Allahabad High Court

Nirali Dixit vs State Of U.P. Thru. District ... on 4 October, 2021

Bench: Ravi Nath Tilhari




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

					       				   A.F.R.
 
					        Reserved on 17.09.2021
 
					       Delivered on 04.10.2021
 

 
Case :- FIRST APPEAL FROM ORDER No. - 190 of 2021
 
Appellant :- Nirali Dixit
 
Respondent :- State Of U.P. Thru. District Magistrate,Lko.& Anr.
 
Counsel for Appellant :- Ashok Kumar Singh,Mahima Pahwa
 

 
Hon'ble Ravi Nath Tilhari,J.

1. Heard Sri Prashant Chandra, learned Senior Counsel, assisted by Ms. Mahima Pahwa, learned counsel for the appellant.

2. This appeal has been filed under Section 47 of the Guardians and Wards Act, 1890 (hereinafter referred to as ''the Act, 1890) challenging the judgment and order dated 09.09.2021 passed by learned Additional District and Sessions Judge/Special Court, Prevention of Corruption Act, court no. 2, Lucknow in Misc. Case No. 529 of 2021 (Nirali Dixit vs. State of U.P. and Ors.) whereby appellant's application B-3, was rejected as not maintainable.

3. The appellant is widow of Aditya Singh, the elder brother of Aryan Singh (minor)- respondent no. 2.

4. Misc. Civil Case No. 516 of 2020; CNR No. UPLKO10092532020 was filed by Aditya Singh, for his appointment as Guardian of the Minor under Section 7 of the Guardians and Wards Act, 1890 on 28.09.2020, upon the death of the parents of the minor, which was allowed vide judgment and order dated 15.12.2020, appointing Aditya Singh to be the Guardian of Aryan Singh (minor).

5. Aditya Singh also died (suicide) on 09.08.2021.

6. The appellant filed an application B-3 under Section 151 of the Code of Civil Procedure r/w Section 7 of the Act, 1890, in Misc. Case No. 516 of 2020; which was registered as Misc. Case No. 529 of 2021: Nirali Dixit vs. State of U.P., The prayer made was to amend/alter the order dated 15.12.2020 passed in Misc. Case no. 516 of 2020, by incorporating the word "Nirali Dixit wife of" before the words "Aditya Singh", in the first line of the operative portion of the order dated 15.12.2020. The prayer in the application B-3 is being reproduced as under:-

"Wherefore, it is most respectfully prayed that this Hon'ble Court may graciously be pleased amend/altered the order dated 15.12.2020 passed by this Hon'ble Court in Regular suit no. 516 of 2020 by incorporating the word "Nirali Dixit wife of" before the words Aditya Singh, occurring in the first line of the operative portion of the order dated 15.12.2020 and such other orders which this Hon'ble Court may deem fit and proper in the interest of justice."

7. The State of U.P. through District Magistrate, Lucknow/respondent no. 1, filed objection inter alia that the application B-3, was not maintainable and the relief prayed therein could not be legally granted.

8. The learned Additional District and Sessions Judge/Special Court P.C. Act, court no. 2, Lucknow, vide judgment and order dated 09.09.2021 rejected the application.

9. Learned court below held that Aditya Singh was appointed guardian of the minor, as per the provisions of the Act, 1890, after following the due procedure and on the legal considerations. The appellant-applicant wants to be appointed the guardian of the minor, without following the prescribed procedure, simply by adding her name before the name of Aditya Singh, in Misc. Case No. 516/2020, which was already decided on 28.09.2020. The prayer of the appellant cannot be granted under Section 151 C.P.C., as there is specific provision for appointment of guardianship under the Act, 1890 and without fulfilling the legal requirements.

10. Sri Prashant Chandra, learned Senior Counsel submits that Aditya Singh was married in Canada and in consultation with his wife-the appellant, he decided to take the minor along with him to Canada, as there was no other person to take care of the minor and to give proper care and look after his upbringing and to safeguard his welfare and accordingly the application dated 29.08.2020 under Section 7 of the Act, 1890 was made, specifically stating therein that to enable Aditya Singh to take his minor brother to Canada, to procure a dependent VISA, it was necessary to have a formal declaration of his being a guardian of the minor from the court. He submits that there was no contest to such application, except that an objection was filed by the State/District Magistrate Lucknow, emphasizing that the person seeking guardianship of the minor must ensure that the minor is properly looked after and that it would be the sole responsibility of the guardian, that all requirements of the minor are fulfilled. After publication in the newspaper and service of notice upon the minor, through process of the court, the matter was heard and after considering in totality the circumstances of the case as also the welfare of the minor, the Court had allowed the application of Aditya Singh, appointing him the Guardian of the minor.

