Case BriefsHigh Courts

Allahabad High Court: Dr Yogendra Kumar Srivastava, J., decided an issue with regard to the habeas corpus petition for custody of a minor.

Instant petition was filed to seek custody of petitioner 2 stated to be a minor of age about 5 years and 10 months by petitioner 1 who asserted to be his father.

Factual Background

It was stated that petitioner 2 was born in January 2014 and in May 2015 the mother of the corpus committed suicide at the petitioner’s home and thereafter an FIR was lodged against petitioner 1 and other family members under Section 498-A, 304-B of Penal Code, 1860 and 3/4 of Dowry Prohibition Act and petitioner 1 was sent to jail.

Respondent 4 filed a Habeas Corpus Writ Petition and this Court, upon taking notice of the fact that the father of the corpus and other family members were in jail, passed an order granting custody of the minor child to the maternal grandfather, who was respondent 4 in the present case.

Analysis, Law and Decision

High Court opined that lower courts were duty-bound to consider the allegations against the respondent and pendency of criminal case for an offence punishable under Section 498-A IPC.

Further, the Court added that the court of law should consider the matter with regard to the “character” of the proposed guardian.

Thus, a complaint against the father alleging and attributing the death of mother, and a case under Section 498-A IPC is indeed a relevant factor and a court of law must address the said circumstance while deciding the custody of the minor in favour of such a person.

In the case of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573, where in almost similar circumstances the father was facing a charge under Section 498-A IPC, it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of children to hand over their custody to the father.

In Rachit Pandey (minor) v. State of U.P., Habeas Corpus Writ Petition No. 193 of 2020 this Court held that in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of someone else other than in whose custody the child presently is. It was held that the prerogative writ of habeas corpus, is in the nature of the extraordinary remedy, which may not be used to examine the question of custody of a child except wherein the circumstances of a particular case, it can be held that the custody of the minor is illegal or unlawful.

Senior Counsel appearing for the petitioners did not point out as to how, the custody of petitioner 2 with his maternal grandfather can be said to be illegal or unlawful so as to persuade this Court to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus. He has also not disputed that any rights with regard to guardianship or custody are to be agitated before the appropriate forum.

Therefore, the petition was dismissed. [Awanish Pandey v. State of U.P., Habeas Corpus Writ Petition No. 1057 of 2019, decided on 27-9-2021]


Advocates before the Court:

Counsel for Petitioner: Sanjay Mani Tripathi, Adeel Ahmad Khan, Na

Counsel for Respondent: G.A., Anupama Tripathi, Rakesh Kumar Tripathi

Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., dismissed a guardianship petition on the ground of jurisdiction.

A Guardianship petition was filed under Sections 6 and 11 of the Hindu Minority and Guardianship Act, 1956.

Petition sought petitioner’s appointment who was stated to be the father of the two minors for whose guardianship the present petition was filed.

Another relief was sought concerning the minor’s property, particularly a declaration that the respondent mother had unauthorizedly and fraudulently withdrawn or transferred amounts from the bank accounts of the minors for her personal use and benefit and a recovery order by making payment to the petitioner as their natural guardian or by depositing the same in the bank accounts of the minors.

Section 7 read with Section 8 of the Family Courts Act reserves exclusive jurisdiction to entertain a suit or proceeding in relation to the guardianship of the person of any minor unto Family Courts by virtue of Clause (f) of the Explanation to Sub-section (1) of Section 7.

Full Bench of Bombay High Court observed that in view of the provisions of the Family Courts Act, the Court exercising its ordinary original civil jurisdiction relating to matters under the Family Courts Act would lose its jurisdiction to the Family Court, since the former would be a district court and under Section 17 of the Family Courts Act that Act would have an overriding effect.

An application for guardianship of the minor’s person can lie only before the Family Court.

Bench while moving forward with other prayers expressed that an application for a declaration about the property of a minor, which is said to be fraudulently or unauthorisedly transferred, and an order for recovery of that property cannot lie in a guardianship petition independently of any claim for being appointed as a guardian of the person or property of a minor.

“…what lies before a court, other than a family court under Section 7 of the Family Courts Act, is an application for appointment of guardian of the property of a minor or an application for permission to deal with such property. It is only these applications which are made by means of a guardianship or a miscellaneous petition before this court.”

