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1980 Supreme(Del) 27
High Court Of Delhi
OM PRAKASH - Appellant
Versus
CHILD WELFARE BOARD - Respondent
First Appeal Order 192 of 1976
Decided On : 02/01/1980
Arya Girdhari, P.D.BHARGAV
The Child Welfare Board has the statutory authority to determine the custody of neglected children, and its decisions cannot be challenged through an application under Section 10 of the Guardians and Wards Act, 1890.
Headnote:
CHILD WELFARE BOARD - CUSTODY OF NEGLECTED CHILD - APPLICATION UNDER SECTION 10 OF THE GUARDIANS AND WARDS ACT, 1890 - MAINTAINABILITY - CHILD WELFARE BOARD ACT, 1960, SECTIONS 2(E), 2(G), 2(H), 4, 9(3), 15(2), 16(1), 16(3), 33, 37, 38, 40 - GUARDIANS AND WARDS ACT, 1890, SECTION 10 - SUMMARY DISMISSAL OF APPEAL.
Fact of the Case:
Om Prakash filed an application under Section 10 of the Guardians and Wards Act, 1890, claiming custody of a neglected child, Rajesh, who was in the custody of the Child Welfare Board. The Board had placed Rajesh in an SOS children's home after the death of his foster parents, Manak Lal Vohra and Chandra Kanta. Om Prakash claimed that he had adopted Rajesh and was responsible for his upbringing.
Finding of the Court:
The District Judge dismissed Om Prakash's application, holding that he was not a fit person to have custody of Rajesh. The court considered Om Prakash's age, his potential remarriage, and the lack of a stable home environment as factors that would not be in the best interests of the child. The court also noted that Rajesh was well-cared for and happy in the SOS children's home.
Issues: 1. Whether an application under Section 10 of the Guardians and Wards Act, 1890, is maintainable against the Child Welfare Board in respect of a neglected child in its custody. 2. Whether Om Prakash was a fit and proper person to be granted custody of Rajesh.
Ratio Decidendi: 1. The Child Welfare Board is a statutory body charged with the duty of caring for neglected children. The Board has the power to place a neglected child in the custody of a suitable person or institution. An application under Section 10 of the Guardians and Wards Act, 1890, cannot be invoked by an aggrieved person to challenge the Board's decision regarding the custody of a neglected child. 2. The paramount consideration in determining the custody of a child is the child's welfare. In this case, the District Judge found that Om Prakash was not a fit and proper person to be granted custody of Rajesh. The court considered Om Prakash's age, his potential remarriage, and the lack of a stable home environment as factors that would not be in the best interests of the child.
Final Decision: The appeal was dismissed.
( 1 ) THIS is an appeal from the order of the District Judge dated August II, 1976, under section 47 of the Guardians and Wards Act, 1890.
( 2 ) THE real question in this appeal is about the custody of a male child called Rajesh. He is today 13 years of age. He was a "neglected child". He had no home. There was no one to look after him. The Child Welfare Board, a body constituted under the Children Act, 160 (the Act) took the child into their care and custody. On August 22, 1966, the Board gave the child to one Manak Lal Vohra and his wife Chandra Kanta for keeping him in their foster care. They had no male child. Rajesh was then 13 days old. Manak Lal and his wife brought upp the child with parental care. He became the centre of their leve and affection. He remained in their custody till 1975.
( 3 ) MANAK Lal died on February 22, 1972. After his death, his wife Chandra Kanta took care of the child. On August 18, 1975 she died. On October 15, 1975, the Chairman of the Board made an order for taking back the child into their custody. Since then the child is with the Board. They have placed the child in an institution known as SOS (Save Our Souls ). SOS is a children s home. It is a social service agency. They arc keeping children in a village near Green Fields in Faridabad. They have. erected huts. Sisters of the mission are in charge of the children. The children arc well looked after by the sister. They are being educated.
( 4 ) ONE Om Prakash made an application under Section 10 of the Guardians and Wards Act to the District Judge for the custody of this child Rajesh. He claimed that Manak Lal had adopted Rajesh and after his death he married his wife Chandra Kanta and it was he who was really responsible for the upboringing of the child. This was the main ground of his claim. The Board contested the claim. The learned District Judge rejected the claim on the ground that he was not a fit person, Om Prakash is a young man of 32 years of age. He may remarry. He may not. If he remarries he will have children of his own. If he does not, there will be no one to look after the child in the house. Therefore it cannot be said that v is in the interest of the child that he should be handed over to Om Prakash. This was the main consideration which weighed with the District Judge in declining custody to Om Prakash
( 5 ) THERE was yet another reason. Manak Lal, it appears, had great love for the child. He made a will in favour of Rajesh. He has bequeathed property worth a lakh of rupees to this child. The Board objected to the claim of Om Prakash also on the ground that he was mainly interested in securing for himself the property of the child. They pleaded that custody of the child should not be given to Om Prakash.
( 6 ) WHILE considering the question of fitness the District Judge commonted on the marriage of Om Prakash with Chandra Kanta, a woman much senior to him in years and her death ultimately in mysterious circumstances. It was also given in evidence that Om Prakash had a love affair with a girl in Billimaran. In all the circumstances of the case and keeping before him the pre-eminent consideration of well- being of the child the learned District Judge came to the conclusion that he ought to decline custody to Om Prakash. In my opinion his decision is right, In all these cases welfare of the child is the paramount consideration. The learned judge has considered the welfare of the child and has come to the conclusion that he should remain with the SOS where he is being properly looked after at present. The chairman of the Board has made an affidavit saying that the child is happy in the foster care of the SOS. He is studying in the 7th class in Govt. Higher Secondary School, Lodbi Road, New Delhi.
( 7 ) ONE other question arises. It is about the maintainability of the application under Section 10 of the Guardians and Wards Act. In my opinion, no such application lies against the Child Welfare Board. The B
