Allowed

Chintala Mani Deep Sai v. The State of Andhra Pradesh

Andhra Pradesh HC29 Sept 2021WP/11726/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking a direction that school authorities not insist on mentioning the name of the petitioner's divorced father in SSC application forms. The court held that since the father was indifferent to the child's welfare and the minor was solely under the mother's care, the mother could act as the natural guardian without mentioning the father.

What did the court decide?

Direction to respondents not to insist on mentioning the petitioner's father name in SSC Application Form or pass certificate and permit appearance for SSC Examination.

Chintala Mani Deep Sai Vs The State of… — Education and Admissions | Andhra Pradesh HC (2021)

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IN THE HIGH COURT OF ANDHRA PRADESH

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W.P. No.11726 of 2021

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Between:

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Chintala Mani Deep Sai, S/o Chintala Anitha, Aged about 15 years, Rep. by his mother natural guardian Chintala Anitha, D/o C. Venkata Ramana, Aged about 42 years, R/o. D.No.1-1132-4A, Adapala Street, Kadiri Town, Ananthapur District

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…. Petitioner

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AND

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The State of Andhra Pradesh Rep. by its Principal Secretary, School Education Department, Secretariat Buildings, Velagapudi Guntur District, Andhra Pradesh and two others

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…. Respondents

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DATE OF JUDGMENT PRONOUNCED : 29.09.2021

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SUBMITTED FOR APPROVAL:

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THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO

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1. Whether Reporters of Local Newspapers
may be allowed to see the judgment?	Yes / No
2. Whether the copies of judgment may be
marked to Law Reporters / Journals?	Yes / No
3. Whether His Lordship wish to
see the fair copy of the Judgment?	Yes / No
	_________________________ U. DURGA PRASAD RAO, J

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*** THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO**

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+ W.P. No.11726 of 2021

% 29.09.2021

Between:

…. Petitioner

AND

The State of Andhra Pradesh Rep. by its Principal Secretary, School Education Department, Secretariat Buildings, Velagapudi Guntur District, Andhra Pradesh and two others …. Respondents

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! Counsel for Petitioner : Sri M. Prasad Rao ^ Counsel for Respondents : Government Pleader for Education < Gist: > Head Note: ? Cases referred:

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AIR 2011 SC 1952 = MANU/SC/0621/2011 2) 987 (13) ALR 24 = MANU/SC/0689/1986 3) (1999) 2 SCC 228

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HON’BLE SRI JUSTICE U.DURGA PRASAD RAO

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Writ Petition No.11726 of 2021

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ORDER:

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The petitioner seeks writ of mandamus declaring the action of the respondents insisting upon mentioning the name of the father of the petitioner in SSC application form instead of name of his mother as illegal, arbitrary and for a consequential direction.

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2 . Petitioner’s case succinctly is thus:

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Petitioner is A minor boy represented by his mother and natural guardian. The petitioner’s mother married one Pathan Mustaffa Ali on 26.10.2004. During their wedlock she gave birth to a son i.e., the petitioner herein on 27.10.2005. Due to ideological differences, disputes arose between the couple. In spite of repeated counsellings, they could not reconcile and finally petitioner’s mother filed O.S.No.240/2006 on the file of Principal Junior Civil Judge, Kadiri seeking divorce and the said Court granted a decree on 06.06.2009 and dissolved the marriage between the parties. Since there was no appeal, the judgment has become final. Petitioner’s mother has been working as staff nurse. Her father has been looking after the minor petitioner and the petitioner’s mother has been looking after his needs including educational expenses. Minor boy was joined in 1^st Class in 2011. In the school records mother’s name was mentioned. At present the minor boy is studying 10^th class in the 3^rd respondent school. In the month of April, 2021, the 3^rd respondent

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authorities furnished an online format application and insisted the petitioner to mention the name of his father in the application. Petitioner’s mother brought to the notice of the 3^rd respondent authorities about the divorce obtained by the petitioner’s father and mother and requested them to mention his mother’s name as natural guardian instead of father’s name. However, the 3^rd respondent insisted upon mentioning father’s name. Hence, the instant writ petition.

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3. Respondent No.2 filed counter opposing the writ petition and contending that all the particulars, including father’s name/mother’s name of a candidate, who is appearing for SSC public examinations June-2021 have to be filled-up strictly in accordance with School Admission Register while submitting the Nominal Roll (NR) Data in online/Manual Nominal Roll (MNR) to the DGE office and the guardians name should be entered for orphan candidates only. As there is no clear direction from Government nor any specific G.O issued regarding the inclusion of mother’s name, respondent insisted to include the father name too.

