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2007 DIGILAW 187 (MAD)

Lakshmi Bai v. Prasanna Kumar and Others

2007-01-18

S.MANIKUMAR

body2007
Judgment : S. MANIKUMAR, J. This Civil Miscellaneous Appeal is filed against the order of dismissing the application for appointment of Guardian. 2. Grand mother has filed an application in O.P.No. 25 of 2000 seeking appointment of Guardian of her grand daughter. The Additional District Judge, Nagrcoil on evaluation of pleading and evidence, dismissed the application. Aggrieved by the judgment, this Civil Miscellaneous Appeal is field. 3. Heard Mrs.Chitra Sampath, learned counsel appearing for the appellant. 4. it is not in dispute that a daughter was born to the first respondent and the deceased who is the daughter of the appellant. The birth extract of the minor daughter was marked as Ex.P1 Ex.P.2 is the death certificate of her daughter. Ex.P.3 is the legal heir certificate. The petitioner has not disputed that the deceased was treated in various hospitals by the first respondent, husband. She has also admitted in the petition that the deceased was living with the first respondent for two years before her death and was teated in the hospital by him. There is no averment that the deceased was Ill-treated by the first respondent. During her life time, there was no quarrel between the spouses. The allegation that the first respondent remarried another lady by name Usha, Kerala puram is not proved by any documentary evidence. If the allegation was true, the appellant could have examined any one of the neighbours to prove remarriage. the appellant has also admitted in her cross examination that after the death of her daughter Jayanthakumari, she has not seen the minor child. During her cross examination she has also admitted that she does not know the age of her grand daughter and was only informed that the first respondent got remarried. 5. Form the evidence let in by the appellant, it is clear that she has not taken steps to see her grand daughter. No evidence has been let into prove that she is having sufficient means to educate her grand daughter. At the time of trial, the appellant was aged 69 years. The Original petition for appointment of Guardian was field in the year 2000. The first respondent has deposed that she has means to provide food, shelter and education to her minor grand daughter but has not proved by any documentary evidence about the income. At the time of trial, the appellant was aged 69 years. The Original petition for appointment of Guardian was field in the year 2000. The first respondent has deposed that she has means to provide food, shelter and education to her minor grand daughter but has not proved by any documentary evidence about the income. Courts have held that welfare of the child is the primary consideration for deciding the guardianship. It is well settled that in matters regrading custody of minor children, the interest of the child in various aspects such as food, shelter and good education have to be considered. 6. In a decision in Mr.Besant Kaur v. Gian Singh Mr.Besant Kaur v. Gian Singh Mr.Besant Kaur v. Gian Singh AIR 1939 Lah. 359, the Court has held that father has an inalienable right to the custody of his minor children and he cannot be deprived of it except for strong reasons. 7. TheSupreme Court in Veena Kapoor v. Varinder Kumar AIR 1982 SC 792 : (1981) 3 SC 92, has held that in matters concerning the custody of the minor children, the paramount consideration is the welfare of the minor and not the legal rights of this or that particular party. 8. In Smt. Indumati Kooriach v. Family Court, Lucknow Smt. Indumati Kooriach v. Family Court, Lucknow Smt. Indumati Kooriach v. Family Court, Lucknow (1994) 1 CLJ 79 (All), the Court has held that, “In the matter of custody of children, the question of welfare of the minor children has got to be given weight and due consideration and beyond doubt the custody of the children, maintenance of the children, their building up, building up of their character, moral and ethical, on the lines of ethical and national values of life and the considerations of education in that context are very important material factors to be taken into consideration apart from psychological effects on them and their tender minds. When the welfare of the children is to be considered not only in the context of mere present events but in the context of the real goal and object of maintenance and education of the children. When the welfare of the children is to be considered not only in the context of mere present events but in the context of the real goal and object of maintenance and education of the children. The oral object is to develop in them a good human being, to make them physically strong, well up in education and a man or a person of good moral ethical values of life, personal, social and national for times to come in future. To save the children from the vagaries of life and the destructive hands and whims that adversely affect the tender mind of the children from the point of view of ethical, moral and mental development. It is not simpliciter that in a child we have to conceive only a man who can earn his bread and butter or a man who merely hankers to mint money. The welfare of the child requires the consideration which made him a man full of honour, dignity, character and physically very strong so that he may prove in times to come to be an asset to the family and to the nation or country in which he is born. Until these considerations are given due weight, neither welfare of the child is saved nor welfare of the nation or mother land is saved. These are the matters which have got to be given due consideration. In the same judgment the Court has further held that, “Education is an important factor in the upbringing and the building up of a mental calibre and effecting the mode of thinking as well as conduct and behaviour of the young ones. Education needs be that as may imbibe in the young one the feelings of love and affection. Education refers to education that may make a man perfect in its thought, action and behaviour, if properly imparted by proper persons, free from personal prejudices and by persons who have developed in themselves a notion and understanding and way of life to do the good of all with spirit to in co-operation with each other for the betterment, not only temporal or financial but of physical, moral, ethical and spiritual self as well as of all those with whom one lives, may be the members of the family or the people of the nation. Education that imbibes/inculcates in one the feelings of freedom, freedom from fear or animosity and helps in developing tender feelings and high values of life, social, cultural and moral as well as a broader vision and out-look in which one can work with co-operation with others free from sectarianism and communalism. These are the great ideals and objectives which included spiritual uplift as well. These have got to be given due consideration in such matters as the appointment of guardian or such as the one putting a minor in the custody of some one other than his or her natural guardian, as well as education”. 9. In a decision in N. Palanisami v. S.Palaniswany N. Palanisami v. S.Palaniswany N. Palanisami v. S.Palaniswany AIR 1998 Mad. 264 : (1998) 2 MLJ 764 , wherein the rival claimants are father and maternal grandfather. The allegation was that father has got re-married and has got another female child. The Court held that, at p.766 of MLJ: “ 13…. In our society, normally, between the father and the grandfather, the father is considered to be more attentive than the grandfather, as regards a minor child, because, normally, the father is closer than the grandfather. This is also fortified by Section 6 of the Hindu Minority and Guardianship Act, 1956, which prefers the father and mother only and the grandfather is not mentioned in the said Section. From another point of view also, the father is preferred because he has to choose the kind of education and to pass on the traditions which he has inherited from his ancestors… 14….Separating the minor child from him and keeping, it in the custody of the grandfather may lead to aversion likely to be developed by the father towards the minor-child, resulting in bequething the properties owned by him to the other children, even though born through the second wife.” 10. From the above decisions, it is clear that in the case of rival claim between the father and the maternal grand mother, the interest of the father has to be considered, unless there is clear evidence that the interest of the minor child will not be protected at the hands of father. Mere allegation without proof that the first respondent is remaried, is not sufficient for appointment of guardian. Mere allegation without proof that the first respondent is remaried, is not sufficient for appointment of guardian. There is clear evidence to prove that the minor child is living with her father since 2000 i.e. from the date of filling of the guardianship petition. ….In view of the above discussion, I do not find that the appellant has made out a case for appointment of guardianship. There is no merit in this Civil Miscellaneous Appeal and accordingly, the same is dismissed. No costs.