II YEAR B.A.

/BBA LLB  Semester-IV (2019-2024)

1 -Internal Assessment – FAMILY LAW

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CASE ANALYSIS IRAC FORMAT

FACULTY IN CHARGE- PROF. KAMAXI SAMBARI

NAME: KASHISH JAIN
DIVISION: B
PRN: 19010126126
COURSE: BBA LL.B. (Hons)
BATCH: 2019-2024
CASE: TARA CHAND MAVAR V. BESANTI DEVI1

FACTS

Appellant resides in a joint family, is the eldest son responsible for caring for the elderly
members. The marriage of the parties involved took place in 1971 and Rinku, their son was born
from such wedlock in 1981. It had been alleged that the respondent is of hot temperament and
pressurised her husband, the appellant to live away from the Joint Family which he refused.
Following this refusal the respondent left the house with her son in 1983. Under Section 125 of
the Cr.P.C2, the respondent filled an application claiming maintenance for sustenance of herself
and her son. The respondent also made false allegations claiming that the appellant had been
violent with her. The trial court disallowed maintenance for her and granted maintenance for the
son, leading to the appellant filing a petition under Section 7 3 of the Guardian and Wards Act for
the custody of his minor son. This petition was dismissed by the High Court and appeal was filed
against the same in the Supreme Court.

ISSUES INVOLVED:

In this Judgement of the Supreme Court the Court dealt with the following issues which are:

1) Whether the Court shall in consistency with the provisions of the relevant law decide
what appears to ensure the welfare of the Minor Concerned.
2) Whether the preference of the child will outweigh the Best Interest of the Child.

RULES APPLICABLE

Legal provisions:

Under the Guardian and Wards Act, 1890

Section 7: which

Power of the Court to make order as to guardianship.—

1
Tara Chand Mavar v. Besanti Devi, 1988 WLN UC 500
2
Code of Criminal Procedure, Sec 125
3
Guardian and Wards Act, 1890, Sec 7
 1)  Where the Court is satisfied that it is for the welfare of a minor that an order should be
made—
a) appointing a guardian of his person or property or both, or
b) declaring a person to be such a guardian the Court may make an order accordingly.
2)  An order under this section shall imply the removal of any guardian who has not been
appointed by will or other instrument or appointed or declared by the Court.
3)  Where a guardian has been appointed by will or other instrument or appointed or
declared by the Court, an order under this section appointing or declaring another
person to be guardian in his stead shall not be made until the powers of the guardian
appointed or declared as aforesaid have ceased under the provisions of this Act.

Section 17:

Matters to be considered by the Court in appointing guardian.—

(1)In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions
of this section, be guided by what, consistently with the law to which the minor is subject,
appears in the circumstances to be for the welfare of the minor.

(3) If minor is old enough to form an intelligent preference, the Court may consider that
preference.

ANALYSIS:

In the previous judgment about this case, the trial court had deemed it fit to allow the child to
reside with his mother fir the sole purpose of sentimentality particularly because the child had
expressed preference for his mother over his father, as he had spent the better part of his life with
the respondent. However, the Judgment took a more practical approach and was quick to point
out that a minor child of 7 years could not have formed a coherent perception of his own well
being, especially because he could have not known what residing with his father would entail.

The Court was also quick to notice, that in his contentions, the Counsel for the respondent relied
heavily on the intangible impracticalities of residing with the mother and claimed that the child
was receiving education from a sound institution. The Court on the other hand leaned towards
the contentions made by the Counsel on behalf of the appellant which were made in a systematic
manner, relying heavily on the practical aspects and consideration of the all-round well being of
the child. These were:

1) The Father qualified as a natural guardian

2) The respondent was an uneducated lady living in a village that lacked a decent
infrastructure forcing the child to travel a distance to attend school.
3) While most children start school at 4 to 5 years of age, Rinku had started at 7 years if age.
4) The respondent had no source of Income
5) The Members of the Appellent’s family were well situated: education wise and career
wise.
6) The appellant has to care for elderly members of the family and hence was reluctant to
live separately.
7) Compared to the respondent, the appellant provided an environment more conducive to
Rinku’s wellbeing.

The judgment of the Court came after taking into consideration the opportunity to the overall
development of the child which in his situation, only the father was in a situation to provide.
The Appellant was also in a better position to provide the child with a sound financial
backing and there as nothing on record to show anything to contradict that the Appellant was
a fit guardian.

Addressing the first issue the Court was clear that residing with the father was in the best
interest of the Child and found the appellant to be fit in consideration with Section 17(1) of
the Guardian and Wards Act, 1890.

According to Section 17 (3) of the Guardians and Wards Act, the minor may express his
preferences, which Rinku did, in the favor of his mother who the Court deemed unqualified
in a variety of aspects of being able to care for her young child. The Court therefore did not
take into consideration clause (5) of the same section which made clear that a Court cannot
appoint a guardian without the child’s acceptance as this child could have not know what was
in their best interests

CONCLUSION
Having to live with only one parent at a time is a phenomenon that has become uncommon in
recent years particularly as couples battle over custody in the courts, the children become less
than just that and become the subject of a conflict. In many a case, estranged parents find it
difficult to re-connect with the child (Earlier this was typically in the case of fathers). Now-a-
days estrangement can happen from either parent.

“In modern day custody battles, neither the father, as the traditional natural guardian, nor the
mother, as the biologically equipped parent to care for the child of tender age, are routinely
awarded custody. The principle, best interest of the child takes into consideration the existing
living arrangements and home environment of the child. … Each case will be decided on its own
merit, taking into account the overall social, educational and emotional needs, of the child.4”

The Supreme Court in this situation made an incredibly accurate judgment of character of both
the parents and took into consideration the welfare of the child involved over everything else
which includes the Child’s preferences. According to the Guardians and Wards Act, 1890 the
Court cannot appoint a guardian without the child’s will. However, in this case it was evident
that the father could provide a better living situation for the child than the mother and thus was
justified in going above and over the preference of the child in appointing custody to the natural
guardian of the child. This case showed the Judges being extremely aware of the needs of a child
and going above and beyond the old trends of giving the custody to the mother. A possible
improvement in cases of custody could be conditional use of joint custody which prevents the
estrangement of the child from either parent as the child’s time is divided between the two.

4
Flavia Agnes, Family Law II: Marriage, Divorce and Matrimonial Litigation (2011), Oxford University Press: New
Delhi, p 254