Anoop Jain vs Sonia Gupta & Anr.
2010 Latest Caselaw 1207 Del

                   * IN THE HIGH COURT OF DELHI AT NEW DELHI



                                                  Date of Reserve: 24th February 2010
                                                       Date of Order: 3rd March, 2010

CM (M) No. 342/2008 & CM No. 3848/2008
%                                                                            03.03.2010

          Anoop Jain                                        ... Petitioner
                               Through: Mr. Lalit Gupta, Advocate with
                               Petitioner-in-person
                 Versus

          Sonia Gupta & Anr.                               ... Respondents
                               Through: Mr. Ranjit Singh Cheema, Advocate &
                               Mr. N.Nath Sarvaria, Advocate

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not?                                     Yes.

3. Whether judgment should be reported in Digest?                             Yes.

JUDGMENT

By this petition the petitioner has assailed an order dated 29th

January, 2008 of learned Guardianship Judge whereby while considering a request

of the petitioner/father for dismissal of the petition as withdrawn in view of

compromise arrived at between the parties, the learned Guardianship Judge modified

the compromise entered into between the parties and expunged the words - "All the

rights of the child, from his Father Sh. Anoop Jain or property if any belonging

to him" - on the ground that the settlement was detrimental to the interest of the

child.

2. The petition pending before the Guardianship Judge was filed by the

father (petitioner herein) claiming custody of the child who was living with the mother.

There were other litigations pending between the parties including criminal case. In

the other litigation pending between the parties the matter was referred to the

Mediation Cell with the consent of the parties and mediation was conducted by a

trained Judge-Mediator between the parties and a detailed compromise was arrived

at between the parties regarding maintenance, custody and other disputes pending

between the parties including the dispute in respect of property no. BM-44 East

Shalimar Bagh. The parties acted upon this settlement. The petitioner paid the

amount as agreed in the compromise, the suits were withdrawn, criminal case FIR

No. 219/2004 PS Shalimar Bagh was quashed on a petition filed by the petitioner,

divorce petition was also disposed of in terms of the compromise. After this detailed

compromise, an application was filed before the Guardianship Judge by the father

who had filed this petition under Section 25 of the Guardian and Wards Act, for

withdrawal of the petition in view of the compromise arrived at between the parties

and at that time the Guardianship Judge passed the impugned order.

3. It is noteworthy that Guardianship Judge was not dealing with any

rights of the minor in the petition in respect of the property of the father nor he was to

adjudicate any dispute about rights of the minor. The dispute pending before the

Guardianship Judge was whether the father, who had filed a petition claiming

custody of the minor, was entitled to the custody or not. Father in terms of the

compromise arrived at between the parties, had to withdraw this custody petition.

There was no occasion for the Guardianship Judge to believe or to consider that

father or the mother had acted contrary to the interests of the minor. It was not a

case where a guardian of minor was appointed by the Court and the Court had to

oversee if the guardian was acting in the interest of minor or not. Mother of the

minor, having custody of the child, was a natural guardian of the child and it was

agreed that she would retain the custody of the child. There was no reason for the

learned Guardianship Judge to believe that the mother acted contrary to the interests

of the minor. It is settled law that the natural guardian has a right to compromise the

matter on behalf of the guardian and enter into a contract or agreement on behalf of

minor and such agreement can be placed before the Court under Order 23 Rule 3

CPC. Only s guardian ad litem i.e. a guardian appointed by the Court to act on

behalf of the minor during pendency of case cannot compromise the matter without

permission of the Court. Order 32 Rule 7 CPC does not prohibit a natural guardian

from settling dispute outside the Court and without intervention of the Court. The

Court can make an inquiry about the interest of the guardian only if the dispute

pending before the Court is in respect of the property pertaining to the minor and the

compromise is entered by the guardian in respect of that property. Where there is no

dispute pending before the Guardianship Judge regarding interest of the minor in

movable or immovable property and the only dispute pending before the Court was

whether custody should be awarded to the father or not, the Guardianship Court

could not have refused the father to withdraw the petition from the Court. This

withdrawal could be made even without referring to the compromise arrived at

between the parties. Merely because the father informed the Court that he was

withdrawing the petition because he had settled the matter with the respondent, did

not give a right to the Guardianship Court to alter the terms of the compromise in the

name of welfare of the minor.

4. I consider that parents of the minor were competent enough to look

after the welfare of the minor. The order of the Guardianship Court was beyond

jurisdiction and is therefore liable to be set aside to the extent the Guardianship Court

modified the terms of the compromise between the parties. The petition is allowed in

above terms.

March 03, 2010                                SHIV NARAYAN DHINGRA, J.
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