The welfare of the minor is the paramount consideration in appointing a guardian, and evidence supporting the welfare of the minor is crucial in such cases.

JUDGMENT

Avneesh Jhingan, J (Oral) - The matter is taken up for hearing through video conference due to COVID-19 situation.

2. A direction is sought to Senior Superintendent of Police, Hoshiarpur and SHO, Police Station Garhdiwala, District Hoshiarpur to protect the life and liberty of the petitioners from the hands of private respondents, arrayed as respondents No. 4 to 17.

3. Petitioner No.1 is 20 years and Petitioner No. 2 is 16 years and 4 months of age. The petitioners want to marry each other. Petitioner No. 2 is with petitioner No. 1 as they ran away and are living together in the houses of relatives and friends of petitioner No. 1.

4. Learned counsel for the petitioners contends that the petitioners are living together, they have intention to get married. The submission is that parents of petitioner No. 2 are opposed to the relationship. He places reliance on the decision of the Supreme Court in S.Varadaraian v. State of Madras, 1965 AIR (SC 942) to submit that petitioner No. 2 has right to give consent for going with petitioner No. 1. It is further submitted that representation dated 28.1.2021 was made to Senior Superintendent of Police, Hoshiarpur but same has not been acted upon.

5. Petitioner No.2 is impleaded through petitioner No. 1. On a pointed query about maintainability of petition, learned counsel for the petitioners placed reliance on the decision of the Supreme Court in S.Varadaraian's case (supra) to submit that petitioner No. 2 had consensually accompanied petitioner No.1.

6. It is not disputed that petitioner No. 2 is a minor and not of marriageable age. The relief prayed is against the relatives of petitioner No.2 but the affidavit supporting the petition is of petitioner No. 1 alone. There is nothing in the pleadings to substantiate the threat perception except for the bald statement. It is worth noting that the representation is dated 28.1.2021. There is no proof of the representation having been submitted. It is important to note that the petition itself is dated 28.1.2021.

7. Before proceeding further, another aspects needs to be looked into. It would be relevant at this stage to quote Sections 4(b), 6 and 13 of the Hindu Minority and Guardianship Act, 1956 (for short, 'the 1956 Act1) and Section 7 of the Guardians and Wards Act,1890 (for short, 'the 1890 Act1):

"Sections 4(b) and 6 of the 1956 Act 4. Definitions.-In this Act,-

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(b) "guardian" means a person having the care of the person of a minor or of his property or of both his person and property, and includes-(i) a natural guardian,

(ii) a guardian appointed by the Will of the minor's father or mother,

(iii) a guardian appointed or declared by a court, and

(iv) a person empowered to act as such by or under any enactment relating to any court of wards;

6. Natural Guardians of a Hindu minor:-

The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property,) are:

(a) in the case of a boy or an unmarried girlthe father, and after him the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girlthe mother, and after her, the father;

(c) in the case of a married girl. the husband :Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section:

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi). Explanation :In this section, the expressions 'father' and 'mother' do not include a step-father and a step-mother.

13. Welfare of minor to be paramount consideration.

(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2) No person shall be enti