11. Sri Prashant Chandra, learned Senior Advocate further submits that after passing the order dated 15.12.2020, Aditya Singh and the appellant took necessary steps for issuance of dependent VISA for the minor and completed all the formalities before the Canadian authorities but the consideration of the application was delayed, in view of the COVID-19 pandemic, and, unfortunately, pending such consideration, Aditya Singh died (suicide on 09.08.2021). The appellant, in order to take the minor to Canada, as there was no one to look after and take care of the minor, applied for the amendment in the application for grant of dependent VISA, already filed by Late Aditya Singh, but for such amendment also, a formal order appointing the appellant as guardian of the minor by the Court was required, and consequently the application B-3 was filed in Court in Misc. Case No. 516/2020.

12. Learned Senior Advocate submits that the appellant is the widow of Aditya Singh and there being an order in favour of Aditya Singh, now the procedure prescribed under the Act, 1890 for appointment of guardianship, need not be followed, as the earlier order in favour of Aditya Singh was passed after following the due procedure and observance of the due procedure again, would result in delay in grant of dependent VISA and then, there would be nobody to look after the minor. He further submits that in appointing the guardian, the court exercises ''parens patriae' jurisdiction, and is expected to give due weight to the child's ordinary comfort etc. and such cases are not to be decided by following strict rules of procedure or by precedence i.e. by insisting upon the procedural compliance, as per the Act, 1890. Reliance has been placed on the judgment of Hon'ble Supreme Court in the case of Saiyad Mohammad Bakar El-Edroos vs Abdulhabib Hasan Arab And Ors [(1998) 4 SCC 343] and Smriti Madan Kansagra vs. Perry Kansagra [(2020) SCC (online) SC 887].

13. I have considered the submissions advanced and perused the material brought on record as also the case laws cited which will be referred shortly.

14. The points that arise for consideration are:-

(i) Whether on the application B-3 as filed by the appellant, she should have been appointed the guardian of the minor by allowing the prayer, as made, by incorporating her name in the judgment and order dated 15.12.2020 in Misc. Case No. 516/2020 which was in favour of Aditya Singh ?

(ii) Whether the procedure under the Act 1890 is not required to be followed in appointment of another guardian on the death of a guardian appointed by the court ?

(iii) Whether the application B-3 having been rejected as not maintainable, what further course of action, if any, was required to be adopted by the learned court below ?

15. All the aforesaid points are related to each other and, therefore, are being taken up simultaneously.

16. A brief look on the legal provisions under the Act, 1890 is necessary at this very stage.

17. Section 7 of the Act, 1890 provides for power of the court to order for guardianship, which is quoted herein below:-

"7. Power of the Court to make order as to guardianship.--

(i) Where the Court is satisfied that it is for the welfare of a minor that an order should be made--(a) appointing a guardian of his person or property or both, or (b) declaring a person to be such a guardian the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.

18. Section 8 of the Act, 1890 provides as to who are the persons entitled to apply for an order under Section 7. Section 8 reads as under:-

"8. Persons entitled to apply for order- An order shall not be made under the last foregoing section except on the application of--(a) the person desirous of being, or claiming to be, the guardian of the minor; or

(b) any relative or friend of the minor; or

(c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property; or

(d) the Collector having authority with respect to the class to which the minor belongs."

19. Section 9 of the Act, 1890 provides for the jurisdiction of the Court to entertain application. Section 10 of the Act 1890 provides for form of application, which reads as under:-

"10. Form of application.--(i) If the application is not made by the Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure, 1882 (14 of 1882)1, for the signing and verification of a plaint, and stating, so far as can be ascertained,--

(a) the name, sex, religion, date of birth and ordinary residence of the minor;

(b) where the minor is a female, whether she is married and if so, the name and age of her husband;

(d) the name and residence of the person having the custody or possession of the person or property of the minor;

(e) what near relations the minor has and where they reside;

(f) whether a guardian of the person or property or both, of the minor has been appointed by any person entitled or claiming to be entitled by the law to which the minor is subject to make such an appointment;

(g) whether an application has at any time been made to the Court or to any other Court with respect to the guardianship of the person or property or both, of the minor and if so, when, to what Court and with what result;

(h) whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both;

(I) where the application is to appoint a guardian, the qualifi-cations of

the proposed guardian;

(j) where the application is to declare a person to be a guardian, the grounds on which that person claims

(k) the causes which have led to the making of the application; and

(l) such other particulars, if any, as may be prescribed or as the nature of

the application renders it necessary to state.

(2) If the application is made by the Collector, it shall be by letter addressed to the Court and forwarded by post or in such other manner as may be found convenient, and shall state as far as possible the particulars mentioned in sub-section (1).

(3) The application must be accompanied by a declaration of the willingness of the proposed guardian to act, and the declaration must be signed by him and attested by at least two witnesses."

20. Section 11 of the Act provides for the procedure, on admission of application which reads as under:-

"11. Procedure on admission of application.- (1) If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof and cause notice of the application and of the date fixed for the hearing--

(a) to be served in the manner directed in the Code of Civil Procedure, 1882 (14 of 1882)1 on--

(i) the parents of the minor if they are residing in 2[any State to which this Act extends];

(ii) the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor;

(iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant, and

(iv) any other person to whom, in the opinion of the Court, special notice of the application should be given; and

(b) to be posted on some conspicuous part of the Court-house and of the residence of the minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit.

