Ajit alias Andrews,, son, was born in
1955, Maya alias Mary was born in 1957 and Maheshalias Thomas
was born in 1961. Sometime in 1962 thel wife started proceedings
for judicial separation (O.M.S. 12 of 1962) on the ground that
the husband had inflicted upon her several acts of physical, mental
and moral cruelty and obtained a decree on April 15, 19~.
Sadasivam J., while granting the decree directed that Ajit alias
Andrews. (son) the eldest child should be kept in the custody of
the
husband and Mary alias Maya (daughter)
and
Thomas
alias Mahesh (youngest son) should be kept in the custody of
the wife. The husband was directed to pay to the wife Rs. 200/- per
mensem towards the expenses and maintenance of the wife and the
two children. The wife applied to Sadasivam J., sometime later for
a direction that Ajit alias Andrews should also be handed over
to her or in the alternative for a direction that the boy should be
admitted in a boarding school. In this application (no. 2076 of
1964) it was alleged by the wife that the husband hud beaten
Ajit on the ground that he had accepted from his mother (the
wife) a fountain pen as a present. This was denied bly the husband
but the learned Judge, after elabrote enquiry, held that he had
no doubt that the husband had caused injuries to the boy on
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[1973] 3 S.C.R.
account of his sudden out burst of temper on learning that Ajit
had received a fountain pen by way of present from his mother
on his birth day.
Aj~ was accordingly to be handed over to the
mother subjected to certain conditions.
The husband preferred· an appeal against the decree made
in O.M.S. 12 of 1962 (O.S.A. 65 of 1964) and another appeal
against·the order made by Sadasivam J., (in application no, 2076
of 1964 in O.M.S. 12 of 1962) directing the custody of the eldest
son Ajit to be handed over to the wife (0.S.A. 63 of 1964).
On
August 2, 1966 the appellate blench
confirmed the decree for
judicial separation granted by Sadasivam J., and also issued cer,
tain directions based on agreement of the parties with respect to
the custody of !he children, as
also reduction of the monthly
maintenance payable by the husband to the wife from Rs. 200/-
to Rs. 150/- p.m., inclusive of maintenance payable for Mahesh.
According to this order the eldest boy Ajit alias Andrews directed
to remain in the custody of the father and to be educated by him
at his expense : Mahesh alias Thomas was directed to be in the
custody of the mother to be educated at her expense: and the
second child Maya alias Mary was directed to be put in a boarding
school, the expenses of her t1oard and education to be met in
equal shares by both the parents. The husband also undertook that
'he will arrange to have the presence of his mother or sister at his
residence to attend to the children whenever they are with him
and never to leave the chilren alone at his residenee or to the
care of his servants or others". Later both the husband and wife
presented a series of applications in !he appellate court seeking
modifications of its directions.
That court ultimately made an
order on February 2. 1967 modifying its earlier directions.
The
modified order directed Maya to be left in the exclusive custody
of !he wifo who was al liberaty to educate her in the manner she
thought best at her own cost. The appellate court also modified
the direction regarding maintenance and ordered that the husband
should pay to tlie wife maintenance at !he rate of Rs. 200 /- p.m.
as awarded by the learned single judge.
Subsequently the directions of the appellate court regarding access of the mother and the
fatlter to the children were also sought by !he parties to be modified to the prejudice of each other.
The matters are stated to
have been heard by most of the Judges of the Madras High Court
at one stage or !he other and according to Maharajan J., the parties even tfied to secure transfer o;f these proceedings by making
wild allegations of partiality against some of the Judges.
The
husband who is an advocate of the Madras High Court, had,
according to the wife, been filin~ cases systematically against her
and the wife. who, in the opinion of Maharajan J., has the gift
of the gab also argued her own cases.
The children for whose
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ROSY JACOB v. J. A. CHA.KRAMAKKAL (Dua,/.)
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weliare the parents are supposed to have been fighting as observed
by Maharajan J., are given a secondary consideration and the
quarrelling couple have lost all sense of proportion. On account
of these considerations the learned single Judge felt that it would
be a waste of public time to consider in detail the trivialities of the
controversy pressed by both the parties to this litigation. According
to the learned single Judge the following four points arose for
his judicial determination'.
