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2006 DIGILAW 1052 (RAJ)

Moman Chand v. Renu @ Reena

2006-04-03

BHAGABATI PRASAD BANERJEE

body2006
Judgment Bhagwati Prasad, J.- Heard. 2. This is an appeal filed by the grand father for the custody of the grand daughter. The grand father has come up with the case that his daughter-in-law has remarried and, therefore, she is not entitled to keep the custody of the minor daughter born out of the wedlock of the daughter-in-law and his deceased son. 3. According to the learned Counsel there had been certain family meetings which were held in relation to the custody of the minor child. These meetings were held in the background that the widow was contemplating to be remarried. The learned Counsel has raised the question regarding the conduct of the daughter-in-law in accepting what was offered to her in the meetings and then turning around by refusing to give the custody of the minor child to the grand father. 4. From the record it appears that there has been certain proceedings regarding the question of adoption of the minor, before the Court of Civil Judge, Senior Division, Sirsa (Haryana). This appeal arise out of the decision of the Court of District Judge, Hanumangarh whereby application of the grand father under Sections 7 and 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as Act of 1890) has been disposed off and it has been held that the mother being the natural guardian, cannot be divested of the guardianship of the minor child, notwithstanding her re-marriage. 5. The parties are admittedly Hindus. In terms of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as `the Act of 1956), guardianship of a minor child is provided under Section 6 and in terms of Section 6(a) after the father, the mother is the natural guardian of the minor. The appellant has invoked the provisions of Act of 1890 to seek the custody of the minor. Section 6 of the Act of 1890 reads as under:- “6. Saving of power to appoint in other cases,-In the case of a minor, nothing this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property, or both, which is valid by the law to which the minor is subject.” 6. Saving of power to appoint in other cases,-In the case of a minor, nothing this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property, or both, which is valid by the law to which the minor is subject.” 6. Section 6 of the Act of 1890 describes that in the case of a minor nothing in this Act shall be construed to take away or derogate any power to appoint a guardian of his person or property, or both, which is valid by the law to which the minor is subject. By provisions of Section 6 of the Act of 1890 the powers of a natural guardian are saved. When once the powers of the natural guarding have the protection under Hindu Law, then the proceedings under the Act of 1890 in the name of welfare of the child is a doubtful proposition to be invoked, because both the parties being subject to Hindu Law and mother being the natural guardian, is saved by Section 6 of the Act of 1890. The proceedings under the Act of 1890 was, therefore, not an appropriate proceedings to be instituted before the District Court. In view of the fact that the parties were governed by Hindu Minority and Guardianship Act. Section 6 of the Act of 1890 has saved all those powers of natural guardian under the Hindu Law. 7. In any case, the proceeding as has been taken under the Act of 1890, evidence was led and the trial Court has come to the conclusion after appreciation of evidence that there exists no reason where mother, a natural guardian, be deprived of her right of guardianship. Certain agreements entered in between the parties in so called meetings have been pressed into service. But they would not override the provisions of law. As and when there is a law protecting the rights, the agreements entered into between the parties would not over ride or operate as estoppal. 8. It would be worthwhile to note here that under Section 6 of the Act of 1956, it has been provided that if a person ceases to be Hindu or renounces the world then he would lose his entitlement as natural guardian. 8. It would be worthwhile to note here that under Section 6 of the Act of 1956, it has been provided that if a person ceases to be Hindu or renounces the world then he would lose his entitlement as natural guardian. Apart from these two disqualifications as enumerated in the proviso to Section 6 of the Act of 1956 there is no other disqualification provided for in the Act which have the effect of dis-entitling a natural guardian from its status. It would also be important to note that in the Act of 1890 it has been provided that when can a guardian be removed from the status of guardianship of a minor. Section 39 has a lost of incapacities enumerated but none of them say that a lady remarrying loses her right to be the natural guardian of her daughter. Therefore, no disqualification can be said to have been incurred by the mother which would have given jurisdiction to the Court to consider the question of removal of the guardianship and substitute the grand father. No doubt, this has been provided in the Act of 1890 and the Act of 1956 that welfare of the child is the paramount consideration but then mother on remarrying, would not be able to keep in view the welfare of the children, is not a case made out here. This may also be pertinent that under Section 8(5) of the Act of 1956 the application of the Act of 1890 has been narrated. If the Act of 1890 had any application in relation to Hindus then this provision give limited scope to a person under this Act for the custody of the child covered by the provisions of Hindu Law. In view of the aforesaid also the Judgment of the trial Court is not liable to be interfered. 9. In that view of the matter, whatever has been stated in the proceedings taken by the District Court, Hanumangarh, exercising jurisdiction under the Act of 1890, was a power which was not available. Being saved by Section 6 of the Act of 1890 the question of guardianship was required to be gone into under the provisions of Hindu Minority and Guardian Ship Act where mother is designated as the natural guardian. Being saved by Section 6 of the Act of 1890 the question of guardianship was required to be gone into under the provisions of Hindu Minority and Guardian Ship Act where mother is designated as the natural guardian. Such power being saved under Section 6 of the Act of 1890, proceedings under the Act of 1890 could not have been instituted. That being the position the appeal is not entertained, hence dismissed.