- Chaitanya Shah*
Part I of this article can be accessed here.
III. Application of the ‘Best Interests of the Child’ Doctrine
The avenues where the ‘best interests of the child’ doctrine is primarily relied upon are the cases concerning guardianship and adoption. Under Indian law, the Guardianship and Wards Act, 1890 (‘the GAWA’) forms the most prevalent secular law for governing guardianship and custody. Hindus are also governed under the Hindu Minority and Guardianship Act, 1956 (‘the HMGA’), which is an addendum, rather than an alternative, to the secular law of 1890.[1] The ‘best interests of the child’ forms the governing principle for courts in India, however, it is statutorily recognised as the ‘welfare of the child’ principle. The principle is statutorily placed in Section 17 of the GAWA and in Section 6 of the HMGA. The courts have given a lot of importance to this principle while adjudicating cases, and it is seen as a notwithstanding principle that supersedes even the statutory rights of certain persons.[2] The courts have also held that the object of the GAWA is not only to govern physical custody and it goes beyond that to include the overall well-being of the child.[3] For this purpose, “mature judicial thinking” is required on part of the courts.[4] This involves overlooking the legalistic basis of the case and solving the dispute in light of the human angles involved.[5] The courts have also tried to define the word ‘welfare’ as strictly as possible, and delineated certain considerations that it may include. This includes the child's ordinary contentment, health, education, intellectual development, and favourable surroundings; but over and above physical comforts, the moral and ethical values have to be noted.[6] The statutory construction of the word ‘welfare’ is to be done literally, and no other statutory rights or provisions can stand in the way of the court.[7] The court’s power to override statutory rights stems from its parens patriae jurisdiction.[8] This jurisdiction is unique in character, and enables the court to give primacy to the ‘best interests of the child’ . The theory behind the parens patriae jurisdiction is that the Sovereign has the power, and is under a duty, to protect the interests of minors, and that function has devolved on the Courts.[9]
A partition is allowed to be reopened at the instance of the minor, and is also set aside if it is found by the court that the exercise is not in the best interests of the child.[10] In cases relating to such a reopening of a partition, the courts usually focus much more on the conduct of the adult coparcener in the joint family, and are largely concerned as to whether the exercise is being conducted in the ‘interests of the child’. Interestingly, the jurisdiction that the court exercises in a case relating to a partition suit at the instance of the minor, or in cases relating to the reopening of the partition, stems from the same doctrine of parens patriae.[11]
However, although the jurisdictional footing in cases of guardianship and partition is the same, the considerations they include are largely different. This is primarily because the consideration of the ‘welfare’ of the child in cases of guardianship and custody is a result of legislative assertion. However, in cases relating to partition and the minor, the courts operate on the principle of ‘interests’ of the minor coparcener. This lexical difference is the primary reason for this discrepancy in the two cases. The term ‘welfare’ connotes a broader concept that goes beyond the material well-being of the child. It entails the overall moral and ethical well-being of the child. However, similar grounds relating to the moral and ethical upbringing of the child do not appear in cases of partition. In such cases, the ‘interests’ of the child principle entails a particular approach to how the interests of the minor coparcener in the Joint Hindu Family (‘JHF’) property will be treated: whether this benefits the child materially. The article argues that the overall ‘welfare’ of the child, as considered in guardianship cases, ought to be the consideration in cases of reunion.
In the case of personal laws and close family matters such as partition, the courts appear to follow the tradition set since the times of Privy Council to contain their interference in such matters, and this has crept even in cases where minors are involved.[12] Courts, generally, have only taken into consideration the immediate material interests of the child when considering partition suits or suits challenging the partition.[13] The exercise of partition by the courts is perceived as a disjunction of the JHF property, and therefore, the interests of the child are also considered in that regard.[14] Hence, the material well-being of the child becomes the primary consideration. Further, the setting aside of the reunion has not yet been considered by the courts, and it will be interesting to see whether the Court applies the rules applied in partition or guardianship.
