OP (FC) No. 202 of 2016 (R) – Dharsana Rani v. Dileep Rajan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938** **OP (FC).No. 202 of 2016 (R)** **---------------------------AGAINST THE ORDERS ON IA 102/2016 IN OP(G&W)327/2012** **PETITIONER:** **--------------------** **DHARSANA RANI, VISWADARSANAM, BHASI NAGAR, KOCHULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011.** **BY ADVS.SRI.B.RAGUNATHAN SRI.M.SALIM SRI.R.SRINATH SRI.V.M.JACOB** **RESPONDENT:** **----------------------** **SHRI.DILEEP RAJAN, SRA NO.30, NEAR SREECHITHRA QUARTERS, MANJADI, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011, NOW RESIDING AT "MANJU", TC.13/1376, JOB LANE, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011.** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No. 202 of 2016 (R) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------------------------** **P1 TRUE COPY OF THE COMMON JUDGMENT DATED 31.10.2015 IN OP(G&W)NO.327 OF 2012 AND OP.NO.501 OF 2012 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM. P2 TRUE COPY OF THE ORDER DATED 09.02.2016 IN IA NO.102 OF 2016 IN OP(G&W)NO.327 OF 2015 AND OP.NO.501 OF 2012. P3 TRUE COPY OF THE ORDER DATED 09.02.2016 IN IA.NO.103 OF 2016 IN OP(G&W)NO.327 OF 2015. P4 TRUE COPY OF THE BIRTH CERTIFICATE DATED 27.06.2013 OF MINOR DAUGHTER DEVVIYA ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM.** **RESPONDENT(S)' EXHIBITS NIL ----------------------------------------** ## **/TRUE COPY/** **P.A. TO JUDGE** **VPV** ## **P.N.RAVINDRAN & DAMA SESHADRI NAIDU, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O.P.(F.C.)No.202 of 2016** **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 28[th] day of October, 2016** ## **JUDGMENT** ## _**Dama Seshadri Naidu, J.**_ ## **Facts:** The petitioner is the mother; the respondent, father—and they have a child, Devviya, aged 5½ years. When their matrimonial relationship strained, the child’s mother filed O.P.No.501 of 2012 for divorce before the Family Court, Trivandrum. On the other hand, the father filed O.P.(G&W)No.327 of 2012 for the minor child’s custody. The Family Court, on merits, disposed of both the proceedings through a common judgment dated 31.10.2015. 2. The mother’s request for divorce was granted; and the father’s request for the custody of the child, dismissed. It seems the father has not filed any appeal against the common judgment. 3. The mother is a trained nurse desirous of securing employment abroad. For that purpose, when she applied to the passport authorities to have a passport for the child as well, they have objected that, in the judgment, she was not declared to be the guardian of the child. Even in the school, she is said to have faced the same problem about her status vis-a-vis the child. ## **O.P.(F.C.)No.202 of 2016** ## **-:2:-** ## **Misdirected Effort:** 4. As a result, the mother wanted to have a declaration about her guardianship over the child. She filed two interlocutory applications in the already disposed of O.P.(G&W)No.327 of 2012—I.A.No.102 of 2016 and I.A.No.103 of 2016: one to reopen the case and another to modify the judgment. But both have been dismissed. Aggrieved, the mother filed this Original Petition. 5. Despite service of notice, the father has not entered an appearance. ## **Submissions:** 6. The learned counsel for the mother has submitted that the Family Court ought to have entertained the mother’s interlocutory applications and granted the relief prayed for. Since the Family Court has, according to the learned counsel, emphatically denied relief to the father concerning the child’s custody; the mother, by default, must have been declared to be the guardian. 7. We are afraid the approach adopted by the wife is misdirected. Once a court disposes of any proceedings, it usually renders itself _functus officio_ . The question of the court reopening the judgment for providing further relief to either party does not arise. Of course, a judgment can always be reviewed if a party can point out any reviewable grounds. Further, it is the father, who filed the ## **O.P.(F.C.)No.202 of 2016** ## **-:3:-** application for custody. Trite to observe that in a petitioner’s proceedings, a respondent getting a declaratory relief is a procedural impossibility. The court either accepts or rejects the petitioner’s plea; the respondent’s defence is only to expose the falsity of the petitioner’s claim. Precisely for this reason, a respondent to judicial proceedings is permitted to take all sorts of pleas of defence: in the alternative or even contradictory. ## **Reasoning:** 8. Procedural hassles apart, what is, evidently, at stake is the child’s future. The objection allegedly raised by the authorities seems to be highly technical. The Apex Court, as well as this court, has emphatically declared that section 6 of the Hindu Minority and Guardianship Act, 1956, (‘the Act’) has to be read down to mean that the mother, even while the father is alive, could act as the natural guardian. 