1979 Supreme(MP) 233

IN THE HIGH COURT OF MADHYA PRADESH
G.L. Oza, J.
Hiramani – Appellant
Vs.
Bansidhar – Respondent
M.A. No. 192 of 1978 (I)
Decided On : 13-03-1979

Headnote:Guardian and Wards Act, 1890 – S. 25 – father is the legal guardian of a minor over five years – – but welfare of the minor is paramount consideration Court can appoint mother as a guardian – Hindu Minority and Guardianship Act, 1956 – S. 6 and 13.

        Short Note

       1. The respondent father filed proceedings before the Court below under section, 25 of the Gurdian and Wards Act for a declaration that he is the legal guardian of the minor son Jitendra Kumar and for custody of the child. The learned Court below felt that under section 6 of the Hindu Minority and Guardianship Act, the father is the natural guardian after the child is over five years of age and therefore as there is nothing against the father that he will not be in a position to maintain the child, the learned judge passed the impugned order directing the custody of the child to be given over to the respondent father.

       2. Held: It is no doubt true that section 6 of the Act provides that father is the natural guardian, but it further provides that up to five years ordinarily the child shall be left in the custody of the mother. Section 13 of the Act has brought in all the considerations that arise in proceedings under the Guardian and Wards Act for the custody of (he minor in spite of the fact that the lather is the preferential guardian of a minor child under the Hindu Minority and Guardianship Act. Apparently therefore, the learned Court below was not right when it felt that under section 6 as father is the natural guardian he is entitled to the custody except in cases where there is something against him to indicate that he is not capital or in a position to look after the child. In view of the provisions of section, the real question that should have been considered by the learned Court below was the interest of the minor, especially at the tender age and to determine whose custody would be proper at this stage. It appears that the learned Court below did not consider this aspect of the matter at all. It is not In dispute that even in the divorce proceedings filed against the mother the respondent has not alleged anything except desertion and there is nothing to indicate that the present appellant is not in looking after the child. It is also not in dispute that the child has just crossed five years or is 6 years old and it could be doubted that at such a tender age the mother is the proper person to look after the child. Balram Mandal v. Rajani Mandalain, AIR 1964 Patna 505, S. Saara Reddi v. S. Chenna Reddi, AIR 1950 Mad. 306, Kaushalyabai v. Sunderlal, 1961 MPLJ SN 60, referred to.

       Appeal allowed.