Smt. Sabita Das v. Shri Chandra Kumar

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** CO/49/2023 Smt Sabita Das Vs.

Shri Chandra Kumar Mr. Lokesh Chezian.N.

... for the petitioner September 25, 2023 [SR] Item No.11 The petitioner appeared to have been beleaguered between the applicability of the Guardians and Wards Act, 1890 and the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 in the matter of custody of the child.

The father applied before the Trial Court for custody of the child having a mental disability as the welfare of such special child lies in his custody. Obviously the marital tie between the parties has been bitter and the said special child is admittedly in the custody of a mother, the petitioner herein.

A proceeding under section 25 of the Guardians and Wards Act, 1890 is filed by the husband/opposite party alleging that the said ward has been removed from his custody and since the ward is a special child and needs a special care and protection, his welfare lies in his custody.

The petitioner took out an application raising maintainability of the said proceedings in view of the Act of 1999. It is contended by the petitioner that the said Act of 1999 being a later legislation has an overriding effect on the Guardians and Wards Act and, therefore, any proceeding in relation to a guardianship of a special child, who satisfies the definition of a person with disability can only be decided under the Act of 1999.

The trial court repelled the contention of the mother and held that the proceeding is maintainable under the Guardians and Wards Act, 1890.

The counsel for the petitioner submits that the Act of 1999 is a special Act and contained the exhaustive provision not only concerning the guardianship but also the control of the Board constituted under the said Act to deal with all such questions and therefore it excludes the operation of the Guardians and Wards Act, 1890. Such being the point raised in the revisional application, it would be relevant to consider the object and the purpose sublime the incorporation of the said Act of 1999. The preamble of the Act envisages that the legislature thought it fit to incorporate the said Act for constitution of the body at the national level for the welfare of the persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities and for matters connected therewith or incidental thereto. The said Act received the consent of the President on 30th December, 1999 and has been published in the Gazette on 30th December, 1999.

The guardian has not been defined in the said Act of 1999. However, Section 14 contained an exhaustive provisions relating to the appointment of guardian. The said section is quoted as under:

"14. Appointment of guardianship -

(1) A parent of a person with disability or his relative may make an application to the local level committee for appointment of any person of his choice to act as a guardian of the persons with disability.

(2) Any registered organisation may make an application in the prescribed form to the Local Level Committee for appointment of a guardian for a person with disability.

Provided that no such application shall be entertained by the local level committee, unless the consent of the guardian of the disabled person is also obtained.

(3) While considering the application for appointment of a guardian, the local level committee shall consider- - whether the person with disability needs a guardian;

- the purposes for which the guardianship is required for person with disability.

(4) The local level committee shall receive, process and decide applications received under subsections (1) and (2), in such manner as may be determined by regulations:

Provided that while making recommendation for the appointment of a guardian, the local level committee shall provide for the obligations which are to be fulfilled by the guardian.

(5) The local level committee shall send to the Board the particulars of the applications received by it and orders passed thereon at such interval as may be determined by regulations."

It is manifest from the aforesaid section that a parent of a person with disability or his relative may make an application before the local level committee for appointment of any person of his choice to act as a guardian of a person with disability. Even a registered organization may make an application but such application filed by the registered organization shall not be entertained by the local level committee unless the consent of the guardian of a disabled person is also obtained. Sub-section 3 of Section 14 engulfed within itself the manner in which the committee shall consider the said application for appointment of guardian which necessarily includes whether the person with disability needs a guardian and/or the purpose of appointment of the guardian for such person.

Section 17 of the said Act contained an exhaustive provision relating to removal of a guardian not only at the behest of the parent or the relative but the registered organization as well, if it is found that the guardian

appointed under Section 14 is abusing or neglecting a person with disability; or misappropriating or neglecting the property of the person of such disability. We do not find any provisions contained in the Act of 1999 which indicates that it has the overriding effect or repealed the provisions of the Guardians and Wards Act, 1890. Obviously, the Act is intended to take care of a person with disability by providing sufficient support required in this behalf in the event the parents are not in a position to take care of the needs of such special child. Such Act, in my opinion, cannot be extended to the proceeding relating to a custody of a child under the Guardians and Wards Act, 1890.

