COMPREHENSIVE CHECKLIST TOOLKIT FOR DISTRICT JUDGE FOR APPOINTMENT OF GUARDIAN OF MINOR FOR WITHDRAWAL OF SERVICE BENEFITS OF THEIR DECEASED FATHER

 Guardianship Appointment & Service Benefits Withdrawal

Minor Child (Deceased Father) - Grandmother Applicant

PART A: PRE-ADMISSION CHECKLIST (SECTION 11 G&W ACT)

A.1 PRELIMINARY SCRUTINY (SECTION 10 G&W ACT)

•             ☐ Petition filed in correct jurisdiction: Application is before District Court having territorial jurisdiction over minor’s ordinary residence

•             ☐ Application in prescribed format: Petition contains all particulars required under Section 10, including:

–            ☐ Full name, age, religion of minor

–            ☐ Full details of deceased father

–            ☐ Status of mother (deceased/incapacitated/unfit)

–            ☐ Description of property/service benefits involved

–            ☐ Qualifications of grandmother-applicant

–            ☐ Causes necessitating guardianship

–            ☐ Affidavit of willingness to act (Form 2)

•             ☐ Court fee properly paid: Verification of appropriate court fee as per Guardianship Rules

•             ☐ Appointment not prohibited: Grandmother is not disqualified under Section 19 (e.g., not a non-believer in religion of minor in Hindu context)

Print Page

Step-Parents and Guardianship: Interpretation under the Hindu Minority and Guardianship Act, 1956

 Introduction

The concept of guardianship is crucial in family law, especially concerning the welfare of minors. The Hindu Minority and Guardianship Act, 1956, is a significant statute that governs the appointment and rights of guardians for Hindu minors. One important question that often arises is whether the terms "father" and "mother" under this Act also include "step-father" and "step-mother." This article explores the legal interpretation of these terms with reference to Section 6 of the Act.

Legal Provision: Section 6 and Its Explanation

Print Page

Whether Elder Sister can Exercise right of Guardianship Over Younger Sister without Court's Order?

There is no legal right of an elder sister to

exercise guardianship over her sister except when

there is an order from a Court of competent

jurisdiction.

In such circumstances, we do not think the

writ petition seeking relief in the nature of Habeas

Corpus was a proper proceeding for the grievance of

the petitioner. The petitioner shall be at liberty to

apply before the appropriate Court seeking

Guardianship, if the facts so warrant.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No. 14633/2023

RITA DWIVEDI Vs THE STATE OF HIMACHAL PRADESH

CORAM :

HON'BLE MR. JUSTICE ANIRUDDHA BOSE

HON'BLE MR. JUSTICE SANJAY KUMAR

Date : 12-02-2024 This petition was called on for hearing today.

UPON hearing the counsel the Court made the following order: 

Print Page

Whether family court can entertain a child custody dispute if, under DV Act proceeding husband is restrained from communicating with the child?

Bearing in mind the allegations that were laid by the petitioner the Court notes that the respondent here stood restrained from communicating with the children and the complainant in any manner whatsoever in light of the order passed in the PWDV proceedings. It was further provided in those proceedings that the respondent would not disturb the custody of the children.

This very aspect was noticed and underlined by a learned Judge of this Court in Amit Kumar and another Vs. Charu Makin [2017 SCC OnLine Del 7861] where the Court held:-

10. It is thus evident that notwithstanding anything contained in any other law as an interim measure in the best interest of the child and to avoid any harm to the interest of the child/children, the Court under Section 21 of the PWDV Act can pass order granting temporary custody of the child/children and/or make necessary arrangements for the visit of the child. However, PWDV Act is not a final remedy for the custody and guardianship issues of a minor child. Section 7(g) of the Family Courts Act, 1984 vests jurisdiction in a Family Court to decide suits or proceedings in relation to the

guardianship of a person or the custody of or access to any minor.

IN THE HIGH COURT OF DELHI AT NEW DELHI

 C.R.P. 52/2022 & CM APPL. 18406/2022 (stay)

SHILPA SINGH  Vs VIKAS KHANNA 

CORAM:

 MR. JUSTICE YASHWANT VARMA

Dated:  13.04.2022

Print Page

Whether father can claim custody of illegitimate child?

At the very outset, it must be noted that the Petitioner himself

has come before the court with a case that the minor child was born not

out of a wedlock but out of a romantic relationship between the Petitioner

and the Respondent. In other words, it is the Petitioner's own case that the

child is an illegitimate child. If that is so, it is difficult to see how the

Petitioner, who claims to be its putative biological father, can claim the

custody of the child over the Respondent, who is admittedly its biological

mother. Under Section 6 of the Hindu Minority and Guardianship Act, by

which both parties are admittedly governed, in the case of an illegitimate

boy or an illegitimate unmarried girl, it is the mother who is the natural

guardian, and the father's claim of such guardianship comes only after

hers. There are only two exceptions to this rule. The first is that no natural

guardianship can be claimed under Section 6 if the person claiming

guardianship has ceased to be a Hindu. The second exception is where

such person has completely and finally renounced the world becoming a

hermit (vanaprastha) or an ascetic (yati or sanyasi). It is not the

Petitioner's case that the Respondent either has ceased to be a Hindu or

has renounced the world either by becoming a hermit or an ascetic. The

Respondent, thus, has an indefeasible claim to natural guardianship of her

child Omiraj. There is no case in law for the Petitioner to claim

guardianship or custody of the child over her.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

INTERIM APPLICATION NO. 1 OF 2020

IN

WRIT PETITION NO. 2928 OF 2019

Dharmesh Vasantrai Shah  Vs.  Renuka Prakash Tiwari 

CORAM : S.C. GUPTE, J.

