Patna High Court
Balram Mandal vs Rajani Mandalain on 14 April, 1964
Equivalent citations: AIR1964PAT505, AIR 1964 PATNA 505
JUDGMENT
R.K. Choudhary
1. This appeal under Section 47 of the 'Guardians and Wards Act is directed against an order ot the District Judge of the Santhai Parganas appointing the mother of a boy to act as the guardian of his person.
2. It appaars that the appellant Balram Mandal had no issue by his first wife, Boma Mandalain, He, therefore, took a second wife, namely, the respondent Rajani Mandalain, from whom fie got several daughters and a son, Jagarnath Mandal. It further appears that for differences between the husband and the second wife, the second wife, Rajani, has to leave her husband's house along with her daughters and to live with her father at her father's house. The son, however, was living with the father in whose house the only female member was his first wife, namely, the step-mother of the boy. According to the mother of the boy, he was not being treated favourably by his step-mother, and, for the welfare of the boy, she thought it necessary to be appointed as the guardian of his person. She, therefore, made an application before the District Judge for being appointed as the guardian of this person. An objection was raised on behalf of the "father that he was the fit person to act as the guardian of the person of the boy and the mother should not be appointed as guardian in consideration of the welfare of the boy. Both parties adduced evidence in support of 'their respective claims. The learned District Judge agreed with the contention of the respondent and appointed he as the guardian of the person of the boy, Jagarnath. The father, Balram, has, therefore, presented this appeal.
3. The principle of law that is applicable in appointing a guardian of a minor has been rightly pointed out by the learned District Judge to be that the interest and welfare of a minor is the first and main consideration for such an appointment. Section 7 of the Guardians and Wards Act clearly states that the Court, in order to appoint or declare a person, to be the guardian of a minor, must be satisfied that it is for the welfare of the minor Sub-section (1) of Section 17 of the said Act states that, in appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided bay what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. Sub-section (2) of that section lays down as to what should be taken into consideration in deciding as to what will be for the welfare of the minor, and in that connection it lays down that 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. It is, therefore, abundantly clear that, in appointing a guardian, the Court has to look to the welfare of the minor. The evidence adduced in this case, as discussed by the learned District Judge, clearly shows that for the welfare of the minor the mother, and not the fathar, is a person fit to be appointed as the guardian of the person of the minor.
4. On behalf of the applicant, the mother, witnesses have been examined to prove that she was turned out of the house, that the daughters are living with her, that one of the daughters who lived for some time with the? step-mother was badly treated by her and that the stepmother does not fare well with the boy. That evidence has been accepted by the learned District Judge, and nothing has been placed before me from the evidence of those witnesses to show that the conclusion at which the learned Judge arrived was wrong. It is not, therefore, necessary to discuss the evidence of these witnesses. Moreover, if the boy is kept under the guardianship of the father, for all practical purposes, the stepmother will have) full control over the boy; and it is not most natural that the mother, if not otherwise unfit to act as the guardian, will be a much better guardian than the stepmother. The learned District Judge has pointed out that there is nothing against the mother from which it can be urged that she is not otherwise fit to act as the guardian. In that view of the matter, 1 agree with that view taken by the learned District Judge that the respondent, the mother, is a fit person to be appointed as the guardian of her son.
5. My attention has been drawn to Section. 6 of the Hindu Minority and Guardianship Act, according to which, in case of a Hindu1 minor boy or a Hindu unmarried girl, the father and after him the mother will be the natural guardian of the person or property of the minor. In case of a minor who has not completed the age of five) years, however, the custody of such a minor has ordinarily to be with the mother. Mr. Ghosal, appearing for the appellant, on the basis of this provision, has submitted an argument that there is no definite finding in this case that the boy had not completed the age of five years, and, therefore, according to the provision of this section, the father should have been appointed as the guardian.
6. There was a controversy between the parties as to the age of the boy. According to the respondent, the boy was below the age of five years, whereas according' to the appellant, he was of seven years. On this point also, evidence was adduced on behalf of both the parties, but the learned District Judge appears to have preferred the evidence adduced on behalf' of the mother to the evidence adduced on behalf of the father. According to the father, the boy was admitted in a school the Admission Register showed that he was aged more than five years. Unfortunately, that Admission Register was not brought on the records of the case, and the best evidence has been withheld. No other documentary evidence has been adduced on behalf of either party to show the age of the boy. On behalf of the mother, however, persons competent to speak about the question in controversy have given evidence to prove that the boy was below the age of five years and that evidence appears to have been accepted by the court below, as already observed. The finding of the learned District Judge on this point, though not very definite, is to the effect that the age of the bay would be in the neighbor hood of five years or so. The learned District Ju'dge had the advantage to see the boy in the witness-box, and he formed an opinion that he was of a very tender age. Taking that circumstance into consideration, it can very well be said that the boy is of such an age that the mother should be preferred to the father in the matter of appointment of a guardian of his person.
7. Even assuming that the boy is more than five years of age, but undoubtedly of tender age, it is not in all cases that the father should be put in charge of the custody of the boy. Section 13 of the Hindu1 Minority and Guardianship Act, under which a father is preferred to be the natural guardian of a minor, lays down that, in appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. Sub-section (2) of that section clearly prohibits the Court from appointing a person as a guardian of a minor if the Court is of opinion that the guardianship of that person will not be for the welfare of the minor. Section 6 of this Act, therefore, has to be read subject to Section 13 of the Act; and both the sections read together only re-affirm the provisions of Sections 7 and 17 of the Guardians and Wards Act that, in appointing a guardian of a minor, the welfare of the minor is the main consideration.
8. For the reasons given above, I do not find any merit in this appeal which is, accordingly, dismissed with costs.