DR SHANTANU vs VEDIKA KASHYAP
- Court
- Jharkhand High Court
[2026:JHHC:31659-DB]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 96 of 2024
Dr. Shantanu, aged about 35 years, son of Dr. Arun Kumar, resident of
European Quarters, Police Line Road, Post Office Chaibasa, Police
Station Sadar, Town Chaibasa, District West Singhbhum.
… … Petitioner/Appellant
Versus
Vedika Kashyap, aged about 33 years, daughter of Sri Amarnath Bhagat,
wife of Dr. Shantanu, resident of D-5, Falgu Road, Northern Town, Post
Office Bistupur, Police Station Bistupur, Town Jamshedpur, District
West Singhbhum.
… … Respondent/Respondent
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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Indrajit Sinha, Advocate
Mr. Ajay Kumar Sah, Advocate.
Ms. Peeya Bhatia, Advocate
For the Respondent : Mr. Sumeet Gadodia, Advocate
Mr. K.S. Nanda, Advocate
Mr. Prakhar Harit, Advocate
Mr. Anish Lal, Advocate
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CAV/Reserved on 15.09.2026 Pronounced on: 29.10.2026
Per
Sujit Narayan Prasad, J.
1. The instant appeal under Section 19(1) of the Family Courts Act, 1984 is
directed against the order/judgment dated 13.03.2024 passed by the learned
Principal Judge, Family Court, Jamshedpur in Original Suit No. 829 of
2023, whereby and whereunder, the application filed under Section 25 of
the Guardian and Wards Act, 1890 (hereinafter referred to as the Act, 1890)
for custody of the minor son has been held to be not maintainable by
showing the opinion that the petition ought to have been filed under Section
7 read with Section 17 of the Guardian and Wards Act.
Factual Matrix
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2. The brief facts of the case as per the pleading as has been enumerated in the
memo of appeal needs to be referred herein which is as under:-
2.1 The marriage of the parties was solemnized on 10.12.2017 at Wave
International Hotel, Jamshedpur, in accordance with Hindu Rites and
Customs which was followed by a reception ceremony hosted by the
parents of the appellant at Gandhi Maidan, Chaibasa, on 14.12.2017.
2.2 One male child, namely, Kavish Kumar, was born out of the aforesaid
wedlock on 19.06.2020 at Cloud 09 Hospital, Chandigarh. The said
child of the parties hereto is presently residing with the opposite party
Jamshedpur within the jurisdiction of this Court.
2.3 Prior to the marriage of the parties, the appellant was residing at
Chandigarh where the appellant was pursuing his M.S. in General
Surgery from PGIMER, Chandigarh which course began on
28.06.2016. During such relevant time, while the opposite party was
residing at Chaibasa at her matrimonial home, the appellant used to
visit the opposite party at Chaibasa on frequent basis.
2.4 The opposite party started residing within the appellant from
18.05.2019 at the married doctor's hostel at Chandigarh. The opposite
party had conceived in September, 2019. On 03.08.2022, the opposite
party without any sufficient cause came back to Jamshedpur without
informing the appellant and left their minor child back at Chandigarh
in the house of the appellant and that too while the child was severely
unwell and was under medication. Immediately after the opposite
party came back to Jamshedpur within two days, the opposite party
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instituted an F.I.R. being Bistupur P.S. Case No. 187 of 2022 on
06.08.2022 under Sections 498A, 506 and 34 of Indian Penal Code and
Sections 3 and 4 of the Dowry Prohibition Act with all kinds of false
allegations and concocted stories made against the appellant and his
parents, now pending before the Learned Court of Chief Judicial
Magistrate at Jamshedpur.
2.5 After due investigation, the Police submitted final report in favour of
the parents of the appellant and submitted charge sheet against the
appellant under Sections 498A and 506 of the Indian Penal Code.
During investigation in Bistupur P.S. Case No. 187 of 2022 by virtue
of a direction of the Investigating Officer, the custody of the minor
child who at the relevant time was residing with the appellant was
returned by the appellant to the opposite party on 20.08.2022 at
Bistupur Police Station, since when the minor child was removed from
the custody of the appellant and he started residing with the opposite
party-respondent at Jamshedpur.