(2) The State Government may, by general or special order, re- quire that when any part of the property described in a petition under section 10, sub-section (1), is land of which a Court of Wards could assume the superintendence, the Court shall also cause a notice as aforesaid to be served on the Collector in whose district the minor ordinarily resides and on every Collector in whose district any portion of the land is situate, and the Collector may cause the notice to be published in any manner he deems fit.

(3) No charge shall be made by the Court or the Collector for the service or publication of any notice served or published under sub-section (2)."

21. Section 12 provides for power to make interlocutory order for production of minor and for interim protection of person or property of minor. Section 13 provides for hearing of the application and evidences on the date fixed before making an order.

22. Section 17 of the Act, 1890 provides for the matters to be considered by the Court in appointing or declaring the guardian. Section 17 reads as under:-

"17. Matters to be considered by the Court in appointing guardian.--(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If minor is old enough to form an intelligent preference, the Court may consider that preference.

3[***]

(5) The Court shall not appoint or declare any person to be a guardian against his will."

23. Present is a case where the guardian of the minor- i.e. Aditya Singh appointed by the court vide order dated 15.12.2020 died and as such Sections 41 & 42 of the Act 1890 are also relevant.

24. Section 41 of the Act, 1890 provides for the circumstances, under which the powers of a guardian of the person cease, and under Clause (a) of sub-Section 1, the powers of guardian cease by his death.

25. Section 41 of the Act, 1890 reads as under:-

Section 41 in The Guardians and Wards Act, 1890

"41. Cessation of authority of guardian.--

(I) The powers of a guardian of the person cease--

(a) by his death, removal or discharge;

(b) by the Court of Wards assuming superintendence of the person of the ward;

(d) in the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her person or, if the guardian was appointed or declared by the Court, by her marriage to a husband who is not, in the opinion of the Court, so unfit; or

(e) in the case of a ward whose father was unfit to be guardian of the person of the ward, by the father ceasing to be so or, if the father was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court.

(2) The powers of a guardian of the property cease--

(a) by his death, removal or discharge;

(b) by the Court of Wards assuming superintendence of the property of the ward; or

(3) When for any cause the powers of a guardian cease, the Court may require him or, if he is dead, his representative to deliver as it directs any property in his possession or control belonging to the ward or any accounts in his possession or control relating to any past or present property of the ward.

(4) When he has delivered the property or accounts as required by the Court, the Court may declare him to be discharged from his liabilities save as regards any fraud which may subsequently be discovered."

26. Section 42 of the Act, 1890 provides that when a guardian appointed or declared by the court is discharged or, under the law to which the ward is subject, ceases to be entitled to act, or when any such guardian or a guardian appointed by Will or other instrument is removed or dies, the Court, of its own motion or on application under Chapter II, may, if the ward is still a minor, appoint or declare another guardian of his person or property, or both, as the case may be.

27. Section 42 of the Act, 1890 reads as under:-

"42. Appointment of successor to guardian dead, discharged or removed- When a guardian appointed or declared by the Court is discharged, or, under the law to which the ward is subject, ceases to be entitled to act, or when any such guardian or a guardian appointed by Will or other instrument is removed or dies, the Court, of its own motion or on application under Chapter II, may, if the ward is still a minor, appoint or declare another guardian of his person or property, or both, as the case may be."

28. Now the Court proceeds to consider some case laws on the subject.

29. In ABC vs. State (NCT of Delhi) [2015 10 SCC 1], the Hon'ble Supreme Court has held that in the matter of appointment or declaration of guardian of the minor, the Court is called upon to discharge its parens patriae jurisdiction. Upon a guardianship petition, being laid before the Court, the child concerned ceases to be in the exclusive custody of the parents; thereafter, until the attainment of majority, the child continues in curial curatorship. In Smriti Madan Kansagra vs. Perry Kansagra [(2020) SCC (online) SC 887], the Hon'ble Supreme Court held that it is a well-settled principle of law that the courts while exercising parens patriae jurisdiction would be guided by the sole and paramount consideration of what would best subserve the interest and welfare of the child, to which all other considerations must yield. The welfare and benefit of the minor child would remain the dominant consideration throughout. In Laxmi Kant Pandey vs. Union of India [1984 AIR 469], the Hon'ble Supreme Court held that the welfare of the child takes priority above all else, including the rights of the parents. In Nil Ratan Kundu and Others vs. Abhijit Kundu [(2008) 9 SCC 413], it was held that it is the welfare of the minor and of the minor alone, which is the paramount consideration.

