Back
High Court Of Calcutta
CHITTATOSH MUKHERJEE, RAMKRISHNA SHARMA
SATYENDRA NATH MAITRA - Appellant
Versus
BALARAM CHAKRABORTY - Respondent
AFOO 111 Of 1980
Decided On : 07/16/1980
CUSTODY AND GUARDIANSHIP - WELFARE OF THE CHILD - PARAMOUNT CONSIDERATION - GUARDIANSHIP AND WARDS ACT, 1890 - HINDU MINORITY AND GUARDIANSHIP ACT, 1956.
Fact of the Case:
After the death of the minor's parents, the paternal grandfather filed an application for custody and guardianship of the minor, while the maternal grandparents opposed the application. The trial court appointed the paternal grandfather as the guardian and ordered the maternal grandparents to hand over the custody of the minor to him.
Finding of the Court:
The court held that the welfare of the minor was the paramount consideration in appointing a guardian and that the paternal grandfather did not have a preferential claim to the guardianship over the maternal grandparents based on proximity of relationship. The court found that the trial court had erred in relying on alleged writings of the minor's father expressing his desire that the maternal grandfather should not be appointed as the guardian, as the authenticity of these writings was questionable. The court also found that the trial court had not properly assessed the financial means of the parties and had not considered the emotional well-being of the minor, who had been living with the maternal grandparents since her parents' death.
Issues: 1. Whether the paternal grandfather had a preferential claim to the guardianship of the minor over the maternal grandparents based on proximity of relationship? 2. Whether the trial court erred in relying on alleged writings of the minor's father expressing his desire that the maternal grandfather should not be appointed as the guardian? 3. Whether the trial court properly assessed the financial means of the parties and considered the emotional well-being of the minor?
Ratio Decidendi: 1. The court held that both the paternal grandfather and the maternal grandparents were close relations of the minor and that the paternal grandfather did not have a preferential claim to the guardianship based on proximity of relationship. 2. The court held that the trial court erred in relying on the alleged writings of the minor's father, as their authenticity was questionable and they could not be considered as testamentary documents. 3. The court held that the trial court had not properly assessed the financial means of the parties and had not considered the emotional well-being of the minor, who had been living with the maternal grandparents since her parents' death.
Final Decision: The court allowed the appeal, set aside the order of the trial court, and disposed of the application filed by the paternal grandfather without any order as to costs.
( 1 ) THE point for consideration in this appeal is whether or not the impugned order of the Additional District Judge, Alipore, 24 Paraganas appointing Sri Balaram Chakraborty, the respondent, as the guardian and for giving custody of his granddaughter, Mitashree Chakraborty, is for the welfare of the said minor.
( 2 ) IN July, 1975 the said minor's father, Tanmoy Chakraborty, had married Mira, a daughter of the present appellants, according to the provisions of the Special Marriage Act, 1954. It appears that the said marriage of Tanmoy with Mira was against the wishes of the present appellants, who were her parents. Further, even after the said marriage, the present appellants were not willing to accept Tanmoy and consequently their relations with Tanmoy were not cordial. Tanmoy with his wife, Mira, began to live in a rented house near Dum Dum Airport. On 19th September, 1976, in a nursing home, Mira wife of Tanmoy, had given birth to a daughter, who was named Mitashree.
( 3 ) MIRA, wife of Tanmoy had suffered burn injuries at their Dum Dum house and after removal to a hospital, she died on 21st March, 1977. Since the said unfortunate death of her mother, Mitashree had been living with her maternal grand-parents, the present appellants.
( 4 ) ON 18th May, 1977, Tanmoy, the father of the minor, Mitashree committed suicide. Balaram Chakraborty, the paternal grandfather of minor Mitashree, filed an application in the Court of the District Judge at Alipore ifor custody of the minor Mitashree. Subsequently, he also prayed for appointing him as the guardian of the said minor. The present appellants, who are the maternal grand-parents of the minor, opposed the said prayer of the respondent. The learned Additional District Judge, 11th Court at Alipore by his order dated 7th June, 1979, allowed the application of the respondent and appointed him as the guardian of the minor Mitashree and directed the appellant to give her custody to the present respondent. The appellants, being aggrieved, by the said order, have preferred this appeal.
( 5 ) UNDISPUTEDLY, neither the appellants, who were the maternal grand parents, nor the respondent, who was the paternal grand-father were the natural guardians of the minor Mitashree. Neither minor's father nor her mother had by their will appointed any guardians. Therefore, the trial Court within whose jurisdiction the minor resided, was competent to appoint a guardian of the said minor. In making appointment of any person as a guardian by a Court, the welfare of the minor shall be the paramount consideration (vide Section 13 (1) of the Hindu Minority and Guardianship Act ). The Section 2 of the Hindu Minority and Guardianship Act, 1956, has laid down that the provisions of the said Act shall be in addition to and not save as expressly provided, in derogation of the Guardians and Wards Act, 1890. We are unable to entertain the submission of Mr. Kashi Kanta Maitra, learned advocate for the appellants, that the application of Balaram Chakraborty for appointing him as guardian and for making over of the said minor to him ought to be dismissed in limine on the ground that the said application was not in compliance with Section 10 (3) of the Guardians and Wards Act, 1890, inasmuch as the said application was not accompanied by any declaration of willingness by the proposed guardian to act and his signature was not attested by at least two witnesses.
( 6 ) IN support of his above submission, Mr. Maitra, relied upon the decision of Amaresh Chandra Roy and A. K. De. JJ. in Rabindra Nath Mukherjee v. Abinash Chandra Chatterjee,. The observations made in Paragraphs 17 and 18 of the said Division Bench decision ought to be considered in the light of the facts of the said case. Secondly, the provisions of Sections 10 and 11 of the Guardians and Wards Act, 1890, relate to matters of procedure. In case an application is not in conformity with the said provisions, the Court before who
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