2.6 On the aforesaid facts, the appellant had filed one original suit in the
Court of Principal Judge, Family Court, at Jamshedpur, and the same
was registered and marked as Original Suit Case No.829 of 2023.
2.7 During pendency of the Original Suit / Guardianship Case No. 829 of
2023, the appellant had filed a petition under Section 12 of the
Guardian & Wards Act, 1890, for grant of visitation right of the child
in the manner indicated in the petition.
2.8 The aforesaid original suit was heard and vide order dated 13.03.2024
passed in Original Suit No. 829 of 2023, the said suit has been
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dismissed which was filed for custody of the minor son under Section
25 of the Act, 1890 holding the same to be not maintainable by
showing the opinion that the petition ought to have been filed under
Section 7 read with Section 17 of the Guardian and Wards Act.
3. The factual aspect as per the pleading made in the memo of appeal which
is not in dispute is that the appellant is the father of the minor taken birth
from the wedlock of the marriage solemnized in between the parties, who
is aged about 03 years.
4. The case of the appellant before the learned Family Judge was that he is
being deprived from the love of his child and as such, had prayed for
visitation right of the minor child. The matter was heard by the learned
Family Judge. The application filed under Section 25 of the Guardian and
Wards Act 1890 has been held to be not maintainable which is under
challenge.
Submission of the learned counsel for the appellant:
5. Mr. Indrajit Sinha, learned counsel for the appellant has taken the following
grounds:
(i) It has been submitted that the impugned judgment/order is bad in the
eyes of law as the same has been passed without applying its judicial
mind and without consideration of the facts in right perspective.
(ii) It has also been submitted that the applicability of Section 7 of the
Act, 1890 which provides for power of the Court to make order as to
guardianship, will not be applicable as the appellant is a natural
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guardian and Section 7 of the Act provides for appointing a guardian
or declaring a person to be a guardian.
(iii) It has further been contended that section 8 of the Guardian and
Wards Act, 1890 provides that who are the person entitle to apply for
the order under section 7 and section 11 provides the procedure for
admission of the application. Again, on the reading of both section 8
and section 11 it again suggests that there is not requirement for the
natural guardian to be declare him or her as guardian under section 7
read with section 17 of the Guardian and Wards Act, 1890.
(iv) By referring aforesaid provisions, the learned counsel has submitted
that a natural guardian is not required, in any case, to first obtain an
order of appointment or declaration under Section 7 read with
Section 17 before seeking appropriate relief concerning custody
under Section 25 of the Act 1890.
(v) The learned counsel for the appellant in order to fortify his argument
has relied upon the following judgments rendered by the Hon’ble
Apex Court and Calcutta High Court:
(a) Shazia Aman Khan and Other versus State of Orissa and
Another; 2024 (7) SCC 564 (relevant paragraphs 17, 18, 19 and
21),
(b) Athar Hussain Vs. Syed Siraj Ahmed and Others (2010) 2
Supreme Court Cases 654 (relevant paragraphs 31 to 34),
(c) Raj Kumar Gupta versus Barbara Gupta, 1988 SCC OnLine
CAL 177 (relevant paragraph 16),
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6. Learned counsel for the appellant, on the aforesaid grounds, has submitted
that the impugned order, therefore, is not sustainable in the eyes of law and
hence, is fit to be quashed and set aside.
Submission of the learned counsel for the respondent:
7. Per contra , Mr. Sumeet Gadodia, learned counsel for the respondent
assisted by Mr. K.S. Nanda, learned counsel for the respondent on record,
while defending the impugned judgment, has submitted that there is no
infirmity in the impugned judgement rather an application ought to have
been filed under Section 7 read with Section 17 of the Guardian and Wards
Act.
8. While defending the impugned order, Mr. Gadodia, learned counsel for the
respondent has submitted that for the purpose to make an order as to
guardianship, the power has been conferred to be exercised by the Court as
per the provision provided under Section 7. Herein, the issue of
guardianship is involved and as such, the application ought not to have been
filed under 25 of the Act, 1890 because the provision as contained under
Section 25 is in different context to that of Section 7.