DATE : 9 JUNE 2020

Print Page

When parties can approach court even in presence of arbitration agreement?

Arbitration is increasing method of dispute resolution. With increasing number of cross border transactions and international trade contracts, arbitrability of arbitration agreements now holds a prominent place in resolution of international and domestic arbitrations.

In India, traditionally the parties move to court when the the dispute relating to an arbitration agreement arises

The Golden Rule is that if the dispute is covered by an Arbitration agreement, the said dispute should be resolved by Arbitration. However, there are following exceptions to this Rule. 
 1. If a party institute an action in the Court in respect of a dispute, which is covered by an arbitration agreement, the Court may continue with the said action if the other party doesn't object to the Court's jurisdiction.
2. If there is an immediate urgency, the Court may hear the case. (Textile v Hydro Industries)
3. If the dispute is in respect of Oppression and Mismanagement under the Company law, the Court may hear the action.
4. The Court may hear disputes in respect of unjust enrichment and compensation for improvements.
5. The Court may also hear disputes which are not covered under the Agreement and the Arbitration Clause.
6. The Court may hear disputes if non parties to arbitration agreement are involved.
7. The Court should hear dispute if dispute arising out of arbitration agreement in criminal in nature.
8. The Court should hear if dispute is relating to status such as divorce, judicial separation, restitution of conjugal rights, child custody etc.
9. The Court should hear dispute if it is relating to competition law, insolvency, winding up, bribery, corruption
10. The Court should hear dispute if it is relating to   guardianship matters.
11. The Court should hear dispute if it is relating to testamentary matters.
12. The Court should hear dispute if it is disputes relating to trust.

Points 1-5 have been contributed by Mr. Yasith Hirimburegama, Lawyer based in Sri Lanka. 

Print Page

Leading Supreme Court Judgment on child custody and guardianship

The brief facts of the case as laid down by Justice Sen and Justice C. Nagappan can be put in a nutshell as that custody of the child (below 5 years of age) was demanded both by the father and the mother. The lower court awarded interim custody to the mother with visitation rights to the father. On appeal, the Bombay High Court, Goa awarded the interim custody to the father. The father however shifted to Bombay without intimating to the mother who had to file a criminal writ petition in Bombay High Court which simply disposed it off awaiting the petition on Goa trial court. Subsequently, the SC was approached by the petitioner mother.

Summarily, the law laid down by the judgment restricting itself to interim custody can be put in bullets as –

1. Three separate definitions of ‘Guardianship’, ‘Custody’ and ‘Visitation’ have been examined in para 5 from Black’s Law Dictionary.
2. Visitation rights have been ascribed the meaning “In a dissolution or custody suit, permission granted to a parent to visit children. In domestic relations matters, the right of one parent to visit children of the marriage under order of the court.”.
3. In Para 9, though the mother is a Christian by religion, applicability of HMG Act has been relaxed contrary to the law mentioning that it was not disputed.
4. The custody of a minor shall ordinarily be with the mother. However the use of word ordinarily cannot be overstretched.
5. Para 10 – “We must immediately clarify that this Section (section 6) or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latter’s crossing the age of five years.”
6. Para 13 – “….We must again clarify that the father’s suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mother’s unsuitability since Thalbir is below five years of age. In these considerations the father’s character and background will also become relevant but only once the Court strongly and firmly doubts the mother’s suitability; only then and even then would the comparative characteristic of the parents come into play…..”
7. Frequent visitation does not mean continuous visitation.
8. Whether having permanent residence in India or not is not so important a factor.
9. The focal point for consideration in such cases is welfare of the child.
10. Considering that global relocation is a well known legal concept now, the entitlement as to custody by the left behind spouse has to be jurally investigated.
11. Forum Shopping or Court Shopping by parties to litigation must be firmly dealt with.
12. Also, co-ordinate benches of High Courts must respect prior orders.
13. The parent who does not have interim custody should be allowed to visit the child without removing him/her from the custody of the other parent. Spending more time than is allowed amounts to temporary transfer of custody which is impermissible.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 1966 OF 2015


ROXANN SHARMA Vs. ARUN SHARMA


Dated;February 17, 2015.
VIKRAMAJIT SEN, J.
Citation;2015(2) ALLMR978 SC

Print Page