Back
High Court Of Calcutta
A. M. BHATTACHARJEE, AJIT KUMAR NAYAK
RAJ KUMAR GUPTA - Appellant
Versus
BARBARA GUPTA - Respondent
A. F. O. O. 118 Of 1988
Decided On : 07/21/1988
GUARDIANSHIP - HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - SECTION 6 - CUSTODY OF CHILD - MOTHER - RELIGION - PROVISO TO SECTION 6 - WHETHER ULTRA VIRES ARTICLE 15 OF THE CONSTITUTION - WELFARE OF THE MINOR - PARAMOUNT CONSIDERATION.
Fact of the Case:
A Hindu father filed an application under Section 25 of the Guardians and Wards Act, 1890, against his Christian wife for an order for the return of their minor daughter, then aged about 21/2 years, to his custody on the allegation that the child "was taken away from his lawful custody" by the wife.
Finding of the Court:
The Court held that the child being a Hindu, the question relating to its guardianship and custody and wardship would be governed by the Hindu Minority and Guardianship Act of 1956 super-added to the provisions of the Guardians and Wards Act of 1890, as provided in Section 2 of the former Act. The Court further held that the proviso to Section 6 of the Hindu Minority and Guardianship Act, which provides that no person shall be entitled to act as a natural guardian of a minor under the provisions of this Section - (a) if he has ceased to be a Hindu, is ultra vires Article 15 of the Constitution. The Court also held that the welfare of the minor is the paramount consideration in all matters relating to guardianship and custody.
Issues: 1. Whether the child is a Hindu and, therefore, governed by the Hindu Minority and Guardianship Act, 1956? 2. Whether the proviso to Section 6 of the Hindu Minority and Guardianship Act, which provides that no person shall be entitled to act as a natural guardian of a minor under the provisions of this Section - (a) if he has ceased to be a Hindu, is ultra vires Article 15 of the Constitution? 3. Whether the welfare of the minor is the paramount consideration in all matters relating to guardianship and custody?
Ratio Decidendi: 1. The Court held that the child is a Hindu and, therefore, governed by the Hindu Minority and Guardianship Act, 1956, on the following grounds: * The child has a Hindu father. * The child was brought up as a member of the Hindu community. * The child bears a Hindu surname and a Hindu name. 2. The Court held that the proviso to Section 6 of the Hindu Minority and Guardianship Act, which provides that no person shall be entitled to act as a natural guardian of a minor under the provisions of this Section - (a) if he has ceased to be a Hindu, is ultra vires Article 15 of the Constitution on the following grounds: * The proviso violates the right to equality and is ultra vires Article 15 of the Constitution countermanding any discrimination on the ground of religion. * The proviso is in conflict with the Caste Disabilities Removal Act of 1850, which provides that "so much of any law or usage now in force within India as inflicts on any person forfeiture of rights or property, by reason of his or her renouncing, or having been excluded from the communion of any religion, or being deprived of caste, shall cease to be enforced as law in any Court". 3. The Court held that the welfare of the minor is the paramount consideration in all matters relating to guardianship and custody on the following grounds: * The welfare of the minor is the first and paramount consideration in any proceedings before any Court, concerning the custody or upbringing of an infant. * The legal right of the parents to the minor's guardianship and custody is not the decisive factor in matters relating to retention or restoration of custody.
Final Decision: The Court upheld the order of the trial Judge, which dismissed the father's application for the return of the child to his custody. The Court also maintained the other directions given by the trial Judge about the right of the appellant-father to visit the child and about the respondent-mother to furnish to the trial court her address where she would be staying with the child and about the parties applying to the court giving their suggestions as to the day of the week, time and place where the appellant-father can meet the child in the presence of the mother-respondent or any other person on her behalf.
( 1 ) A husband filed an application under S. 25, Guardians and Wards Act, 1890, against his wife for an order for the return of their minor daughter, then aged about 21/2 years, to his custody on the allegation that the child "was taken away from his lawful custody" by the wife and the application having been dismissed, the husband has preferred this appeal.
( 2 ) HOWEVER anachronistic it may appear to be, even to-day in India, proclaimed to be "secular" in its National Charter and mandated thereby almost four decades ago to secure to all its citizens a Uniform Civil Code, "religion" is still being allowed to have a dominant and decisive role even in secular matters relating to law and its administration and the rights and status of a person in matters relating to marriage, succession, guardianship and the like still depend on the religion he would belong to. The husband here is a Hindu, the wife a Christian and they were married under the Special Marriage Act, 1954. What religious community the child would then belong to? The question appears to have been authoritatively settled by both our pre-independence and post-independence Apex Courts, the Judicial Committee of the Privy Council and the Supreme Court of India. In Helen Skinner v. Sophia Evelina Orde, (1871) 14 Moo Ind App 309 at p. 323, decided in 1871, it was ruled that "from the very necessity of the case, a child in India, under ordinary circumstances, must be presumed to have his father's religion and his corresponding civil and social status". A five-Judge Bench of the Supreme Court in Commr. of Wealth Tax v. R. Sridharan, (1976) 4 SCC 489, decided in 1976, has virtually reproduced the above quoted words almost verbatim, but has referred to Mayne's Hindu Law (11th Edition, page 290) as authority for this view. But in Mayne's Hindu Law, the above observation in Helen Skinner (supra) was quoted with quotation marks, citing Helen Skinner (supra) as the authority therefor and, therefore, if we may say with respect, the real authority for this view is not the Mayne's Treatise, but Helen Skinner (supra ). Reference, if need be, may also be made to an old Division Bench decision of the Madras High Court in Queen-Empress v. Veeradu, (1894) ILR 18 Mad 230 at p 232 where also it was held that "children. . . . . . . . . . . . are in law presumed to follow their father's religion".
( 3 ) WE would also come to the same conclusion on a consideration of the relevant provisions in S. 3, Hindu Minority and Guardianship Act, 1956, which again are in pari materia with the corresponding provisions in S. 2, Hindu Marriage Act, 1955, and the Hindu Succession Act and the Hindu Adoption and Maintenance Act of 1956. Under S. 3 (3), Hindu Minority and Guardianship Act, the expression "hindu" in the Act shall include all persons to whom the Act would apply under S. 3 (1) and under S. 3 (1) (c), the Act would apply "to any. . . . . . . . . person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by Hindu law if this Act had not been passed". Now the child being a minor must have its further's Indian domicile. It is nobody's case that the child is a Muslim Parsi or Jew by religion. Neither the father nor even the Christian mother claims the child to be a Christian by religion. And the Privy Council decision in Helen Skinner (supra) and the Supreme Court decision in R Sridharan (supra) are clear authorities that under the Hindu Law as it stood before this Act, the child would have, under ordinary circumstances, belonged to its father's Hindu religion and would have been governed by Hindu Law. The child, therefore, is a Hindu within the meaning of the Hindu Minority and Guardianship Act in view of its S. 3 (1) and (3), notwithstanding its Christian mother.
( 4 ) THE same conclusion would also be arrived at on a consideration of the Expl
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
