Case Name : Rosy Jacob vs Jacob A Chakramakkal
Case Reference: (1973) 3 SCR 918 :
Neutral Citation:
Case Number: CA 1295/1972
Court: Supreme Court
Bench: 03
Coram: CA Vaidyialingam, ID Dua (Author), A Alagiriswami
Date: 05.04.1973
Scope of Article 136
Article 136 is an extraordinary discretionary power vested in the Supreme Court and is in the nature of a special residuary power. This power is intended *only to promote the cause of justice. (Page 927 at E-H) Misrepresentation on a point having a bearing on the question of the exercise of judicial discretion is an attempt at over-reaching the court and such party forfeits the claim to discretionary relief. The court can also revoke the special leave granted if the misrepresentation is discovered subsequently. The misrepresentation must be deliberate
Intent of GWA - Section 25
Section 25 contemplates not only actual physical custody but also constructive custody. (Page 932 at C-E) The object and purpose is to ensure the welfare of the minor. This also involves due protection of the right of the guardian to look after the ward’s health, maintenance and education. Hyper-technicalities should not be allowed to deprive the guardian assistance from the court to effectively discharge duties and oblgiation towards the ward to promote the ward’s welfare
Dominant Consideration - Child
The dominant consideration in making orders under section 25 is the welfare of the minor children (Page 933, D)
There is a presumption that the minor’s parents would do best to promote children’s welfare (Page 933, E)
Love not sufficient
Father loving the child, and not shown to be otherwise undesirable does not necessarily lead to conclusion that welfare of children would be better promoted by granting custody. (Page 934, C)
Children not chattel
Children are not mere chattels or playthings; absolute right of parents has now yielded to considerations of children’s welfare as human beings (Page 934, E)
Responsibility of parents
Parents must have tolerance and understanding (Page 936)
Refer also:
Judgment name
See also: Constitution, Article 136
PDF: Rosy Jacob vs Jacob A Chakramakkal, (1973) 3 SCR 918.pdf