The article argues that in cases of reunion, the sole consideration of material interests may be insufficient. Indeed, the recreation of the JHF through the reunion does not necessarily imply the cohabitation of the minor with the other members of the family, as in guardianship matters. However, the reunion creates a ‘junction of estates’ of the minor with the other coparceners, leading to the control of the minor’s interests being handed over to the Karta of the JHF that is formed, who may not necessarily be the guardian of the child. The Karta is the senior-most coparcener of the JHF, and is a sui generis position that exercises great control over the property interests of the JHF.[15] The essential question before the Courts is whether the interests of the child would be served better if the property is controlled by the Karta, or if it is controlled by the guardian of the child who would handle such property during the partition. Let’s examine both these situations. The Karta acts in the general interest of all the coparceners and is further not answerable to the JHF, except in some specific circumstances.[16] On the other hand, the guardian is only concerned with the betterment of the child’s interests. In both these situations, a straightforward analysis of the material interests of the child (as the case is in Partition) may lead to conclusions that are short-sighted and motivated by monetary considerations only. It is important to note that the property interests of the child have a great bearing on their upbringing, and largely determine the quality of life that they will enjoy. On the one hand, a child’s interests, if disjoint from the JHF, may not be enough to cater to their needs. On the other hand, her coparcenary interests may not be served adequately where the Karta diverts the JHF property to some other uses. Hence, only material considerations may prove insufficient to determine if the best interests of the child are being served.
Living in a joint family, which is based on bonds of kinship, demands feelings of goodwill and the adoption of the collectivist ethic. Every member gets their first lesson in forbearance, tolerance, and accommodation.[17] Naturally, misunderstandings will come to the fore, especially when members from other families are brought in through marriage, to live in a common household.[18] By living in a common household, the child will be better able to understand the moral side of human nature, and imbibe values of mutual sympathy, tolerance and respect. Even without co-habitation, the common ownership of the material belongings of all the members creates a link between them that is definitive of the relationship they share. For instance, an economic problem faced by one member of the JHF will be dealt by the family as a whole, because of the control over the property of the family resting with the Karta. The Karta, as explained above, is not answerable for his actions as long as they are for the benefit of the family. The effects of such relationships go beyond whether the members live in the same home or not. These non-material benefits and their effects on the minor will be defined by the specific situations in each case, and the courts should not resist this inquiry. Courts, in guardianship and custody cases,[19] have by and large taken into consideration the prospects of the child’s upbringing, ingraining in them such moral and ethical values. It has also been argued by some that the JHF evolved into a social security institution to such an extent that the need of social services in the Indian context was realised at a much later stage as compared to other jurisdictions. Such is the structure of the JHF.[20]
Thus, considerations of the child’s holistic welfare ought to be considered, to allow for the Court to make a better judgement about which situation will be in the ‘best interests of the child’. In this regard, considerations regarding the character and background of other members (with whom the minor is to reunite) gain importance.[21] A major difference between Partition and Reunion is that the former only deals with the division of property, whereas the latter will affect the future treatment of the coparcenary interests of the minor. In suits brought by the minor challenging the partition, the court essentially reviews an activity that has already been done, and only checks whether it fulfils all the criteria to be valid. However, the reunion is more future-oriented, much like in cases of guardianship, where the court has to judge which situation will serve the minor better. The court will essentially judge whether the proposed reunion will prove beneficial to the child’s upbringing or hinder their growth. Hence, the child’s interests must be dealt with by examining considerations that are more akin to the considerations in guardianship cases.