30. In Nil Ratan Kundu (supra), the Hon'ble Supreme Court has held in paragraphs 41 to 45, which are as under:-

"41. In Saraswatibai Shripad Ved v. Shripad Vasanji Ved [AIR 1941 Bom 103 : ILR 1941 Bom 455] , the High Court of Bombay stated : (AIR p. 105)

"... It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the Court. It is the welfare of the minor and of the minor alone which is the paramount consideration;

(emphasis supplied)

42. In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840] , this Court held that the object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of the ward's health, maintenance and education. The power and duty of the court under the Act is the welfare of the minor. In considering the question of welfare of a minor, due regard has of course to be given to the right of the father as natural guardian, but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship. The Court further observed that merely because there is no defect in his personal care and his attachment for his children, which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. The Court also observed that children are not mere chattels, nor are they toys for their parents. The absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions, must yield to the consideration of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of the welfare of the minor children and the rights of their respective parents over them.

43.Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka [(1982) 2 SCC 544] , this Court reiterated that the only consideration of the court in deciding the question of custody of a minor should be the welfare and interest of the minor and it is the special duty and responsibility of the court. Mature thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child.

44. In Surinder Kaur Sandhu v. Harbax Singh Sandhu [(1984) 3 SCC 698 : 1984 SCC (Cri) 464] this Court held that Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. (See also Elizabeth Dinshaw v. Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Cri) 13] and Chandrakala Menon v. Vipin Menon [(1993) 2 SCC 6 : 1993 SCC (Cri) 485] .)

45. Recently, in Mausami Moitra Ganguli v. Jayant Ganguli [(2008) 7 SCC 673 : JT (2008) 6 SC 634] , we have held that the first and the paramount consideration is the welfare of the child and not the right of the parent. We observed : (SCC p. 678, paras 19-20)

''19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably, the provisions of law pertaining to the custody of child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.

20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration."

31. In paragraph 52 of the case of Nil Ratan Kundu (supra), the Hon'ble Supreme Court summarised the principles of the custody of minor children, which reads as under:-

"Principles governing custody of minor children

52. In our judgment, the law relating to custody of a child is fairly well settled and it is this : in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor."

32. In Smriti Madan Kansagra vs. Perry Kansagra [(2020) SCC (online) SC 887], the Hon'ble Supreme court has held in paragraphs 94-103, which are as under:-

"94. The issue which has arisen for our consideration is as to what should be the dispensation to be followed with respect to the custody of the minor child-Aditya who is now 11 years of age, till he attains the age of majority in 7 years' time.

95. It is a well-settled principle of law that the courts while exercising parens patriae jurisdiction would be guided by the sole and paramount consideration of what would best subserve the interest and welfare of the child, to which all other considerations must yield. The welfare and benefit of the minor child would remain the dominant consideration throughout.

96. The courts must not allow the determination to be clouded by the inter se disputes between the parties, and the allegations and counter-allegations made against each other with respect to their matrimonial life. In Rosy Jacob v. Jacob A Chakarmakkal1 this Court held that:

"15...The children are not mere chattels : nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society.

(emphasis supplied)

97. A three Judge bench of this Court in V. Ravichandran (2) v. Union of India2 opined:

"27...it was also held that whenever a question arises before a Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of the parties, but on the sole and predominant criterion of what would serve the best interest of the minor."

(emphasis supplied)

98. Section 13 of the Hindu Minority and Guardianship Act, 1956 provides that the welfare of the minor must be of paramount consideration while deciding custody disputes. Section 13 provides as under:--

"13. Welfare of minor to be paramount consideration

(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor."

99. This Court in Gaurav Nagpal v. Sumedha Nagpal3 held that the term "welfare" used in Section 13 must be construed in a manner to give it the widest interpretation. The moral and ethical welfare of the child must weigh with the court, as much as the physical well-being. This was reiterated in Vivek Singh v. Romani Singh4, wherein it was opined that the "welfare" of the child comprehends an environment which would be most conducive for the optimal growth and development of the personality of the child.

100. To decide the issue of the best interest of the child, the Court would take into consideration various factors, such as the age of the child; nationality of the child; whether the child is of an intelligible age and capable of making an intelligent preference; the environment and living conditions available for the holistic growth and development of the child; financial resources of either of the parents which would also be a relevant criterion, although not the sole determinative factor; and future prospects of the child.

101. This Court in Nil Ratan Kundu v. Abhijit Kundu5 set out the principles governing the custody of minor children in paragraph 52 as follows:

"Principles governing custody of minor children

102. Section 17 of the Guardian and Wards Act, 1890 provides:

"17. Matters to be considered by the Court in appointing guardian

(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(4) deleted

(5) The Court shall not appoint or declare any person to be a guardian against his will."

(emphasis supplied)

103. In the present case, the issue of custody of Aditya has to be based on an overall consideration of the holistic growth of the child, which has to be determined on the basis of his preferences as mandated by Section 17(3), the best educational opportunities which would be available to him, adaptation to the culture of the country of which he is a national, and where he is likely to spend his adult life, learning the local language of that country, exposure to other cultures which would be beneficial for him in his future life."

