Delhi District Court
Kamal Kumar Garg vs Rupali Garg on 9 December, 2023
IN THE COURT OF SH. DEEPAK DABAS, ADJ-1 (NORTH),
ROHINI COURTS, DELHI.
GP-15/2023
Sh. Kamal Kumar Garg,
S/o Sh. Ram Paul Garg,
R/o E-2/231, Behind G3S Cinema,
Sector-11, Rohini, Delhi-110085.
..... Petitioner
Versus
1. Smt. Rupali Garg,
W/o Sh. Manish Gupta,
R/o 146, Laxmi Nagar,
Sri Ganga Nagar, Rajasthan.
2. Sh. Manish Gupta,
S/o Sh. Satpal Gupta,
R/o 146, Laxmi Nagar,
Sri Ganga Nagar, Rajasthan.
3. The State
(Govt. of NCT of Delhi).
..... Respondent(s)
Date of institution : 08.07.2023
Date of Arguments : 16.10.2023
Date of Decision : 09.12.2023
PETITION U/S 7, 8 & 25 OF THE GUARDIANS & WARDS ACT,
1890, FOR APPOINTMENT OF PETITIONER AS LEGAL
GUARDIAN OF MINOR DEVANSH GARG
_____________________________________________________________________________________
GP-15/23 Kamal Kumar Garg Vs. Rupali Garg & Ors. Page 1 of 9
JUDGMENT
1. Petitioner has filed the present petition for his appointment as legal guardian of minor Devansh Garg, male child aged about 11 years (born on 16.01.2013) for his welfare, better future and bringing up till the date of his attaining majority.
2. The material facts of the present case as stated in petition are that the petitioner is the real maternal grandfather (Nana) of minor Devansh Garg and he is under the care and custody of petitioner. Respondent no-1/Rupali Garg got married to Sh. Rohit Garg on 17.02.2012 according to Hindu rites and ceremonies and out of the said wedlock minor Devansh Garg was born on 16.01.2013. The marriage of respondent no-1/Rupali Garg was dissolved by a decree of divorce on 02.12.2013. At that time it was agreed that her husband i.e. Sh. Rohit Garg shall neither claim the custody nor shall have any visitation rights to meet minor Devansh Garg in future. On 08.10.2017, respondent no- 1/Rupali Garg got re-married to respondent no-2/Manish Gupta according to Hindu rites and ceremonies. Before solemnization of re-marriage, it was mutually agreed that minor Devansh Garg would reside with respondent no-1 and respondent no-2 at their home at Rajasthan. However, minor Devansh Garg was not looked after properly by the respondents. He was aged about five years at the time of re-marriage of respondents no-1 & 2. The minor was neglected at the matrimonial home _____________________________________________________________________________________ GP-15/23 Kamal Kumar Garg Vs. Rupali Garg & Ors. Page 2 of 9 of the respondent no-1. The necessary care and affection for upbringing of minor in the new environment and atmosphere was lacking and medical needs were not taken care of in the matrimonial home of respondent no-1 at Rajasthan. Therefore, minor started having a lot of medical, physical and mental issues. Resultantly, minor started lagging behind in studies and also started to confine within himself. It has been further averred that considering the atmosphere to be not in the interest of the welfare of minor, the petitioner i.e. maternal grandfather (Nana) brought the minor Devansh Garg to Delhi with him in May 2019 and get him admitted in Titiksha Public School, Sector-11, Rohini, Delhi in Class-II. The petitioner is working as Incharge of the Radiology Department at Saroj Super Speciality Hospital, Madhuban Chowk, Rohini, Delhi for the last 14 years and his wife Smt. Anita Garg i.e. the maternal grandmother of minor is Graduate and a home maker. The upbringing and the academics of the minor are being taken care by the petitioner and his wife. Presently, minor Devansh Garg is studying in Class-VI and is doing very well academically and in extracurricular activities. Minor has also joined the basketball academy in the evening and participates very well in all the activities of the house as well as of the school. It has been further averred that petitioner is capable of taking care of minor Devansh Garg's financial, psychological, emotional, educational and other needs.
3. Notice of this petition was served upon the State/respondent _____________________________________________________________________________________ GP-15/23 Kamal Kumar Garg Vs. Rupali Garg & Ors. Page 3 of 9 no-3. Notice was also issued to general public vide publication in the Hindi daily newspaper, namely, 'Virat Vaibhav' dated 21.07.2023 as well as English daily newspaper, namely, 'The Statesman' dated 22.07.2023. Despite publication in the newspaper, no one has come forward to make any objection in respect of the prayer made by the petitioner in the present petition.
4. On 16.08.2023, respondent no-1/Rupali Garg had appeared before the court and had given her NOC qua present petition. Respondent no-2/Manish Gupta had also filed his NOC qua present petition on record.
5. In order to prove his case, the petitioner himself entered in witness box as PW-1 and tendered his evidence by way of affidavit i.e. Ex.PW1/1, bearing his signatures at points A and B and he has also relied upon the following documents :-
i. Copy of Aadhar Card of petitioner i.e. Ex PW-1/A; ii. Copy of Aadhar Card of minor Devansh Garg i.e. Ex PW-1/B; iii. Copy of Aadhar Card of R-1/Rupali Garg i.e. Ex PW-1/C; iv. Copy of statements as well as judgment dated 02.12.2013 passed in the petition for dissolution of marriage of R-1/Rupali Garg i.e. Ex PW-1/D;
v. Copy of Decree Sheet i.e. Ex PW-1/E;
vi. Copy of Marriage Certificate of respondents no-1 & 2 i.e.
