1976 Supreme(MP) 168

IN THE HIGH COURT OF MADHYA PRADESH
C.P. Sen, J.
Mohammed Mehboob Khan - Appellant
Vs.
Rahmit Bi and others - Respondents
M.F.A. No. 195 of 1976 (J)
Decided On : 22-12-1976

Headnote:Guardian and Wards Act, 1890 - S. 17 - powers of the Court in deciding a guardian - what considerations should weigh with the Court - who can have the custody of a child and its property - 'welfare' - meaning of

       Short Note

       1. It was an appeal under section 47 of the Guardian and Wards Act 1890 filed by the appellant against the order of the Additional District Judge appointing the respondent No. 1 as the guardian of the minor's person and property. The order of the Additional District Judge was challenged on the ground that the appellant being the uncle and having already holding a Mukhtayarnama, Ex.A - 1, executed in his favour by his deceased brother Mohammed Hasan, he was best entitled to be the guardian of minor's person and properties.

       2. Held : The High Court is most reluctant to interfere with the orders of a District Judge on a question of guardianship. The discretion allowed to the Court in entertaining an application for appointment as guardian under section 17 of the Guardian and Wards Act is a very wide one and as a matter of principle, the High Court should not interfere with the orders passed by District Judges which are fairly within the bound of their discretion. But where weighty reasons have been made out i. e. where the judge in appointing a guardian did not look into the matter from the stand point of welfare of the minor and selected a person who was not fit to be appointed, the High Court would interfere on appeal and set aside the Judge's order. Section 17 of the Act provides that the High Court shall be guided by what consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. In considering what will be the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent. The term 'welfare' must be read in the largest possible sense, as meaning that every circumstance must be taken into consideration, and the Court must do what under the circumstances a wise parent acting for the true interests of the child would or ought to do. The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money or by physical comfort only. The word must be taken in it widest sense. The moral and religious welfare of the child must be considered as well as its physical well being. Mulla on Mohomedan Law, 16th Edn. in Chapter XVIII has observed that the mother is entitled to the custody of her male child until he has completed the age of seven years and of her female child until she has attained puberty i. e. age of 15 years. The right continues though she is divorced by thereafter of the child, unless she marries a second husband in which case the custody belongs to the father. Failing the mother, the custody of the child belongs to other female relations i. e. maternal grand - mother, paternal grand - mother, full sister and so on in that order. A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody (i) if she marries a person not related to the child within the prohibited degrees, or (ii) if she goes and resides during the subsistence of the marriage, at a distance from the father's place of residence; or (iii) if she is leading an in - moral life or (iv) if she neglects to take proper care of the child. The following persons are entitled to be legal guardians of property of minor (i) the father, (ii) the executor appointed by the father's will (iii) paternal grand - father (iv) the executor appointed by the will of the paternal grand - father. In default of the legal guardians mentioned above, the duty of appointing a guardian for the protection and preservation of the minor's property falls on the judge as representing the State. Queen v. Gyngull (1893) 2 QBD 232, In Re Macgrath, (1893) 1 Ch. 143, Bhagabati v. Murlidhar, AIR 1943 PC 106, relied on. Appeal dismissed.