Guardianship of 14years old girl child

This query is : Resolved 
 

(Querist)
15 August 2009

Greetings to all members and Indepenceday wishes to all.

My Brother was expired in 2004 leaving behind his wife, two grils aged about 9 years and 6 years then and dependent mother.
The elder child is with my sister since 6 months of her age. And she is taking care of everything of that child. The child is willing to remain with my sister and doesnt want to go to her mother at all.
there was partition case pending in the court filled by my mother for her share in my brother's property as she is dependent and my sister as guardian of the elder child of the deceased. The lower court dismissed the petition filed by my brother's wife asking the guarding ship of her elder child(now 14 years old) and her property who is growing up with my sister. Earlier about 4 years back the child herself told to the judge she wants to stay with her aunt and not willing to go with her mother. The same is marked by the judge. As the petition is dismissed by the lowercourt judge my brother'w wife is now planning to move to highcourt.

Now i would like to 1)whether the child opinion will be taken into consideration of the high court of not.
2) Is there any judgements regarding the case above.

Regards
Kantha


Y V Vishweshwar Rao (Expert)
15 August 2009

Sec 6, Sec 12 and Sec 13 of Hindu Minority and Guardianship Act 1956 !

Y V Vishweshwar Rao (Expert)
15 August 2009

The Court shall consider the Welfare of the Minor and it shall be paramount consideration for appointment as Guardian of the Hindu Minor Child.

If the Court of the Opinion that the alleged claim of any person, as guardian of a Minor, is not in the interest & not in the Welfare of the Minor, such person will not be appointed by the Court .

There is possibilities on either side - i.e;- who can show much Welfare and interest of minor, the Guardianship Will be declared accordignly by the Court.

charudureja (Expert)
15 August 2009

The Girl is minor here and has never been given in adoption, she is only residing with her aunt and residing with some relation does not automatically passes the custody from biological parents who are the natural guardians. in this case after the death of father, mother has stepped into his shoes n is now guardain of her daughters. girl is minor n has said she wants to reside with aunt, is immaterial here where mother has the means to take care of her and is not of immoral character. in my view she is entitled to the custody

Kiran Kumar (Expert)
15 August 2009

Mr. Rao on this point i m a bit in agreement with Charu Dureja Ji.

in my opinion too in case of minor the priority shall be the bilogical parents.

moreover there is no formal adoption.

n.k.sarin (Expert)
15 August 2009

I also agree with the opinion of Charudureja.

R.R. KRISHNAA (Expert)
15 August 2009

Your sister can contest the above matter if she is really interested in being for the welfare of the minor and can seek to be appointed as guardian for the minor and her property. But the burden heavily lies on your sister to show that the welfare of the minor demands that the custody shall be with her in preference to the child’s mother. Also before appointing a third person (like your sister) in preference to the natural guardian (mother) the court also should give a clear finding that the natural guardian is not a suitable person to be guardian for the minor and in such cases the court need not take into consideration the wishes of the minor as the welfare of the minor is of paramount consideration.

Narkh Singh Vs Laxmi Kaur 1977 Crl LJ 723
Rajiah Vs Dhanapal (1985) 1 MLJ 97.

You can refer section 13 of the Hindu Minority and Guardianship Act 1956 for clearly ascertaining the position.

Ramachandra Karnavar Vs Kathiyayini 1983 HLR 503
Deram Seetamahalaxmi Vs Seetamahalskshmaa 1983 HLR 181 (AP)
Ravi Kant Keshri VS Krishna kumar Gupta AIR 1993 All 230

The above mentioned cases will be very useful for you.
(The facts of which are applicable to be your present case)

I think your sister has a good case to win and if case is properly conducted, she can be appointed by court as guardian.

KRISHNA

Y V Vishweshwar Rao (Expert)
16 August 2009

I agree with Ms Charudureja , Mr Kiran & Mr Krishna

In Natural Course of Events and there is no disqualification on the part of the Mother , Mother is the proper & natural guardian

Aunt is only a relation & not adpoted mother.

But the details in this regard are not available in the Query - except the Child Likes to stay with Aunt , that too this statemtn of Minor was about 4 years ago !

Kamal Grover (Expert)
16 August 2009

I agreed with Mr.charudureja and mr.krishna.
First biological mother have right but if proved that she is not suitable for welfare of child then it goes to aunt. Here court will also consider the consent of child also but with other circumstances also.
Your further clarification is welcome at nominal fee at;
adv.kamal.grover@gmail.com
Advocate
M:09814110005
PB. & HRY. HIGH COURT CHANDIGARH (INDIA)
With Regards

Kiran Kumar (Expert)
17 August 2009

with due respect, i just intend to make a clarification here.

Charu Dureja is Ms. and not Mr.

all concerned may kindly note.

Thank u.:-)

skanthahyd (Querist)
17 August 2009

Good Evening,

Let me thanks to all for your suggestions and advise to my posting.

Regards,
Kantha

skanthahyd (Querist)
30 November 2009

Thank you all for your valuable suggestion.
Thanks alot.



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