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2013 Supreme(Bom) 1231
High Court of Judicature at Bombay
D.Y. CHANDRACHUD & S.C. GUPTE, JJ.
Louella Fernandes & Another
Versus
Rajan Chawla
Appeal (LODG.) No.2 of 2013 & 3 of 2013 In Guardinaship Petition (LODG.) No.163 of 2012 & 25 of 2012
Decided on: 08-07-2013
For the Appellants:Joquim Reis, Senior Advocate i/b Thakordas & Madgaonkar, Advocates.
For the Respondent:Rohan Cama with Ms. Lata Bachani i/b I.R. Joshi & Co., Advocates.
Headnote:GUARDIANS AND WARDS ACT, 1890 - Section 17 - Guardianship of minor child.
Where a Hindu mother of minor girl child died unnatural death and Christian father is in police custody charged for offence of murder therefore guardianship of minor girl child rightly given to maternal grand parents. - In any event, even if the aspect of religion is borne in mind, it is evident that the child was born in a family where the father professes Christianity and the mother was a Hindu. Evidently in such a situation it would be most inappropriate to assign to the religion of one parent such an overwhelming importance as to override the balance of other factors which bear on the welfare of the child. Moreover, as the Judge noted, it is a matter of significance that though the child was nearly three years of age when the mother met an unnatural end, she had not been baptized by the parents until then. The mother had not converted to Christianity during her lifetime. This is certainly a matter of relevance and would also have a bearing on the wishes of the deceased parent. The wishes of a deceased parent in a situation such as the present where the mother has met an unnatural end at an early age becomes a fairly subjective if not hypothetical exercise. The Legislature has guardedly used the words "the wishes, if any of a deceased parent". The Court must, in due regard to the statute, weigh this aspect together with all other circumstances.
For all these reasons, the Single Judge was justified in allowing the Guardianship petition filed by the grandfather of the minor child and in rejecting the Guardianship Petition filed by the paternal aunt. During the course of the hearing, counsel appearing on behalf of the appellant made a grievance of the fact that guardianship has been granted to the maternal grandfather also over the properties of the minor. For, it was urged that this order should not indicate that the residential flat would necessarily have to be taken over by the maternal grandfather, Court does not find any substance in the submission. Independent proceedings in relation to the residential flat are pending before the City Civil Court. The grandfather has been appointed as guardian over the person and the properties of the minor since he would be most suited to protect the interest of the minor. This would not come in the way of a disposal on merits of the proceedings which are pending in relation to the residential flat before the City Civil Court.
(Dr. D.Y. Chandrachud, J.)
These Appeals arise from a judgment of a Learned Single Judge on two petitions for guardianship filed under the Guardians and Wards Act 1890. The Appellants before the Court are the father (Lisbon John Miranda) and paternal aunt (Louella Wilson Fernandes) of the minor child Angelina.
2. The parents of the minor, Lisbon and Bindiya married on 5 October 2008. Lisbon is a Roman Catholic. Bindiya was a Hindu belonging to the Sindhi community. Angelina was born on 13 March 2009. A residential flat being 401 Neelgagan at D.N. Nagar, Andheri (West), Mumbai was purchased on 29 February 2012. The mother of the minor died an unnatural death on 25 May 2012. The father was arrested and has been charged of the offence of murder under Section 302 of the Penal Code and of an offence under Section 498A. Bail has been denied to him. Angelina who was living with her parents and was three years old when her mother died has since then been in the care of her maternal grandparents who reside in Mumbai. On 18 July 2012 the maternal grandfather filed a guardianship petition before this Court seeking appointment as guardian of the person and properties of Angelina. The petition was served on the father of the minor in jail on 12 September 2012. He filed a reply opposing the Guardianship Petition. On 26 November 2012 when the petition of the grandfather came up before the Learned Single Judge another petition by a paternal aunt (father's sister), Louella was filed before the Learned Single Judge. Both the Petitions were heard together.
3. The Learned Single Judge by a judgment dated 6 December 2012, which is impugned in these proceedings, held that having due regard to the provisions of Section 17 of the Guardians and Wards Act 1890, guardianship should be granted of the person and property of the minor to the maternal grandfather. The Single Judge has considered each of the circumstances which is required to be borne in mind under Section 17 including, in a paramount sense, the welfare of the child.
4. Section 17 provides as follows:
“17. Matters to be considered by the Court in appointing guardian- (1) 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 the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.”
5. Sub section (1) of Section 17 requires the Court, subject to the provisions of Section, to be guided by what appears in the circumstances to be for the welfare of the minor, consistently with the law to which the minor is subject. The welfare of the minor is above all, the most important consideration. Sub-section (2) stipulates that in determining what would be in the interest of the welfare of the minor, the Court shall have due regard to the (i) age; (ii) sex; and (iii) religion of the minor. The Court has to also consider (i) the character and the capacity of the proposed guardian; (ii) his nearness of kin to the minor; (iii) the wishes, if any, of a deceased parent; and (iv) any existing or previous relations of the proposed guardian with the minor or his property. The first set of circumstances relate to the minor. The second set of circumstances relate to the character, position and fitness of the proposed guardian, besides the wishes if any, of the deceased parent. One set of circumstances cannot be read in isolation. Just as the age, sex and religion of the minor are all of relevance, so are the factors which have a bearing on the fitness of the guardian who is proposed to be appointed. Underlying the