9. The power which is to be exercised under Section 25 of the Act, 1890 is to
be exercised by the Court in a situation if a ward leaves or is removed from
the custody of a guardian of his person, the Court, if it is of opinion that it
will be for the welfare of the ward to return to the custody of his guardian.
As per the statement as referred under the provision as contained under
Section 25, two things are important, i.e., “from the custody of a guardian”
and “return to the custody of his guardian”.
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10. Herein, the fact of the case is that the dispute is in between two guardians
for the purpose of custody or visitation right, hence, a declaration is to be
given by invoking the jurisdiction of this Court under Section 7 of the Act,
1890.
11. The learned counsel in order to buttress his limb of argument has placed his
reliance on the judgment rendered by the Hon’ble Apex Court and Delhi
high Court which are as follows:
(a) Githa Hariharan (Ms) And Another Vs. Versus Reserve Bank Of
India And Another (1999) 2 Supreme Court Cases 228
(b) Ram Singh vs.Lila Devi 1969 SCC OnLine Del 59
12. Learned counsel for the respondent has submitted, on the aforesaid grounds,
that the impugned order warrants no interference by this Hon'ble Court.
Analysis:
13. This Court has heard the learned counsel for the parties and gone through
the impugned judgment 13.03.2024 passed by the learned Principal Judge,
Family Court, Jamshedpur in Original Suit No. 829 of 2023, which is a brief
order, as such, the same is being reproduced as under:
“13.3.24 The record is placed for hearing on the point of admission of the
present suit.
Heard on the point of admission.
On perusal of record it appears that present case has been filed u/s
25. Guardian and Wards Act, 1890 Section 25 entities a guardian to custody
of the ward if such ward leaves or is removed from the custody of the guardian
of his person.
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Learned Counsel for the petitioner in support of his contention
relied upon the judgment as reported in (2015)8 SCC 318 and (1973)1 SCC
840. It has been held by the Hon'ble Court in the aforesaid judgment that the
use of word 'ward' and 'guardian' leave little doubt that it is the guardian
who. having the care of the person of his ward, has been deprived of the same
and is in the capacity of guardian entitled to the custody of the such ward.
that can seek the assistance of the Court for return of his ward to his custody.
The guardian contemplated by this section includes every kind of guardian
known to law. The learned Counsel for the petitioner further submitted that
petitioner being the father of the child is the natural guardian as
contemplated u/s 25 of the Act.
From the bare perusal as above it appears that section 25 of the Act
contemplates appointment of a person as guardian to be prerequisite before
the minor can be returned to the custody of such guardian.
Learned Counsel for the petitioner conceded that the petitioner has
never been appointed as guardian by any order of Court and has sought
return of the minor being the parent and natural guardian of the child.
Learned Counsel further failed to appreciate that the child is in custody of
mother who herself is a natural guardian being the other parent.
Thus, this Court is of considered opinion that the present petition
ought to have filed u/s 7 r/w 17 of the Guardian and Wards Act while Counsel
for the petitioner was not amenable to any suitable amendment/his petition.
This Court, therefore, is left with no other option but to dismiss this petition
as the same is not fit to be admitted. The suit accordingly dismissed.
14. From a perusal of the impugned order, it is evident that the learned Family
Court has taken into consideration the scope and ambit of Section 25 of the
Guardians and Wards Act, 1890 (herein referred as Act 1890) and has
observed that the said provision proceeds on the premise that the person
seeking restoration of custody is already recognized as a guardian in the
eyes of law. Consequently, the learned Family Court, therefore, held that a
claim for return of a minor under Section 25 of the Act 1890 presupposes
the existence of a guardian to whose custody the ward is sought to be
restored.
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15. The learned Family Court further recorded that the petitioner himself had
admitted that he had never been appointed or declared as a guardian by any
competent court. It was also noticed that the petitioner's claim for custody
was founded solely on his status as the father and natural guardian of the
child. At the same time, the minor was admittedly residing with the
respondent-mother, who is also a natural guardian and parent of the child.