33. Thus, Section 7(1) (a) of the Act, 1890 provides that where the Court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property or both, or declaring a person to be such a guardian, the Court may make an order accordingly. Section 8, however, specifically provides that an order shall not be made under Section 7, except on the application of (a) the person desirous of being, or claiming to be the guardian of the minor or (b) any relative or friend of the minor; or (c) the Collector of the District or other local area within which the minor ordinarily resides or in which he has property; or (d) the Collector having authority with respect to the class to which the minor belongs. Section 8, therefore, clearly provides that no order under Section 7 shall be passed except on an application by the person or authority as mentioned in clause (a) to (d). The form of the application is to be as per Section 10, according to which if the application is not made by the Collector, it shall be by petition signed and verified in the manner prescribed by the Code of Civil Procedure, for the signing and verification of a plaint, and stating, so far as can be ascertained, the points/information as mentioned in Clauses (a) to (l). As per sub Section (3) of Section 10, the application must be accompanied by a declaration of the willingness of the proposed guardian to act, which declaration must be signed by the proposed guardian and attested by at least two witnesses.

34. In the matter of appointment of guardian, Section 8 specifically provides that ''no such order under Section 7 shall be passed except on the application'. Use of such language shows clearly the legislative intent that the provision is mandatory. In the case of Lachmi Narain and Others vs. Union of India and Ors. [(1976) 2 SCC 953], Hon'ble Supreme Court has held that if the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory. In Nasiruddin and Others vs. Sita Ram Agarwal [(2003) 2 SCC 577], the Hon'ble Supreme Court has held that it is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character. In view of this Court, the requirements of the application, if not filed by the District Magistrate, in confirmity with the provisions of Section 10 of the Act, providing requisite information, as in Clauses (a) to (l) accompanied by a declaration of the willingness of the proposed guardian to act, signed by the proposed guardian and attested by two witnesses, are with an object, in the interest of the child to secure his welfare. In Dhaninder Kumar vs. Deep Chand [(1991) ALJ 25], this Court followed the Division Bench in Narottam vs. Tapesra [(1934 ALJ 652] in which it was held that "a Judge is not authorized by law, in the absence of an application for appointment of a guardian to pass an order appointing the guardian of a minor. But, once an application has been filed in accordance with the provisions of Section 10, the jurisdiction of the court comes into play. In Dhaninder Kumar (supra), in view of Section 8 it was held that "What appears is that the Judge cannot suo moto appoint a guardian of a minor, but when an application for appointment is before the Judge, he can, considering the welfare of the minor appoint even a non-applicant provided he consents to his appointment.

35. It is also well settled that the welfare of the child is of paramount consideration. In ABC vs. State (NCT of Delhi) (supra), the Hon'ble Supreme Court has further held that as the intention of the Act is to protect the welfare of the child the applicability of Section 11 which is procedural would have to be read accordingly. There is no harm or mischief in relaxing its requirements to attain the intendment of the Act, if the child's welfare is in peril. There is thus no mandatory and inflexible procedural requirement of notice. Thus, it is also settled that the purely procedural provisions can be relaxed or even dispensed with, to attain the intendment of the Act, if there is no harm or mischief in relaxing those requirements, in the welfare of the child, which takes priority above all else. The criterion for relaxation of purely procedural provision, therefore appears to be, if, it is, in the welfare of the child. If by relaxing the procedural provision, the welfare of the child would be undermined or if the procedural law itself is intended for the welfare of the minor, such provisions are not to be relaxed. In ABC (supra), the custody petition was preferred by the natural mother of the minor and the procedural requirement of notice to be served to the putative father was not consiered to be mandatory and inflexible procedural requirement. This court is of the further view that the procedural provisions, the strict compliance of which may undermine the welfare of the minor, may, in the discretion of the court, be relaxed in appropriate cases, for the reasons to be recorded. Recording of reasons is necessary so that in case of challenge to the order of appointment of guardian, or otherwise, the Superior Courts may know what necessitated dispensing/relaxing of the procedural provisions, and if, it was or was not in the welfare of the minor.

36. The submission of Sri Prashant Chandra, learned Senior Advocate, that once the procedure has been followed in the appointment of Aditya Singh as guardian, the same need not be followed again and as in the application by the elder brother, any objection was not filed by any person, except the State, and, therefore, the procedure of publication need not be followed, cannot be accepted. Even if, in response to the earlier application filed by Aditya Singh, any objection, might not have been filed, might be for the reason that the parents of the minor had died and it was the real elder brother, who had applied for the guardianship and therefore, any other relative, might not have come forward to oppose the application or for seeking his/her appointment as guardian in preference to that of Aditya Singh. But, now, the situation has changed. The proposed guardian is the widow of Aditya Singh. In the application B-3 as also in the affidavit, in support of the application for interim relief filed along with the appeal, it has been stated that she is settled in Canada and is in settled service in Canada. Her marriage was solemnised with Aditya Singh on 14.02.2020, who died (suicide) on 09.08.2021. Any other near relative of the minor, coming forward in pursuance of the publication of the notice, to take care of the child, cannot be ruled out at least at this stage. Merely because in pursuance of the publication of the application of Aditya Singh (deceased), no person came forward, cannot be a ground to dispense with the notice required under Section 11 of the Act, 1890, in the present case.

