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2012 Supreme(Bom) 2258
High Court of Judicature at Bombay
ROSHAN DALVI, J.
Rajan Chawla & Another
Versus
Lisbon John Miranda & Another
Guardianship Petition No. 25 of 2012 & 163 of 2012
Decided on : 06-12-2012
For the Petitioners:Rohaan Cama a/w. Ms. Lata Bachani i/b. I.R. Joshi & Co., Advocates.
For the Respondents:Uday P. Warunjikar, Advocate.
The welfare of the child is the paramount consideration in appointing a guardian under the Guardians and Wards Act, 1890.
Headnote:
Guardianship - Minor Child - Guardians and Wards Act, 1890 - Section 17
Fact of the Case:
The case involves a dispute over the guardianship of a minor child whose mother has died and father is accused of murder. The maternal grandfather and paternal aunt both seek custody of the child.
Finding of the Court:
The court found that the father was unfit for custody due to pending criminal charges and the aunt's petition was filed at the father's instance, lacking personal desire. The grandfather, who had cared for the child since the incident, was deemed the most fit guardian.
Issues: Custody and guardianship of a minor child in the absence of natural parents, fitness of potential guardians, and consideration of the child's welfare under the Guardians and Wards Act, 1890.
Ratio Decidendi: The welfare of the child is the prime concern in appointing a guardian. The court considered the age, sex, religion, character, capacity, and nearness of kinship of the proposed guardians, as well as the wishes of the deceased parent.
Final Decision: The petition of the grandfather was granted, and the petition of the aunt was dismissed. The grandfather was appointed as the guardian of the minor child.
1. The Petitioner in Guardianship Petition No.25 of 2012 is the maternal grandfather of the minor child, Angelina Miranda who is 3 years 9 months of age (grandfather). The Petitioner in Guardianship Petition (L) No.163 of 2012 is the paternal aunt of the said minor child (aunt).
2. The mother of the minor child has expired. She died an unnatural death. The father of the minor child (who is the Respondent in Guardianship Petition. No.25 of 20012) has been accused of murdering the mother of the child. A charge under Sections 302 and Section 498A of the IPC has been framed against him. The criminal prosecution is pending. His initial bail application was rejected on 27th June, 2012 pending investigation of the case against him. His second bail application has been rejected on merits. A criminal revision application filed against the said order has been rejected on merits yesterday by the Sessions Court. The father of the child is in jail custody since the incident which took place on 25th May 2012.
3. The grandfather took his granddaughter on the date of the incident itself to his residence. He has since cared for the child. This aspect has not only been admitted in the affidavit in reply filed by the father, but it has been specifically stated by the father that from 25th May, 2012 the child has been taken in the custody of the grandfather.
4. Neither the father nor the aunt of the child sought to apply for custody of the child until today when the affidavit in reply to the grandfather's petition has been filed by the father and a separate petition has been filed by the aunt. In fact the father has specifically stated that “there was nobody to take immediate steps to bring back the child” in para 10 of his affidavit in reply to the petition of the grandfather. Though it is alleged by the aunt in para 13 of her petition that the grandfather has taken the child along with himself after the death of her mother, it is rightly argued by Mr. Cama that none has filed any criminal complaint of kidnapping also.
5. The child has, therefore, been adjusted to the grandfather and his family since the last about six months whilst her father remained in jail custody and her aunt, who resides separately, had not sought to care for her.
6. The first natural and legal guardian of the child is her father. The aforesaid circumstances show that he is wholly unfit to be given custody of the child. In fact it is impossible to do so. Hence, the grandfather, who has taken the child since the date of the incident itself would be entitled to keep custody of the child and be appointed her guardian unless he is shown to be unfit to be so appointed or unless a more fit person applies for and can be appointed.
7. The aunt of the child has applied as late as today. Her petition shows that her application is made upon instructions received from the father from prison to file a guardianship petition. It is her case that “considering the same” and at his “request” “desire” and “instructions” given to her, her petition is filed. Accordingly it is seen that the aunt has not been self motivated. She has acted at the instance of the father. Aside from her negative act in not applying for or desiring to have the custody of the child or access to the child from May, 2012, her application is admittedly only at his instance. She, therefore, has neither any experience yet of living with the child nor any personal desire to do so of her own accord.
8. Between the grandfather and the father the grandfather is the most apt and fit person to be appointed guardian in view of the prior undisturbed custody.
9. Between the grandfather and the aunt also the grandfather is more fit for the above reason.
10. A child is not a chattel. Custody of the child cannot be altered upon the instructions of the person who cannot claim custody in view of his unfitness and cannot be thrust upon another who herself does not desire to have it and has not taken any action in that behalf o
