Sanjiv Sangwan vs Sangeeta Sangwan
2003 Latest Caselaw 593 Del

JUDGMENT

Vikramajit Sen, J.

1. This suit for permanent injunction has been filed praying that the Defendant be restrained from removing the children of the parties, namely, Uday Sangwan and Surya Sangwan from Pinegrove School, Kausali, District Solan. During the pendency of the suit IA No. 4735/2001 was disposed off on 15.5.2001 after recording that - " Learned counsel for the Defendant has no objection if the Plaintiff shifts his children from Kausali to Kodaikanal subject to the condition that expenses will be borne by the Plaintiff." The children are still studying in the Kodaikanal International School.

2. The above orders have been followed in spirit by Shri Sukhdev Singh, Additional District Judge, Delhi in terms of his Order dated 28.1.2003 whereby the Defendant (who is the mother of the children and wife of the Plaintiff) was permitted to meet the children as per the School Regulations. The Plaintiff was directed to pay an amount of Rs. 5,000/- towards her traveling and other expenses.

3. The change of school has been ordered by this Court without insisting for any amendment being carried out in the plaint. In matters concerning the custody of minors the Court exercises parens patrae jurisdiction. Since the Court acts as the parents of the children concerned all other considerations and legal formalities stand subjugated to the interests of the children. A plethora of precedents indicate that the Court should eschew a pedantic reading of the pleadings and endeavor to extract from the pleadings the intention of the parties. In an ordinary civil suit I would be loathe and slow to undertake the exercise I am doing in the present case and travel to the extremity of reading the prayers as referring to the School which the children are presently admitted to, rather than the School specifically mentioned in the prayer. If a strict adherence to the procedure were to be followed, it may have compelled me to dismiss the suit, but in doing so, I may have seriously endangered and jeopardised the interests and welfare of the children concerned. Hence I shall read the prayer in the manner indicated above. This is especially so since, at the present juncture there is no dispute that remains between the mother and the father in respect of the schooling of their children at the Kodaikanal International School.

4. Objections as to the maintainability of the present suit have been raised by the Defendant. I am of the opinion that the present suit for injunction does not fall within the ambit circumscribed by the Section 38 of the Specific Relief Act. It is the bounden duty of every parent, and also of the Court, that when disputes pertaining to children is brought before it, it must ensure that the welfare of the children and its predominant concern is adequately safeguarded. The custody of minors is not a proprietary right of the parents but is instead a discharge of their pious obligation to ensure the best for their progeny. The Court, therefore, should not needlessly find a source for its jurisdiction in statutes. There is no enactment, which bars the exercise of powers in disputes concerning the custody and welfare of the children. The Court should unhesitatingly pass orders that would ensure the welfare of the minors. These jurally duties have already been spelt out in (DB), Mt. Haidri Bagum Vs. Jawwad Ali Shah , Shankarappa Vs. Basamma, 1964 Mysore 247 Section 41(h) of the Specific Relief Act is not an obstacle in allowing the present suit.

5. The next question which arises is whether this Court should decline to exercise its discretionary powers and instead point the parties in the direction of the Guardian Judge in the District Court. The Guardian and Wards Act, 1890 (Act, for short) states in its Preamble that is - " an act to consolidate and ... amend the law relating to Guardian and Wards". Section 3 specifically states that none of its provisions should be construed to effect or in any way derogate from the jurisdiction or authority of any Court of Wards or to take away any power possessed by any High Court.

6. Section 4A, which has been inserted in 1936 in the Guardian & Wards Act reads as follows:

"4A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officer. - (1) The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a district court, or authorize the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provisions of this section.

(2) The Judge of a district court may, by order in writing, transfer at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under sub-section (1)

(3) The Judge of a district court may at any stage transfer to his own Court or to any officer subordinate to him empowered under sub-section (1) any proceeding under this Act pending in the Court of any other such officer.

(4) When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the Judge of the District Court may, by order in writing, declare that the Court of the Judge or officer to whom they are transferred shall, for all or any of the purposes of this Act, be deemed to be the Court which appointed or declared the guardian.

The High Court, being the nominating Court does not forfeit its jurisdiction merely because it has made a delegation in favor of the District Judge, but can exercise them concurrently.

7. It is firmly established by statute and precedents that the father of a Hindu minor is the preeminently natural guardian, to the exclusion of the mother. Section 6 of the Hindu Minority and Guardianship Act, 1956 enunciates that the natural guardian of a Hindu minor is the father, and after him, the mother, provided that the custody of a minor below the age of five years shall ordinarily be with the mother. In this background, it has been uniformly observed, as in Rasulan Vs. Dilawar and another , that "the appointment of a father as guardian of the minor is ultra vires. He is in fact the guardian of the person of a minor and no appointment is needed for this purpose". Till the law is amended, the mother of a minor child must petition the Court for being appointed as a guardian of the child under Section 7 of the Guardian and Wards Act. This petition would be entertained by the District Court as envisaged in Section 9 of that Act. The following Section 12 empowers the Court, which is seized of the substantive petition for the appointment of a guardian, to pass interlocutory orders for the production of the minor and interim protection of his person and property. It must, therefore, be assumed that the custody of the children remains with the Plaintiff even though they are presently attending the International School at Kodaikanal. Section 25 of the Guardian and Wards Act would not, therefore, come into play until such time as the children are removed or taken away from the school that they have been admitted in by their father. Where there appears to be reasonable apprehension that any person, including their mother, intends to remove the minors from the School it would be meaningless, in fact, opposed to justice, that such an act should first be committed and thereafter the father be compelled to take recourse to Section 25 of the Act. The position that prevails, therefore, is that whilst the mother can seek interlocutory relief on petitioning the Court for her appointment as the guardian to the exclusion and replacement of the father, the father is not provided with a similar remedy under the Act. It is in these circumstances that Section 3 of the Act assumes significance inasmuch as any other statute which provides succour to the father can be invoked and employed. This must also flow from an appreciation of the maxim `ubi jus ibbi remedium'. I shall only mention the previous decisions in Mohammad Shafi Vs. Shamim Banoo, which was followed in Suresh Babu Vs. Madhu, . Civil Courts have exercised injunctory jurisdiction where it has become imperative and necessary to prevent an act of bigamy and also where the wife perceives the danger of being expelled from the matrimonial home. In my view, therefore, the present Suit for permanent injunction is maintainable.

8. In these circumstances the Defendant is hereby restrained from removing the minors, namely, Uday Sangwan and Surya Sangwan from the Kodaikanal International School without the consent of the Plaintiff. Since the children are not chattels and the Court continues to be concerned in their welfare, these Orders shall be amenable to any modification that may be passed in the future by the Guardian Judge if there is a change in circumstances necessitating the modification in the interests of the children. The suit is decreed in the above terms. Parties to bear their respective costs.