9. We will, first, examine Section 4 (b), which defines “guardian” to mean a person having the care of the person of a minor or of his property or of both. So, to define a guardian, the status of a person desiring to act as a guardian is not given any primacy, for the only consideration is the care of the minor. Section 4 (c) of the Act, next, defines “Natural Guardian,” which means any of the guardians mentioned in Section 6. ## **O.P.(F.C.)No.202 of 2016** ## **-:4:-** ## 10. We may, therefore, examine Section 6 of the Act, which ## reads: “6. The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are— - ( _a_ ) _in the case of a boy or an unmarried girl — the father, and after him, the mother: Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;_ - ( _b_ ) in the case of an illegitimate boy or an illegitimate unmarried girl — the mother, and after her, the father; - ( _c_ ) in the case of a married girl — the husband: - Provided that no person shall be entitled to act as the natural - guardian of a minor under the provisions of this section— - ( _a_ ) if he has ceased to be a Hindu, or - ( _b_ ) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). - _Explanation_ .—In this section, the expressions ‘father’ and ‘mother’ do - not include a stepfather and a stepmother.” (italics supplied for emphasis) 11. From the above provision, it is evident that for a minor boy or an unmarried girl, the father, and after him, the mother, is the natural guardian. That accepted, we may have to examine the semantic significance of “after” as has been employed in Clause (a) of Section 6. To begin with, “after” is not a word of art; rather, it is a mere lexical term—syntactically used as a preposition, a conjunction, an adverb, or even an adjective. 12. In Clause (a) of Section 6, I reckon, it is employed as a preposition to mean ‘in the time following (an event or another period of time).’ It also means, according to the Concise Oxford English Dictionary, “next to and following in order or importance.” In Section ## **O.P.(F.C.)No.202 of 2016** ## **-:5:-** 6, “after” has been employed, we reckon, in the sense last mentioned. **Precedential Position:** 13. In _**Githa Hariharan v. Reserve Bank of India**_[1] a threeJudge Bench of the Honourable Supreme Court has considered the semantic significance of “after” in Clause (a) of Section 6 of the Act. Their Lordships have held that whenever a dispute concerning the guardianship of a minor between the father and the mother of a minor is raised in a Court of law, the word 'after' in the Section would have no significance, as the Court is primarily concerned with the best interests of the minor and its welfare in the widest sense while determining the question concerning the custody and guardianship of the minor. Here, the Family Court has already rejected the father’s claim, and, further, let the child remain with the mother. True, there is no positive declaration, as such, in the mother’s name; it is, at best, by default. One can safely assume that the court’s express denial of the father’s claim for custody or guardianship enures to the mother’s benefit. 14. _**Githa Hariharan**_ has, however, further examined the claims of either of the parties without recourse to a court of law. According to the Apex Court, Section 6(a) is capable of such construction as would retain it within the Constitutional limits. The word 'after' need not > 1 (1999) 2 SCC 228 ## **O.P.(F.C.)No.202 of 2016** ## **-:6:-** necessarily mean 'after the life time'. In the context in which it appears in Section 6(a), it means, asserts the Apex Court, 'in the absence of’, the word 'absence' therein referring to the father's absence from the care of the minor's property or person for any reason whatsoever. 15. The Court has taken aid of the international covenants, such as Convention on the Elimination of All Forms of Discrimination against Women, 1979 ("CEDAW"), and the Beijing Declaration, which direct all State parties to take appropriate measures to prevent discrimination of all forms against women. 16. In a concurring judgment, U. C. Banerjee, J., has held that the tenor of the whole Act of 1956 is to ensure the child's welfare and, therefore, the interpretation ought to be in consonance with the legislative intent in engrafting the provision on the Statute Book. And it is from this perspective that the word 'after' appearing in Section 6 (a) shall have to be interpreted. It is now a settled law, holds his Lordship, that a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided unless, of course, the same makes a violent departure from the legislative intent, in the event of which a wider debate may be had having due reference to the contextual facts. 17. Significant is the further observation that the father by reason of a dominant personality cannot be ascribed to have a ## **O.P.