Jammu & Kashmir High Court
Mst. Aisha And Anr. vs Bashir Ahamad Haji on 5 September, 1986
Equivalent citations: AIR1987J&K68, AIR 1987 JAMMU AND KASHMIR 68
JUDGMENT M.L. Bhat, J.
1. Learned District Judge, Srinagar has by his judgment dated 22-4-1986 allowed an application under the Guardian and Wards Act and appointed the respondent herein as the guardian of the person of the minor, namely Ehtisham Azam and one month's time was granted to the appellants to deliver the child to the respondent.
2. Before coming to the rival contentions of the learned Counsel for the parties, it is necessary to give a re'sume' of the facts in brief.
3. Appellant No. 1 and respondent were married and the said marriage was dissolved by a deed of divorce dated 10-11-1979. At that point of time minor child who was born of the wedlock is said to have been about 2 months of age. The minor was to remain with the appellant No. 1 for some time in view of his tender age at the time of execution of divorce deed and on attaining 2 1/2 years of age he was to be delivered to the respondent No. 1 copy of the divorce deed is placed on the file.
4. Objections to this petition were filed by the appellant No. 1. It was contended that up to the age of seven years, appellant No. 1 as mother was entitled to the custody of the minor and she could not be deprived of to minor's custody. Agreement is said to have no legal force and was not said to be binding on the minor because it is not beneficial to him. Maintenance to the minor was refused by the respondent and proceedings for maintenance were initiated before the Judicial Magistrate and the respondent was directed to pay the maintenance.
5. After the dissolution of marriage respondent as also the appellant No. 1 are said to have remarried. Appellant No. 2 was subsequently added as a party. In her application for being impleaded as party she has contended that the minor was really in her custody and she was giving love and affection to the minor, therefore she was a necessary party. Her application was not objected to by the respondent and she was made a party.
6. Mr. Lone appearing for the appellants has contended in the first place that the application filed by the respondent under the Guardian and Wards Act was not maintainable because it was not attested by two witnesses. The requirement of law under Section 10(2) of the Guardian and Wards Act was that the application should have been attested by two witnesses and in the absence of such attestation, application was to be dismissed in limine. He has placed reliance on Rabindra Nath Mukherjee v. Abinash Chandra Chatterjee, AIR 1972 Cal 143. One Rabindra Nath Mukherjee had made an application for being appointed guardian of the person and property of minor Gautam Chatterjee, who was his daughter's son. The parents of the minor were alive. Father of the minor was made a party to the petition. Parties were governed by Dayabagh School of Hindu Law and undisputably father was the natural guardian of the person and property of minor son. The minor is said to have been brought up by his grandfather and on consideration of the facts of the case grandfather's application was rejected and it was held that father has not forfeited his right to be guardian of the ward. Appeal also was dismissed on merits and the learned Judges deciding the appeal had held that the application was liable to be rejected in limine for there was no compliance with Section 10(3) of the Guardian and Wards Act. On examining this authority one finds that if an application is made for the appointment of guardian, it is to be attested by two witnesses in accordance with the provisions of Section 10 of the Guardians and Wards Act. The Court at the stage oi presentation of the application is competent to dismiss the application in limine for not being in accordance with law. But after it is entertained and evidence recorded, it could not be dismissed in limine. Dismissal of an application in limine presupposes that no further proceedings after its presentation arc taken. An application which is entertained and in which objections are received and evidence of the parties is recorded, cannot be held bad nor can such an application be dimsissed in limine. This objection was available to the appellant No. 1 when she appeared before the trial Court in pursuance of the summons issued to her by the said Court. Appellant No. 1 does not seem to have raised this objection and she is said to have allowed the trial Court to proceed with the trial of the case. After the trial is completed and judgment is pronounced on merits, it will not be proper to invoke the provisions of Section 10 of the Guardian and Wards Act. The Calcutta authority (supra) has laid down the law as to what should trial Court do in an application for the appointment of guardian for the person and property of the minor | when brought before it. The requirement of dealing with the said application under Section 10 as its inception is insisted upon, but after the full trial the said application for this defect, cannot be dismissed in limine. Therefore, the objection of Mr. Lone needs to be overruled.
