Guardian Can't Have Absolute Authority Over a Child, His Wishes: SC

New Delhi: The Supreme Court has expressed its disapproval to a judgment, which held that a guardian has an absolute authority over a minor child and that the minor cannot make an independent wish to stay with someone else.

A bench of Justices AK Sikri and Ashok Bhushan observed that it is not inclined to accept the view propounded by the Gujarat High Court.

The judges, during a recent hearing, remarked that it may not be correct to state that once a guardian has been appointed for a minor child, the child cannot express his or her desire to stay with someone else.

"Welfare of the child is the paramount consideration in such cases. So how can it be laid down that even the child cannot express his desire and that a guardian once appointed will have the custody for all times may whatever happens? We express our reservations to this principle," said the bench.

The top court was reacting to a judgment by the Gujarat High Court, in which it was held that the authority to take all the decisions in case of a minor under the age of 18 years would lie with the natural guardian or any other guardian lawfully appointed.

"Therefore, even if the minor voluntarily chooses to stay with some person other than his/her guardian, his custody cannot be retained anymore by that person against the will of the guar-dian. If in such circumstances, the custody is

not delivered, in the opinion of this court such an act would amount to an offence

punishable under Section 342 read with Section 340 of IPC," the HC had said.

The HC called it offences punishable for wrongful restraint and illegal confinement even if a minor voluntarily chooses to stay with someone else.

The HC laid down this principle while directing a man to hand over custody of his seven-year-old grandson to the mother of the child.

As the grandfather appealed against this directive, the apex court said that it would not want to interfere with the order on the custody since the child was being reunited with his natural mother.

But on the other aspect, the bench accepted the submissions that a guardian cannot be said to have an absolute lien over the minor child.

"We have some reservations in respect of the observations made by the High Court in the last portion of para 9 of the impugned order," the Court said in its order and kept this point of law open for discussion in a more pertinent proceedings.