"(l) Whether by defaulting to pay the maintenance
decreed, the husband must be held guilty of contempt
and shall not be allowed to prosecute his applications
before. he purges himself of contempt?
(2) What is the proper order to pass as regards the
custody of the three children of the marriage in the light
of the events that have occurred subsequent to the judgement of the appellate court and under the Guardians
and Wards Act ?
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(3) What is the proper order to pass as to the access
of either parent to the children in the custody of the other?
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( 4) Whether in the light of the subsequent events,
the order regarding maintenance allowance should be
reduced, enhanced or altered in any manner and if so,
how?'
On the first point the learned single Judge came to the conclusion that the husband could not be declined hearing merely
because he had not paid the maintimance as directed by the
matrimonial court. The amount yi respect of which the husband
had defaulted payment could be recovered through execution proceedings. On point no. 2 the learned single Judge proceeded to
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consider the question of the cutody ol the three children with the
preliminary observation that the controlli.ng factor governing
their custody would t!e their welfare and not the riehts of their
parell\s. The eldest child Ajit alias Andrews, according to the
learned Judge, was doing well at the school and was progressing
satisfactorily both metally and physically. There was accordingly
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no reason to transfer his custody from his father to his mother.
As regards the second child Maya alias Mary, as she was about
to attain puberty and the wife being anxious that till she got
married she must be in the monther's vigila'lt and affectionate
custody she was to remain with her mother. Mahesh alias Thomas,
who was considered to be of tender years and in the formative
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stage ol life requiring sense Of emotional security which a mo'her
alone could give, was also kept in the custody of his mother. With
resnect to Maya and Mahesh it was further observed that from
their educational point of view the wife was a more suitable
l 1-L797Sup.CI/73
922
SUPREME COURT REPORTS·
(1973] 3 S.C.R.
custodian than the husband because she was running a primary
school from nursery to fifth standard with more than a hundred
pupils and was also residing in a portion of the school premises
enjoying certain facilities in her capacity as the founder
and
principal of that school.
The husband, who was described as a
grass widower without fomale relatives to look after the children,
was not preferred to the wife as, while being with her, the children
would bl.) living in an academic atmosphere. With respect to the
husband's complaint that from the moral point of vi~w the wife
was not fit to have the custody of the children, Maharajan J.,
observed that earlier Sadasivam J., had dealt with the
entire
evidence relating to <this charge and had found no sufficient ground
for such imputations and that they were likely to cause mental
pain to the wife and affect her health.
The husband had even
been held guilty of mental and moral cruelty to the wife.
The
husband's contention that his opinion was reversed by the appellate
bench was disposed of by Maharajan J., after quoting the followinl( passage from the appellate judgment dated August 2, 1966 :
"But it is to be clearly understood that there should
be no slur on the part of either the appellant or the
respondent because of the several proceedings in court
and other happenings outside. The decree ~or judicial
separation which is confirmed does not cast any cloud
on the reputation or character of the husb!and or the
wife. They have reached this settlement keeping in view
all the circumstances and particularly the welfare of
their minor children."
According to Maharajan 3., the appellate bench had felt satisfied that the charge of immorality levelled by the husband against
the wife was not established because had it not been so satisfied
the bench would not have entrusted two of the three children
to the wife.
The husband was in the circumstances held by
Maharaian J.. disentitled to reopen the question of the wife's
immorality. In any event, Maharajan J., also rejeoted the charge
of immorality as unproved, for the same reasons which had weighed
with Sadasivam J. With respect to point no. 3 the learned single
Judge gave the rollowi.ng directions :
"( 1) On the first Sunday of every month, exceot
during the school vacations, the husband shall send Ajit
alias Andrews to the wife bv 8.00 a.m. and the wife
shall send back the child by 8. p.m. the same day.
(2) The wife shall send
Mava alias Mary and
Thomas alias Mahesh to the husband's bv 8 a.m. on the
last Sunday of every month, except during the school
vacations, and the husband shall send them back by
8 p.m. the same day.
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ROSY JACOB v. J. A. CHAKRAMAKKAL (Dua, J.)
