SANKARANARAYANAN A V Vs. SINDHU SANKAR

JUDGEMENT

(1.) Petitioner's wife applied to the Family Court for custody of two daughters who reside with her. Petitioner filed objections. Later, he sought leave to amend the objections to plead that his wife is unfit to have the custody of the children. He also wanted to seek the relief that he be granted custody. The Family Court refused to grant leave. Challenging that, the husband has filed this original petition under Article 227 of the Constitution of India.

(2.) Law shows special concern for children. It provides for their protection. Law and justice have deep concern for children. Julius Stone, in "Social Dimensions of Law and Justice", points out that such concern for children is manifest in modern law. This concern for children pertains to their deficiency in capacity for self-provision, self-protection and self-guidance. This generates the often reiterated paramountcy of the welfare of the child.

(3.) The concept of parens patriae, often stated to have originated in the English common law, can be seen to permeate as well, in all schools of law recognised, followed and applied by civilized societies and Nations. This responsibility of the Sovereign is a prerogative, which is obligatory. There is no choice left with the Sovereign in the matter, to exercise or not to, when a given situation demands such exercise, going by the commands of the Constitution and the laws. The duty is to act as guardian of persons with legal disabilities, including children. This is a protective component of the obligations of society. That gets exercised through the Sovereign. This concept is accepted as an inbuilt content of the obligations of the State. Provisions for custody, care, food, clothing and shelter to a child are eloquently referable to the constitutional scheme as embodied in Articles 21, 23 to 27 and 39 as noted by this Court in Mathew Varghese v. Rosamma Varghese, 2003 3 KerLT 6 (FB)(Five Judges)].