7. Mr. Lone has next contended that discretion of the Court in the appointment of guardian for the minor's person must be guided by only one consideration, that is, protection of the minors welfare. He has placed reliance on Mohd. Yunus v. Smt. Shamshad Bano. AIR 1985 All 217 and Hoshie Shavaksha Dolikuka v. Thirty Hoshie Dolikuka, AIR 1984 SC 410 to indicate that it was the minor s welfare which was the sole consideration to be kept in mind by the trial Court while appointing the guardian for the minor. Since the trial Court has not done so, therefore, it cannot be said that the order under appeal is valid,
8. Mr. Qayoom appearing for the respondent has placed reliance on an authority of this Court in Moh'd Ramzan Magrey v. Taja reported in 1983 Srinagar LJ 188 : (AIR 1983 J & K 70). After taking into consideration certain provisions of Guardians and Wards Act the learned single Judge of this Court ordered the delivery of the minor to the custody of his mother Mst. Taja because it was found that it was in the interests of minor to restore him to the mother who could give her affection and love and who was more suited to look after the physical, psycological and moral welfare of the minor than the father who would not have much time to devote to the child, being a working man. Father was refused custody because he was a working man and mother was not the working woman, therefore, she was held to be best suited to look after the minor.
In the present case, mother has aiso remarried at a different place distinct from Srinagar. It is, therefore, contended by Mr. Qayoom that she has abandoned the custody of the minor to her own mother, Mst, Aisha and has rendered herself unfit to look after the minor and under Mohammadan Law, it is the father alone who can be ihe guardian of the minor.
9. Mr. Qayoom has relied on Reginald Daniel v. Sarojam, AIR 1969 Mad 365 that welfare of the minor comes into play only when father is found unfit for being appointed as Guardian. Sn the said authority it was further held thai if a person discards his wife and lives with mistress, he is not fit for custody of his child of tender years. Such a conduct of father may render the father unfit for being appointed as guardian of the minor.
10. The overriding consideration for appointment oi a guardian is minor's welfare. Court has to direct itself as to who is best suited to look after the physical, psychological and moral welfare of the minor. A tender aged minor cannot be said to be the judge of his own welfare. Therefore, it is the duty of the Court to proceed with the trial of an application which is made before it for the appointment of the guardian, with the sole considertion of finding as to how the child can be developed and how he can be brought up so as to make him a useful limb of the society. For that purpose process of growth and development is to be made in such a manner which gives him education, physical, psychological and moral welfare and does not allow him to astray in such a manner so as to lose the values in life which are essential for the development of a good man. These are in short the illustrative conditions which must be taken into consideration while appointing the guardian of a minor,
11. I have examined the judgment and also the record of the file. It is unfortunate that appellant No. 1 and respondent have fallen apart. Both are settled now and have remarried, Minor seems to be about seven years of age now. It cannot be said whether minor has his own preference or not. But if he does not want to live with the father, he cannot be delivered to the father like a chattel. His preference, provided, he is capable of making any such preference, should have been ascertained The trial court seems to have proceeded without doing that,
12. It is true that the father is not proved to have lost the right of being appointed as the guardian of the minor. He has no defect and he being the natural guardian of the minor could be appointed provided it was in the interests of the minor. Minor cannot be forced to live with the father because that may cause psychological deterioration to the minor and may eventually affect his health also because at this age he needs love and affection. He being of the age of seven cannot show his preference as to with whom he wants to live. If he is given affection and love which he needs at this age by the respondent of the appellant No. 1, then he should be permited to have the affection and love of any one of them. For that purpose it is necessary to ascertain the wishes of the minor which unfortunately have not been ascertained,
13. 1 do not propose to go into the alleged conduct oi the respondent who is said to have neglected the minor and thereafter was compelled to pay maintenance to him, through the intervention of the Court. The payment of maintenance is otherwise obligation of father.
14. Learned District Judge has taken pains to discuss the evidence and law and then come to a conclusion that respondent should be appointed as guardian of the minor. This conclusion is to be subjected to the wishes of the monor. It the minor is capable of making the preference, he should be brought to the Court and thereafter order of appointment of guardian should be made. Since that has not been done, therefore, order dated 22-4-1986 cannot be sustained. I have indicated the guidelines which the trial Court should take into consideration and apart from, ascertaining the wishes of the minor, if the trial Court is of the opinion that some further evidence is required to be recorded for determining the welfare of the minor, it should give opportunity to the learned counsel for the parties to adduce such evidence as they may wish to adduce. The object being that the trial Court should bear in mind the minor's physical psychological and moral welfare and thereafter pass an order afresh after ascertaining the wishes of the minor.
15. The order dated 22-4-1986 is accordingly set aside and the case is remitted back to the trial court for disposal afresh according to the directions made herein-above. Learned counsel for the parties are directed to appear before the trial Court on 19-9-1986.