 Petitioner’s case was that the bank accounts were created and monies were deposited into them for the sake of ensuring the minors’ pursuit of education and that these amounts, meant for the minors’ education, were illegally withdrawn by the respondent mother.

To the above, Court stated that is the petition sought to be framed as a petition for making provision for maintenance of the minors by seeking to recover amounts illegally withdrawn by respondent-wife, it would obviously be an application in the nature of a proceeding for maintenance. The said application would also exclusively lie before the family court.

Hence, In Court’s opinion, the instant guardianship petition was dismissed, and this Court had no jurisdiction to entertain the same. [Ashu Khurana Dutt v. Aneesha Ashu Dutt, 2021 SCC OnLine Bom 550, decided on 01-04-2021]


Advocates before the Court:

Mr Shanay Shah i/b. Sapana Rachure for Petitioner.

Mr Santosh Paul, Senior Advocate with Pradip Chavan, Mahir Bhatt and Manan Sanghai i/b. Wasim Ansari for Respondent.

Case BriefsHigh Courts

Punjab and Haryana High Court: Sudhir Mittal J. sets aside the impugned order and directed the custody to the mother subject to the disposal of the main petition for custody.

The facts of the case are such that marriage between the parties was solemnized and two children being Lakhsin 11 years old boy and Tiana 04 years old girl have been born out of wedlock. The petitioner has alleged that she was thrown out of the marital house and she was not permitted to take her children along with her. A petition under Sections 7, 10 & 25 of the Guardians and Wards Act, 1890 (i.e. Guardian Act) has been preferred by the wife wherein an application under Section 12 has been filed for grant of interim custody which came to be rejected vide impugned order which has been challenged in the instant petition.

Counsel for the petitioners Vikas Kuthiala submitted that Tiana is below 05 years of age and Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (i.e. Minority Act) stipulates that custody of such child should ordinarily be with the mother. The mother is a working professional with a post-graduate degree capable of taking care of herself and her children. Moreover, as per the deposition of the children, it is clear that the children enjoy their mother’s company and the father and their grandmother speaks ill about the mother which can create a negative impact on their mind.

Counsel for the respondents Vikas Bahl submitted by relying on the maintenance application to state that the application is proof that she needs aid to take care of the children and is not capable to do so individually. It was also alleged that she is a person of questionable character and thus Section 6(a) of the Hindu Minority and Guardianship Act, 1956 does not apply to her as in her company children would suffer.

The Court observed that the petitioner is a postgraduate and that she worked as a teacher in Delhi Public School for 10 long years shows that the petitioner is a well educated and qualified lady and possesses the means to maintain her children. The fact that the children also miss their mother and wants to meet her and be with her goes on to show that the best interests of the children lie in the custody of their mother.

The Court thus held “Tiana is under 05 years of age and in view of Section 6(a) of the Minority Act, her best interests would definitely be served in the custody of the mother. Lakshin cannot be separated from his sister as the same would traumatize both of them.”

The court further directed the custody of the minor children be transferred to the petitioner within 07 days of receipt of a certified copy of this judgment and the father to have visitation rights on 1st and 3rd Saturday of every month between 3.00 pm to 5.00 pm at the residence of the petitioner and in her presence.

In view of the above, impugned order was set aside.[Megha Sood v. Amit Sood, Civil Revision No.1402 of 2020 (O&M), decided on 26-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Lord Campbell, CJ., while deciding the custody of child allowed the Writ of Habeas Corpus, marking significant observations on ‘guardian of nurture’ in light of settled precedents.

Brief Facts

The present case is concerned with the custody of a ten-year-old girl, named, Alicia Race. A writ of habeas corpus is filed by the girl’s mother, who is also the guardian for nurture, the father being dead and there being no testamentary guardian. It is to be noted that the deceased father was a Protestant and the mother is a Roman Catholic by faith, practice and belief. No directions by the deceased father were given by testament as to the manner in which the children may be brought up. Further, the child whose custody is sought reads at a Catholic school in Hampstead.

After the father of the girl martyred in the service of the nation, the family was selected as objects of the Royal Patriotic Fund, wherein allowances were given for necessities including education. During his lifetime, the children were sent to Protestant school, visited their churches with all concurrence of the mother. However, in 1856, she sought to take away the children for the purpose of having them educated at Roman Catholics. The Commissioners of the Royal Patriotic Fund, upon consideration of the application called in the children to know their wishes. While the boy agreed and returned to his mother, the girl expressed great reluctance stating that, as much as she loves her mother, she would not go to a school where idolatrous worship is preached. Subsequently, the Commissioners and Miss Clarke, the school mistress, refused to give the girl to her mother. Hence, the present writ is moved. 