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( 3) Each party shall send the children by a conveyance taxi, rickshaw or "f?us, ·after prepaying the fare
thereof. ·
( 4) The wife shall send Mary alias Maya and
Thomas alias Mahesh to the husband, so hat they might
stay with him and Ajit alias Andrews for thirty days
during the summer vacation. The exact time and dates
of departure .and arrival will be fixed with reference to
the convenience or parties and after change of letters
between them at least one months prior to the commencement of the vacation. Likewise, the husband will send
Ajit to the wife to enabile him to spend the whole Dasara
and Christamas vacations in the company of his mother,
sister and brother."
On the fourth point the learned single Judge, fater considering
. at length the wife's allegations against the husband with rAp.:ct
to his extravagance and inability, reduced the quantum of maintenance pa¥able by him to the wife to.Rs. 100/- p.m., the reduced
amount being payablle with effect from January 1, 1971. The
husband was directed to pay the monthly maintenance on or before
. the 10th of the succeeding month. This order was made with the
· observation that the earning. capacity of the wife was superior to
that of the husband.
It is unnecessary to refer to the formal orders separately passed
· in the various applications .. Suffice it to say that the parties were
left to bear to their own costs and hope was expressed in the concluding para of the judgment by Maharajan, J. that "the parties
will refrain from rushing to this court with applications of the
kind that have b!een dismissed and will apply themselves as,iduously
to the improvement of their status in <their respective professfons
and to alleviation of the pain of material failure, which
ha'
unfortunately· been visited upon the three lovely and sprightly
children 1hat they have produced." ·
Contrary to the hope expressed by learned Judge, the matter
wa5 taken to the appellate bench of the High Court under cl• 15 ol
the Letters Patent (0.S. Appeal Nos. 2 and 3 ofA~i"). The
wife also pressented cross-objections against the
reduction of
alimony and against directions as regards the father's access of
Maya.
A large number of applications were presented to the
Court parties praying for diverse reliefs including action for contempt of court for disobedience of the court's orders. The hearing
of the appeals somewhat surprisingly lasted for more than a year
(March 1971 to March 1972). We find no justification for such
prolonged hearing on a fairly simple matter like this. According
to the Letters Patent Bench the arguments on bo~h sides. "mainly
924
SUPREME COURT REPORTS
[1973] 3 S.C.R.
rested upon the character of each". The husband is said to have
repeatedly accused the wife with immorality. ln the opinion of the
Letters Pantent Bep.ch ''the truth or otherwise of the matter may
assume importance only for the purpose of deciding upon the
fitness of the person to be the guardian of the children". Final
orders were passed on April 26, 1972 by means of which the
husband was held to be bellter fitted to be the guardian of the three
children and to have their custody. This decision was stated to be
based on evidence and in view of ss.17, 19 and 25 of the Guardians
and Wards Act.
This is what one of the Judges constituting the
Letters Patent Bench ( Gokul Krishnan, J ., ) said in this connection :
"In our opinion, the principles to be applied to· cases
of this kind will be the same both under the
Indian
Divorce Act and the Guardians and Wards Act, 1890.
But since the father has specifically filed a petition, O.P.
No. 270 of 1970, under section 25 of the Guardians
and Wards Act, and that being a special law for the
purpose will certainly apply, we shall concentrate on
the Guardians and Warc!S Act, 1890".
After quoting s. 19 of the Guardians and Wards Act the
learned Judge proceeded :
"It is thus clear that the special enactment difinitely
states that the father is the guardian of the minor until
he is found unfit to be the guardian of the person of the
minor.
The welfare of the minor is the paramount
consideration in the matter of apointing guardian for
the person of minor, and cannot be said to be in conflict
with the terms of section 19 of the Guardians and Wards
Act which recognize the father as the guardian. Bearing this in mind, we proceed to consider as to who is
fit and proper to be the guardian for the person of the
minor children in this case."
In his view the principle on which the Court should decide
the fitness of the guardian mainly depends on two factors : ( i)
the father's fitness or otherwise to be the guardian and (ii) the
interests of the minors. Considering these 'factors it was felt that
both the parties in the present case loved their children . who were
happy during their stay with both of their parents.
There was
in his view, absolutely no proof as regards disqualificatioo of. the
husband to be the guardian of the minor children. It may· here
be pointed out that both the Judges constituting the Letters Patent
Bench wrote separate judgments.
Gokulakrishnan J., commenting on the Judgment of Maharajan J., observed thus :
"Maharajan J. in his judgment under appeal no
doubt referred to section 19 of the Guardians and Wards
Act, but would observe that if the Court finds that the
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ROSY JACOB v. J. A. CHAKRAMAKKAL (Dua, J.)
