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Andhra Pradesh High Court
Judges : CHENNAKESAVA REDDY, P.KODANDA RAMAYYA
Deram Seethamahalakshmi - Appellant
Versus
Kala Seethamahalakshmamma - Respondent
Decided On : 08-13-81
HINDU MINORITY AND GUARDIANSHIP ACT - SECTION 13 - GUARDIANSHIP - WELFARE OF MINOR - PARAMOUNT CONSIDERATION - REMARRIAGE OF MOTHER - EFFECT ON GUARDIANSHIP RIGHTS - CAPACITY AND CHARACTER OF PROPOSED GUARDIAN - RELEVANT FACTORS - PREFERENCE OF MINOR - RELEVANCE AND WEIGHT.
Fact of the Case:
The paternal grandmother of a minor child filed an application under Section 13 of the Hindu Minority and Guardianship Act, 1956, seeking appointment as the guardian of the child's person. The child's mother, who had remarried after the death of her first husband, opposed the application and claimed custody of the child. The trial court appointed the paternal grandmother as the guardian.
Finding of the Court:
The court held that the welfare of the minor child was the paramount consideration in determining the issue of guardianship. The court found that the child had been living with the maternal grandfather since the death of his father and was well-adjusted and happy in that environment. The court also found that the paternal grandmother had not established that she had the necessary capacity and character to be appointed as the guardian. The court further held that the child's preference to remain with the maternal grandfather was a relevant factor to be considered, but it was not the sole determining factor.
Issues: 1. Whether the remarriage of the mother affects her right to be appointed as the guardian of her minor child? 2. What factors should be considered in determining the welfare of the minor child in a guardianship dispute? 3. Whether the preference of the minor child is a relevant factor in determining the issue of guardianship?
Ratio Decidendi: 1. The remarriage of a mother does not automatically terminate her right to be appointed as the guardian of her minor child. However, the court must consider the welfare of the child as the paramount consideration in determining the issue of guardianship. 2. In determining the welfare of the minor child, the court should consider factors such as the child's age, sex, religion, character and capacity of the proposed guardian, the nearness of kin to the minor, the wishes of the deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. 3. The preference of the minor child is a relevant factor to be considered in determining the issue of guardianship, but it is not the sole determining factor.
Final Decision: The court allowed the appeal, set aside the order of the trial court, and dismissed the application for appointment of the paternal grandmother as the guardian of the minor child.
( 1 ) THE contenders to the custody of the child the paternal grand mother and the maternal grand father have celebrated this cause. It is very unfortunate that in this family continuously for two generations there was a premature death of the manager and hence the present apathy among the members of the family disclosed in these proceedings.
( 2 ) THE sole respondent in this appeal-one Kala Seethamahalakshmamma filed O. P. No. 149/1978 on the file of the Chief Judge, City Civil court Hyderabad under Sec. 13 of the hindu Minority and Guardianship Act 32 of 1956 and Sec. 25 of the Guardian and Wards Act 8 of 1890 for the custody of the minor Kala Gopa! Krishna kumar. The present appellants are the respondents as in the O. P. The 1st respondent is the mother of minor kala Gopala Krishna Kumar son of late k V S. Viswanadha Sarma and the petitioner in the OP. is the mother of the said K V S. Viswanadha Sarma and the paternal grand mother of the minor ka\b Gopala Krishna Kumar. The 2nd respondent is the 2nd husband of the 1st respondent Seethamahalakshmi alias dabir Latha whom she married after the death of her first husband K V S. Viswanadha Sarma. Th 3rd respondent is the father of the 1st respondent. All the three respondents are the appellants in the present appeal. In the 0 P No. 149/78 the petitioner therein claimed for the appointment of herself as a guardian for the person and the property of the minor Kala Gopala krishna Kumar with a direction to the respondents to deliver the minor child to her. The relief with respect to the appointment of the guardian of the property was withdrawn by the petitioner as not pressed and the relief is confined to the appointment of the petitioner as guardian to the minor child. It is averred in the petition that the 1st respondent was hr daughter-in-law and she does not like her daughter-in-law marrying a second time after the death of her husband. The only grand son to her only son who died is her source of affection and the boy was sent to her before the second marriage of the 1st respondent with the 2nd respondent was performed and subsequently on a wrong pretext that the mother was anxious to see the child the child was taken away from her and the parents of the 1st respondent were attempting to poison the mind of the young boy against the petitioner and with such ulterior motive the boy was being removed from her very often, though she took care and brought the boy to her residence and took him to several places and relatives and ultimately when the boy was with her at sakkarnagar, Nizamabad where the petitioner s sister was staying, on 28-6-1977 the 1st respondent s father and grand father with the authority of the 1st respondent came to her, took away the boy from her with Police aid and without heeding to her protest. It is further averred in the petition that the petittoner is most interested in the welfare of the minor and the welfare of the minor will never be served after the marriage of the 1st respondent with the 2nd respondent and the 3rd respondent has a number of children and they cannot pay any attention to the child and she being the paternal grand mother and the minor being the only grand child of the petitioner it would be fitting for the petitioner to become the guardian of the minor. It is also stated in the petition that she is taking steps to protect the interests of the minor s estate and the minor s senior paternal grand father who is a retired deputy Collector of Government of andhra Pradesh is looking after the agricultural land and the estate and necessary permanent arrangement will be made for the protection of the property of the minor also. The cause of the action was stated to have arisen on 12-7-1974 when the father of the minor boy died and on 30-4-1977 when the 1st respondent married the 2nd respondent and hence the relief of appointing her as guardian to the minor ward.
( 3 ) ALL the three respondents in the petition filed separate c
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