THOTTATHIL B. RADHAKRISHNAN

1. First appellant is the respondent’s wife. Second appellant is her brother. Appellants applied for appointment of the second appellant as the guardian of the daughter of the first appellant and the respondent. That girl is due to become a major by the 22nd of this month, that is, December 2011. The appeal is directed against an order by which the matter was dismissed stating that it is on default. But, that order goes with the reason, which would be seen as we proceed.

2. Having regard to the urgency sounded by the appellants, persuaded to look deeper into the matter on merits, the lower court records were called for and we have examined the pleadings and materials available therein. Heard learned counsel for parties.

3. There are no allegations among the couple of any matrimonial misdemeanour, except that each accuses the other of desertion. It appears that the couple now live apart. The respondent, the father of the girl, is a doctor while the mother is unemployed. The daughter, who is the subject matter of this litigation, now reaching 18 years of age, is with the mother. Apart from her, the couple has a son, twelve years old, in school, now in the 7th class. To the mother, he is the father’s pet.

4. The application for appointment of the girl’s maternal uncle, who is in UAE, as guardian, is on the premise that her affairs can be better managed and she could be provided with proper education by virtue of such appointment.

5. Proof affidavits are filed by the appellants before the court below in support of their version. The counter-affidavit filed before this Court, by the respondent, the father of the girl, is to the effect that he is unable to dance to the tunes of his wife and daughter, whose demands are endless and that it is the wife who deserted him. He says that the only possible reason for seeking the appointment of the maternal uncle of the girl as her guardian is the unhappiness over his unwillingness to meet the unreasonable demands of his wife and daughter. He asserts that his failure to meet their demands will not entitle them to the reliefs sought for. In reply to our query, the husband, through his learned counsel, submits that he did not file counter affidavit before the court below because he did not want his daughter to gather an impression that he stood against her betterment.

6. As noted above, the impugned order is not bereft of any reason, though the dismissal is on default. The learned Judge was not prepared to proceed further without an explanation being offered, to the satisfaction of the judicial conscience, as to the requirement for appointing the maternal uncle as the guardian, when the parents of the child were alive. This is how we see the impugned order. The learned judge of the Family Court says:

“…while the case came up for evidence, the Court expressed doubt about the prayer sought for in the petition since the father and mother of the minor are alive, what is the necessity of appointing the uncle as guardian of the minor daughter….”

That doubt expressed by the court below, lingers, nay, persists, more emphatically, in the mind of this Court. The anxiety sounded by the court below is the reflection of the pangs of parenspatriae jurisdiction, where the only and paramount consideration is the best interest of the ward, on the totality of the facts and circumstances; not the whimsical views of a parent, to exclude the other from parental authority and duty.

7. It appears that the girl prefers to study medicine and desires to get admission in the quota earmarked for non-resident Indians. She is stated to be preparing for the admission test to that course. May be, she could use the factumof her uncle being an NRI, for that purpose. The question is, are we to grant guardianship of the girl in hand, to the maternal uncle in preference to her parents.

8. Section 6 of the Hindu Minority and Guardianship Act, 1956, among other things, provides that in th