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welfare of -the minor children could be protected only
in the maternal custody, the Court has power to put
the children in the care oJ' custody of the mo!her. The
learned Judge clearly observed that Ajit, the eldest boy,
who is in the custody of the appellant, is quite healthy'
and cheerful, doing well at school and that his sojourn
with the father has not prejudicially affected him physically or mentally. But at the same breath, the learned
Judge says that Maya and Mahesh 'are of tender years and
in the formative stage of their life and need a sense of
emotional security, which a mother alone can give.'
In the case of Maya and Mahesh, the learned Judge
has applied a different standard in regard
to ilieir
custody.
Considering the present age of l:/oth Maya
a'ld Mahesh and taking into consideration lhe upbringing of Ajit by the appellant having him in his custody, we
are of the view that the same amount of sense of emotional
security can be enjoyed by Maya and Mahesh at the
hands of 1he appellant also.
The learned Judge's
reasoning that the mother is running a school and has
also facilities to make 1hese two children live in the
academic atmosphere rather than with
their father,
cannot have any.force in view of the clear and categorical
principles laid down in the various decisions noticed
(supra) and also in view of the clear intendment and spirit
of the Guardians and Wards Act, which prescribes that
father is the guardian of his minor child unless otherwise found unfit.
The academic qualificatioin of the
mother, her financial status and the o1her
standards
cannot at all wiegh in the matter when lhe appellant has
not been rejected as a person unfit to be the guardian
of the minors. If they should weigh, the poorer and
affectionate father with moderate capacity to protect
his children will be deprived of the custody of the minor
children on the flimsy ground of 'welfare of the minor
children'. That is how and why lthe welfare of the
minor children' must be read with 'fitness or unfitness
of the father to be guardian of ihe minors.
Once
it is found that the father is the fit and proper person to
be 1he guardian of his minor children, unless it is otherwise found that he is not fit, it must be presumed that
the children's interests will be properly protected by the
father. As far as the present case is concerned, when
the trial court itself has found that Aiit has been
properly looked after and brought uo very well in his
academic career by the appellant. there cannot bre any
difficulty in coming to the conclusion that Maya and
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[1973] 3 S.C.R.
Mahesh will also be looked after and protected and
imparted with proper educirtion
by the
affectionate
father, the appellant."
After reproducing certain observations from the judgment>
of (i) Sadasivam J., dated April 15, 1964, (ii) Veeraswamy L
(<1s he then was) and Krishnaswami Reddy J., dated Februarv 12.
1967 in C.M.P. 415 in O.S.A. nos. 63 & 65 of 1969, Rarnamurt1·
.I., dated April 24, 1968 in application nos. 769 and 770 of 1968
in O.M.S. 12 of 1962 and after referring rto the view of Maharajan J., that Ajit when produced in Court was found
quite
healthy and cheerful and was doing well at school, Venkataraman
J. in his concurring judgment observed thus :-
"Regarding the other children, he gave their custody
to the mother, because he thought that they were of
tender years and needed emotional security which a
mother alone could give.
Here, with respect we must
differ from the learned Judge. We find that the .father
is quite frt 'to have the custody of the children, and,
in law, custody of the minor children cannot be refused
to him.
We are also satisfied from what we saw of the
appellant arnd heard from him
during
the
several
hearings, that he is very deeply attached to his children
and is quite competent to have their custody. It will be
enough if the mother is allowed a · somewhat liberal
access to the three children."
With respect to alimony the appellate bench concluded that
the wife was m~naging her school verv successfui'y;
she had
purchased a mini-bus and also possessed we•t lands in her village.
The husband on the other hand was not getting on well in his
profession which he attributed to the present liti~ation : his house
at Adyar was stated to be under mortgage and he had practically
sold everything in his native village with the exception o.f one or
one-and-half acres of land. In view of the financial position of
the wife and the husband and in view of the fact that all the
!hree children were to be in the custody of the husband the
appellate bench considere~ it unnecessary for the husband
to
pay any maintenance to the wife.
The payment of the arrears
of alimony was also suspended as the apnellate bench c0nsidered
itself empowered to do so under the proviso to s. 37 of the Indian
Divorce Act.