16. The learned Family Court accordingly came to the conclusion that the
foundational issue regarding guardianship and custodial entitlement was
required to be adjudicated before any relief for custody could be granted. In
such circumstances, the Court found that the appropriate remedy available
to the petitioner was to invoke the jurisdiction under Section 7 read with
Section 17 of the Act, 1890, rather than to directly maintain a petition under
Section 25 thereof.
17. In the backdrop of the aforesaid factual matrix and the rival submissions
advanced on behalf of the parties, the principal issue that falls for
consideration before this Court is whether a petition filed by one parent
seeking custody and consequential visitation rights in respect of a minor
child is maintainable under Section 25 of the Guardians and Wards Act,
1890, or whether such relief can be granted only upon invocation of the
jurisdiction of the Court under Section 7 read with Section 17 of the said
Act.
18. Before adverting to the rival submissions, it would be apposite to refer to
the relevant provisions of the Hindu Minority and Guardianship Act, 1956
(hereinafter referred to as the Act, 1956) which contains a provision under
Section 2 which provides that the provision of this Act shall be in addition
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to, and not, save as hereinafter expressly provided, in derogation of, the
Guardian and Wards Act, 1890. For ready reference, the Section 2 of the
Act, 1956 is being reproduced as under:
“ 2. Act to be supplemental to Act 8 of 1890.—
The provision of this Act shall be in addition to, and not, save as hereinafter
expressly provided, in derogation of, the Guardian and Wards Act, 1890 (8
of 1890).”
19. The term “guardian” has been defined under Section 4(b) of the Act, 1956
which means a person having the care of the person of a minor or of his
property or of both his person and property, and includes—(i) a natural
guardian, (ii) a guardian appointed by the will of the minor’s father or
mother, (iii) a guardian appointed or declared by a court, and (iv) a person
empowered to act as such by or under any enactment relating to any court
of wards. Under Section 4(c) “natural guardian” has also been defined
which means any of the guardians mentioned in Section 6.
20. It is evident from the provision as contained under Section 4(b) that
guardian is having the notion meaning a person having the care of the
person of a minor or of his property or of both his person and proper which
also includes natural guardian.
21. The “natural guardian” has been defined under Section 6 of the Act, 1956
as provided therein that the natural guardian 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 case of an illegitimate boy
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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). For ready reference, the provision of Section 6 of
the Act, 1956 is being reproduced as under:
“ 6. Natural guardians of a Hindu minor.—
The natural guardian 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 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).”
22. It is thus evident that 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.
23. We are concerned with the provision as contained under Section 6(a) of the
Act, 1956 for the present. The reference of the Act, 1956 is thus being made
for the purpose of referring the decision of guardian as provided under
Section 6 of the Act, 1956.
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24. The Act, 1890 also contains the definition of “guardian” as under Section
4(2) thereof which means a person having the care of the person of a minor
or of his property, or of both his person and property.
25. There is difference in between the definition of “guardian” as provided
under Section 4(2) of the Act, 1890 and under Section 4(b) of the Act, 1956.
In the Act, 1890, the definition of “guardian” is in restrictive sense while in
the Act, 1956, the definition of “guardian” is in broader sense which also
includes a natural guardian.
26. Section 7 of the Act, 1890 confers power upon the Court to make orders as
to guardianship. For ready reference, Section 7 of the Act, 1890 is being
referred as under:
“ 7. Power of the Court to make order as to guardianship.-
(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.”
27. It is, thus, evident from the provision of Section 7 of the Act 1890 that if
any issue is being agitated before the Court and if the Court is satisfied that
it is for the welfare of a minor that an order should be made—(a) appointing
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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.
28. Section 7(2) of the Act, 1890 confers power upon the Court that if such
order has been passed, the same will imply the removal of any guardian
who has not been appointed by will or other instrument or appointed or
declared by the Court.
29. The provision as contained under Section 7, therefore, confers power upon
the Court appoint a guardian of his person or property, or both, or declare a
person to be such a guardian. Meaning thereby, the power of appointing a
guardian as also declaration of a person to be such a guardian has been
vested to the Court under Section 7 of the Act, 1890.
