The welfare of the minor is the paramount consideration. The discretion of the court in the matter is, however, governed by judicious principles. The need for change of guardianship may arise in the following cases:
(a) Minor’s Conversion:
In Queen v. Nesbett, ÎÑ 103 (also known as the Brahmin Convert’s case) a Brahmin boy of 12 years became a convert to Christianity. The court considered that the change of religion of the minor need not necessarily lead to a change of guardianship and ordered the Christian instructors to deliver the boy to his father.
It was suggested that the preference of the boy should be ascertained, but as the minor was too young and could not be regarded as capable of expressing an intelligent preference in the matter; the court refused to examine the boy. In Reade v. Krishna, 9 Mad. 391, Muthuswami Iyer., directed that a 16 years old boy converted to Christianity was to be delivered to his parents.
Where the minor is sufficiently old and mature to form an intelligent preference, the court respects his choice. Thus in Sarat Chandra v. Forman, 12 All. 213, when a Hindu boy aged 16 who was able to take care of himself, was converted to Christianity and did not want to live with his Hindu brother, who was acting as his guardian, his wishes were respected and the petition of the brother for custody of the minor was dismissed.
In the matter of Joshy Assam, (1896) 23 Cal. 290, the parents of a female child were going to Burma. They gave the child in adoption to a Christian family and the child (daughter) was baptised. Later the parents returned from Burma and wanted to recover the custody of their daughter. The parents were very poor while the child was being brought up in affluent circumstances.
The court held that by capriciously changing their minds the parents were prejudicing the interests of the minor. So the petition of the natural parents to recover custody of the minor was dismissed.
It would thus be seen that the paramount consideration is the welfare of the minor. Change of religion by itself may not necessitate a change in guardianship. The minor’s wishes also may be consulted when he is old enough for the purpose. The court should so act as to promote the welfare of the minor.
(b) Parent’s Conversion:
Sometimes the parent changes his or her religion. Here again the principle is that by itself this change may not be decisive. The welfare of the minor is the primary consideration. In Skinner v. Orde, 14 MIA 309, a 14 year old minor girl was in the custody of her widowed mother.
The widow became a convert of Mohammedanism and was living with a Christian convert to Mohammedanism who had deserted his Christian wife. She was persuading her daughter to become a convert to Islam. A relation of the deceased father petitioned for removal of the mother from guardianship.
The minor in a statement before the court expressed a desire to continue to live with her mother and to change her faith to Islam. Still the court came to the conclusion that it was not for the welfare of the minor to be in such an environment.
The minor was placed in the custody of a Christian guardian appointed by the court. The Privy Council confirmed this decision and expressed the opinion that normally a minor child is to be brought up in the religion of her father.
In Mookund v. Nobodip, 25 Cal. 881, a Hindu became a convert to Christianity. At the time of conversion he left his minor son in the care of his father (i.e. minor’s grandfather). The minor was being properly brought up. Several years later the father changed his mind and wanted to recover custody of his son. The court concluded that the welfare of the minor required his continuance with the grandfather and dismissed the father’s petition for custody.
Here again it would be observed that the court treats the welfare of the minor as the paramount consideration.
Under the Act 1956 the natural guardian forfeits his or her guardianship when he or she ceases to be a Hindu.
(c) Remarriage of Widowed Mother:
Widow Remarriage is permitted by the law. So a widow may remarry and still continue to be the natural guardian of her minor children by the former marriage. The explanation to s. 4 clearly says that a ‘step-father’ is not to be treated as a ‘father’ for the purposes of that section. This means that the step-father is not a natural guardian. The mother, therefore, normally continues to be the guardian even after her remarriage.
A natural guardian may be removed from guardianship if the court is of the opinion that his or her continuance as guardian is not in the interest of the minor. The welfare of the minor is the paramount consideration.
In Tavid Ghashian v. State of Maharashtra, AIR 2002 Bom. 1, referring to s. 8 of the Guardians and Wards Act it has been held that the fact that the petitioner and his wife are fertile and they are capable of begetting children by itself cannot be taken as a ground to impute mala fide intention in adopting a girl child.
In Amit Beri v. Sheetal Beri, AIR 2006 All 267, the Court held that it appears from the facts as they emerge from the statements of the mother, father and father’s father that the mother is a working lady in Dubai and the child has to be kept some time in a Care Home, that does not indicate that the mother will not be able to take care of the minor.
It is unusual for a working mother to utilize the services of the Care Home that alone, therefore, is not a sufficient circumstance to indicate that the mother will not be able to take care of the minor.
There is nothing on record from which it may be concluded that the mother is likely to ignore the upbringing of the minor. The child has been with the mother now for about 10 years and if his custody is transferred to the father and the father’s father, he will find himself in new surroundings, which may not be very congenial for him. In view of the aforesaid reasons, the custody of the minor shall remain with the mother.
In Bal Krishna Pandey v. Sanjeev Bajpaee, AIR 2004 Uttaranchal 1, it was held that mere second marriage of father cannot become ground to disentitle any or having the custody of a minor or term him unfit to claim custody of minor.
V. Meenapushpa v. V. Ananthan Jayakumar, AIR 2004 Mad. 1, this is’ the case where the custody of the children was retained with the grandparents who were looking after them. On the ground the court should be guided by the sole consideration of welfare of wish and minor. In this case both the children were considered intelligent enough to understand. They were not willing to live with the parents. Hence the court declined to handover custody of the children to the father.