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.
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
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.
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; email@example.com Advocate M:09814110005 PB. & HRY. HIGH COURT CHANDIGARH (INDIA) With Regards