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2021 DIGILAW 857 (MAD)

Nagarajan v. Ashwin

2021-03-10

G.CHANDRASEKHARAN, T.RAJA

body2021
JUDGMENT : T. Raja, J. 1. The Civil Miscellaneous Appeal has been directed against the fair and decreetal order dated 01.10.2019 passed in G.O.P. No. 385/2018 by the learned Family Court Judge, Cuddalore, thereby declaring that the father of the minor respondents herein, namely, Mr. G. Raji, is the natural guardian of the said minors and directing the appellant herein/respondent therein to hand over the custody of the minor grandchildren to their Natural Guardian-Father of the minor respondents herein. 2. The matter was listed today under the caption, 'for admission'. 3. It is a fight between the grandfather and the father of the minor children. The claim of the grandfather/appellant herein is that he has given away his daughter Priyadharshini in marriage to Mr. G. Raji on 16.03.2011. After they were living together for few years and giving birth to two male children, namely, elder son Ashwin on 05.12.2011 and the younger son Nishanth on 19.07.2014, due to the reason best known to his daughter, she committed suicide on 27.03.2016. After the death of his daughter, the appellant herein has taken away the minor grandchildren to his home, as a result, the father of the minor children who was unable to get any response from his father-in-law in getting the custody of his children, approached the Family Court, Cuddalore and filed G.O.P. No. 385/2018 under Section 8 of the Guardians and Wards Act, 1890, taking a ground that after the death of the natural mother/real mother, the father is only a natural and legal guardian by virtue of Section 6 of the Hindu Minority and Guardianship Act, 1956 and even in the case of dispute arising between the father and mother, as per Section 6(a) of the said Act, father stands on higher footing than the mother who can have the custody of the minor children, provided the children have attained the age of 5 years. The further claim of the petitioner therein, namely, the father of the minor children is that he is having a source of income by running a brick kiln and this apart he is also the owner of 3 acres of lands from which he has been eking out his livelihood and finally, it is also pleaded that he was also receiving income from other properties. 4. Opposing the above contention, the appellant herein/respondent therein has also filed a counter affidavit. 5. 4. Opposing the above contention, the appellant herein/respondent therein has also filed a counter affidavit. 5. After full fledged trial, the learned Family Court Judge, Cuddalore, passed an order, decreeing the GWP. No. 385/2018 on 01.10.2019 as prayed for by the petitioner therein by declaring him as a Natural Guardian of the minor children and also directing the respondent therein to hand over the custody of the minor children to the respondent therein within 60 days. Aggrieved over the same, the present Civil Miscellaneous Appeal has been filed by the appellant herein. 6. Learned Counsel appearing for the appellant submitted that being a Real Estate Owner, the appellant has been earning huge amount with which he will be able to educate his grandchildren and give them better and prosperous life. Learned Counsel for the appellant further submitted that when the paramount welfare of the children is very important and that the children are admittedly now staying with their grandfather/appellant herein, the learned Family Court has wrongly decided the issue against the appellant herein, against the wishes of the children. Therefore, the impugned decreetal order is liable to go, he pleaded. 7. On a mere perusal of the records, we find prima facie case in favour of the father of the minor respondents. The reason being that when the learned Family Court Judge, Cuddalore, has held in favour of the petitioner therein-father of the minor children that he is the Natural Guardian of the minor children as per law and that the natural father is having a source of income through the Brick Kiln and also having 3 acres of land, it is not known why the appellant father-in-law of Mr. Raji, father of the minor children, has not produced any material to show that he is having more source of income than the father of the minor respondents. As a matter of fact, there is not even a single pleading found by us in the documents filed by the appellant herein before the Family Court showing that he has any independent source of income merely claiming that he is a Real Estate Owner even without producing any document to show that he is doing real estate business leave alone the Income Tax Assessment papers showing that he has been receiving huge income from the real estate business. Therefore, we are afraid of entertaining the request for providing the custody of the innocent minor children at the hands of the appellant grandfather who is not having any income to eke out his own life. 8. In this regard, Section 6 of the Hindu Minority and Guardian Act, 1956 clearly says that in the case of boy or an unmarried girl the father shall be the Natural Guardian of the minor. It is relevant to extract the same here under: "6. Natural Guardians of a Hindu Minor:- The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl-the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father; (c) in the case of a married girl-the husband; Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section- (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world becoming a hermit (Vana Prastha) or an ascetic (yati or sanyasi) Explanation-In this section, the expression "father" and "mother" do not include a stepfather and a step-mother." A mere cursory reading of the above section clears no doubt that the father shall be the Natural Guardian in the case of boy or an unmarried girl. 9. Similarly Section 8 of the Guardians and Wards Act, 1890 is extracted hereunder: "8. 9. Similarly Section 8 of the Guardians and Wards Act, 1890 is extracted hereunder: "8. Persons entitled to apply for order: An order shall not be made under the last foregoing section except on the application of- (a) the person desirous of being, or claiming to be, the guardian of the minor, or (b) any relative or friend of the minor, or (c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property, or (d) the Collector having authority with respect to the class to which the minor belongs." A perusal of Section 8 shows that who are all the persons entitled to apply for an order to appoint him or her as guardian of the minor. No doubt, Section 8 further says that any person desirous of being guardian of minor can move an application. Even non-Indian also can come forward to take a destitute female minor only in a case where there is no natural guardian available. Section 6 of the Hindu Minority and Guardian Act, 1956 says that in the case of a boy or an unmarried girl, the natural guardian of a Hindu minor is the father and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. 10. In the present case, admittedly, the mother of the minor respondents died on 27.03.2016. Therefore, by virtue of Section 6(a) of the Hindu Minority and Guardian Act, 1956, the father-in-law of the natural father/ appellant herein has no loco standi or any right whatsoever to fight against the natural father to be declared as the natural guardian of his grand children. Therefore, finding no infirmity or error in the fair and decreetal order dated 01.10.2019 passed in G.O.P. No. 385/2018 by the learned Family Court Judge, Cuddalore, we are not inclined to entertain the present Civil Miscellaneous Appeal. 11. In the result, the Civil Miscellaneous Appeal fails and the same is accordingly dismissed at the admission stage itself thereby confirming the fair and decreetal order of the learned Family Court Judge, Cuddalore, dated 01.10.2019 made in G.O.P. No. 385/2018 and a direction is issued to the appellant to hand over the custody of the minor children-respondents to their father/Natural Guardian Mr. G. Raji, within a period of four weeks from today. No costs. Consequently, connected Miscellaneous Petition is closed.