30. Section 8 of the Act, 1890 also needs to be referred herein which provides
the entitlement of a person to apply for order. An order shall not be made
under the last foregoing section except on the application of (a) the person
desirous of being, or claiming to be, the guardian of the minor, or (b) any
relative or friend of the minor, or (c) the Collector of the district or other
local area within which the minor ordinarily resides or in which he has
property, or (d) the Collector having authority with respect to the class to
which the minor belongs. Section 8 of the Act, 1890 is being reproduced as
under for ready reference:
“ 8. Persons entitled to apply for order. An order shall not be made
under the last foregoing section except on the application of
(a) the person desirous of being, or claiming to be, the guardian of the
minor, or
(b) any relative or friend of the minor, or
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(c) the Collector of the district or other local area within which the minor
ordinarily resides or in which he has property, or
(d) the Collector having authority with respect to the class to which the
minor belongs.”
31. It is, thus, evident by conjoint reading of Sections 7 and 8 of the Act, 1890
that the person desirous of being, or claiming to be, the guardian of the
minor, or any relative or friend of the minor, or the Collector of the district
or other local area within which the minor ordinarily resides or in which he
has property, or the Collector having authority with respect to the class to
which the minor belongs can make an application for appointment as a
guardian of the minor or his property or to get the declaration for getting to
be such a guardian.
32. Section 25 of the Act, 1890 confers power upon the Court for holding the
title of guardian to custody of ward. The said provision is being reproduced
as under:
“ 25. Title of guardian to custody of ward
(1) If a ward leaves or is removed from the custody of a guardian of his
person, the Court, if it is of opinion that it will be for the welfare of the ward
to return to the custody of his guardian, may make an order for his return,
and for the purpose of enforcing the order, may cause the ward to be
arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power
conferred on a Magistrate of the first class by section 100 of the [Code of
Criminal Procedure, 1882 (10 of 1882)] [Now see Section 97, Criminal
Procedure Code, 1973 (2 of 1974).].
(3) The residence of a ward against the will of his guardian with a person
who is not his guardian does not of itself terminate the guardianship.”
33. It is, thus, evident from the provision as contained under Section 25 of the
Act, 1890 that if award leaves or is removed from the custody of a guardian
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of his person, the Court, if it is of opinion that it will be for the welfare of
the ward to return to the custody of his guardian, may make an order for his
return, and for the purpose of enforcing the order, may cause the ward to be
arrested and to be delivered into the custody of the guardian.
34. The consideration of the word “ward”, “a guardian”, “his guardian” and
“the guardian” is relevant for the purpose to decide the issue of
maintainability.
35. “Ward” has been defined under Section 4(3) which means a minor for
whose person or property, or both, there is a guardian. The “guardian” has
been defined under Section 4(2) of the Act, 1890 which means a person
having the care of the person of a minor or of his property, or of both his
person and property, meaning thereby, for a ward, guardian is already there.
36. The word “guardian” or “his guardian” or “the guardian” connotes that if
the custody of the ward is available with a guardian but if the ward leaves
or is removed from the custody of a guardian, then, the Court by considering
the prime issue of welfare of the ward to return to the custody of his
guardian, may make an order for his return, and for the purpose of enforcing
the order, may cause the ward to be arrested and to be delivered into the
custody of the guardian.
37. Thus, it is evident on comparative assessment of both the provisions as
contained under Sections 7 and 25 of the Act, 1890 that the Section 7
confers power upon the Court to appoint a guardian or declare a person to
be such a guardian while on the other hand, Section 25 deals with the
entitlement to seek return of a ward to the custody of his or her guardian
where the ward has left or has been removed from such custody. The
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provision empowers the Court to direct the return of the ward if, upon
consideration of the circumstances, it forms the opinion that such return
would be conducive to the welfare of the minor.
38. Under Section 25 of the Act 1890, there is no need of a declaration of a
guardian either to the mother or the father because prior to leaving of the
ward or having removed by either of the guardian either the mother or
father, the minor was under the care of guardian either the mother or the
father. But, due to leaving of the ward or removal from the custody of a
guardian, the other guardian is having the grievance, so in such situation,
the other guardian, i.e., the mother or the father from whose custody the
ward has left or removed, then, an application is required to be filed under
Section 25 of the Act, 1890.