37. In the exercise of guardianship or custody, jurisdiction, the welfare of the minor and minor alone is of paramount consideration. The court shall be guided generally by Section 17 of the Act, 1890, which specifically provides that in appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of Section 17, guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. If the minor is old enough to form an independent opinion or preference, the Court may consider that aspect, as well. Hon'ble Supreme Court has held in Nil Ratan Kundu (supra), that ''the court is bound to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations.'

38. In V. Ravi Chandran vs. Union of India & Ors. [(2010) 1 SCC 174], the Hon'ble Supreme Court held that while dealing with a case of a custody of a child, removed by a parent from one country to another, in contravention of the orders of the court where the parties had set up their matrimonial home, the court in that country to which the child has been removed must first consider the question whether the court would conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to child's welfare be investigated in a court of its own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talent. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and pursuasive effect of a foreign judgment must depend on the circumstances of each case.

39. In Smriti Madan Kansagra (supra) also, the Hon'ble Supreme Court held that "to decide the issue of the best interest of the child, the Court would take into consideration various factors, such as the age of the child; nationality of the child; whether the child is of an intelligible age and capable of making an intelligent preference; the environment and living conditions available for the holistic growth and development of the child; financial resources of either of the parents which would also be a relevant criterion, although not the sole determinative factor; and future prospects of the child."

40. This Court is conscious of the fact that V. Ravi Chandran (supra) as also Smriti Madan Kansagra (supra) are the cases where the child was removed from other country to this country, and the question arose for sending the child back to that country, in which the court of that country had also passed some orders; whereas in the present case, the minor had not been removed from other country to this country, but in view of this Court, the considerations as mentioned in those judgments, in the welfare of the minor, are of significance, in the present case also, for the reason that as per the application B-3 that the appellant filed such application B-3 to take the child to Canada from India. Therefore, in exercise of parens patriae jurisdiction, in such cases, the court should also consider the factors which have been laid down in V. Ravi Chandran (supra) and Smriti Madan (supra) to determine the welfare and happiness of the child. It should go into all relevant aspects of child including stability and security, loving and understanding care and guidance and full development of child's character, personality and talent, nationality of the child, the environment and the living conditions, moral and ethical values for the growth and development of the child.

41. The welfare of the child in custody matters, is required to be considered in relation to the person applying for guardianship/custody. The welfare of the child with respect to one guardian appointed by the court cannot neither necessarily nor automatically be considered to be the same, when some other person, the proposed guardian, files an application for his/her appointment. It requires fresh consideration in the light of the provisions of Section 17 of the Act, 1890 which inter alia provides the factors of age and sex of the proposed guardian to which the courts have to give due regard. The various factors settled in law by various pronouncements as discussed above, also require consideration. Merely by making amendment in the order dated 15.12.2020 in name, the way it was prayed by the appellant, by adding her name before the name of the deceased-Aditya Singh, the order of appointment of guardianship passed in favour of Aditya Singh could not be converted in favour of the appellant.

42. For all the aforesaid reasons and there being no application by the appellant complying with Sections 7 & 10 of the Act, 1890, the prayer as made in the application B-3, could not be legally granted. The court below did not commit any illegality in rejecting the application B-3.

43. However, that is not the end of the matter. The jurisdiction to appoint guardian is parens patriae. The expression parens patriae, literally means parent of the country and refers traditionally to the role of the State as a sovereign and guardian of persons under legal disability. When the court exercises the power as parens patriae, it means that the court has to act as parent or guardian of the person under legal disability. In the case of Charan Lal Sahu v. Union of India [(1990) 1 SCC 613], the Hon'ble Supreme Court has held as under:-