Arguments

For the school mistress and the Commissioners, it was argued by O’Malley and Lush, that the wish of the infant must be acknowledged and even if it is assumed that the mother was guardian for nurture, the custody sought was for an improper, inconsistent object of bringing up the child in a faith different from that of the deceased parent.

Issue

Whether the writ of habeas corpus maintainable against the school mistress and the Commissioners?

Whether rights of guardian in the nurture of higher importance than the wishes of the child?

Decision

Allowing the writ petition, the Court granted the custody of the minor child to her mother and further cited, “if a guardian, by reason of nurture, delivers the infant to another for instruction, he may afterwards, retake the infant.” It also suggested the child continue the school at Hampstead which in the Court’s opinion was admirably conducted but left the sole discretion on the mother to decide. Apropos, the wishes of child as put forth by the counsel for respondents, the Court making a comparison between wishes of child and rights of a guardian by nurture remarked that if such contention is to be accepted, “the Court must in each case ascertain whether there was sufficient intelligence by personal examination of the child”

Relied/Referred Precedents and Legislation

  • Radcliff’s case, 3 Rep. 37 a. 38 b., guardianship for nurture continues till the child attains the age of fourteen. As per the general rule, if a child within the age of seven is brought before the Court in a case of custody to guardian, it is bound to deliver the child, at once but if the age vary between seven to fourteen, the Court may examine and ascertain whether the child is competent to make a choice in a given situation, more clearly the ‘mental capacity’ of the child.
  • Serjeant Talfourd’s Act, 2&3 Vict. C. 54, s.1, where infant under the age of seven and in the sole custody or control of father, the Lord Chancellor or the Master of the Rolls may make an order that such infant be delivered to and remain in the custody of the mother until they attain the age of seven years. Calling it a peculiar age of nurture, the Court recognized it as entirely different from the guardianship for nurture which belongs to the father in his lifetime, even from the birth of the child.
  • Rex v. De Manneville, 5 East, 221, a writ of habeas corpus is an appropriate remedy in the cases where the child is below the age of seven.
  • Rex v. Johnson, 1 Str. 579, custody of a nine year old girl was given to her guardian (mother) from her testamentary guardian (nurse).
  • Rex v. Smith, 2 Str. 982, overruled, the previous case by allowing a boy of few months lesser than fourteen to reside with his aunt against the habeas corpus petition brought by his father.
  • Rex v. Greenhill, & E. 624, marks the settling of issue on a general rule wherein if a person within the age of twenty one years is brought before the Court, and possess the ability to exercise his choice, the Court shall leave on the individual to decide where he wishes to go but where he is incapable by any reason of making such choice, custody shall be decided by the Court.
  • In re Lloyd, mother of an illegitimate child was denied custody of a child between eleven and twelve years by relying on Rex v. Hopkins, wherein it was held, “Only while an illegitimate child is under seven that the Courts will interfere to protect the custody of the mother”
  • The instant Court also referred to several other decisions wherein despite a Parsee man adopted Christianity, the custody of the child was given to him, who was detained by the Parsee family. Moreover, in another case, the Court ordered a Hindu boy of twelve years, who professed to have embraced Christianity to be delivered to his father, who adhered to the Hindu religion.
  • In Villareal v. Mellish, 2 Swanet. 533 and Talbot v. The Earl of Shrewsbury, 4 Myl. & Cr. 672, the Court observed that it finds no distinction between different religions and will not interfere with the discretion of guardians as to the faith in which they educate their wards. In re Arabella Frances North, 11 Jurist 7, the Court held that the ward must invariably be educated in the religion of the father.

 [Queen v. Clarke, 119 ER 1217 : (1857) 7 EL & BL 186]

Interesting the Supreme Court of India followed the dictum laid down in this judgment to grant custody of a minor illegitimate child to her mother in Gohar Begam v. Suggi, AIR 1960 SC 93 : 1960 Cri LJ 164

 

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Ujjal Bhuyan and Milind N. Jadhav, JJ., while addressing an issue with regard to the appointment of a guardian for a person who is lying in the state of coma, held that,

“…the wife can be said to be best suited to be the guardian of her husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state.”

