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High Court Of Calcutta
A. M. BHATTACHARJEE, AJIT KUMAR NAYAK
SIBANI BANERJEE - Appellant
Versus
TAPAN KUMAR MUKHERJEE - Respondent
F. M. A. 623 Of 1988
Decided On : 03/08/1989
CUSTODY OF CHILD - GUARDIANSHIP - SECTIONS 25 AND 38 OF GUARDIANS AND WARDS ACT, 1890 AND SECTION 39-A OF SPECIAL MARRIAGE ACT, 1954 - Where a decree for divorce by mutual consent under Section 28 of the Special Marriage Act, 1954, provides for the custody of the child, the guardian cannot unilaterally and extra-judicially alter or revoke such custody, but can only move the Court which passed the decree or order for revocation, variation or suspension of the order, as provided under Section 38 itself. A guardian cannot invoke the provisions of Section 25 of the Guardians and Wards Act solely for the purpose of alteration or revocation of an order of custody made by a competent Court, even if such revocation or alteration is proved to be necessary for the welfare of the minor.
Fact of the Case:
The appellant and respondent, who were married under the Special Marriage Act, 1954, filed a joint petition for dissolution of their marriage by mutual consent. The petition was decreed, and the terms of the joint petition were incorporated into the decree. One of the terms of the petition was that the custody of the child, who was then aged 5 years and a few days, would remain with the mother till the child attained majority. The respondent-father was given the opportunity to meet the child on every Sunday for 2 hours at the residence of a named common friend. The appellant-mother failed to comply with this part of the order, and the respondent-father filed a petition under Section 25 of the Guardians and Wards Act, 1890, seeking custody of the child.
Finding of the Court:
The High Court held that the respondent-father could not invoke the provisions of Section 25 of the Guardians and Wards Act to seek custody of the child, as the custody of the child had been granted to the appellant-mother by an order of the competent Court. The Court further held that the appellant-mother could not unilaterally and extra-judicially alter or revoke the order of custody, but could only move the Court which passed the decree or order for revocation, variation or suspension of the order, as provided under Section 38 of the Special Marriage Act.
Issues: 1. Whether a guardian can unilaterally and extra-judicially alter or revoke an order of custody made by a competent Court? 2. Whether a guardian can invoke the provisions of Section 25 of the Guardians and Wards Act solely for the purpose of alteration or revocation of an order of custody made by a competent Court?
Ratio Decidendi: 1. A guardian cannot unilaterally and extra-judicially alter or revoke an order of custody made by a competent Court, but can only move the Court which passed the decree or order for revocation, variation or suspension of the order, as provided under Section 38 of the Special Marriage Act. 2. A guardian cannot invoke the provisions of Section 25 of the Guardians and Wards Act solely for the purpose of alteration or revocation of an order of custody made by a competent Court, even if such revocation or alteration is proved to be necessary for the welfare of the minor.
Final Decision: The High Court allowed the appeal, set aside the impugned order, and made it clear that this would not prevent the respondent-father from taking such steps as he may be advised for the enforcement of the terms of the earlier order relating to custody as provided in Section 39-A of the Special Marriage Act or for revocation, suspension or variation of the order as provided in Section 38 of the Special Marriage Act.
( 1 ) WHILE decreeing dissolution of the marriage between the parties by mutual consent under S. 28 of the Special Marriage Act, 1954, in terms of the joint-petition filed by the parties, the Court made the said petition also a part of the decree. As a result, it was also decreed, as agreed between the parties in paragraph 5 of the joint-petition, that "the custody of the child", then aged 5 years and few days, "will remain with the mother till the child attains majority", that "for the purpose of education of the said child, the petitioner (here, the mother-appellant) will act as the guardian till the age of majority of the child and the respondent (i. e. the father) cannot have any objection in the matter", but that "for all other purposes, the respondent shall remain the natural guardian". It was also agreed, and accordingly decreed, that the respondent shall have the opportunity to meet the child "on every Sunday for 2 hours from 10 a. m. to 12 noon" at the residence of a named common friend and "the petitioner, i. e. the mother and/or her representative shall take the child at 10 a. m. " at the said place on every Sunday "without fail".
( 2 ) IN the petition, labelled as one under S. 25 read with S. 12 of the Guardians and Wards Act, 1890, whereon the impugned order assailed in this appeal has been passed, the respondent, the quondam-husband, has prayed that the appellant, the quondam wife, be directed to produce the minor child before the Court and that necessary orders be passed enabling the respondent to keep the minor in his custody. The petition is based mainly on two grounds, namely, the appellant-mother has failed and neglected to comply with that part of the Order requiring her to make the child available to the respondent-father every Sunday at the agreed place, and that such an Order is necessary for the welfare of the child, who is not being properly looked after by the appellant-mother who has married again and is now residing with her second husband at the latter's place of residence. The respondent has also admitted about his own second marriage and a further affidavit has been filed before us by the appellant, after the conclusion of arguments, alleging that the said second wife has also died as a result of poisoning and while the appellant has alleged the same to be a case of suicide, there is an oblique hint that the local people claim that the second wife was murdered by the respondent and/or his family members. In view of the order that we propose to pass for the reasons stated hereunder, we need not and do not take any notice of this alleged subsequent event sought to be introduced by the said further affidavit.
( 3 ) IF the respondent is aggrieved because of the appellant's failure to comply with that portion of the Order forming part of the decree for divorce requiring the appellant to make the child available to the respondent every Sunday for 2 hours at the agreed place, he has his remedy under S. 39-A of the Special Marriage Act, whereunder all decrees and orders made by the Court in any proceeding under Chaps. V and VI of the Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its Original Civil Jurisdiction for the time being are enforced. No remedy, therefore, can obviously lie under S. 25 of the Guardians and Wards Act, which can be invoked only for the return of a child who has left or is removed from the custody of a guardian of his person.
( 4 ) HERE the custody of the child was given to the appellant-mother under the order of the Court. True, the order was passed on the basis of mutual agreement between the parties, but the same having been made part of the decree, no longer rests on agreement alone. It is true that if a guardian by voluntary agreement vests another person with the custody of his child, he may revoke such an agreement. This is settled law since the leading decision of the Privy Council in Annie Bes
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