39. A conjoint reading of the aforesaid provisions makes it evident that the
jurisdiction contemplated under Sections 7 and 25, though relating to the
welfare and custody of a minor, operates in distinct statutory contexts.
Section 7 concerns the appointment or declaration of a guardian, whereas
Section 25 contemplates the return of a ward to the custody of a guardian
in the circumstances specified therein.
40. It is, thus, evident that the maintainability of the application either under
Section 7 or under Section 25 of the Act, 1890 is required to be considered
on the basis of the facts and particularly the status of the petitioner and the
respondent/wife.
41. It is not in dispute that the appellant is the father of the minor child born out
of the wedlock between the parties. It is equally undisputed that, following
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the events of August 2022, the minor child has been residing with the
respondent/wife at Jamshedpur.
42. As evident from the impugned order as quoted and referred hereinabove,
the learned Family Court has proceeded on the premise that, in the absence
of an order appointing or declaring the appellant to be the guardian of the
minor child under Section 7 of the Act, 1890, an application under Section
25 of the said Act is not maintainable.
43. But it is considered view of this Court based upon the statutory deduction
and factual aspect of the particular case that such an approach does not
sufficiently take into consideration the distinction between an application
seeking appointment or declaration of guardianship and an application
seeking restoration of custody of a minor who is alleged to have been
removed from the custody of a guardian.
44. As discussed, and referred in the preceding paragraph that Section 7 of the
Act, 1890 empowers the competent Court to appoint a guardian of the
person or property of a minor, or both, or to declare a person to be such
guardian, where the Court is satisfied that such an order is necessary for the
welfare of the minor. Section 25 of the Act 1890, on the other hand,
specifically deals with the entitlement of a guardian to seek the return of a
ward who has left or has been removed from the custody of the guardian of
his person, subject, of course, to the satisfaction of the Court that such return
would be conducive to the welfare of the minor.
45. The two provisions, therefore, operate in distinct statutory situations. While
Section 7 deals with the appointment or declaration of guardianship,
Section 25 provides a remedy in relation to the custody of a ward in the
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circumstances contemplated therein. The mere fact that both provisions
concern the welfare of a minor does not justify importing into Section 25
an inflexible condition that a person seeking relief thereunder must, in every
case, first obtain a separate order of appointment or declaration under
Section 7.
46. In the present case, it is an admitted position that the appellant is the father
of the minor child, born out of the wedlock between the parties. It is also
the case of the appellant that the minor child was residing with him at
Chandigarh until the events of August 2022 and that the child was thereafter
handed over to the respondent pursuant to the direction of the police during
the investigation of the criminal case instituted by the respondent against
the appellant.
47. The aforesaid circumstances, as pleaded, disclose a dispute concerning the
custody of the minor between his biological parents. The appellant asserts
that the child was previously in his care and that he seeks restoration of
custody. Whether the circumstances satisfy the statutory ingredients of
Section 25, and whether restoration of custody would serve the welfare of
the child, are matters requiring adjudication on the basis of the pleadings,
evidence and all relevant circumstances.
48. At the stage of considering the maintainability of the petition, the Court is
required to distinguish between the existence of a legally cognizable claim
and the ultimate entitlement to the relief sought. The fact that the
respondent-mother is also a natural guardian does not, by itself, extinguish
the appellant's status as a natural guardian or render his claim incapable of
examination under Section 25. The competing claims of the parents must
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be adjudicated in accordance with law, with the welfare of the minor
remaining the paramount consideration.
49. This Court is conscious of the provision contained in Section 6(a) of the
Hindu Minority and Guardianship Act, 1956, under which the father and,
after him, the mother are recognised as natural guardians of a Hindu minor
boy or unmarried girl, subject to the statutory proviso that the custody of a
minor who has not completed the age of five years shall ordinarily be with
the mother. The said provision, however, must be considered along with the
other relevant provisions of law and the settled principle that the welfare of
the minor is paramount.
50. The Court is of the considered opinion that Section 25 of the Act, 1890 is
intended to provide a substantive remedy for restoration or regulation of
custody where a ward has left or has been removed from the custody of a
guardian. The provision does not, either expressly or by necessary
implication, mandate that such guardian must necessarily be a court-
appointed guardian.
