1. Application for custody of a minor under Section 25, Guardians and Wards Act, 1890 — Dispute between biological parents and long-term caregivers. (Para 1 , 2 )
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1965 Supreme(SC) 255
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH AND S.M. SIKRI, JJ.
Gulab Bai and another, Appellants
Versus
Puniya, Respondent.
Civil Appeal No. 729 of 1964.
Advocates appeared
Mr. O. P. Varma, Advocate, for Appellants; Mr. Mohan Behari Lal, Advocate, for Respondent.
Advocates:
MOHAN BEHARI LAL, O.P.Varma
MOHAN BEHARI LAL, O.P.Varma
Section 48 of the Guardians and Wards Act, 1890, ensures the finality of trial court orders subject to Section 47 and Section 115 CPC, but it does not bar further appeals from a single judge to a division bench under High Court rules or Letters Patent.
Headnote:(A) Guardians and Wards Act, 1890 - Sections 47 and 48 - High Court Ordinance - Clause 18(1) - Finality of orders - Whether a provision declaring orders under the Act to be final, subject to appeal under Section 47, bars a further appeal from a single judge to a division bench under the High Court's internal rules - Section 48 attaches finality to orders passed by the trial court, subject to appeals under Section 47 or revisions under Section 115 of the Code of Civil Procedure - An order passed on appeal under Section 47 is outside the purview of the finality prescribed for trial court orders - Such a provision does not restrict the competence of an appeal before a division bench if the first appeal was heard by a single judge. (Paras 9, 10)
(B) Letters Patent Appeal - Finality clauses in statutes do not generally preclude appeals provided by the Letters Patent of a High Court unless expressly prohibited. (Paras 13, 14, 15)
Facts of the case:
A father applied for the custody of his minor daughter. The trial court, considering the child's welfare and preference, appointed the current caretakers as guardians. This decision was reversed by a single judge of the High Court, who ordered the child's return to the parents. A subsequent appeal to a division bench was dismissed on the ground that it was incompetent due to the finality clause in the governing Act.
Findings of Court:
The High Court erred in concluding that the appeal to the division bench was incompetent. The finality clause in the Act applies to trial court orders and does not bar appeals from a single judge to a division bench under the High Court Ordinance.
Issues: Whether the High Court was correct in holding that an appeal under the High Court Ordinance was incompetent in light of the finality provisions in Sections 47 and 48 of the Guardians and Wards Act, 1890.
Ratio Decidendi: The court held that Section 48 of the Act makes orders of the trial court final, subject to the results of appeals under Section 47 or revisions under Section 115 of the Code of Civil Procedure. Since the order being challenged was an appellate order passed by a single judge, it fell outside the scope of the finality prescribed for trial court orders. Consequently, the competence of the appeal to the division bench must be judged by the High Court Ordinance itself.
Result: Appeal allowed.
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Table of Contents
2. Whether an appeal to a Division Bench under the High Court Ordinance is incompetent due to the finality clause in Section 48, Guardians and Wards Act. (Para 6 , 7 , 9 )
3. Section 48 attaches finality to trial court orders subject to Section 47 appeals and Section 115 revisions, without restricting subsequent appeals under the High Court Ordinance. (Para 8 , 9 , 10 , 11 , 13 , 14 , 15 )
4. A statutory provision declaring orders final, subject to a specific appeal, does not preclude a further appeal to a Division Bench under the Letters Patent or Ordinance. (Para 10 , 15 )
5. Appeal allowed — Order of the Division Bench set aside — Matter remitted to the High Court for disposal in accordance with law. (Para 16 )
6. Does Section 48 of the Guardians and Wards Act, 1890, bar appeals to a Division Bench under the High Court Ordinance?
No. Section 48 makes trial court orders final subject to Section 47 appeals and Section 115 CPC revisions. It does not restrict the competence of an appeal to a Division Bench under the Ordinance when the initial appeal under Section 47 was heard by a single judge. (Para 9 , 10 )
7. How should the finality clause in Section 48 of the Guardians and Wards Act be interpreted in relation to Section 47?
Section 48 expressly saves the provisions of Section 47. This means Section 47 operates in an ordinary way without restrictions imposed by Section 48, ensuring that orders appealable under Section 47 remain subject to the appellate process. (Para 9 , 10 )
8. Does a statutory provision making appellate orders final preclude an appeal under the Letters Patent of a High Court?
Generally, no. Based on judicial consensus and Privy Council observations, provisions making certain appellate orders final do not typically preclude an appeal from a single judge to a full court or Division Bench under the Letters Patent. (Para 13 , 14 , 15 )
Judgement
GAJENDRAGADAKAR, C.J.I.: This appeal by special leave arises from an application made by the respondent Puniya in the Court of the Senior Civil Judge at Jhalawar under S. 25 of the Guardians and Wards Act, 1890 (No. 8 of 1890) (hereinafter called the Act ), for the custody of his daughter Mt. Chitra. To this application, the respondent had impleaded the two appellants, Gulab Bai and her husband Onkar Lal. The respondent is a Kumhar by caste, whereas the appellants are Jat. The respondent s case was that the minor Chitra who was about 11 years of age at the date of the application, had been living with the appellants for the last 4 or 5 years with his consent. Whilst the minor girl was living with the appellants, she used to come to spend some time with the respondent and his wife; but for some time past, the appellants did not allow Chitra to visit her parents. That is why the respondent thought it necessary to move the Court for an order under S. 25 of the Act.
2. The claim thus made by the respondent was disputed by the appellants. They alleged that the respondent and his wife had lost some children in their infancy, and so, they decided to leave the minor in the custody of the appellants in the hope that their custody would save the child. Accordingly, the minor was entrusted to the Appellants a few hours after her birth and in fact, she was given away by the respondent and his wife to the appellants to be looked after as if she was their adopted child. During all these years, the appellants have looked after the minor as their own child, have taken fond care of her, and have looked after her education. The appellants and the respondent and his wife are neighbours, and the appellants denied the allegation made by the respondent that they ever obstructed the minor from visiting her parents. According to the appellants, recently an unfortunate incident had taken place between appellant No. 1 and the wife of the respondent and that was the real cause of the present application. They pleaded that as a result of the ugly incident that took place between the two ladies, the minor was frightened and appeared to be disinclined to visit her parents any longer.
3. On these pleadings, the parties led evidence to support their respective contentions. The learned trial Judge held that the child had been entrusted to the appellants soon after she was born, and that she was looked after by the appellants as if she was their daughter. He felt satisfied that in case the child was removed from the homely atmosphere which she enjoyed in the house of the appellants that would definitely be detrimental to her welfare and would also affect her health, because she had come to look upon the appellants as her parents. The learned trial Judge examined the child in order to ascertain her own wishes, because he thought that she had attained the age of discretion and could express her wishes intelligently. He was convinced that the child definitely preferred to stay with the appellants. Having come to the conclusion that it would be inconsistent with the interest of the child to allow the application made by the respondent, the learned Judge ordered that appellant No. 2 should be appointed the guardian of the person of the minor under Ss. 7 and 8 of the Act. He directed that the said guardian shall give an undertaking to the Court not to remove the child from the territorial jurisdiction of the Court and not to marry her without the permission of the Court. A direction was also issued that the child shall not, of course, be married outside her caste without the consent of her parents even if she so desires.
4. Against this order, the respondent preferred an appeal before the Rajasthan High Court. This appeal was heard by a learned single Judge of the said High Court who reversed the decision of the trial Judge. He came to the conclusion that it would be in the interests of the minor to deliver her to the custody of the respondent and his wife. He
