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2017 Supreme(UK) 143
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Rajiv Sharma, Sharad Kumar Sharma, JJ.
Smt. Akshi Yadav - Appellant
Versus
Pradeep Yadav - Respondent
Appeal from Order No. 103 of 2017
Decided on : 22-06-2017
For the Appellant :Mr. Navneet Kaushik, Advocate
For the Respondent:Mr. Tapan Singh, Advocate
The welfare of the child is the paramount consideration for granting guardianship, and proceedings under the Guardians and Wards Act should be independent from other proceedings such as maintenance under Section 125 Cr.P.C.
Headnote:
Guardians and Wards Act - Welfare of Child - Section 10, Section 25
Fact of the Case:
The appellant, wife of the respondent, appealed the grant of custody of their minor son to the respondent under Section 10 read with Section 25 of the Guardians and Wards Act, 1890. The core issue was whether findings from proceedings under Section 125 Cr.P.C. for granting maintenance could be considered for the guardianship application.
Finding of the Court:
The court found that the welfare of the child is the paramount consideration for granting guardianship. It held that the proceedings under Section 125 Cr.P.C. and Section 10 read with Section 25 of the Guardians and Wards Act should be held independently, with the latter having an overriding effect over the former.
Issues: The main issue was whether findings from proceedings under Section 125 Cr.P.C. could be used to decide the guardianship application under Section 10 read with Section 25 of the Guardians and Wards Act.
Ratio Decidendi: The court emphasized that the welfare of the child is the primary consideration for granting guardianship. It held that the proceedings under Section 125 Cr.P.C. and Section 10 read with Section 25 of the Guardians and Wards Act should be independent, with the latter prevailing over the former.
Final Decision: The court quashed the impugned judgment and ordered the custody of the minor to be handed over to the appellant, the mother and natural guardian. It also directed the respondent-father to pay a monthly sum for the maintenance and education of the minor.
Sharad Kumar Sharma, J.
The philosophy of the Guardians and Wards Act, 1890 took its birth from the Roman era upto the present day, where a duty has been casted upon the State to take care of class of persons, who are incompetent or incapable to take care of themselves. This imperfection was a consequence of their immaturity, lack of intellect or lack of capacity or exercise of discretion which was on account of their age. Under the Hindu mythology, it was the King, whose responsibility was to protect the estate of infants. The said protection as assigned to the Kings initially by usages is now being taken over by the Courts in the exercise of their sovereign powers. Thus, the basic intention and the paramount factor to be borne in mind is the welfare of the child. No other surrounding circumstances would play any significant role, while considering the application for the grant of guardianship.
2. The appellant in the instant appeal is the wife of the applicant (respondent herein) whose
application under Section 10 read with Section 25 of Guardians and Wards Act, 1890 has been allowed by the Additional Family Court, Roorkee, District Haridwar whereby the custody of the minor son, namely Manvir has been granted, to the respondent in the appeal, by the impugned judgment dated 04.02.2017.
3. For a better scrutiny of the controversy involved, it centers around, fact, as to whether the findings recorded in the proceedings under Section 125 Cr.P.C. for granting maintenance to the wife, children or parents, could be taken into consideration to lay down the foundation for considering the application under Section 10 read with Section 25 of Guardian and Wards Act, 1890, is the core issue to answered?
4. The legislature in Chapter IX of the Code of Criminal Procedure, 1973 while providing the provision of Section 125 Cr.P.C. was a legislation whereby a person having sufficient means neglects or refuses to maintain the class of family members given under sub clauses a, b, c & d of Section 125 Cr.P.C. The aforesaid section 125 Cr.P.C. only grants liberty to Magistrate, 1st Class on being satisfied and establishment of neglect by any of the class of relation mentioned in the sub clause of Section 125 Cr.P.C., the Court may allow the monthly allowance for maintenance of wife or child, father or mother.
5. Under law, Section 125 Cr.P.C. happens to be an independent provision and that too is contemplated under a Code of Criminal Procedure, which lays down the modality and procedure to be followed while dealing with the criminal proceedings. The issue which will gradually crop up in the instant appeal is that when the Courts are exercising its powers provided under Section 125 Cr.P.C. whether finding could be borrowed for the purposes of invoking Section 10 read with Section 25 of Guardians and Wards Act, 1890, which has got altogether a different purpose for attaining social objective and security to infants and unsecured persons.
6. The paramount consideration for the granting of guardianship is the interest of the child whose wellbeing is required to be protected by the Court. It is the duty on the Court. In the said Act under Section 10 which is procedural in nature, laying down the manner in which application would be preferred and dealt with by the person claiming the guardianship of a minor and to the manner in which the proceedings before the Court would be governed and the provisions of the Code of Civil Procedure, 1882 has been made applicable.
7. The principal section with which the controversy herein is related to Section 25 of the Act which deals with the title of the guardian to have custody of ward. Section 25 of the Guardians and Wards Act, 1890 reads as under:-
“25. Title of guardian to custody of ward.-(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his r