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It is further contended that as per G.O.Ms.No.63, Education (W/2), dated 16.01.1969, father’s name to be submitted in the application to enter in the SSC Certificate. Subsequently mother’s name was also permitted to be entered vide Memo No.7679/PE-Ser-II/A2/2010-1, dated 14.09.2010. Thus, there is no feasibility to enter mother’s name as natural guardian instead of father’s name. Guardians name should be entered for orphan candidates only. In the letter Rc.No.341/E1-1/2009, dated 12.11.2009 the Commissioner and Director of School Education, Andhra Pradesh has

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informed that in case of children of Joginis admitted in RBCs, Government / Private residential schools and colleges, the mother’s name has to be incorporated instead of father’s name. The said circular relates to children of Joginis alone as per G.O.Ms.No.139, Education (SE-Prog.I) Department, Government of Andhra Pradesh, dated 29.12.2009.

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In the Memo No.7679/PE-Ser-II/A2/2010-1, dated 14.09.2010 issued by Education (PE SER-II) Department, Government of Andhra Pradesh, the Commissioner & Director of School Education was requested to issue necessary instructions to all the Head Masters of Elementary Schools/ Secondary Schools to open extra column in the “Register of Admissions and withdrawals” to enter the candidates mother’s name also to enable the Director of Government Examinations, Andhra Pradesh to issue SSC pass certificate from SSC Public Examination, March, 2011 onwards by including mother’s name also in addition to father’s name. It is further contended that the relationship of the father and his daughter/son will not be dissolved on a decree of divorce obtained by a wife against the husband. The said relationship will remain forever and it is up to the children to decide regarding non-mentioning of father’s name after obtaining majority and not by the mother at the time of issuing SSC Certificate. Thus, petition does not merit consideration and same may be dismissed.

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4. Heard learned counsel for the petitioner Sri M. Prasad Rao and learned Government Pleader for Education representing respondent No.2.

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5. The facts which are not disputed are that the minor petitioner is son of Chintala Anitha and Pathan Mustaffa Ali and their marriage was dissolved

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by a decree of divorce passed in O.S.No.240/2006 by the Principal Junior Civil Judge, Kadiri. It is also an admitted fact that the minor boy has been living with his mother who is his natural guardian. She has been working as staff nurse and rearing her son and the boy was desolated by the father. The relevant records would also establish these facts. The copy of the judgment dated 06.06.2009 in O.S.No.240/2006 would show that the Principal Junior Civil Judge, Kadiri has passed the decree dissolving the marriage between the parents of the boy. The copy of birth certificate issued by the GramPanchayat, Nallamada, Ananthapur District shows that the boy was born on 27.10.2005 at Nallamada and in the said certificate his mother’s name is mentioned as Chintala Anitha and guardian’s name is mentioned as C. Venkata Ramana who is his maternal grandfather. The copy of Aadhaar card filed along with material papers shows the name of the minor boy as Chintala Mani deep Sai and he is further mentioned as S/o Chintala Anitha. His care of address is also mentioned as that of his mother. Thus, the records show that the minor boy is now living under the care and custody of his mother who is his natural guardian.

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(a) Now the grievance of the petitioner is that the 3^rd respondent authorities furnished him online format application and insisted him to fill the name of his father in the application for applying SSC examination. The respondent authorities though to some extent admit that as per the relevant forms under relevant G.Os the name of the mother can also be mentioned in addition to father’s name, however, since father is alive his name has to be mentioned. It is also contended that mere divorce between the parents will

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not sever the biological relationship between the divorced parents and their children.

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6. Section-4(2) of Guardian and Wards Act, 1890 defines the term “guardian” means a person having the care of the person of a minor or of his property or of both his person and property. Therefore, the term guardian is wide enough to include a natural or a de-facto or testamentary or a certified or a court appointed guardian also and he is not necessarily be a father alone. In several decisions, the Apex Court and various High Courts have held that in the matter of appointment of a guardian by exercising parens patraie , the jurisdiction and role of the courts is more onerous and they have to look into the welfare of the minor which is the paramount consideration. ( Ruchi Majoo v. Sanjeev Majoo¹ and Elizabeth Dinshaw v. Arvand M Dinshaw² ) . Thus, in resolving the issue of guardianship, the prime consideration is not the father or mother but the welfare of the minor child. In the instant case admittedly the minor boy has been under the care, protection, guidance and guardianship of mother since long and father never evinced any interest. In some of the records like Birth Certificate, Aadhaar card etc., mother is shown as the guardian of the boy. In that view, the pertinent question is whether the respondent authorities can insist the petitioner and his mother to mention the name of the father of the boy along with his mother.

