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2016 Supreme(Mad) 1808
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SATHYANARAYANAN, J.
A. Aniswar, - Petitioner
Versus
Union of India - Respondents
W.P. No.15628 of 2016 & W.M.P.Nos.13581 & 13582 of 2016
Decided On : 27-06-201
For the Appellant : Mr.S.Ramesh
For the Respondent: Mr.V.Venkatesan SCGSC
The main legal point established in the judgment is the recognition of the mother as the natural guardian of a minor child, especially in cases where the father has not exhibited any concern for the child's welfare.
Headnote:
Natural Guardianship - Custody of Minor - Hindu Marriage Act, 1955, Guardians and Wards Act, 1890 - The court discussed the concept of natural guardianship and custody of a minor child in the context of the Hindu Marriage Act, 1955 and the Guardians and Wards Act, 1890. It highlighted the rights of both parents as natural guardians and the role of the mother as the primary custodian of a child born outside of wedlock. The court's decision was influenced by the interpretation of these legal provisions and the recognition of the mother as the natural guardian of the minor.
Fact of the Case:
The petitioner, a minor, sought to challenge an order refusing to issue an Overseas Citizen of India (OCI) Card due to the absence of custody papers granting custody to the mother. The petitioner's mother, an Indian citizen, had filed for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, and was granted an exparte decree of divorce. The petitioner's father, a Malaysian citizen, did not contest the divorce, and the petitioner's custody remained with the mother.
Finding of the Court:
The court found that the custody of the petitioner remained with the mother, and there was no impediment to considering the application for the OCI Card. It set aside the impugned order and directed the second respondent to process the application expeditiously.
Issues: The issues involved the custody of the minor petitioner and the interpretation of legal provisions related to natural guardianship and custody in the context of the Hindu Marriage Act, 1955 and the Guardians and Wards Act, 1890.
Ratio Decidendi: The court relied on the interpretation of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, and the recognition of the mother as the natural guardian of the minor. It also considered the rights of both parents as natural guardians and the role of the mother as the primary custodian of a child born outside of wedlock.
Final Decision: The Writ Petition was allowed, the impugned order was set aside, and the second respondent was directed to consider the application for the OCI Card and process it expeditiously.
By consent, the Writ Petition is taken up for final disposal.
2. The deponent of the affidavit, is mother of the minor, namely, A.Aniswar. The deponent would state that she is an Indian Citizen holding an Indian Passport No.NN0276593. The marriage between the deponent and one Asok Kumar was solemnized as per the Hindu Rights and Customs on 28.08.1998 at Trichy and the husband of the deponent is a Malaysian Citizen, holding Malaysian Passport. After the marriage, for a brief period, the mother and father of the petitioner lived at Chennai and thereafter, shifted to Malaysia and there the petitioner was born on 10.02.2000. On account of difference of opinion between the mother and father of the petitioner, his mother filed a petition for divorce in F.C.O.P.No.2923 of 2006 on the file of the First Additional Family Court, Chennai under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. The father of the petitioner, who was arrayed as respondent in the above cited proceedings, remained exparte and therefore, an exparte decree of divorce came to be passed on 22.02.2007. According to the petitioner, the respondent father of the petitioner herein did not take steps to set aside the exparte decree and it has become final.
3. It is further stated in the affidavit filed in support of this petition that the petitioner was issued with “Person of Indian Origin Card” [PIO] bearing reference No.PO307767. The respondents herein vide notification dated 09.01.2015 in F.No.26011/01/2014-IC.I stated that from the date of the publication of the notification, all the persons holding the PIO Card, shall be deemed to be Overseas Citizen of India Card Holders. Therefore, it is insisted that all the existing PIO Card Holders will have to submit for registration as OCI Card Holders on or before 31.03.2016. Accordingly, the petitioner had submitted his application to the second respondent in FRRO Ref.No.16840 on 22.02.2016 along with all the necessary and relevant documents. However, the second respondent vide communication dated 22.04.2016 bearing reference No. FRRO Chennai Ref.No.16840, had returned the application stating that the petitioner will have to produce custody papers granting custody in favour of his mother deponent of the affidavit and challenging the illegality of the order, came forward to file this Writ Petition.
4. The learned counsel appearing for the petitioner has drawn the attention of this Court that the word “natural guardianship” includes both the mother and the father. Even in the judgment dated 15.11.2006 in F.C.O.P.No.2923 of 2006 on the file of the First Additional Family Court, Chennai, the fact of the custody of the petitioner with his mother, has been stated and the respondent father of the petitioner in the said Original Petition did not take any steps to set aside the exparte decree for divorce and it has become final and therefore, it can be safely construed that the deponent of the affidavit, mother of the petitioner, is having his custody and prays for setting aside the impugned order with a further direction directing the second respondent for issuance of PIO Card. The learned counsel appearing for the petitioner, in support of his submissions, placed reliance upon the judgment in ABC VS. State [NCT OF Delhi] [(2015) 10 SCC 1 : 2015 7 Scale 480].
5. Per contra, Mr.V.Venkatesan, learned Senior Central Government Standing Counsel, who appears on behalf of the respondents has drawn attention of this Court to the counter affidavit of the second respondent and would contend that as per Clause No.5 of the brochure issued with regard to OCI Card Holders, In case of minor child whose both parents are citizens of India or one of the parents in a citizen of India and (iii) If the parents are divorced, Court order of dissolution of marriage, which specifically mentions that the legal custody of the child is with the parent who is applying for the OCI Card. However, in the decree for divorce, it has not specifically stated a