51. The decision of the issue would, however, depend upon the nature of
controversy involved in a given case. Where the very status of a person as
guardian is disputed, or where rival claims requiring adjudication as to
guardianship are involved, recourse to Section 7 may become necessary.
However, where the applicant approaches the court in the capacity of a
natural guardian recognized by law and seeks custody or ancillary reliefs
concerning the minor, the petition cannot be rejected at the threshold merely
on the ground that no prior declaration under Section 7 has been obtained.
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52. In the instant case, the learned Family Court has dismissed the petition at
the threshold solely on the ground that the appellant had not previously been
appointed or declared a guardian under Section 7 read with Section 17 of
the Act, 1890. The impugned order does not disclose an adjudication on the
merits of the appellant's claim for restoration of custody or on the question
whether the statutory requirements of Section 25 are otherwise satisfied.
53. In the considered opinion of this Court, the absence of a prior order
appointing or declaring the appellant to be a guardian could not, in the
present case, by itself constitute a sufficient ground for holding the petition
under Section 25 to be not maintainable. The appellant's claim as a natural
guardian and his assertion that the minor had previously been in his care
required consideration in the light of the definition of guardian under
Section 4(2) of the Act, 1890, the applicable law and the precise
requirements of Section 25.
54. It is also relevant that the appellant had sought visitation rights during the
pendency of the proceedings by filing an application under Section 12 of
the Act, 1890. The question of visitation, including the frequency, duration
and manner of interaction between the appellant and the minor, is likewise
required to be considered in a manner that protects the child's welfare and
preserves, to the extent appropriate, the child's relationship with both
parents.
55. This Court, however, makes it clear that the present determination is
confined to the question of maintainability. No finding is being recorded on
the truth or otherwise of the allegations levelled by either party, nor is any
final opinion being expressed as to which parent should have custody of the
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minor child. Those questions must be decided by the competent Court upon
consideration of the relevant evidence and circumstances.
56. In view of the foregoing discussion, this Court holds that the learned
Principal Judge, Family Court, Jamshedpur, erred in dismissing Original
Suit No. 829 of 2023 at the threshold solely on the ground that the appellant
had not obtained an order of appointment or declaration of guardianship
under Section 7 read with Section 17 of the Guardians and Wards Act, 1890.
The impugned order, to that extent, cannot be sustained in law.
57. This Court, in view of the aforesaid discussion and applying the scope of
Sections 7 and 25 of the Act, 1890 as discussed hereinabove on the facts of
the case, is of the view that the application under Section 25 of the Act,
1890 has correctly been filed before the Court, hence, the impugned order
dated 13.03.2024 passed in Original Suit No. 829 of 2023 needs
interference.
58. Accordingly, the order dated 13.03.2024 passed by the learned Principal
Judge, Family Court, Jamshedpur in Original Suit No. 829 of 2023 is
hereby, quashed and set aside.
59. The Original Suit No.829 of 2023 is revived and restore to its original file
for the purpose of adjudication of the issue by providing due opportunity to
the parties.
60. It is made clear that the observations made in this judgment are confined to
the issue of maintainability and shall not be construed as an expression of
opinion on the ultimate entitlement of either party to custody or visitation.
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The learned Family Court shall decide the matter independently on the basis
of the material available on record and in accordance with law.
61. The learned Family Court shall also consider the pending application, if
any, seeking visitation rights under Section 12 of the Act, 1890, and may
pass appropriate interim directions for visitation or interaction, if warranted,
after considering the circumstances of the parties and the welfare of the
minor. Any interim arrangement shall be designed to avoid unnecessary
disruption to the child's routine and emotional well-being.
62. In view of the aforesaid observation(s) and direction(s), the instant appeal
is allowed, as such, stands disposed of.
63. Pending interlocutory application(s), if any, also stands disposed of.
I agree (Sujit Narayan Prasad, J.)
Pradeep Kumar Srivastava Pradeep Kumar Srivastava
( , J.) ( , J.)
th
29 October, 2026
Saurabh / A.F.R.
Uploaded on 30.10.2026
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