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1 AIR 2011 SC 1952 = MANU/SC/0621/2011

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2 1987 (13) ALR 24 = MANU/SC/0689/1986

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7. In Githa Hariharan v. Reserve Bank of India³ case, the two different Writ Petitioners who are the mothers, have challenged the constitutional validity of Section -6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards Act as being violative of equality clause of the Constitution, inasmuch as, the mother of the minor is relegated to an inferior position on the ground of sex alone since her right as a natural guardian of the minor, is made cognizable only after the father. Upholding the right of the petitioners/mothers to act as natural guardian during the life time of the father, the Apex Court held thus:

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“7. The expression “ natural guardian ” is defined in Section 4( c ) of the HMG Act as any of the guardians mentioned in Section 6 ( supra ). The term “ guardian ” is defined in Section 4( b ) of the HMG Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of “guardian” and “natural guardian” do not make any discrimination against mother and she being one of the guardians mentioned in Section 6 would undoubtedly be a natural guardian as defined in Section 4( c ). The only provision to which exception is taken is found in Section 6( a ) which reads “ the father, and after him, the mother ”. (emphasis ours) That phrase, on a cursory reading, does give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime of the father . In fact, that appears to be the basis of the stand taken by the Reserve Bank of India also. It is not in dispute and is otherwise well settled also that the welfare of the minor in the widest sense is the paramount consideration and even during the lifetime of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of the court, where to do so would be in the interest of the welfare of the minor.

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8. Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a court of law, the word “after” in the section would have no significance, as the court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as the guardian of the minor during the lifetime of the father, without the matter going to the court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of Section 6( a ) ( supra ). In the present case, the Reserve

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3 (1999) 2 SCC 228

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Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the lifetime of the father and not during his lifetime”.

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While observing as above, the Apex Court further observed that where two

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interpretations are possible the Court will lean in favour of constitutionality of the provision since legislature is presumed to have acted in accordance with the Constitution.

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“9. Is that the correct way of understanding the section and does the word “after” in the section mean only “after the lifetime”? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. Did Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on the grounds of sex? In our opinion — No. It is well settled that if on one construction a given statute will become unconstitutional, whereas on another construction which may be open, the statute remains within the constitutional limits, the court will prefer the latter on the ground that the legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions.

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10. We are of the view that Section 6( a ) ( supra ) is capable of such construction as would retain it within the constitutional limits. The word “after” need not necessarily mean “after the lifetime”. In the context in which it appears in Section 6( a ) ( supra ), it means “ in the absence of ”, the word “absence” therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian, can act validly on behalf of the minor as the guardian(Emphasis Supplied). Such an interpretation will be the natural outcome of a harmonious construction of Section 4 and Section 6 of the HMG Act, without causing any violence to the language of Section 6( a ) ( supra ).

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xxx

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xxx xxx

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15. Similarly, Section 19( b) of the GW Act would also have to be construed in the same manner by which we have construed Section 6( a) (supra).

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16. While both the parents are duty-bound to take care of the person and property of their minor child and act in the best interest of his

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welfare, we hold that in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the lifetime of the father, who would be deemed to be “absent” for the purposes of Section 6( a ) of the HMG Act and Section 19( b ) of the GW Act.” (Emphasis Supplied)

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Thus, where due to father’s indifference, mother has been looking

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after the welfare of children, in my considered view, no law will prevent her from acting as natural guardian of her minor children. The above decision applies with all its fours in the instant case also, inasmuch as, after divorce the father of the minor boy discarded him and it is the mother alone, has been, looking after his welfare including education. Therefore, the respondent authorities cannot insist the petitioner and his mother to mention the name of the father also along with mother in the SSC Application Form. Such mentioning will not serve any additional purpose and will not contribute for the welfare of the boy.

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8. Accordingly, this writ petition is allowed directing the respondents not to insist the petitioner and his mother to mention the name of petitioner’s father in the SSC Application Form or in the pass certificate or other relevant documents and permit him to appear for the SSC Examination. No costs.

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As a sequel, interlocutory applications pending, if any, shall stand closed.

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_________________________ U.DURGA PRASAD RAO, J

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29.09.2021 KRK

Chintala Mani Deep Sai v. The State of Andhra Pradesh

Case brief

What is this about?

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Chintala Mani Deep Sai v. The State of Andhra Pradesh

Case brief

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What did the court decide?

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