Lakshmi Kushwah vs Khem Chand Kushawah

S.K. Palo, J.—Heard.

This miscellaneous appeal has been filed u/s 47 of the Guardian and Wards Act, 1890 assailing the order dated 24.9.2008 passed by the learned Additional District Judge, Shivpuri in Case No. 04/2008 (Guardian), under Sections 7 & 10 Guardian Wards Act read with Section 6 of Hindu Minority and Guardianship Act 1956 by which the learned 1st ADJ, Shivpuri has dismissed the application filed by the applicant/appellant for declaring her as guardian of minor Anjali aged 9 years and to obtain her custody.

It is not disputed that the applicant/appellant and the non-applicant/respondent are husband and wife due to their wedlock two daughters, namely minor Akanshya and Anjali were born. Akanshya is now 11 years old, whereas minor Anjali is 9 years old. Akanshya is residing with her mother/applicant Lakshmi at Shivpuri at her maternal grand parents'' house, where as minor Anjali is residing with non-applicant/father at Gwalior. The applicant/wife and non-applicant/husband are residing separately since last five years. No maintenance allowance is being given to applicant Lakshmi, whereas Rs. 1200/- per month is being paid to for maintenance of minor Akanshya.

The parties were in conflict before the trial Court for the custody of minor Anjali aged 9 years and there is no dispute regarding minor Akanshya aged 11 years also is residing with the applicant/appellant.

The applicant/appellant alleged that the non-applicant/respondent is running a shop and is busy from 8 AM to 10 PM, therefore, he is not in a position to properly look after the minor Anjali. Her education is being neglected, which will have grave effect in her future. The applicant is prepared to properly look after the minor Anjali and to give her proper education for which she has sufficient means. Therefore, she be declared the guardian of minor Anjali.

Per contra, non-applicant/husband denied all these allegations and claimed that he has been properly looking after the minor Anjali. He has taken care that she goes to a good educational institution. She has been admitted in Modern High School, Gwalior, which is imparting education in English medium. She is being properly taken care of. On the other hand, applicant-appellant has no means of income. Therefore, he is providing maintenance Rs. 1200/- per month to minor Akanshya. The applicant-appellant is residing separately for last five years without any reason and she has never taken pains to know the whereabouts of the minor Anjali nor she met her. Therefore, her application is without any basis.

The learned trial Court in the impugned order dated 24.9.2008 after analyzing the evidence, came to the conclusion that the interest of minor Anjali would be served if she lives with non-applicant/respondent. It is observed that if she is allowed to live with the applicant/appellant it will have adverse effect on her study as well as her rearing.

We have thoroughly examined the evidence and we are in full in agreement with the reasoning and conclusion arrived at by the trial Court.

The applicant/appellant has not claimed that she has any source of income. More so, during the period of last five years she did not even visit the minor Anjali nor she took any pain to know about her. The minor Anjali is now 9 years old. In other words she has surpassed the age of 5 years. In this regard Section 6 of the Hindu Minority and Guardianship Act 1956 is very relevant. Which reads as follows:

Natural guardians of a Hindu minor-The natural guardians of a Hindu minor, in respect of the minor''s person as well as in respect of the minor''s property (excluding his or her undivided interest in joint family property), are-

(a) in the case of a boy or an unmarred girl-the father, and after him, the mother. Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;

(c) in the case of a married girl-the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-(a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Ordinarily, mother is the natural guardian for a child (a) till the child has not completed the age of five years and (b) she can be considered to be a natural guardian of the minor only after the life time of the father. In the present case, considering the father''s fitness weighing predominantly in terms of the welfare of the minor Anjali, the learned trial court has given the above finding. The applicant/appellant failed to prove that non-applicant/respondent has not made himself disentitled to act as a natural guardian of the minor Anjali under the provisions of Section 6 of the Hindu Minority and Guardianship Act 1956. Considering the welfare of the minor is the paramount consideration in deciding the case, the learned trial Court has dismissed the application. Therefore, it calls for no interference.

Regarding visiting rights, the learned counsel for the appellant has stated at the Bar that there is a separate order to this effect. That being so, we have not given any thought in this regard in the present case. Therefore, we are not inclined to pass any order.

Appeal is dismissed accordingly.

No order as to costs.