Rosy Jacob Vs. Jacob A. Chakramakkal: Supreme Court on Guardians and Wards. Act, 1890
In the case of Rosy Jacob Vs. Jacob A. Chakramakkal reported in (1973) 1 SCC 840, a three-Judge Bench of the Supreme Court in a rather curt language observed that the children are not mere chattels; nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.
The court said that the requirement of indispensable tolerance and mental understanding in matrimonial life is its basic foundation. The two spouses before us who are both educated and cultured and who come from highly respectable families must realise that reasonable wear and tear and normal jars and shocks of ordinary married life has to be put up with in the larger interests of their own happiness and of the healthy, normal growth and development of their offspring, whom destiny has entrusted to their joint parental care.
The Court also said that incompatibility of tamprament has to be endeavored to be disciplined into compatibility and not to be magnified by abnormal impluses or impulsive desires and passions. The husband is not disentitled to a house and a housewife, even though the wife has achieved the status of an economically emancipated woman; similarly the wife is not a domestic slave, but a responsible partner in discharging their joint, parental obligation in promoting the welfare of their children and in sharing the pleasure of their children’s company. ‘Both parents have, therefore, to cooperate and work harmoniously for their children who should feel proud of their parents and of their home, bearing in mind that their children have a right to expect from their parents such a home.
The Court said that under section 25 of the Guardians and Wards. Act, 1890 husband’s application for the custody of children-Welfare of the children is the dominant consideration.
The Apex Court found that on the wife’s application, judicial separation was granted under the Indian Divorce Act by the single Judge of the High Court. The custody of the eldest son was maintained with the husband while that of the daughter and the youngest son was given to the wife. In the Letters Patent Appeal preferred by the husband, the Division Bench varied the order directing handing over the custody of the daughter and the youngest son also to the husband. The principal question before the Court was whether the husband’s application for the custody of the children u/s 25 of the Guardian and Wards Act, 1890, was maintainable and, if so, what are the considerations which the Court should bear in mind in.
The Supreme Court while allowing the appeal held that in the facts and circumstances of the case that the Court cannot make any order under the Divorce Act, as the daughter had attained majority, and no guardian could be appointed U/S. 19 of the Guardians and Wards Act, 1890 during the life time of the existing guardian, husband’s application was competent. Welfare of the children is the primary consideration, and hyper technicalities should not be allowed to deprive the guardian necessary assistance from the Court in effectively discharging his duties and obligations towards his ward.
The Court then held that controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents. The Court while exercising the discretion should consider all relevant facts and circumstances so as to ensure the welfare of the children. The contention that if the husband is not unfit to be the guardian of his minor children, then the question of their welfare does not at all arise, is misleading. If the custody of the father cannot promote the children’s welfare, equally or better, than the custody of the mother, then, he cannot claim indefeasible right to their custody u/s 25 merely because there is no defect in his personal character and he has attachment for his children-which every normal parent has. As the daughter has just attained puberty and the youngest son was of the tender age, in the interest of their welfare, the mother should have the custody in preference to the father.