Jaswinder Kaur vs Jawala Singh

J.V. Gupta, J.—This appeal is directed against the order of the Senior Subordinate Judge-cum-Guardian Judge, Kapurthala, dated 7th April, 1986 whereby Jawala Singh, grand-father of the minor child Balbir Singh, was appointed as guardian of the person of Balbir Singh on an application under Sections 7 and 25 of the Guardian and Wards Act (for short the Act).

Jaswinder Kaur was married to Karnail Singh who died in the year 1982 leaving behind a minor child who was of 4 years age at that time. Thereafter she re-married to one Gurmail Singh. Jawala Singh father of Karnail Singh (deceased) filed the present application under Sections 7 and 25 the Act for appointment of the guardian of the minor Balbir Singh and its custody on 24th August, 1983. It was pleaded that he being the grand father of the minor possesses sufficient property and he is in a better position to provide all comforts of life and an opportunity to get education upto the higher standard. Moreover, after the second marriage of Jaswinder Kaur, even the life of the minor is not safe. There is no proper arrangement with her for the education of the minor child. Moreover, her second husband had also children from his first wife. So it is in the interest and welfare of the minor if he is appointed as guardian of minor Balbir Singh. In the written statement filed on behalf of Jaswinder Kaur, it was pleaded that it is in the interest and in the benefit of the minor that he should remain in the custody of the mother who could better look after him. However, it was admitted that Jawala Singh was the grand-father of the minor. After the death of her husband she alongwith the minor child started residing with Jawala Singh but it was alleged that she was turned out. The second marrige was admitted. However, it was denied that it was in the welfare of the minor if the grand-father was appointed as a guardian in preference to the mother. The learned Guardian Judge came to the conclusion that it is in the interest and welfare of the minor that he should be brought up and looked after in his own family especially when his grand-father had no interest adverse to the minor. For this consideration alone Jawala Singh was appointed as the guardian of the minor child but at the same time his application for appointment of the guardian regarding the property of the minor was dismissed. Dissatisfied with the same, the mother of the child has filed this appeal but no appeal has been filed by the grand-father for appointment of the guardian of the property of the minor.

On the last date of hearing the parties were directed to be present alongwith the minor child in order to find out the possibility of the compromise, if any. However, parties alongwith the minor child are present but it appears that no compromise is possible between the parties. The minor is of about 11 years of age as he was born on 2nd March, 1976 and he is studying in 5th class at present. He does not want to go with his grand-father.

After hearing the learned Counsel for the parties and going through the relevant evidence on the record I find that the whole approach of the Guardian Judge was wrong. Admittedly, in such cases it is the interest and welfare of the minor which is to be kept in the mind while appointing the guardian. After the death of the husband of Jaswinder Kaur, she a long with her minor child are living separately and she has re married in year 1982. The second husband is employed in the Electricity Department. There is nothing on the record to show that there are any children in the family of Jawala Singh where the minor child may live with them. In the absence of evidence it cannot be said that it was in the welfare of minor to appoint him as his guardian. He is happily living with his mother alongwith other children and is studying in the school and, therefore, it will not be in his interest to hand over his custody to the grand-father at this tender age.

Apart from that the Guardian Judge did not appoint Jawala Singh as guardian of the property of the minor which is admittedly in his possession and he did not file any appeal against the said order. It apears that he is not interested to manage the property on behalf of the minor and is only interested in his custody. Thus taking into consideration the fact and circumstances of the present case it is not in the the welfare and interest of the minor to appoint Jawala Singh, the grand-father, as his guardian. The order of the Guardian Judge is set aside and the application under Sections 7 and 25 of the Act is dismissed with no order as to costs.