1999 Supreme(Gau) 399

GAUHATI HIGH COURT
Brijesh Kumar, D.N.Chowdhury, JJ.
Meera Agarwalla (Bansal) -Appellant
Versus
Shyam Sundar Agarwalla -Respondent
Matrimonial Appeal No. 2 of 1999
Decided On : 18-12-1999

The welfare of the minor is the paramount consideration in determining the guardianship of a minor.

Headnote:

GUARDIANSHIP - ADOPTION - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - VALIDITY OF ADOPTION - WELFARE OF THE MINOR - SECTION 7 OF GUARDIANS AND WARDS ACT, 1890 - INTERPRETATION AND APPLICATION.

Fact of the Case:

The respondent, paternal grandfather of the minor Ankur, filed an application before the Family Court for an order as to the guardianship of the minor, impleading the mother of the child as well as the maternal grandfather, the appellants, as the opposite parties. The respondent pleaded that his son Sanjay Agarwalla had married the opposite party No. 1 (appellant No. 1) on 5.5.1990 as per the Hindu rites and custom. Out of their wedlock Master Ankur was born on 9.12.1991. His son Sanjay Agarwalla died on 1.8.1995. The opposite party No.1 (appellant No. 1) used to live in his house with Master Ankur till the first part of 1996. She left the house in the first part of 1996 for Bombay leaving Master Ankur with him and his wife with the intention to remarry. She returned to his house in July, 1996. On July 26,1996 the opposite party No. 1 went out with Master Ankur (hereinafter referred to as the minor) for a walk in the garden with his permission. But instead of returning to his house the opposite party No. 1 along with the minor went to the house of her father (opposite party No.2). He went to the house of the opposite party No. 2 (appellant No.2) with his wife and found his grand son eagerly waiting for them. Then the respondent wanted to take back his daughter-in-law with her son (that is the appellant No. 1 and the minor) the appellant No. 2 informed him that the appellant No. 1 would get remarried soon and the minor would remain with the appellant No.2. Appellant No. 1 finally remarried at Calcutta to one Rajesh Bansal of Calcutta, a widower having a 10 years son and 5 years daughter. The respondent coming to know that the minor would be adopted by the appellant No. 2 and thereby depriving him on his only male legal heir the respondent instituted the case before the Family Court on 27.2.1997 under section 7 of Guardians and Wards Act, 1890 (hereinafter referred to as the Act, 1890) for appointing him as the guardian and custodian of the minor.

Finding of the Court:

The Family Court, after considering the evidence and materials on record, found that the adoption of the minor by the appellant No. 2 was not valid as he had already adopted another boy Sangeet Khadria on 18.12.1987. The Court also found that the welfare of the minor would be better protected if he was given in custody of the respondent, who was the paternal grandfather, rather than the appellant No. 2, who was the maternal grandfather. The Court took into consideration the fact that the respondent was nearer of kin to the minor, had more time to spend with him, and was more concerned about his health and well-being.

Issues: 1. Whether the petition for guardianship is maintainable? 2. Whether welfare of the minor Master Ankur would be better protected if he is given in custody of the petitioner from the respondent No. 2?

Ratio Decidendi: 1. The Family Court has jurisdiction to entertain an application under section 7 of the Guardians and Wards Act, 1890, for the guardianship of a minor, even if there is an alleged adoption of the minor. 2. The validity of an adoption under the Hindu Adoptions and Maintenance Act, 1956, is a question of fact to be determined by the Court based on the evidence on record. 3. In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of section 17 of the Act, 1890, be guided by the welfare of the minor. 4. The welfare of the minor is the paramount consideration in determining the guardianship of a minor.

Final Decision: The appeal was dismissed with costs. The appellants were ordered to hand over Master Ankur to the respondent forthwith subject to completion of his annual examination.