In so far as access of the wife to the children is
concerned a detailed order was passed bv the ~ench about the
right of the wife to take the daughter with her dming the summer
and Christmas vacations and also during several days every month,
particularly during the periods. We do not consider it necessary
to state in full the details of that order. With respect to A.iit and
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ROSY JACOB v. J. A. CHAKRAMAKKAL (Dua,!.)
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Mahesh also a detailed order was made fix\ng the precise. days
and even time when the wife could bring the children from the
father .to stay with her.
In the event of any difficulty in ge,,mg
custody of the children from the wife, it was ordered at the instance
of the husband that he could take the police help on the strength
of the High Court judgment.
We find it extremel~·dillicult. to
appreciate this direction.
Orders from the Court ~ execution
would have been more appropriate. Police intervention in su7h
personal domestic differences in tlle present case where p~rties
belong to educated respectable families should have been avoided.
In this Court a preliminary objectiQll to die hearing of the
wife's appeal was raised by the husband, who, being an advocate,
personally addressed us in opposing these appeals.
Indeed in
June, 1972 he had presented Civil Miscellaneous Petitions Nos.
4188 and 4189 of 1972 for revolting special leave and it was
these applications which he pressed before us at ihe outset. These
lengthy applications covering nearly 50 pages mainly contain
arguments on the merits and there is hardly any cogent ground
made out justifying revocation of the special Je.ev~
T• · ; · no
doubt open to this Court to revoke special leave when : · ; '"' .
.;
that special leave had been secured by the appellant on deliberate
misrepresentation on a m~terial point having a bearing on the
question of granting such leave. The extraordinary discretionary
power vested in this Court by the Constitution under Act, 136 js
in the nature of a special residuary power exercisable in
its
judicial discretion outside the purview of ordinary law in cases
where the needs of justice demand interference.
Being discre
tionary power intended only to promote the cause of justice when
there is no other adequate remedy, this Court expects those seeking
resort to this reserve of
constitutional
power
for
securing
justice to be absolutely fair and frank
with
this
Court
in correctly stating the relevant facts and circumstances of the case.
In the event of a party making a misrepresentation on a point having a bearing on the question of the exercise of judicial discretion
and thereby trving to over-reach this Court the party forfeits the
claim to the discretiooary relief : the same is the case when such
misrepresentation is discovered by this Court and brought to i'ts
notice after the grant of snecial Jeave and this Court is comnetent
and indeed it considers it proper to revoke the special leave thm
obtained. But the misrepresentation must be deliberate and on a
point havinl( such relevance to the question of special leave that
if true facts were known thi< Court would hove in all probabilitv
declined special leave.· Applying this test to the pre;ent case we ai:e
unable to find anv such deliberate misrenresentation bv the appellant indicating intention to mislead or over-reach this Court.
The points to which our attention was drawn seem to relate to the
merits of the controversies between the parties which would fall for
928
SUPREME COURT REPORTS
[1973] 3 S.C.R.
determination on the hearing of the appeal after considering the
arguments pro and con. The preliminary objection thus fails and
must be disallowed.
Turning to the merits of these appeals, it may be pointed out
:hat with the exception of O.P. No. 270 of 1970 filed by the husband under s. 25 of the Guardians and Wards Act all the other applications presented by the parties and disposed of by Maharajan J.,
were off-shoots of O.M.S. 12 of 1962 in which the wife had obtained a decree for judicial separation. The first contention raised
on behalf of the appellant was that O.P. No. 270 of 1970 did not
lie. It was strenuously pressed by Shri Balasubaramania Iyer the
counsel for the appellant wife that the husband's application under
s. 25, Guardians and Wards Act was not competent because none
of the children had been illegally removed from the lawful custody
of their father, the custody of the two children having been lawfully
entrusted to the wife in proceedings to which the husl:iand was a
party. It was emphasised in this connection that the custody o.f the
girl Maya and of the boy Mahesh had been lawfully entrusted to
the wife by a competent Court and unless there is actual physical
removal of the children from the custody of the father, s. 25 would
not be a(tracted.
