Madras High Court
Nagarajan vs Minor Ashwin on 10 March, 2021
CMA No.748/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
CMA.No.748/2021 and CMP.No.4451/2021
Nagarajan ... Appellant
-vs-
1. Minor Ashwin,
2. Minor Nishanth ... Respondents
(Minor respondents 1 and 2 rep. by their
Guardian father G.Raji S/o.Govindan)
Civil Miscellaneous Appeal filed under Section 19 of the Family
Courts Act read with Section 49 of the Guardian and Wards Act against
the fair and decreetal order dated 01.10.2019 passed in
G.O.P.No.385/2018 by the Family Court Judge of Cuddalore.
For Appellant : Mr.D.Baskar
For Respondents : ...
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CMA No.748/2021
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
The Civil Miscellaneous Appeal has been directed against the
fair and decreetal order dated 01.10.2019 passed in
G.O.P.No.385/2018 by the learned Family Court Judge, Cuddalore,
thereby declaring that the father of the minor respondents herein,
namely, Mr.G.Raji, is the natural guardian of the said minors and
directing the appellant herein/respondent therein to hand over the
custody of the minor grand children to their Natural Guardian-Father of
the minor respondents herein.
2. The matter was listed today under the caption, 'for
admission'.
3. It is a fight between the grandfather and the father of the
minor children. The claim of the grand father/appellant herein is that
he has given away his daughter Priyadharshini in marriage to Mr.G.Raji
on 16.03.2011. After they were living together for few years and
giving birth to two male children, namely, elder son Ashwin on
05.12.2011 and the younger son Nishanth on 19.07.2014, due to the
reason best known to his daughter, she committed suicide on
27.03.2016. After the death of his daughter, the appellant herein has
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CMA No.748/2021
taken away the minor grand children to his home, as a result, the
father of the minor children who was unable to get any response from
his father-in-law in getting the custody of his children, approached the
Family Court, Cuddalore and filed G.O.P.No.385/2018 under Section 8
of the Guardians and Wards Act, 1890, taking a ground that after the
death of the natural mother/real mother, the father is only a natural
and legal guardian by virtue of Section 6 of the Hindu Minority and
Guardianship Act, 1956 and even in the case of dispute arising
between the father and mother, as per Section 6 (a) of the said Act,
father stands on higher footing than the mother who can have the
custody of the minor children, provided the children have attained the
age of 5 years. The further claim of the petitioner therein, namely, the
father of the minor children is that he is having a source of income by
running a brick kiln and this apart he is also the owner of 3 acres of
lands from which he has been eking out his livelihood and finally, it is
also pleaded that he was also receiving income from other properties.
4. Opposing the above contention, the appellant
herein/respondent therein has also filed a counter affidavit.
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CMA No.748/2021
5. After full fledged trial, the learned Family Court Judge,
Cuddalore, passed an order, decreeing the GWP.No.385/2018 on
01.10.2019 as prayed for by the petitioner therein by declaring him as
a Natural Guardian of the minor children and also directing the
respondent therein to hand over the custody of the minor children to
the respondent therein within 60 days. Aggrieved over the same, the
present Civil Miscellaneous Appeal has been filed by the appellant
herein.
6. Learned Counsel appearing for the appellant submitted
that being a Real Estate Owner, the appellant has been earning huge
amount with which he will be able to educate his grand children and
give them better and prosperous life. Learned Counsel for the
appellant further submitted that when the paramount welfare of the
children is very important and that the children are admittedly now
staying with their grand father/appellant herein, the learned Family
Court has wrongly decided the issue against the appellant herein,
against the wishes of the children. Therefore, the impugned decreetal
order is liable to go, he pleaded.
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CMA No.748/2021
7. On a mere perusal of the records, we find prima facie case
in favour of the father of the minor respondents. The reason being that
when the learned Family Court Judge, Cuddalore, has held in favour of
the petitioner therein-father of the minor children that he is the
Natural Guardian of the minor children as per law and that the natural
father is having a source of income through the Brick Kiln and also
having 3 acres of land, it is not known why the appellant father-in-law
of Mr.Raji, father of the minor children, has not produced any material
to show that he is having more source of income than the father of the
minor respondents. As a matter of fact, there is not even a single
pleading found by us in the documents filed by the appellant herein
before the Family Court showing that he has any independent source
of income merely claiming that he is a Real Estate Owner even without
producing any document to show that he is doing real estate business
leave alone the Income Tax Assessment papers showing that he has
been receiving huge income from the real estate business. Therefore,
we are afraid of entertaining the request for providing the custody of
the innocent minor children at the hands of the appellant grandfather
who is not having any income to eke out his own life.
