Musst. Bhikuo Koer vs Musst. Chamela Koer

These cases arise out of two applications made by two persons, each claiming to be the guardian of a Hindu minor. One was the maternal grandmother, and the other, the step-sister. The learned District Judge declined to allow any evidence to be given, and held that assuming the fitness of the applicants, preference must be given to the maternal grand mother. Under sec. 13 of the Guardians and Wards Act (VIII of 1890), the Court is bound to hear such evidence as may be adduced in support of, or in opposition to, the application; and with regard to the matters to be considered by the Court in appointing a guardian, sec. 17 says: -"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 law to which the minor is subject, appears in the circumstances to be for the welfare of the minor." The main consideration for the Court, therefore, is the welfare of the minor. Of course in determining what is best for the minor, the Court may take into consideration the nearness of relationship, because it may be that the nearer the relationship of the guardian to the minor, the more likely is it that the minor''s interest will be looked after. That the Court is to consider the interest of the minor, and it is to do so on the evidence. There was not even before this Act (VIII of 1890) was passed, anyone other than the father or mother who had an absolute right to the custody of a Hindu minor. That was decided in the case of Krishto Kishore Neogi v. Kadu Moye Dasi 2 C. L. R. 583.

The law now gives no such absolute tight.

The only question to be determined is, what, in the circumstances, is for the welfare of the minor. Sec 17 of the Act distinctly shows what matters the Court is to consider, one of them is the nearness of kin, but there are others referred to as well. The order of the lower Court must be set aside, and the cases remitted to the District Judge in order that he may, after considering the evidence tendered by the parties, decide the matter according to law. The costs will be costs in the cause. We assess the pleaders'' fee in the two cases in this Court at five gold mohurs.