Now the first .thing to be notified is that this objection as to
the competence of the application under s. 25 is in the nature of a
preliminary obuectian. But it was nCJI! raised either before the learned
single Judge or before the Letters Patent Bench in the manner in
whlch it is pressed before us. In this Court also in the special leave
appeal the objection seems to be based on the argument that the
Guardians and Wards Act would be inapplicable to cases where
orders have been made in matrimonial proceedings, and s. 19 of
the Guardians and Wards Act cannot
control the custody of
chlldren given by a consent decree under the Indian Divorce Act.
However, as the objection was stated to pertain to jurisdiction we
allowed the parties to address us on this point.
For determining the question of coinpetence of the husband's
application under s. 25 of the Guardians and Wards Act (18 of
1890) it is necessary to examine the scheme of that Act as also
the relevant provisions of the Indian Divorce Act. The Guardians
and Wards Act was enacted in order to consolidate and amend
the law relating to Guar<lian and Ward. But as provided by s.3,
this Act is not to be construed, inter alia, •to take away any power
possessed by any Rich Coutt.
According to s.4, which is the
definition section, a "minor" is a person who, under the provisions
of the Indian Maiority Act, 1875 is to be deemed not to have
attained his majority.
Under s. 3 of that Act this age is fixed
at 18 years, except for those, for whose person or property or both
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ROSY JACOB v. J, A. CHAKRAMAKKAL (Dua, J.)
929
a guardian has already been appointed by a court of justice (other
than a guardian for a suit under Chapter XXXI, C.P .C.) and for
whose property, superintendence has been assumed by a Court
of Wards, for whom it is fixed at 21 years. A "ward" under this
Act means a minor for whose person or property or both there
is a guardian and "guardian" is a person having the care of the
person of a minor or of his property or both. Chapter II of !his
Act ( 18 of 1890), consisting of ss.5 to 19 ( s. 5 applicable to,
European British subjects has since been repealed), deals with
the Appointment and Declaration of Guardians. Section
7
empowers !he Court to make orders as 10 guardianship where
it is satisfied that it is for the welfare of the minor that an order
should be made appointing his guardian or declaring a person to
be such guardian. Section 7 ( 3) places certain restrictions with
respect to cases where guardians have been appointed by will or
other instrument or appointed or declared by court.
Section 8
provides for persons entitled to apply under s. 7 : they include
Collectors as specified in els. ( c) and ( d).
Sections 9 to 11
provide for jurisdictioo of courts, form of applications and proce·
dure on admission ol" applications.
Section 12 provides
for
interlocutory orders subject to -certain restrictions. Next importam sections are ss. 17 and 19.
Section 17 which provide& for
the matters to be ccinsidered biY the court in appointing or
declaring guardioo reads :
"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 the welfare of the
minor, the Court shall have regard to the age, sex and
religion of the minor, character and capacity of the
proposed guardian and his nearness of kin to the minor,
the wishes, if any, of the 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."
Section 19, which prohibt the Court from appointing guardians
in certain cases, reads :
"19. Guardians not to be appointed by the Court
in certain cases :
930
SUPREME COURT REPORTS
(1973] 3 S.C.R.
Nothing in this Chapter shall authorise the Court to
appoint or declare a guardian of the property of a minor
whose property is under the superintendence of a Court
of Wards, or to appoint or declare a guardian of the
property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or delcare
a guardian of the person.
(a) of a minor who is '\ married female and whose
husband is not, in the opinion of the Court, unfit to tie
guardian of her person, or
(b) of a minor whose father is living and is not, in
the opinion of the Court, 1mfit to be guardian of the
person of the minor, or
( c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a
guardian of the person of the minor."
Chapter III ( ss. 20· to 42) prescribes duties, rights and liabilities
of guardians. Sections 20-23 (General provisions) do not concern
us. Section 20 provides for the fiduciary relationship of guardian
towards his wards and s. 22 provides for remuneration of
guardians appointed or declared by the Court.
Sections 24 to
26 deal with "Guardian of the person". Under s. 24 the guardian
is bound, inter alia, to look to his ward's support, health and
education.
Section 25 which is of importance for our purpose
provides for "Title of Guardian to custody of Ward" and reads :
"25. Title of guardian to custody of ward :
(1) If a ward leaves or is removed from the custody
of a guardian of his person, the Court, if it is of opinion
that it will be for the welfare of the ward to return
to the custody of his guardian, may make an order
for his return, and for the purpose of enforcing the order
may cause the ward to be arrested and to be delivered
into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court
may exercise the power conferred on a Magistrate of
the first class by section 100 of the Code of Criminal
Procedure, 1882.