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CMA No.748/2021
8. In this regard, Section 6 of the Hindu Minority and
Guardian Act, 1956 clearly says that in the case of boy or an
unmarried girl the father shall be the Natural Guardian of the minor. It
is relevant to extract the same here under:
''6. Natural Guardians of a Hindu Minor:- The natural
guardians of a Hindu minor, in respect of the minor's
person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family
property), are--
(a) in the case of a boy or an unmarried girl—the
father, and after him, the mother, provided that the
custody of a minor who has not completed the age of five
years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate
unmarried girl—the mother, and after her, the father;
(c ) in the case of a married girl-the husband;
Provided that no person shall be entitled to act as the
natural guardian of a minor under the provisions of this
section--
(a) if he has ceased to be a Hindu, or
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CMA No.748/2021
(b) if he has completely and finally renounced the
world becoming a hermit (vanaprastha) or an ascetic (yati
or sanyasi)
Explanation—In this section, the expression ''father''
and ''mother'' do not include a step-father and a step-
mother.''
A mere cursory reading of the above section clears no doubt that
the father shall be the Natural Guardian in the case of boy or an
unmarried girl.
9. Similarly Section 8 of the Guardians and Wards Act, 1890
is extracted here under :
''8. Persons entitled to apply for order: An order shall
not be made under the last foregoing section except on the
application of--
(a) the person desirous of being, or claiming to be,
the guardian of the minor, or
(b) any relative or friend of the minor, or
(c ) the Collector of the district or other local area
within which the minor ordinarily resides or in which he has
property, or
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CMA No.748/2021
(d) the Collector having authority with respect to the
class to which the minor belongs.''
A perusal of Section 8 shows that who are all the persons
entitled to apply for an order to appoint him or her as guardian of the
minor. No doubt, Section 8 further says that any person desirous of
being guardian of minor can move an application. Even non-Indian
also can come forward to take a destitute female minor only in a case
where there is no natural guardian available. Section 6 of the Hindu
Minority and Guardian Act, 1956 says that in the case of a boy or an
unmarried girl, the natural guardian of a Hindu minor is the father and
after him, the mother, provided that the custody of a minor who has
not completed the age of five years shall ordinarily be with the
mother.
10. In the present case, admittedly, the mother of the minor
respondents died on 27.03.2016. Therefore, by virtue of Section 6(a)
of the Hindu Minority and Guardian Act, 1956, the father-in-law of the
natural father/appellant herein has no loco standi or any right
whatsoever to fight against the natural father to be declared as the
natural guardian of his grand children. Therefore, finding no infirmity
or error in the fair and decreetal order dated 01.10.2019 passed in
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CMA No.748/2021
G.O.P.No.385/2018 by the learned Family Court Judge, Cuddalore, we
are not inclined to entertain the present Civil Miscellaneous Appeal.
11. In the result, the Civil Miscellaneous Appeal fails and the
same is accordingly dismissed at the admission stage itself thereby
confirming the fair and decreetal order of the learned Family Court
Judge, Cuddalore, dated 01.10.2019 made in G.O.P.No.385/2018 and
a direction is issued to the appellant to hand over the custody of the
minor children-respondents to their father/Natural Guardian Mr.G.Raji,
within a period of four weeks from today. No costs. Consequently,
connected Miscellaneous Petition is closed.
(T.R.J.,) (G.C.S.J.,)
10.03.2021
To
The Family Court Judge, Cuddalore.
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CMA No.748/2021
T.RAJA, J.
and
G.CHANDRASEKHARAN,J.
tsi
CMA.No.748/2021
10.03.2021
https://www.mhc.tn.gov.in/judis/
CMA No.748/2021
https://www.mhc.tn.gov.in/judis/