State of Comatose

Petitioner’s husband is in a state of comatose with no signs or prospects of revival. Petitioner has two sons one of whom is a minor and a dependent mother-in-law to look after.

With the mounting medical bill and other household expenses, petitioner in a state of helplessness has approached this Court invoking its writ jurisdiction for relief.

Petitioners Counsel is Kenny Thakkar, for respondent 1 the counsel is A.D. Yadav, S.S. Panchpor, Assistant Government Pleader for respondent 2.

Since the petitioner’s husband is in a comatose condition he is unable to use his intellect, converse and sign various documents. Accordingly, the petitioner is required to act as his guardian so as to safeguard the business and other interests of the husband and also to look after her family.

Banks

Banks refused the petitioner to put her signature in place of her husband, rather the petitioner was advised to approach the competent court to get herself appointed as the guardian.

Next Friend/Guardian

Petitioner’s counsel submitted that by virtue of being the wife, the petitioner is in the best position to act as his husband who is in a comatose state for the last two years with no signs of revival as his guardian.

On a query by the Court on what basis she was invoking writ jurisdiction of the Court, petitioners counsel submits that there is no statutory provision relating to the appointment of a guardian of a person who is in a state of coma or lying in a vegetative state. Therefore, a writ court exercising jurisdiction under Article 226 of the Constitution of India would be in the best position to grant relief to the petitioner.

Analysis and Decision

Bench cited the Supreme Court decision in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454 and stated that patients in a coma have a complete failure or the arousal system with no spontaneous eye-opening and are unable to be awakened by application of vigorous sensory stimulation.

When a person is in coma or in a comatose condition or in a vegetative state, it cannot be construed that such a person is physically challenged person or a mentally challenged person as is understood under the relevant statutes. Nor such a person can be construed to be a minor for the purpose of appointment of a guardian.

 Relevant statutes relating to the appointment of a guardian, such as the following would not be applicable to persons lying in a comatose condition or in a vegetative state:
  • The Guardian and Wards Act, 1980;
  • Mental Health Act, 1987 (repealed);
  • The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999;
  • Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (repealed);
  • Mental Health Care Act, 2017; and
  • Rights of Persons with Disabilities Act, 2016

“…at present, there is no legislation in India relating to the appointment of guardians to patients lying in comatose or vegetative state.”

Court observed that conceptually the wife can be said to be best suited to be the guardian of her husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state.

In regard to the present matter bench stated that in today’s world a stray case of foul play cannot be ruled out, it will be wrong on the Court’s part to take such a jaundiced view of any claim made by a wife to the guardianship of her husband who is lying in a vegetative state.

Further reverting back to the Supreme Court decision in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454, Court had observed that the idea behind the doctrine of “parens patriae” is that if a citizen is in need of someone who can act as a parent, who can make decisions and take some other action, sometimes the State is best qualified to take on this role.

“When the High Court exercises jurisdiction under Article 226 of the Constitution of India, it does so to further the cause of justice. To provide justice or discharge ex debito justiciae is the raison d’ etre of the courts. The Latin expression ex debito justitiae literally means a debt of justice; on account of justice; a claim, the refusal of which would involve an injustice, and therefore, one which justice owes it to the claimant to recognize and allow.”

Hence, Court in view of the facts and circumstances of the cases held that it will be reasonable to grant relief to the petitioner. However, it is also essential that there should be some kind of monitoring of the functioning of the petitioner as guardian albeit for a limited duration to ensure that guardianship is being used for the benefit of the person who is in a vegetative state.

Therefore, Member Secretary of Maharashtra State Legal Services Authority either through officials of the said authority or through a legal aid counsel or through a paralegal volunteer shall monitor the functioning of the petitioner as guardian.

In view of the above, petition was disposed of. [Rajni Hariom Sharma v. Union of India, 2020 SCC OnLine Bom 880, decided on 27-08-2020]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Shashi Kant Gupta and Saurabh Shyam Shamshery, JJ., allowed the plea by the wife seeking  the approval of being appointed as the guardian of her husband lying in vegetative state.

The Court while acknowledging the fact that there was no legislative enactment providing appointment of a guardian for a person lying in a comatose state considered the fact that they have been called to discharge ‘parens patriae’ jurisdiction. However under Article 226 of the Constitution of India they can pass orders and given directions as are necessary for subserving the ends of justice when no remedy is provided in any statute in respect to persons lying in comatose condition.

