The welfare of the minor is the paramount consideration in appointing a guardian, and the provisions of the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956 should be interpreted to ensure the best interests of the child.

JUDGMENT :

SANDEEP N. BHATT, J.

1. The present First Appeal, under Section 7 of the Guardians and Wards Act, 189 is preferred by the appellants, who happens to be grand parents of the minor - Sejal, being aggrieved and dissatisfied with the judgment and order dated 07.02.2022 passed by learned Principal Judge, Family Court, Bhavnagar in Misc. Civil Application No.13 of 2020, by which the learned Family Court has rejected the application filed by the original appellants, therefore, the present First Appeal is preferred for appointment of guardian of minor - Sejal Jagdishbhai Makwana.

2. Brief facts of the case are as under:

2.1 The present appellants are the husband and wife and they are having a son named as Jagdish, who got married with Ashmita Bhamjibhai Jagdish. Out of said wedlock, a baby girl namely Sejal was born on 29.05.2005. The marriage life of Jagdish and Ashmita could not continue for long and after a period of 12 years, they separated with each other and their marriage life came to an end. Later on, Ashmita got re-married with some other person viz., Nareshbhai Maljibhai at Pingli Village but Jagdishbhai was not got married again. Jagdishbhai along with Sejal, who is mentally retarded minor girl, are living with the present appellants.

2.2 It is the case of the present appellants that since their son Jagdish is disabled in his leg, he could not take proper care of his minor daughter – Sejal Jagdishbhai Makwana. Jagdishbhai is residing at the first floor whereas present appellants along with minor girl – Sejal, aged about 7 years old are residing at the ground floor of the same house. For proper care of minor daughter – Sejal, Jagdish has executed an adoption deed before the Sub-Registrar Office, Bhavnagar in favour of the present appellants, giving right of her daughter – Sejal by way of adoption. Since Sejal is dumb, she was not having capacity of understanding, for which the certificate from the hospital was obtained when she was aged about 5 years old.

2.3 It is the case of the appellants that appellants No.1 was working with Central Salt, Bhavnagar and at present, he is retired and getting sufficient pension and after his lifetime, Sejal could not face any problem, for that reason, the present application is preferred an application for appointment of guardian of Sejal.

2.4 On the basis of adoption deed executed on 26.06.2019, the name of appellants is entered after the name of Sejal in Aadhar Card. If the present application is allowed, the interest and welfare of Sejal can be taken care of and if Sejal is kept along with his son Jagdish, who is having disability to the extent of 50% as leg locomotor disability, the interest and care of minor girl cannot be served by Jagdish. Thereafter, the application under Section 7 of the Guardians and Wards Act, 1890 is preferred by the appellants.

2.5 Thereafter, Jagdishbhai Muljibhai Makwana has filed an affidavit in support of his averments. An additional affidavit is also filed by Ashmita Bhamjibhai wife of Jagdishbhai, who happens to be mother of the minor child – Sejal, by which she has also supported the averments made in the application.

2.6 Thereafter, the learned Family Court has rejected the application filed by the appellants.

2.7 Thereafter, the present appeal is preferred by the original appellants.

3.1 Heard learned advocates Mr. Bhavin B. Thakar for the appellants. He has submitted that the learned trial Court has not properly appreciated the facts produced on record and passed the order without applying his mind. He has submitted that the learned trial Court has erred in not appreciating the adoption deed executed by Jagdishbhai Muljibhai Makwana vide Exh.22 in proper perspective. He has submitted that the son of the present appellants - Jagdishbhai Muljibhai Makwana is handicap, who has already given consent for the application filed by the appellants despite that the trial Court has not considered the case of the present appellants. He has further submitted the A