Keshav S/O Ganpatrao Hedau vs Damodhar S/O Udaramji Kandrikar ...
2004 Latest Caselaw 865 Bom

JUDGMENT

Anoop V. Mohta, J.

1. This Appeal has been preferred by the -. grandfather of a minor Rohit, son of the appellant's late son Ramchandra and non-appiicant/Respondent No. 2 Mrs. Usha and thereby, challenged the order dated 5th January, 1995, passed by the 7th Additional District Judge, Nagpur in Misc. Civil (Guardian) Application No. 430 of 1982 under Section 8 of the Guardian and Wards Act (for short "the Act"), whereby appellant's application for appointment as guardian of the minor Rohit was dismissed. The crystallized facts, according to me, itself are sufficient to dismiss this Appeal.

2. Appellant's son viz. Ramchandra Keshav Hedau had married with the respondent No. 2 on 1-6-1986. The male child i.e. Rohit was born on 23-9-1987. The said Ramchandra, lather of minor Rohit, died on 1-3-1988. The mother, respondent No. 2, left the matrimonial house of the appellant and started living with respondent No. 1, who is the father of the respondent No. 2. Rohit, being minor, has been living with her mother respondent No. 2 since birth. Respondent No. 2 left the matrimonial house with the said minor sometime in the month of April, 1991 and never returned thereafter. Appellant, therefore, being the grandfather, moved an application for the custody and guardianship of the minor under Section 8 of the Act. On the date of the application, the age of the minor was 4 years and 10 months. On 11-5-1992, respondent No. 2 has married again and is living with her second husband since then along with the minor Rohit. This application of the appellant dated 31-7-1992 was objected by Written Statement filed by the respondents dated 8-12-1992. The parties have led evidence through Keshav (Al), Raoji (A2), Shankar (A3), Usha - respondent No. 2 (NA1), Sau. Indu (NA2) and Damodar (A3). The learned Judge, after considering the material on the record, as well as the evidence led by the parties, held that the applicant is not entitled for order of appointment of the guardian of the minor Rohit and or for his property. Respondent No. 2, on account of a second marriage, is not disentitled for the custody of Rohit as a guardian of Rohit and the Court has no jurisdiction to interfere in the application and accordingly dismissed the said application even on merits also, Therefore, this Appeal.

3. Heard Mr. Thingre for the appellant and Mr. Wankhede for the respondents. After considering the arguments, as well as, the present position as said minor Rohit is now 17 years old and is likely to be major on 23-9-2005 and as since birth the said minor is living and residing with her mother respondent No. 2, Mr. Thingre fairly conceded the position without raising any objection so far as the jurisdiction part is concerned and, according to me, rightly so. The learned Judge, after considering the material, observed in paragraph 16 as under :

"In the proceedings under Guardian and Wards Act, for the appointment of guardian of the minor and the property of the minor the prime consideration is the welfare of the minor. There is no evidence adduced by the applicant in order to infer that the welfare of Rohit will be properly guarded by him, if he is appointed as guardian of Rohit and his property. On the other hand evidence is adduced on record by non-applicant that Rohit is in proper care and custody of his mother Usha. Evidence in respect of education of Rohit is also brought on record. The said evidence do disclose that Rohit is in proper care and custody of his mother Usha. Evidence in respect of the education of Rohit is also brought on record. The said evidence do disclosed that Rohit taking proper education at Amravati along with Usha who is staying after her marriage at Amravati."

Apart from the above observation, in view of the crystallized facts, as referred above, I see there is no reason now to interfere with the reasoned order passed by the learned Judge. According to me also, the order is correct and within the framework of law, as well as, evidence led by the parties. There is no reason to interfere with such order at this stage at the instance of the grandfather, specially when the grandson is living with his mother since his birth. Second marriage, in no way disentitles the mother to have a custody of her minor son and to act as a guardian.

4. In this view of the matter, the First Appeal is dismissed. No order as to costs.