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Madhya Pradesh High Court · body

2007 DIGILAW 1217 (MP)

Saudarabai v. Ramratan

2007-11-22

N.K.MODY

body2007
JUDGMENT 1. Being aggrieved by the order dated 25.3.2006, passed by IInd Additional District Judge, Indore in Guardian Case No. 46/2005, whereby the application filed by the respondent under the provisions of Guardians and Wards Act, 1890 (which shall be referred hereinafter as Act) for the custody of minor child Dinesh was allowed and the appellant was directed to give the custody to the respondent, the present appeal has been filed. 2. Short facts of the case are that the respondent filed an application before the learned Court below alleging that the respondent was married with one Ashabai, but she was suffering with some mental disease and is under treatment and is being looked after by her father. It was alleged that thereafter the appellant came in contact with the respondent and out of the friendly relation between the respondent and the appellant, appellant gave birth to a daughter, who expired. Thereafter, appellant gave birth to a son Dinesh, who is aged 10 years approximately. It was alleged that appellant is living separately and appellant is not taking proper care of her son Dinesh. It was further alleged that respondent is a teacher and respondent is in a position to take better care of Dinesh. It was prayed that the appellant be directed to handover the custody of Dinesh to respondent. 3. The application was opposed by the appellant on various grounds. After holding summarily inquiry by the impugned order learned Court below directed appellant to handover the custody of Dinesh to the respondent, against which present appeal has been filed. 4. Learned counsel for the appellant submits that the order passed by the Court below is illegal and deserves to be set aside. Learned counsel submits that as per the case of the respondent Dinesh is illegitimate son of the appellant and in case where the son is illegitimate, the proper guardian under the law is the mother and not the father. Learned counsel further submits that respondent is not in a position to maintain the expenses of Dinesh, as respondent himself has stated in the case relating to maintenance that respondent is having a large family and is unable to maintain. 5. Learned counsel for respondent submits that respondent is a teacher and is posted in a village of Tahsil Depalpur. Learned counsel further submits that respondent is not in a position to maintain the expenses of Dinesh, as respondent himself has stated in the case relating to maintenance that respondent is having a large family and is unable to maintain. 5. Learned counsel for respondent submits that respondent is a teacher and is posted in a village of Tahsil Depalpur. Learned counsel submits that the respondent is financially in sound position and can take care of son Dinesh. Dinesh is present in the Court, who is aged 10 years and states that he is studying in Class IVth in Shashkiya Madhyamik Vidhyalaya Gunawad, Tahsil Badnagar, District Ujjain. Dinesh further states that he wants to live with his mother, who is appellant herein. 6. From perusal of the order it is evident that learned Court below has held that as per section 6 (a) of the Act (Hindu Minority and Guardianship Act, 1956), in case of a boy or unmarried girl the father and after him the mother are the natural guardian. 7. From perusal of the application filed by the respondent before learned Court below and also the statement given by the respondent before the Court below it is evident that it is Ashabai, who is wedded wife of respondent and not the appellant. Respondent himself has stated that out of friendly relationship between the parties Dinesh born. In the facts and circumstances of the case the status of Dinesh is of a illegitimate son. In such a situation it is sub-section (b) of section 6 of the Act which is applicable according to which in a case of illegitimate boy or illegitimate unmarried girl the mother is the natural guardian and thereafter the father. 8. Since Dinesh is illegitimate boy and is in custody of mother/appellant, who is present in the Court and shows her willingness to keep her son Dinesh and Dinesh also feels comfortable with her mother and is also getting education, therefore, this Court is of the opinion that Dinesh is in the custody of his natural guardian. While deciding the application filed under the provisions of Guardianship Act, while question of guardianship of minor child is required to be decided, paramount consideration is welfare of the child. Position of law is also in favour of appellant. 9. While deciding the application filed under the provisions of Guardianship Act, while question of guardianship of minor child is required to be decided, paramount consideration is welfare of the child. Position of law is also in favour of appellant. 9. In view of this in the opinion of this Court learned Court below committed error in allowing the application filed by the respondent. Thus, the appeal filed by the appellant stands allowed. Order impugned herein passed by the learned Court below stands set aside holding that Dinesh shall reside under the Guardianship of mother, who is appellant. No order as to costs. 10. With the aforesaid observations appeal stands disposed of. No order as to costs.