The article has, to a great extent, argued that there exists a parallel between the law of partition and the law of reunion. However, with the application of the ‘best interests’ doctrine, the case of reunion is different, since it leads to the placement of the minor in the social setting of the family. The exercise in such cases is more akin to that in the cases of guardianship and custody. In the latter cases, the court sits in judgement of which situation of the minor’s upbringing would best serve their interests. The same should be the case with the cases of reunion. The material property interests that are at the epicentre of the court’s approach in cases of partition should not be emulated in cases of reunion. This difference stems from the antithetical nature of the exercises of reunion and partition. The convergence and entry point to applying the doctrinal jurisprudence of guardianship cases to reunion cases stem from the same jurisdictional footing and similarity of social aspects in guardianship and reunion cases. This parens patriae jurisdiction helps the Court take care of the interests of the minor beyond the property in question in cases of reunion. The Courts, therefore, ought to take into consideration the material and non-material effects of the reunion on the minor, and judge whether it is in the minor’s best interests to grow up in the joint family structure.
Conclusion
The analysis above aimed to navigate through the ambiguities of the law, to analyse how and what role a minor coparcener plays in the exercise of a reunion of the JHF. There is a certain lack of judicial pronouncements in this area. The article’s arguments are therefore based on a comparative analysis of the law of partition and reunion on the one hand, and the law of guardianship and custody in India on the other. First, the article set out to draw the existing position of the law from an unclear and scarce set of judicial pronouncements, and other sources of Hindu law. Then the article explored how the law relating to partition and reunion is parallel to a certain extent, and further examined how the exercise of a reunion could be challenged by the minor coparcener in the same manner as the exercise of a partition. To further analyse this, the article looked at how the ‘best interests of the child’ doctrine is applied in the cases of guardianship and custody, and how different this application is from when the Courts analyse the interests of the child in the context of partition and reunion matters. The article took inspiration from the jurisdictional similarity between these two cases, and further looked at how the social aspects of the child are affected in reunion cases to support its argument. The conclusion drawn is that the considerations of ‘best interests’ from guardianship cases should be preferred over that in partition cases, when the courts are called to judge whether a reunion is in the best interest of the minor.
* Chaitanya Shah is currently a third-year student at Maharashtra National Law University, Mumbai. His areas of interest are jurisprudence, sociology, and dispute resolution.
[1] The Hindu Minority and Guardianship Act 1956, s 2. [2] Gaurav Nagpal v Sumedha Nagpal (2009) 1 SCC 42 (Supreme Court). [3] Rosy Jacob v Jacob A Chakramakkal (1973) 1 SCC 840 (Supreme Court). [4] Thrity Hoshie Dolikuka v Hoshiam Shavaksha Dolikuka (1982) 2 SCC 544 (Supreme Court). [5] Gaurav Nagpal (n 2). [6] Mausami Moitra Ganguli v Jayanti Gaunguli (2008) 7 SCC 673 (Supreme Court). [7] Sheoli Hati v Somnath Das (2019) 7 SCC 490 (Supreme Court). [8] ibid. [9] Lata Singh v State of U P (2006) 5 SCC 475 (Supreme Court). [10] Ratnam Chettiar v. S M Kuppuswami Chettiar AIR 1976 SC 1 (Supreme Court); Apoorva Shantilal Shah v CIT (1983) 2 SCC 155 (Supreme Court). [11] Kakumanu Pedasubhayya v Kakumanu Akkamma AIR 1958 SC 1042 (Supreme Court). [12] For eg Courts, till date, rely on the archaic 1913 Balabux v. Rukhma Bai (1913) 130IA 130 judgement by the Privy Council. [13] See Ratnam (n 10) (Supreme Court). [14] ibid. [15] Annamalai Chetty v. Murugasa Chetty (1902-03) 30 IA 220 (Privy Council). [16] K V Narayan v K V Ranganandhan (1977) 1 SCC 244 (Supreme Court). [17] S Chandrasekhar, ‘The Hindu Joint Family’ (1943) 21(3) Social Forces < www.jstor.org/stable/2570671> accessed 16 November 2020. [18] ibid. [19] See Gaurav Nagpal (n 2) (Supreme Court). [20] Chandrasekhar (n 17). [21] As are considerations in guardianship and custody cases. See Rosy Jacob (n 3).