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2013 DIGILAW 55 (CHH)

Ful Singh Rathiya v. Fulbai

2013-02-07

N.K.AGARWAL, YATINDRA SINGH

body2013
ORDER 1. The instant appeal filed under Section 19(1) of the Hindu Family Act, 1984 is directed against the judgment dated 01.09.2011 passed by the Family Court, Korba in Civil Suit No. 02/2009 whereby the application filed by the Respondent for custody of Ku. Aanchal was allowed. 2. Facts of the case in brief are as under : (i) The Appellant and Respondent are maternal uncle and maternal aunt of Ku. Aanchal, a female child, aged about 6 years. (ii) The Respondent filed an application under Section 7 read with Section 10 of the Guardians and Wards Act, 1890 (the Act) for custody of Ku. Aanchal stating therein that her mother had died on 26.04.2004 and there is no other near relative to look after her since 26.04.2004. (iii) The claim was denied by the Appellant herein. (iv) The trial Court allowed the application, inter alia, on the ground that the Respondent No.1 being near relative, has a preferential right to be appointed as guardian of the minor and minor's right and welfare would be best protected in Respondent's custody. Hence, this appeal. 3. We have heard counsel for the parties and perused the record of the trial Court. 4. Admittedly, neither natural guardian nor any other near relative than the Appellant and the Respondent are available to look after the minor. On the basis of evidence available on record, it is also not in dispute that the child is living with the Respondent since 26.04.2004. 5. Although under the Act there is nothing to prevent a male from being appointed as guardian of a person of a family; but the Court may consider in appointing a guardian for a female whether or not in a particular case female is the more suitable guardian. 6. Further, under Section 17 of the Act, in appointing or declaring a guardian of a minor, the Court shall be guided by what consistently with the law to which a minor is subject, appears in the circumstances to be for the welfare of the minor and in considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his/her nearness of kin to the minor. 7. 7. Under the above section, the Court is under a duty to appoint the most suitable person amongst the rival claimants as guardian of the minor. Therefore, in matters concerning custody of minor child, paramount consideration is welfare of the minor and not legal right of a particular party. 8. Reverting to the facts of the instant case, Ku. Aanchal, a female child, aged about 6 years is in the custody of the Respondent since 26.04.2004. The trial Court, after considering the evidence available on record, has found the Respondent as most suitable person to be appointed as a guardian. Her appointment is also in accordance with Section 17 of the Act. 9. Therefore, we see no reason to interfere in the order impugned. 10. The appeal, in the above circumstances, being devoid of merit, is liable to be and is hereby dismissed. 11. No order as to costs. Appeal Dismissed.