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1993 Supreme(Guj) 424
Gujarat High Court
Judgename :S.D.Shah, S.M.SONI
SUSHILABEN DHULABHAI SOLANKI - Appellant
Versus
RAMAKANT DAHYABHAI PARMAR - Respondent
S.CRI.A.1488 of 1993
Decided On : 10/18/1993
Headnote:Guardians & Wards Act - Secs. 17 & 19 - Appointment of Guardian under provisions of chapter II of the Act - where natural guardian of minor is alive - Normally when father a natural guardian of minor is alive and is not unfit to be guardian, question of appointement of guardian does not arise.
The father, under every system of law, is a natural guardian of a minor child. Thus, there is no dispute that respondent no. 1 is a natural guardian of minor. Sec. 19 of Guardians and Wards Act provides that nothing in Chapter II of the Act (Chapter II pertains to appointment and declaration of guardians) shall authorise the court to appoint or declare a guardian..... of the person....(a)....(b) of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the minor, or (c).... Section 17 of the Guardians and Wards Act provides as to matters to be considered by the court in appointing guardian. Thus, normally when the father of a minor is alive and is not unfit to be guardian of the person of minor in the opinion of the court, the question of appointment of guardian does not arise. Thus, in the instant case, though the father is alive and the minor is in the custody of the father, the question has arisen as to whether the petitioner be appointed as a guardian and the custody of the minor be handed over to her.
[Para 5]
Guardians & Wards Act - Secs. 17 & 19 - Right of father to be guardian - Not absolute but subordinate to childs welfare - Parents are entrusted with custody & education of their childern will be properly taken care of - Where fathers custody as in the present case can not promote welfare of child he can not claim indefeasible right to their custody.
Fathers right to be guardian is not absolute. His fitness has to be considered, determined and weighed in terms of the welfare of the minor children If fathers custody cannot promote their welfare, then he cannot claim indefeasible right to their custody. Fathers right to custody of minor as a natural guardian is not indefeasible, but is subordinate to childs welfare.
[Para 5]
In the instant case, it is clear from the following circumstances, which are on record and which emerged in the course of the hearing of this petition, that the father has proved himself unfit to be the guardain of the minor.
(1) Since the age of 4 years, minor was in the custody of the petitioner till she grew of about 14 years or so. In the year 1991, father took custody of the minor by the order of this court (Coram: GN Raj. C.J. and G.K. Thakkar J.). The order of this court is very clear to the effect that minor was to reside in some hostel for the girls. The father did not obtain necessary direction from this court when the minor acted, according to the father, improperly and was required to be removed from the said hostel at Nadiad to Ahmedabad. The allegations against the father in the two letters of 5.8.93 and 19.8.93 are not denied, but are tried to be explained away and, in our opinion, the explanation was not very convincing.
(2) On service of the notice of this petition, minor was brought to this court by the father first with such clothes not befitting to a child of a Government employee, who earns a handsome salary. On enquiring about the same, the minor complained that her father did not allow her to put on proper and decent clothes, though she had such clothes with her, and this allegation was not denied by the father. This suggests the absence of love and affection for ones own child.
(3) At the first discussion, the respondent no. 1 had shown willingness to allow the custody of the minor with the petitioner and on his expressing such willingness, the custody of the minor was entrusted to the petitioner.
From the above facts, if we do not enter into other particulars, it is at least clear that respondent no. 1 father is guilty of ill- treatment or cruelty towards the minor and that respondent no. 1 acts in a manner injurious to the interest of the minor, more particularly when he has taken over the responsibility to educate the minor and got custody under the order of this court in 1991. Besides this, he has not been properly facilitating her and providing necessary material for prosecuting her studies. Thus, in our opinion, father, respondent no.1, has not only misconducted in his duty as a guardian of the minor, but has become unfit in character and conduct as he has been guilty of cruelty and unfairness in behaviour with her.
( 1 ) RULE, Mr. Supheia, learned Advocate, waives service of rule for respondent No. 1. Mr. K. P. Raval, learned A. P. P. , waives service of rule on behalf of respondents Nos. 2 and 3.
( 2 ) REAL maternal aunt of minor Tarlika (minor for short) has moved this court under Art. 226 of the Constitution of India to issue a writ of Habeas corpus against respondent No. 1, father of minor, and produce her before the Court, ascertain her wish as to with whom she is willing to reside, i. e. , with maternal aunt or with the petitioner, and on ascertaining her wish, necessary orders be passed.
( 3 ) IT is necessary to refer to certain facts, which, in our opinion, are most relevant and material for the purpose of deciding this petition. Minor is the first child, aged about 16 years, of respondent No. 1. When minor was aged about four years, her mother had died. Minor had another younger sister named Priti. In view of the tender age of both the daughters, it appeared that the respondent No. 1 arrived at an arrangement with the petitioner, a real maternal aunt of the minors, to the effect that minor tarlika will stay with the petitioner and minor Priti shall stay with respondent No. 1. Minor was brought up by the petitioner and there appeared no grievance about the welfare of the minor by the petitioner. However, it appears that there was some dispute about the property left by the deceased mother of the minors and some proceedings, may be for successccession certificate, was initiated, which also appears to have been terminated by way of compromise. There, it appears that it was agreed that 1/3rd of the amount of the share of minor was to be invested in fixed deposit, to be payable on her attaining majority. On minor attaining majority, that amount is likely to be Rs. 51,000. 00 and odd. However, in the year 1991, respondent No. 1 filed Habeas Corpus petition, being Special Criminal application No. 866 of 1991, in this Court for custody of minor from the present petitioner. There, this Court (Coram : G. N. Ray, C J. and C. K. Thakker, J. passed the following order :"in the facts and circumstances of the case, we are of the opinion that ends of justice would be met if Tarlika, minor daughter of the petitioner, is allowed to take admission in Shri Vitthal Kanya Vidyalaya, Nadiad. We are informed by the learned Counsel for the petitioner that all formalities have been undergone and Tarlika has been admitted in the said School. The petitioner will take Tarlika to the said Vitthal Kanya Vidyalaya, nadiad on Monday, i. e. , 8/07/1991. The learned Counsel for the petitioner further states that the petitioner will bear all the expenses and abide by the rules and regulations of the said School and Hostel authorities. In these circumstances nothing more requires to be done and accordingly, the petition stands disposed of. Opponent No. 1, who is in custody of Tarlika, is directed to hand over custody to the petitioner so as to enable him to get her admitted at Vitthal Kanya Vidyalaya, Nadiad. "in view of the order passed by the High Court in that petition, minor was required to be admitted in Shri Vitthal Kanya Vidyalaya, Nadiad. It is alleged that she was admitted, but she did not behave properly and returned home within three days and then she was admitted to Ahmedabad school, where also she did not behave properly and created circumstances, which compelled the respondent No. 1 to shift his residence from ahmedabad to Gandhinagar. After shifting at Gandhinagar, minor was admitted in Technical School at Gandhinagar. Minor thereafter wrote two letters dated 5-8-1993 and 19-8-1993 to the petitioner, complaining against the cruel and partial conduct of the respondent No. 1. Relying on the allegations made in those letters, the petitioner has filed the present petition. Those two letters are also annexed with the petition. From the said letters, it appears that the respondent No. 1 did not co-operate with the minor in prosecuting her studies.
