Welfare of minor is of paramount consideration.

Petition under sections 7 and 10 of the Guardian and Wards Act for appointing the petitioner as guardian of his minor daughter-in-law Chandra Bhai, aged 16 years. Minor Chandra Bhai was married to the petitioner’s son R. Mangilal Mehta. The said Mangilal Mehta died on 24th May, 1964, as a result of an explosion in a godown in Govindappa Naicken Street on 19th May, 1964. He had taken a multiple risk policy with the Life Insurance Corporation of India on 28th March, 1964, on his life. The petitioner’s case is that he is entitled to be appointed as guardian of the minor under the Hindu Minority and Guardianship Act of 1956.

This application is opposed by Srimathi Sayar Bai, the mother of minor Chandra Bhai and also by Udairaj Gulecha, a cousin of minor Chandra Bhai. Neither side adduced oral evidence in this case. In fact the petitioner was not even present in Court and I was therefore unable to put questions to him in respect of the several allegations made against him in para. 10 of the counter of Udairaj Gulecha.

The learned Advocate for the petitioner relied on the statement on Principles of Hindu Law, Mulla, 12th Edition, page 619, para. 443, that after the husband’s death, the guardianship of the wife, if she is a minor, devolves on the husband’s relations in preference to her paternal relations. But it is stated in the same paragraph that it has been held in a Madras case that in default of the husband no other person is entitled to act as guardian de jure of the minor wife In Chinna Alagamperumal Karayalar v. Vinayagathammal1it was held by a Bench of this Court that the husband is the legal guardian of his minor wife and if he happens to die during her minority, his nearest sapinda will be her guardian and not her paternal relations. Under section 13 of the Hindu Minority and Guardianship Act, in the appointment of any person as guardian of a Hindu minor by a Court the welfare of the minor shall be the paramount consideration. Under section 13 (2) of the Act no person shall be entitled to the guardianship by virtue of the provisions of the Act or of any law relating to guardianship in marriage among Hindus, it the Court is of opinion that his or her guardianship will not be for the welfare of the minor Thus the welfare of the minor would always prevail when it conflicts with . other considerations. Thus the fact that under Hindu Law the petitioner has preferential right to be appointed as guardian is only a matter of secondary consideration which should give place to the primary and paramount consideration, namely, the welfare of the minor. There are several circumstances to show that it is against the welfare of the minor Chandra Bhai to appoint the petitioner as guardian of her property.

It is stated in the counter of the respondent Udairaj Gulecha that the petitioner is a sickly old man of 85 years and of unsound mind. But the petitioner has stated in his reply affidavit that he is only aged 75 years and not 85 years, that he is not mentally unsound or sickly, and that he is looking after his business. As the petitioner did not appear in person, I could not verify whether he is really physically and mentally sound.

The contention of the respondent is that the petitioner is in wrongful possession of the jewels of minor Chandra Bhai. But the petitioner has stated in his reply affidavit that Chandra Bhai has taken away the jewels which she was wearing and that the rest of the jewels are in the almirah. It is not possible to disqualify the petitioner from being appointed as property guardian of minor Chandra Bhai merely on account of the dispute about the jewels. But there can be no doubt in the case that the interest of the petitioner is adverse to that of his minor daughter-in-law Chandra Bhai. The petitioner’s case is that his wife is entitled to half the insurance amount as one of the heirs of his deceased son, and that minor Chandra Bhai is entitled only to the other half share. But the contention of Srimathi S