"35. There is the concept known both in this country and abroad, called parens patriae. Dr B.K. Mukherjea in his "Hindu Law of Religious and Charitable Trust", Tagore Law Lectures, Fifth Edition, at page 404, referring to the concept of parens patriae, has noted that in English law, the Crown as parens patriae is the constitutional protector of all property subject to charitable trusts, such trusts being essentially matters of public concern. Thus the position is that according to Indian concept parens patriae doctrine recognized King as the protector of all citizens and as parent. In Budhkaran Chaukhani v. Thakur Prosad Shah [AIR 1942 Cal 331 : 46 CWN 425] the position was explained by the Calcutta High Court at page 318 of the report. The same position was reiterated by the said High Court in Banku Behary Mondal v. Banku Behary Hazra [AIR 1943 Cal 203 : 47 CWN 89] at page 205 of the report. The position was further elaborated and explained by the Madras High Court in Medai Dalavoi T. Kumaraswami Mudaliar v. Medai Dalavoi Rajammal [AIR 1957 Mad 563 : (1957) 2 MLJ 211] at page 567 of the report. This Court also recognized the concept of parens patriae relying on the observations of Dr Mukherjea aforesaid in Ram Saroop v. S.P. Sahi [1959 Supp 2 SCR 583 : AIR 1959 SC 951] at pages 598 and 599. In the "Words and Phrases" Permanent Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons, but the words parens patriae meaning thereby ''the father of the country', were applied originally to the King and are used to designate the State referring to its sovereign power of guardinaship over persons under disability. (emphasis supplied) Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on sovereign, in public interest, to protect persons under disability who have no rightful protector. The connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. The Government is within its duty to protect and to control persons under disability. Conceptually, the parens patriae theory is the obligation of the State to protect and takes into custody the rights and the privileges of its citizens for dischargings its obligations. Our Constitution makes it imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert and secure their rights, the State must come into picture and protect and fight for the rights of the citizens. The Preamble to the Constitution, read with the Directive Principles, Articles 38, 39 and 39-A enjoin the State to take up these responsibilities. It is the protective measure to which the social welfare state is committed. It is necessary for the State to ensure the fundamental rights in conjunction with the Directive Principles of State Policy to effectively discharge its obligation and for this purpose, if necessary, to deprive some rights and privileges of the individual victims or their heirs to protect their rights better and secure these further. Reference may be made to Alfred L. Snapp & Son, Inc. v. Puerto Rico [73 L Ed 2d 995 : 458 US 592 : 102 SCR 3260] in this connection. There it was held by the Supreme Court of the United States of America that Commonwealth of Puerto Rico have standing to sue as parens patriae to enjoin apple growers' discrimination against Puerto Rico migrant farm workers. This case illustrates in some aspect the scope of parens patriae. The Commonwealth of Puerto Rico sued in the United States District Court for the Western District of Virginia, as parens patriae for Puerto Rican migrant farmworkers, and against Virginia apple growers, to enjoin discrimination against Puerto Ricans in favour of Jamaican workers in violation of the Wagner-Peyser Act, and the Immigration and Nationality Act. The District Court dismissed the action on the ground that the Commonwealth lacked standing to sue, but the Court of Appeal for the Fourth Circuit reversed it. On certiorari, the United States Supreme Court affirmed. In the opinion by White, J., joined by Burger, C.J. and Brennan, Marshall, Blackmun, Rehnquist, Stevens, and O'Connor, JJ., it was held that Puerto Rico had a claim to represent its quasi-sovereign interests in federal court at least which was as strong as that of any State, and that it had parens patriae standing to sue to secure its residents from the harmful effects of discrimination and to obtain full and equal participation in the federal employment service scheme established pursuant to the Wagner-Peyser Act and the Immigration and Nationality Act of 1952. Justice White referred to the meaning of the expression parens patriae. According to Black's Law Dictionary, 5th edn. 1979, page 10003, it means literally ''parent of the country' and refers traditionally to the role of the State as a sovereign and guardian of persons under legal disability. Justice White at page 1003 of the report emphasised that the parens patriae action had its roots in the common law concept of the "royal prerogative". The royal prerogative included the right or responsibility to take care of persons who were legally unable, on account of mental incapacity, whether it proceeds from nonage, idiocy or lunacy to take proper care of themselves and their property. This prerogative of parens patriae is inherent in the supreme power of every state, whether that power is lodged in a royal person or in the legislature and is a most beneficent function. After discussing several cases Justice White observed at page 1007 of the report that in order to maintain an action, in parens patriae, the State must articulate an interest apart from the interests of particular parties, i.e. the State must be more than a nominal party. The State must express a quasi-sovereign interest. Again an instructive insight can be obtained from the observations of Justice Holmes of the American Supreme Court in the case of State of Georgia v. Tennessee Copper Co. [51 L Ed 1038 : 206 US 230 (1906) : 27 SCR 618] , which was a case involving air pollution in Georgia caused by the discharge of noxious gases from the defendant's plant in Tennesee. Justice Holmes at page 1044 of the report described the State's interest as follows:

''This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power....

... When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests..."

44. The court below acquired knowledge that the guardian, the elder brother, appointed by the court of minor, had died. The parents had died earlier. The court below should have shown concern for the future and welfare of the child. Rather, it was the duty of the court below, to have proceeded to appoint guardian of the minor, considering his welfare by adopting the legal procedure of its own motion. The matter could not be left, only by rejecting the application, as not maintainable. Even if the application was rejected, as not maintainable, the court below was under duty and it should have discharged its ''parens patriae jurisdiction' also considering Section 42 of the Act, 1890, according to which on the death of a guardian appointed or declared by the court, if the ward is still a minor, the court of its own motion or an application under Chapter II, may, appoint or declare another guardian. Therefore, appointment of another guardian, after the death of a guardian appointed by the court can be made exercising the power, on the application under Chapter II i.e. the application by the persons entitled to apply for order of appointment of guardian under Section 8, and also by the court of its own motion. In the present case, the court finds that there being no application under Chapter II, complying with the provision of Section 10 of the Act, 1890 and application B-3 filed by the appellant, having been rejected, as not maintainable, nonetheless the court having acquired knowledge of the death of the guardian appointed by the court and the minor still being minor, it ought to have proceeded to appoint the guardian of the minor on its own motion.

