LexNIL RATAN KUNDU & ANR. versus ABHIJIT KUNDU
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[2008] 11S.C.R.1111 . ii NIL RATAN KU~DU & ANR. A \/. ABHIJIT KUNDU (Civil Appeal No. 4960 of 2008) AUGUST 8, 2008 B .. )' [C.K. THAKKER AND D.K. JAIN, JJ.] Guardians and Wards Act, 1890 - ss. 7 and 17 - Gus- tody of minor child - Sought by father- Father facing criminal trial u/s 498A and 304 /PC for causing death of the mother of c the child - Child in custody of maternal grand-parents - Courts below granting the custody to the father - On appeal, held: Courts below granted custody to the father without applying principle of welfare of the child as paramount consideration - Custody of minor being humane problem, to be solved with D human touch and not solely by interpreting legal provisions - -=' 'I' The court in selecting a guardian exercises parens patriae jurisdiction - Thus bound to consider welfare and we/I-being of child -On the facts, courts were bound to consider the pen- dency of criminal case against the father - In such cases E wishes of minor also are required to be ascert~ined by the court - Hindu Minority and Guardianship Act, 1956 - s: 13. Respondent filed an application under Guardians and Wards Act, 1890 seeking custody of his minor son. The minor child was in custody of the appellants (maternal F > ~ grand parents of the child). Appellants had lodged an FIR against the respondent u/s 498A and 304 IPC for causing death of their daughter (mother of the child). Criminal case was pending against the respondent-father. Appellants had got the custody of the child at the age of five years when G he was found sick in the house of the respondent. Trial court allowed the application holding that the respondent ). being the father and natural guardian, the present and fu- ture of the child would be better secured in his custody. 1111 H 1112 SUPREME COURT REPORTS [2008] 11 S.C.R. + A High Court upheld the order of the trial court and also drew inference that the child had been tutored against his fa- ther. Hence the present appeal. The child, when asked by this Court, refused to go to the respondent. B Allowing the appeal, the Court · HELD: 1.1 In the instant case, the Courts below were >( .. not right or justified in granting custody of the minor to the respondent-father without applying relevant and well- settled principle of welfare of the child as paramount con- c sideration. [Para 83] [·1141-A] 1.2 In deciding a difficult and complex question as to t custody of a minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting le- D gal provisions. It is a humane 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 se- v lecting proper guardian of a minor, the paramount con- E sideration should be the welfare and well-being of the I child. In selecting a guardian, the Court is exercising pa- ~ rens patriae jurisdiction and is expected, n;;w bound, to \.- give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable F surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are t· ~ equally, or even more important, essential and indispens- ; able considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must con- G sider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor. [Para 56] [1133 G-H] [1134 A-C] 1.3 In such cases, it is not the 'negative test' that the .... father is not 'unfit' or disqualified to have custody of his H son/daughter is relevant but the 'positive test' that such NIL RATAN KUNDU & ANR. v. ABHIJIT KUN DU 1113 _. ~ ~ custody would be in the welfare of the minor which is A material and it is on that basis that the court should exer- cise the power to grant or refuse custody of minor in favour of father, mother or any other guardian. [Para 62] [1135-C-D] ·~ 1.4 On the facts and in the circumstances of the case, B both the Courts were duty bound to consider the allega- - ,. tions against the respondent herein and pendency of · criminal case for an offence punishable under Section 498A IPC. One of the matters which is required to be con- sidered by a Co
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