ANOOP JAIN Vs. SONIA GUPTA

JUDGEMENT

(1.) By this petition the petitioner has assailed an order dated 29th January, 2008 of learned Guardianship Judge whereby while considering a request of the petitioner/father for dismissal of the petition as withdrawn in view of compromise arrived at between the parties, the learned Guardianship Judge modified the compromise entered into between the parties and expunged the words - "All the rights of the child, from his Father Sh. Anoop Jain or property if any belonging to him" - on the ground that the settlement was detrimental to the interest of the child.

(2.) The petition pending before the Guardianship Judge was filed by the father (petitioner herein) claiming custody of the child who was living with the mother. There were other litigations pending between the parties including criminal case. In the other litigation pending between the parties the matter was referred to the Mediation Cell with the consent of the parties and mediation was conducted by a trained Judge-Mediator between the parties and a detailed compromise was arrived at between the parties regarding maintenance, custody and other disputes pending between the parties including the dispute in respect of property no. BM-44 East Shalimar Bagh. The parties acted upon this settlement. The petitioner paid the amount as agreed in the compromise, the suits were withdrawn, criminal case FIR No. 219/2004 PS Shalimar Bagh was quashed on a petition filed by the petitioner, divorce petition was also disposed of in terms of the compromise. After this detailed compromise, an application was filed before the Guardianship Judge by the father who had filed this petition under Section 25 of the Guardian and Wards Act, for withdrawal of the petition in view of the compromise arrived at between the parties and at that time the Guardianship Judge passed the impugned order.

(3.) It is noteworthy that Guardianship Judge was not dealing with any rights of the minor in the petition in respect of the property of the father nor he was to adjudicate any dispute about rights of the minor. The dispute pending before the Guardianship Judge was whether the father, who had filed a petition claiming custody of the minor, was entitled to the custody or not. Father in terms of the compromise arrived at between the parties, had to withdraw this custody petition. There was no occasion for the Guardianship Judge to believe or to consider that father or the mother had acted contrary to the interests of the minor. It was not a case where a guardian of minor was appointed by the Court and the Court had to oversee if the guardian was acting in the interest of minor or not. Mother of the minor, having custody of the child, was a natural guardian of the child and it was agreed that she would retain the custody of the child. There was no reason for the learned Guardianship Judge to believe that the mother acted contrary to the interests of the minor. It is settled law that the natural guardian has a right to compromise the matter on behalf of the guardian and enter into a contract or agreement on behalf of minor and such agreement can be placed before the Court under Order 23 Rule 3 CPC. Only s guardian ad litem i.e. a guardian appointed by the Court to act on behalf of the minor during pendency of case cannot compromise the matter without permission of the Court. Order 32 Rule 7 CPC does not prohibit a natural guardian from settling dispute outside the Court and without intervention of the Court. The Court can make an inquiry about the interest of the guardian only if the dispute pending before the Court is in respect of the property pertaining to the minor and the compromise is entered by the guardian in respect of that property. Where there is no dispute pending before the Guardianship Judge regarding interest of the minor in movable or immovable property and the only dispute pending before the Court was whether custody should be awarded to the father or not, the Guardianship Court could not have refused the father to withdraw the petition from the Court. This withdrawal could be made even without referring to the compromise arrived at between the parties. Merely because the father informed the Court that he was withdrawing the petition because he had settled the matter with the respondent, did not give a right to the Guardianship Court to alter the terms of the compromise in the name of welfare of the minor.