45. It should not be lost sight of and must be emphasized that in custody cases, the claim to the custody of the child by the proposed guardian is in the nature of Trust, only for the benefit of the minor. The welfare of the minor so far as the guardianship, regarding person of the minor is concerned, is the primary consideration. The Trust reposed in the court is to be discharged by following the principles under the Act, 1890 and the principles settled by judicial pronouncement, which is the best way.

46. In Saiyad Mohammad Bakar El-Edroos (supra), upon which reliance has been placed by the appellant's counsel, it has been held that a procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. A procedural law is always subservient to the substantive law. Nothing can be given by a procedural law what is not sought to be given by a substantive law and nothing can be taken away by the procedural law what is given by the substantive law. The said proposition is well settled but it requires consideration in each and every case if to comply with the procedural law would be in aid of justice or it would defeat the very object which is sought to be achieved.

47. In the present case, as the appointment of the guardian, is after the death of the guardian, appointed by the court, and, therefore, in view of Section 42 of the Act, the courts have power to appoint on the application filed under Chapter II as well as of its own motion and to that extent, the law as laid down in Dhaninder Kumar (supra) is to be considered.

48. The court below, therefore deserves to be directed to exercise its parens patriae jurisdiction to appoint guardian of the minor-respondent no. 2, by following the due procedure of law keeping in view the welfare of the minor as of paramount consideration, considering all the relevant aspects of the matter, as discussed above.

49. Before concluding, it needs to be observed that, although, the State/District Magistrate is well within its right to oppose the grant of guardianship, in favour of any person, in the welfare of the minor and it is also the duty of the State/District Magistrate to do so, but the point which needs to be emphasized is that the endeavour should be not merely to get the application rejected but to ensure that the minor gets a guardian appointed as per law to secure his welfare, for which the State/District Magistrate concerned has also been given power to apply under Section 8 (c) & (d) of the Act, 1890.

50. The points formulated in para 14 are answered, as under:-

(i) On the application B-3, as filed by the appellant, she could not be appointed a guardian of the minor by allowing the prayer, as made by incorporating her name in the judgment and order dated 15.12.2020 in Misc. Case No. 516/2020, which was in favour of Aditya Singh.

(ii) On the death of the guardian, appointed by the court, if the minor is still minor, new guardian has to be appointed on the application of the proposed guardian filed under Chapter II Section 8, complying with the requirements of the Act, 1890 and the court also have the jurisdiction and duty to appoint of its own motion. In either case, the procedural provisions which are intended to be in the welfare of the minor cannot be relaxed or dispensed with. However, if there is no harm or mischief in relaxing the procedural provision or dispensing therewith, in the welfare of the child which takes priority above all else, the court, may in its discretion, relax or dispense with the same, but, the court should record reasons for such relaxation or dispensation, so that the superior courts if occasion arises, may see whether such relaxation or dispensation with purely procedural provision is or is not, necessary in the welfare of the minor. The welfare of the minor is also required to be considered, keeping in view the provisions of Section 17 of the Act, 1890, as also on the principles, as settled by Hon'ble the Apex Court, inter alia in the cases of Nil Ratan Kundu (supra), V. Ravi Chandran (supra), Smriti Madan Kansagra (supra). The welfare of the minor requires consideration also qua, the proposed guardian. The welfare of the minor if already determined qua, one guardian cannot necesarily and automatically be read, with respect to thenew proposed guardian, for which the court has to consider the welfare, keeping in view the aforesaid.

(iii) Even after rejection of the application of the appellant, as not maintainable, the court in exercise of its parens patriae jurisdiction and in view of Section 42 of the Act, 1890, should have proceeded on its own, to appoint the guardian of the minor, as per law.

51. Section 107 C.P.C. r/w Order 41 Rule 33 C.P.C. provides for the powers of the appellate court according to which, in exercise of such powers, the appellate court may, pass any decree and make any order which ought to have been passed or made. This Court in exercise of appellate jurisdiction, passes the following order:-

(i) The order dated 09.09.2021 rejecting the appellant's application B-3, for the prayer made, as not maintainable, does not call for any interference.

(ii) The jurisdiction being parens patriae, as also in view of Section 42 of the Guardians and Wards Act, 1890, the court below is directed to proceed of its own motion to appoint the guardian of minor-Aryan Singh (respondent no. 2), in accordance with the provisions of law and on settled principles as mentioned above.

(iii) The court below shall also consider and make order for temporary custody and protection of the person of the minor, as it thinks proper under Section 12 of the Act, 1890.

52. It shall be open for the appellant, if so desires, to apply for her appointment as guardian of the minor under Chapter II Section 8(a) (b) of the Act, 1890 by filing application, as per law.

53. It shall also be open for the District Magistrate, Lucknow in view of Section 8, (c) & (d) of the Act, 1890 to file an application for appointment of guardian of the minor.

54. The appeal is decided finally in the aforesaid terms.

55. No order as to costs.

56. Let a copy of this judgment be sent to the learned District Judge, Lucknow as also the District Magistrate, Lucknow.

(Ravi Nath Tilhari, J.)

Order Date :- 04.10.2021

Nitesh