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IN THE HIGH COURT OF CALCUTTA
SABYASACHI BHATTACHARYYA, J.
RAMIT KUMAR DEY - Appellant
Versus
RITUPARNA DEY (SINGHA) AND ANOTHER - Respondent
Civil Order No. 21 of 2019
Decided on : 24-01-2019
Guardianship - Custody of Minor - Guardians and Wards Act, 1890, Section 8, 10, 12, 14, 19, 25 - The court discussed the provisions of the Guardians and Wards Act, 1890, particularly Sections 8, 10, 12, 14, 19, and 25, and their interpretation in the context of custody and guardianship of a minor. The court emphasized that the proceedings under Section 25 for custody of a minor cannot be equated to proceedings for appointment or declaration of a guardian as envisaged in Section 14 of the Act. The court also highlighted the welfare of the minor as the paramount consideration in custody matters and the distinction between custody and guardianship.
Fact of the Case:
The case involved a dispute between the parents and paternal grandmother of a minor girl regarding guardianship and custody. Two cases were pending, one filed by the grandmother under Sections 8 and 10, read with Section 25 of the Guardians and Wards Act, 1890, and the other filed by the mother under Section 25 of the Act. The father filed a revisional application against the dismissal of his application under Section 14 of the Act.
Finding of the Court:
The court found that the proceedings under Section 25 for custody of a minor cannot be considered as proceedings for appointment or declaration of a guardian as envisaged in Section 14 of the Guardians and Wards Act, 1890. The court affirmed the order of the trial court and dismissed the revisional application.
Issues: The main issue was whether the proceedings under Section 25 of the Guardians and Wards Act, 1890 could be construed as 'proceedings for the appointment or declaration of a guardian of a minor' as envisaged in Section 14 of the Act.
Ratio Decidendi: The court emphasized that the welfare of the minor is the paramount consideration in custody matters and that the proceedings under Section 25 for custody of a minor cannot be equated to proceedings for appointment or declaration of a guardian as envisaged in Section 14 of the Act.
Final Decision: The court affirmed the order of the trial court and dismissed the revisional application, stating that the proceedings under Section 25 for custody of a minor cannot be considered as proceedings for appointment or declaration of a guardian as envisaged in Section 14 of the Guardians and Wards Act, 1890.
SABYASACHI BHATTACHARYYA, J.
1. The sparring parties in the present revisional application are primarily the parents and paternal grandmother of a three-and-half year old girl named 'Aashna'. The petitioner is the father, the opposite party no. 1 the mother and the proforma opposite party no. 2 the paternal grandmother of the child.
2. Two cases are pending between the parties pertaining to guardianship and custody of the child respectively. The proforma opposite party no. 2 filed an application under Sections 8 and 10, read with Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as "the 1890 Act"), which was registered as Act VIII Case No. 10 of 2018, now pending before the Additional District Judge, First Court at Chinsurah, Hooghly Sadar. The prayer in the said proceeding is set out below:
"In the above circumstances your Honour may graciously be pleased to admit this application for custody of the minor and also appointment of Guardianship of the minor and after due hearing of the parties your Honour may kindly be pleased to appoint your petitioner as Guardian of the minor Aashna Dey and may pass further order/orders as your Honour may deem fit and proper for the ends of justice."
3. On the other hand, the present opposite party no. 1, being the mother of the child, filed an application under Section 25 of the 1890 Act, praying for the following reliefs:
"(a) An order directing the O.P.'s to handover the custody of the Aashma Dey in favour of the petitioner.
(b) An order for the cost of the proceeding against the O.P.'s.
(c) Any other relief or reliefs as per law and equity."
The said proceeding was registered as Act VIII Case No. 24 of 2018 and is at present pending before the Additional District Judge, First Fast Track Court at Chinsurah, District: Hooghly.
4. Both the said proceedings are being contested by the respective respondents by filing written statements.
5. The child is now residing with the petitioner and the proforma opposite party no. 2.
6. The opposite party no. 1, in her proceeding for custody of the child, also filed an application under Section 12 of the 1890 Act, seeking interim custody of the minor.
7. Upon an order being passed on the said application, the same was challenged in C.O. No. 3921 of 2018, which was disposed of by this court by setting aside the impugned order and directing the trial court to re-hear the application for interim custody and to adjudicate the same afresh. Certain observations pertaining to such re-hearing were also made therein, which have no direct relevance to the present case.
8. Subsequently, the present petitioner-father took out an application under Section 14 of the 1890 Act, read with Section 151 of the Code of Civil Procedure, praying for stay of the proceedings in Act VIII Case No. 24 of 2018, upon being apprised of pendency of Act VIII Case No. 10 of 2018, pending before a different court. The opposite party no. 1 contested the said application by filing a written objection thereto. Vide Order No. 17 dated December 19, 2018, the application under Section 14 of the 1890 Act, filed by the petitioner, was dismissed as misconceived and misdirected. By a later order passed on the same date, the court fixed a subsequent date for re-hearing of the application for interim custody without accommodating the adjournment prayer made by the petitioner.
9. The present revisional application has been preferred by the father/petitioner against the said order of dismissal of the application under Section 14 of the 1890 Act.
10. The trial court proceeded on the premise that Act VIII Case No. 24 of 2018 was for restoration of custody and was not one for appointment or declaration of guardianship of a minor, for which Section 14 was not applicable.
11. The trial court also held that since an application for transfer under Section 24 of the Code of Civil Procedure was pending before the District Judge at Hooghly, for analogous hearing of the two proceedings, the two pr
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