Delhi District Court
Ashok Kumar vs Pooja on 6 July, 2024
IN THE COURT OF SH. DEEPAK DABAS, DISTRICT JUDGE-01
(NORTH), ROHINI COURTS, DELHI.
GP-16/2023
Sh. Ashok Kumar,
S/o Late Sh. Amar Singh,
R/o H. No. 306, Karala Road,
Sultan Pur Dabas, Delhi-110039.
..... Petitioner
Versus
1. Smt. Pooja,
W/o Late Sh. Ajeet Kumar,
D/o Sh. Raghuvir Singh,
R/o H. No. 69, Purana Roshan Pura,
Nazafgarh, Delhi-110043.
2. The State
(Govt. of NCT of Delhi).
..... Respondent(s)
Date of institution : 14.07.2023
Date of Arguments : 06.07.2024
Date of Decision : 06.07.2024
PETITION U/S 7, 9 & 25 OF THE GUARDIANS & WARDS ACT, 1890,
FOR APPOINTMENT OF PETITIONER AS LEGAL GUARDIAN OF
MINORS ANJALI AND HARSHIT
JUDGMENT
1. Petitioner has filed the present petition for his appointment as legal guardian of minors i.e. Anjali, female child aged about 10 years ________________________________________________________________________ GP 16/23 Ashok Kumar Vs. Pooja & Anr. Page 1 of 8 (born on 26.01.2014) and Harshit, male child aged about 09 years (born on 17.07.2015) for their welfare, better future and bringing up till the date of their attaining majority.
2. The material facts of the present case as stated in petition are that the petitioner is the real paternal grandfather (दादा) of minors, namely, Anjali and Harshit and they are living under the care and custody of petitioner. Sh. Ajeet Kumar i.e. son of petitioner was married to R-1/Pooja on 25.11.2012 according to Hindu rites and ceremonies. Out of their wedlock Baby Anjali and Master Harshit were born. Sh. Ajeet Kumar expired on 03.08.2018 in roadside accident at Haridwar, Uttrakhand. After three-four months of the death of Sh. Ajeet Kumar, R- 1/Pooja left her matrimonial home and started residing with her parents. Initially, R-1/Pooja used to talk to minors telephonically for some time. However, after some time, her attitude changed and she avoided to attend the phone calls of petitioner and other family members. Thereafter, R-1/Pooja even refused to talk to minors. Presently, petitioner has no contact with R-1/Pooja. Petitioner tried to contact R-1/Pooja and her father Sh. Raghubir Singh but both of them did not respond to phone calls of the petitioner. Petitioner does not know the whereabouts of R-1/Pooja and whether she is dead or alive. Petitioner and his wife had made a complaint to SHO/ACP/DCP, PS Bawana, Delhi, through speed post on 02.12.2022. Petitioner is having sufficient earning means to take care of minors. The petitioner being the natural grand father can take care of the welfare of minors.
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3. Notice of this petition was served upon the State/respondent no-2. Notice was also issued to general public vide publication in the Hindi daily newspaper, namely, 'Virat Vaibhav' dated 02.09.2023 as well as English daily newspaper, namely, 'The Statesman' dated 02.09.2023. 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. R-1/Pooja neither appeared before the court nor filed her objections. On 28.02.2024, she was proceeded ex-parte.
5. LR Report was filed by Tehsildar, Narela, Delhi. As per LR Report, R-1/Pooja had re-married with Sh. Aakash and one female child was born from her second marriage.
6. 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/A, 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-1/1; ii. Copy of Aadhar Card of minor Anjali i.e. Ex PW-1/2; iii. Copy of Aadhar Card of minor Harshit i.e. Ex PW-1/3; iv. Copy of Aadhar Card of Late Sh. Ajeet Kumar i.e. Ex PW-1/4;
v. Copy of death certificate of Late Sh. Ajeet Kumar i.e. Ex PW-1/5;
vi. Postal receipts i.e. Ex PW-1/6 (Colly); vii. Tracking report i.e. Ex PW-1/7 (Colly); viii. Copy of Aadhar Card of R-1/Pooja i.e. Mark-A; ix. Copy of complaint to SHO, PS Bawana i.e. Mark-B;
________________________________________________________________________ GP 16/23 Ashok Kumar Vs. Pooja & Anr. Page 3 of 8 x. Copy of complaint made before SHO PS Nazafgarh i.e. Mark-C;
xi. Copy of complaint to DCP, Outer-North, Delhi i.e. Mark- D; and xii. Copy of complaint to Commissioner of Police i.e. Mark- E.
7. 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 instrument 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.
8. 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--
________________________________________________________________________ GP 16/23 Ashok Kumar Vs. Pooja & Anr. Page 4 of 8
(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.
9. 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 section, 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.
10. Section 20 of The Guardians & Wards Act, 1890 postu-
lates as under :-
20. Fiduciary relation of guardian to ward.--(1) A guardian stands in a fiduciary relation to his ward, and, save as pro-
vided by the will or other instrument, if any, by which he ________________________________________________________________________ GP 16/23 Ashok Kumar Vs. Pooja & Anr. Page 5 of 8 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 minor and generally all transactions between them while the influ- ence of the guardian still lasts or is recent.
11. Section 24 of The Guardians & Wards Act, 1890 postu- lates 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 re- quires.
12. Section 27 of The Guardians & Wards Act, 1890 postu- lates as under :-
27. Duties of guardian of property.--A guardian of the property 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.
13. The petition discloses that the minors are residing under the care and custody of petitioner as their father had already expired and their mother has remarried. The appointment of petitioner as guardian of minors seems a necessity and for an evident advantage to the minors. The minors are in their studying age and a guardian will be required at all the crucial stages. The minor children are under the care and custody of the ________________________________________________________________________ GP 16/23 Ashok Kumar Vs. Pooja & Anr. Page 6 of 8 petitioner, who is their paternal grandfather (दादा) and he is taking care/looking after the minor children. The petitioner is willing to be legal guardian of the minors for their welfare and future. The petitioner wants appointment for the purpose of representing the minors at various stages of their studies and Government dealings including applying for passport, PAN Card etc. Petitioner does not want any remuneration. The petitioner is the real paternal grandfather (दादा) of the minors and there is no material to gather an inference that his interest could be in conflict with or adverse to that of the minors.
14. It is pertinent to mention that, undersigned had an informal conversation with the minor children, who are present in the court today i.e. 06.07.2024. During said conversation also the minors stated that they have no objection, if petitioner is appointed as their guardian. They also submitted that they are living happily with petitioner i.e. their grand father as well as their grand mother.
15. Relief:- In view of the above said facts and circumstances, the petition is allowed. The petitioner is appointed as guardian of minors Anjali and Harshit till they attain majority. The order is subject to the following conditions:-
i. The petitioner will be entitled to act as the guardian of the minors 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.
________________________________________________________________________ GP 16/23 Ashok Kumar Vs. Pooja & Anr. Page 7 of 8 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 on 6th day of July 2024 (Deepak Dabas) District Judge-01/North Rohini Courts/Delhi ________________________________________________________________________ GP 16/23 Ashok Kumar Vs. Pooja & Anr. Page 8 of 8