The petitioner had approached the High court praying to be appointed as the guardian of her husband who had been lying in a vegetative state in order to protect his interest and administer his investments, business, bank accounts etc. and utilize them when in need to meet expenses towards medical treatment and family welfare. Petitioner’s Counsel, Bidhan Chandra Rai, submitted that petitioner’s husband had been in comatose state for past one and a half years and the Doctors’ had advised that he would remain so until his eventual demise and now the petitioner has the sole responsibility of meeting the medical expenses and marrying her two daughters. It relied on the decision of the Kerala High Court in the case of Shobha Gopalakrishnan v. State of Kerala, 2019 SCC Online Ker 739, whereby a division bench appointed the legal heir of the victim as the guardian, reliance was also placed on the judgment of Delhi High Court, in the case of Vandana Tyagi v. Government of National Capital Territory of Delhi, 2020 SCC Online Del 32, which followed the suit.

The Court while allowing the petition further observed the case of Shobha Gopalakrishnan (supra) wherein certain broad guidelines with regard to appointment of guardian qua a person lying in a comatose state were laid, since no specific provision was available in any statute in this regard. The guidelines framed appear to be formidable and sound and, therefore, can be used as framework for formulating guidelines that need to be implemented in the State of Uttar Pradesh till such time, the legislative enactments are framed and specific provisions are made as to how guardians are to be appointed qua persons in a comatose state. [Uma Mittal v. Union of India, 2020 SCC OnLine All 777 , decided on 15-06-2020]

Business NewsNews

In order to bring about uniform processes across Asset Management Companies (AMCs) in respect of investments made in the name of a minor through a guardian and to enable the efficient transmission of units the following has been decided:

1. Process for Investments made in the name of a Minor through a Guardian

a. Payment for investment by means of Cheque, Demand Draft or any other mode shall be accepted from the bank account of the minor or from a joint account of the minor with the guardian only. For existing folios, the AMCs shall insist upon a Change of Pay-out Bank mandate before redemption is processed.

b. Upon the minor attaining the status of major, the minor in whose name the investment was made, shall be required to provide all the KYC details, updated bank account details including cancelled original cheque leaf of the new account. No further transactions shall be allowed till the status of the minor is changed to major.

c. AMCs shall build a system control at the account set up stage of Systematic Investment Plan (SIP), Systematic Transfer Plan (STP) and Systematic Withdrawal Plan (SWP) on the basis of which, the standing instruction is suspended when the minor attains majority, till the status is changed to major.

2. Process for transmission of Units

a. In order to improve the processing turnaround time for transmission requests, AMCs shall implement image-based processing wherever the claimant is a nominee or a joint holder in the investor folio.

b. AMCs shall have a dedicated, Central Help Desk and a webpage carrying relevant information and instructions in order to provide assistance on the transmission process.

c. AMCs shall adopt a common Transmission Request Form (common fields) and NOC form. All such forms and formats shall be made available on the website of the AMCs, RTAs and AMFI.

d. AMCs shall implement a common set of document requirements for transmission of units to the claimant who are nominees or joint holders in the investor account.

e. AMCs shall implement a uniform process for the treatment of unclaimed funds to be transferred to the claimant including the unclaimed dividends.

f. AMCs shall not accept requests for redemption from a claimant pending completion of the transmission of units in his / her favour.

g. The Stamp duty payable by the claimant with respect to the indemnity bond and affidavit, shall be in accordance with the stamp duty prescribed by law.

AMCs and AMFI shall promote the importance of nomination as a part of its investor education and awareness programmes.
  1. To ensure uniformity across the industry, AMFI is advised to prescribe the forms and formats referred in point 2 (c), common set of documents referred in point 2 (d) and uniform process for treatment of unclaimed funds referred in point 2 (e), within 30 days from date of issuance of this circular and shall mandatorily be followed by all Mutual Funds/AMCs.
  2. This circular is issued in exercise of the powers conferred under Section 11 (1) of the Securities and Exchange Board of India Act, 1992, read with Regulation 77 of the Securities and Exchange Board of India (Mutual Funds) Regulations, 1996 to protect the interests of investors in securities and to promote the development of, and to regulate the securities market.


Securities Exchange Board of India

[Circular dt.24-12-2019]