( 3) The residence o.f a ward against the will of his
guardian with a person who is not his guardian does
not of itself terminate the guardianship."
Sections 27 to 37 deal with "Guardian's Property" and Sections
38 to 48 deal with "Termination of Guardianship". Chapter IV
( ss. 43 to 51) is the last chapter dealing with
supplementary
provisions.
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ROSY JACOB I'. J. A. CHAKRAMAKKAL (Dua, J.)
931
Now it is clear from the language of g, 25 that it is attracted
only if a ward leaves or is removed from the custody of a guardian
of his person and the Count is empowered to make an order for
the return of the ward to his guardian if it is of opinion that
it will be for the welfare of the war<l to return to the custody of
his guardian.
The Court is entrusted with a .iudicial discretion
IO order re-turn of the Ward to the custody of his guardiain, if it
forms an opinion that such return is for the ward's welfare. The
use of the words "ward" and "guardian" leave little doubt that it
is the guardian who, having the care of the person of his ward,
has been deprived of the same and is in the capacity of guardian
entitled to the custody of such ward, that can seek the assistance
of the Court for the return of his ward to his custody. The guardian
contemplated by this section includes every kind of
guardian
known to law.
It is not di~uted that, as already noticed, the
Court dealing with the proceedings for judicial separation under
the Indian Divorce Act, (4 of 1869) had made certain orders
with respect to the custody, mai•ntenancc and education of the
'three children of the parties.
Section 41 of the Divorce
Act
empowers the Court to make interim orders with respect to the
minor children and also to make proper provision to that effect
in the decree : s. 42 empowers the Court to make similar orders
upon application (by petition) even after the decree.
This
section expressly embodies the legislative
recognition
of
the
,fundamentol rule that !he Court as representing the State is vested
with the power as also the duty and responsibility of making
>uitable orders for the custody, maintenance and education of
the minor children to suit the changed conditions and circumstances.
It is, however, noteworthy that under Indian Divorce
Act the sons of Indian fathers cease to be minors on attaining
the age of 16 years and !heir daughters cease to be minors on
attaining the age of 13 years: s. 3(5). The Court under the
Divorce Act would thus be incompetent now to make any order
under ss. 41 and 42 with respect to the elder son and
the
dau~hter in the present case.
According to the respondenthusband under these circumstances he cannot approach the Court
under the Divorce Act for relief with respect to the custody of
these children and now that those children have ceased to be
minors under that Act, the orders made by that Court have also
lost their vitality
On this reasoning the husband claimed the
right to invoke s. 25 of the Guardians and Wards Act : in case
this section is not applicable, then the huslland contended that
his application (0.P. 270 of 1970) ~hould be treated to be an
application under s. 19 of the Guardians and
Wards Act or
under auy other competent section of that Act so that he could
get the custody of his children, denied to him by the wife.
The label on the application, he argued, should be treated as
932
SUPREME COURT REPORTS
(1973] 3 S.C,R.
a matter of mere form and, therefore, immaterial. The appellant's
counsel on the other hand contended that the proper procedure
for the husband to adopt was to apply under s. 7 of the Guardians
and Wards Act. Such an application, if made, would have been
tried in accordance with the provisions of that Act. The counsel
added that ss. 7 and I 7 of that Act also postulate welfare of
the minor in the circumstainces of the case, as the basic
and
primary consideration for the Court to keep in view when appointing or declaring a guardian.
The welfare of the minors in the
present case, according to the wile, would be best served if they
remain in her custody.
In our opinion, s; 25 of the Guardians
and
Wards Act
corrtemplates not only actual
physical
custody but also constructive
custody of the
guardian
which term includes
all
categories or guardians. The ob/iect and purpose of this provision
being ex facie to ensure the welfare of the minor ward, which
necessarily involves due protection of the right of his guardian
to properly
look after the
ward's health,
maintenance
and
education, this section demands reasonably liberal i!fterpretation so
as to effectuate that object.
Hyper-technicalities should not be
allowed to deprive the guardian lhe necessari assistance from
the Court in effectivtily discharging his duties and obligations
towards his ward so as to promote the latter's welfare.