(F.C.)No.202 of 2016** ## **-:7:-** preferential right over the mother in the matter of guardianship since both fall within the same category. And in that view of the matter, the word 'after' shall have to be interpreted in terms of the constitutional safe-guard and guarantee so as to give a proper and effective meaning to the words use. The word 'after' shall have to be given a meaning which would subserve the need of the situation, viz., the welfare of the minor. The word 'after', it is further held, does not necessarily mean ‘after the death of the father’; on the contrary, it depicts an intent so as to ascribe the meaning thereto as 'in the absence of—be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise. And it is only in the event of such a meaning being ascribed to the word 'after' as used in Section 6 then and in that event, the same would be in accordance with the intent of the legislation viz. welfare of the child. 18. This court in **Juvairiya v. Regional Passport Officer**[2] which was delivered by one of us [P.N.Ravindran (J)] has painstakingly extracted the entire provision governing the issue and has declared, among other things, that as per Section III of Schedule III of the Passport Rules, where a parent is not in a position to get the consent of the other parent for whatever reason, the parent applying for the minor’s passport may sign the form (application) and submit an 2 2014 (1) KLT 990 ## **O.P.(F.C.)No.202 of 2016** ## **-:8:-** affidavit under Annexure “G”. 19. _**Juvairiya**_ further holds that even in Case No.8 in Table 2 of the Passport Rules, it is not stipulated that the other parent's consent should be obtained. As a matter of fact, all that is stipulated is that if the other parent has visiting rights, a declaration in Annexure “H” signed by both parents should be filed; or if one of the parents has not given consent, a declaration in Annexure “G” should be filed. 20. _**Juvairiya**_ specifically observes that nowhere has it been stipulated in the Act or Rules that a certified copy of the order granting custody of the child to the applicant should be produced. That apart, in Case No.11 in Table 2, the stipulation is that if one of the parents applies for a passport for her minor child, in the absence of the other parent's consent, only an affidavit in the form prescribed in Annexure “G” is required to be produced along with the other relevant documents. 21. Finally, emphatic is the observation that one parent need not produce the other parent’s consent or orders from a court granting child’s custody to him/her. If such an order is there, it should be produced, but it is not stipulated that in cases where a competent court has not passed an order granting custody of the child to the applicant parent, the parent having custody cannot apply for a the minor’s passport. All that the law requires in such a case is the ## **O.P.(F.C.)No.202 of 2016** ## **-:9:-** production of an affidavit in the form prescribed in Annexure “G” as also other documents set out in Table 2 in respect of Case No. 11. 22. Though the mother, in passing, alleges that the school authorities, too, have been insisting on a declaration as to her legal status vis-a-vis the child, the allegation is indistinct. Nothing turns upon it. ## **Relief:** 23. Given the authoritative pronouncement of law in _**Githa Hariharan**_ and _**Juvairiya**_ , the mother is the natural guardian of her child; she is entitled to represent the child's interest in all respects under section 6 of the Guardian and Wards Act. We, therefore, hold that neither the passport authorities nor the school authorities can insist on the mother’s securing a declaration from a court of law as to her guardianship over her child. 24. We do not, to be fair to the passport and school authorities, have before us any material to declare that the authorities’ demand is illegal. Therefore, we make it clear that the above relief is with a view to securing the child’s future and avoiding hassles to a single mother. We further make it clear that the Family Court’s dismissing the interlocutory applications in an already disposed of proceedings will not affect the mother’s right to claim a similar relief, under statutory compulsion, in any manner—no res judicata. ## **O.P.(F.C.)No.202 of 2016** ## **-:10:-** ## **Epilogue:** 25. At this juncture, the learned counsel has also brought to our notice that the father, while filing O.P.(G&W)No.327 of 2012, mentioned the girl's name wrongly as ‘Shivani’. Drawing our attention to Ext.P4 birth certificate, the learned counsel has demonstrated before us that the minor girl's name is ‘Devviya’. So, given the primacy of the birth certificate granted by the Government of Kerala, the authorities concerned may as well consider this fact if any issue arises concerning the discrepancy in the minor’s name. With the above observations, we dispose of this original petition. No order on costs. Sd/- **P.N.RAVINDRAN JUDGE** Sd/- **DAMA SESHADRI NAIDU JUDGE** ## **vpv**