Mark-A;
vii. Copy of school identity card of minor Devansh Garg i.e. Ex
PW-1/G; and
viii. Copy of Bonafide Certificate i.e. Ex PW-1/G (Colly).
_____________________________________________________________________________________ GP-15/23 Kamal Kumar Garg Vs. Rupali Garg & Ors. Page 4 of 9
6. I have gone through the record and have heard the arguments advanced by Ld. Counsel for petitioner. Section 7 of The Guardians & Wards Act, 1890 postulates as under :-
7. Power of the Court to make order as to guardianship.--
(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made--
(a) appointing a guardian of his person or property or both, or
(b) declaring a person to be such a guardian the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instru-
ment or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.
7. Section 8 of The Guardians & Wards Act, 1890 postulates as under :-
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 _____________________________________________________________________________________ GP-15/23 Kamal Kumar Garg Vs. Rupali Garg & Ors. Page 5 of 9
(c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has prop- erty; or
(d) the Collector having authority with respect to the class to which the minor belongs.
8. Section 17 of The Guardians & Wards Act, 1890 postulates as under :-
17. Matters to be considered by the Court in appointing guardian.--(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this sec-
tion, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) 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 nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous rela- tions of the proposed guardian with the minor or his prop- erty.
(3) If minor is old enough to form an intelligent preference, the Court may consider that preference. 3[***] (5) The Court shall not appoint or declare any person to be a guardian against his will.
9. Section 20 of The Guardians & Wards Act, 1890 postulates as under :-
20. Fiduciary relation of guardian to ward.--(1) A guardian stands in a fiduciary relation to his ward, and, save as provided by the will or other instrument, if any, by _____________________________________________________________________________________ GP-15/23 Kamal Kumar Garg Vs. Rupali Garg & Ors. Page 6 of 9 which he was appointed, or by this Act, he must not make any profit out of his office.
(2) The fiduciary relation of a guardian to his ward extends to and affects purchases by the guardian of the property of the ward, and by the ward of the property of the guardian, immediately or soon after the ward has ceased to be a mi- nor and generally all transactions between them while the influence of the guardian still lasts or is recent.
10. Section 24 of The Guardians & Wards Act, 1890 postulates as under :-
24. Duties of guardian of the person.--A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.
11. Section 27 of The Guardians & Wards Act, 1890 postulates as under :-
27. Duties of guardian of property.--A guardian of the prop-
erty of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it, if it were his own and subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property.
12. The petition discloses that the minor is residing under the care and custody of petitioner since 2019 and studying in Class-VI at Titiksha Public School, Sector-11, Rohini, Delhi and doing very well academically and in extracurricular activities. The appointment of petitioner as _____________________________________________________________________________________ GP-15/23 Kamal Kumar Garg Vs. Rupali Garg & Ors. Page 7 of 9 guardian of minor seems a necessity and for an evident advantage to the minor. The minor is in his studying age and a guardian will be required at all the crucial stages. The minor child is under the care and custody of the petitioner, who is his maternal grandfather (Nana) and he is taking care/looking after the minor child since May 2019. The petitioner is willing to be legal guardian of the minor for his welfare and future. The petitioner wants appointment for the purpose of representing the minor at various stages of his studies and Govt. dealings including applying for passport, PAN Card etc. Petitioner does not want any remuneration. The petitioner is the real maternal grandfather (Nana) of the minor and there is no material to gather an inference that his interest could be in conflict with or adverse to that of the minor.
13. It is pertinent to mention that, undersigned had an informal conversation with the minor child, who was present in the court today i.e. 09.12.2023. During said conversation also the minor stated that he is living under the care and custody of the petitioner and he would love to continue the same.
14. On 16.08.2023, respondent no-1/Rupali Garg had appeared before the court and had given her NOC qua present petition. Respondent no-2/Manish Gupta had also filed his NOC qua present petition on record.
15. Relief:- In view of the above said facts and circumstances, the petition is allowed. The petitioner is appointed as guardian of minor _____________________________________________________________________________________ GP-15/23 Kamal Kumar Garg Vs. Rupali Garg & Ors. Page 8 of 9 Devansh Garg till he attains majority. The order is subject to the following conditions:-
i. The petitioner will be entitled to act as the guardian of the minor before any bank, institution or other authority etc. wherever there is requirement of the guardian.
ii. The petitioner shall not be allowed to any allowance.
iii. Special attention of the petitioner has been drawn to the provisions of section 26, 27, 28, 29, 32, 33, 35, 36, 39, 44 & 45 of the Guardians & Wards Act 1980.
iv. On fulfillment of necessary conditions, the guardianship certificate as per Form F given in chapter 2 part D Volume 2 of the Delhi High Court Rules be issued.
16. Accordingly, the present petition stands allowed and disposed of. File be consigned to record Room after necessary compliance.
Announced in the open court DEEPAK DABAS
Digitally signed by DEEPAK DABAS
Date: 2023.12.11 15:02:13 +0530
on 9th day of December 2023
(Deepak Dabas)
Addl. District Judge-01/North
Rohini Courts/Delhi
_____________________________________________________________________________________ GP-15/23 Kamal Kumar Garg Vs. Rupali Garg & Ors. Page 9 of 9