I am also conscious of the somewhat settled proposition of law that the special Act promulgated by the legislature may often have the overriding effect on the general law as the special Act operates in a specific sphere and/or field. The overriding effect of a special Act over the general law has to be seen in the perspective of the situation and the circumstances envisaged therein and to be applied on the facts of a given case. The right of a parent under section 14 to have the custody of the special child has not been taken away upon promulgation of 1999 Act. Had it been so, the language sub-section 1 of Section 14 would not have been worded in different manner.

The moment the right is conferred upon the parent to apply for an appointment of a guardian of a special child, it implies that the parents have a primary right to have the custody of such child and in the event a guardian is required to be appointed of such child, the benefit under the Act of 1999 can be availed of. The aforesaid Act is promulgated as a benevolent scheme or policy adopted by the government providing special attention to such special child but it does not take way a right of parent to have custody of a special child and to take care of him.

A prelude to the birth of the Act of 1999 can be pressed when the Bill was placed in both the Houses of Parliament by the Minister of State of the Ministry of Social Justice and Empowerment. While moving the motion, the Minister vividly disclosed the purpose and the object behind the necessity of the said Act as a support programme with a avowed object of promoting

independent facilitating guardianship where necessary and to address the concern of those special child who do not have a family support. The aforesaid object is further laudable from the preamble of the said Act, as succinctly noted hereinabove, for channelizing a separate avenues for such special child in order to bring them as a responsible person in the society. The object is further evident that it ensures the capacity building not only in the society but a community and brings an inclusiveness and collective responsibility of the society and the community at large.

The rules and regulations framed under the aforesaid Act of 1999 corroborates such intention and manifestly conveyed the intention that such special child who is destitute, abandoned and incapable of being taken care by their parents shall be supported by the Trust created in this regard.

There is no restriction imposed in the said act on its applicability to a child of certain age but expanded its horizon over any person suffering from such mental disability. The purpose is to give a support and succor to such person having mental disability to live a meaningful life with the aid and support of the programme initiated by the government under the said Act.

The constitution of a trust under the Act having an economic solvency shall extend such resources to a person having mental disability to make them meaningful human resources for development of the society and the community. None of the provisions under the said Act have taken away the right of the parent to take care of such special child or person which would further be evident from the primary object of section 10 being repository of the object of the trust in the following:

"10. The objects of the Trust shall be - (a) to enable and empower persons with disability to live as independently and as fully as possible within and as close to the community to which they belong;

(b) to strengthen facilities to provide support to persons with disability to live within their own families;

(c) to extend support to registered organisations to provide need based services during period of crisis in the family of persons with disability;

(d) to deal with problems of persons with disability who do not have family support;

(e) to promote measures for the care and protection of persons with disability in the event of death of their parents or guardians; (f) to evolve procedure for the appointment of guardians and trustees for persons with disability requiring such protection;

(g) to facilitate the realisation of equal opportunities, protection of rights and full participation of persons with disability; and (h) to do any other act which is incidental to the aforesaid objects."

Section 10 of the said Act, in my opinion, is elixir of the said Act and imbibed within itself the primary object of strengthening facilities to a person with disability to live within their own families. Regulation 13 of the National Trust Regulations, 2001 contained an exhaustive guidelines relating to receiving, processing and confirmation of application for appointment of a guardian by the local level committee. Importantly one of the onerous role discharged by the local committee is to arrive at the conclusion that whether there is any necessity of appointing a guardian other than the parents and if the circumstances so warrant may afford the counseling to the parents. The reason is obvious that the said Act propelled the concept of nurturing, raising and/or rearing the child within the family more importantly by extending supports if required through such specialized

institutions.

The primary object behind the promulgation of the Act of 1999 is to provide lateral support to a person of mental disability and does not override the custody of a child with such disability to be taken away from the custody of the parents. The Act facilitates the support and the need of special child or a person with disability and does not override any of the provisions contained under the Guardians and Wards Act.

The contention of the petitioner is that the proceeding for custody of a child with mental disability is not maintainable, in view of the said Act, is untenable and not acceptable.

The revisional application is thus dismissed. Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.

( Harish Tandon, J.