The court has discretion to determine whether a minor is old enough to form an intelligent preference regarding their custody under Section 17(3) of the Guardians and Wards Act, 1890.

The petitioners are respondents in G & WC

No.12/2018 on the file of the Additional District and

Sessions Judge, Hosapete, Ballari District (for short,

“the trial Court”). The respondents have impugned the

trial Court’s order dated 09.06.2020. The trial Court by

this impugned order has rejected the petitioner’s

application (I.A. No.VIII) under Order XVI Rule 1 read

with Section 151 of CPC.

The

undisputed

facts

are

that

the

respondent is the father of the minor child, Ms Hasini,

who is born on 28.09.2008 and the petitioners are her

maternal

grandparents.

The

minor’s

mother,

Smt.Gayathri, has died on 09.07.2014 and she has died

under rather tragic circumstances with the petitioners

alleging that the respondent has committed her murder

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and the respondent facing prosecution for abating the

deceased in committing suicide. The respondent has

filed the present petition in G & WC No.12/2018 for

custody of the minor who was aged about 8 years as on

the date of petition. The parties have completed their

evidence, and after the completion of the evidence, the

petitioners have filed present application under Order

XVI Rule 1 read with Section 151 of CPC for leave to file

a separate list of witnesses.

3.

The

second

petitioner,

the

minor’s

grandfather, has sworn to the affidavit in support of the

application, and he states that the minor must be

examined to ascertain her preference in with whom she

wants to reside. The trial Court has rejected this

application by the impugned order, and its reasoning

reads as under:

“Further there is serious dispute with regard

to custody of aforesaid minor children. No

doubt under Section 17(3) of G & W Act, if

4

minor is old enough to form an intelligent

preference,

Court

may

consider

such

preference

by

examining

her.

However

admittedly since date of death of her mother,

the aforesaid minor appears to be in custody

of respondents. Further at present the minor

children may be aged about 10 years and it is

difficult to believe that she is able to form an

intelligent

preference

to

express

her

willingness

to

join

the

petitioner

or

respondents. Further as rightly argued by

counsel for petitioner, due to long custody of

respondents, minor child is not able to assess

the natural relationship with petitioner. More

over if minor child is constrained to express

her opinion about her willingness to join

either

party,

it

may

affect

her

future

relationship with other party, which depends

upon the result of this case. For these

reasons, it is not just and proper to subject

the minor child for examination of their

willingness to join petitioner as prayed for in

the application. On the other hand, the

petition may be decided on the basis of

evidence adduced by both parties taking into

5

consideration the welfare and better future of

minor, child.”

4.

Sri.Hanumanthareddy Sahukar, the learned

counsel for the petitioners, submits that the minor is

about 13 years and is capable of articulating intelligibly

her preference and therefore her testimony would be a

material circumstance in deciding the question of the

respondents prayer for custody. He relies upon the

provisions of Section 118 of the Indian Evidence Act,

1872 and the decision of the Hon’ble Supreme Court in

Acharaparambath Pradeepan and another vs. State

of Kearala reported in (2006) 13 SCC 643 as well as

the decision of the Hon’ble Supreme Court in M/s.EMM

Tex Synthetics vs. Om Parkash and another

reported in AIR 2008 SC 1845 to contend that a child

witness would be competent to give evidence subject to

the Court examining the child to understand his/ her

capacity and intelligence to depose and the testimony of

such

child

must

be

treated

with

necessary

6

circumspection as the child could be tutored and

influenced by their own beliefs.

5.

It is settled that the Courts dealing with the

question of guardianship of a minor under the

Guardians and Wards Act, 1890, must decide such

question

as

“parens

patriae”.

The

paramount

consideration for exercise of 'parens