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Monday, June 3, 2013

whether under the Guardian and Wards Act, 1890 for the welfare of the minor any person other than father can be appointed as guardian.irrespective of personal law( in the absence of specific prohibition )= Section 7 of the Act gives power to the court to appoint any person as guardian for the welfare of minor. = It is settled principle of law that the welfare of the minor is paramount for the appointment of the guardian. Section 6 of the Act provides that in case of a minor nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property or both, which is valid by the law to which the minor is subject. I am of the view that Section 6 of the Act only says that the Act will not take away the power to appoint a guardian provided under the law to which minor is subject, i.e. Muslim Law but it does not say that this Act does not apply to Muslims governed by the Muslim Law. Therefore, in case, if there is any provision under the Muslim Law providing the power to any authority to appoint the guardian, the same may continue and will not be taken away or derogated by this Act. Therefore, I am of the view that the provisions of Guardian and Wards Act, 1890 is applicable to the Muslim. Section 19 of the Act provides that the Court is not authorised to appoint or declare a guardian of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian. However, Section 17(3) of the Act provides that if minor is old enough to form an intelligent preference the Court may consider that preference. Thus reading of Sections 7, 17 and 19 of the Act together it emerges that in the appointment of the guardian the welfare of the minor is paramount and in case, if minor is old enough to form an intelligent preference his desire and option should be given preference. In the case of Lekha Vs. Anil Kumar, reported in 2007 AWC-5-5494 the minor was aged about 12 years. Before the Court he has expressed his preference to stay with mother. Apex Court held that the minor was intelligent enough to express his desire and desire should be given preference. Apex Court further held that the welfare of the minor is paramount. Learned Single Judge of this Court in the case of Navin Singh vs. Jyoti Parashar, reported in AIR (All)-0-441 has held that while deciding the question of custody, the welfare of the child to be looked into and the claim of the mother can not be ignored or denied on the ground that the husband is natural guardian under Section 6 (a) of Guardians and Wards act, 1890. In my view on the facts and circumstances, namely that the father has divorced the mother in the year 2002 and remarried and has three children from the second wife and further minor is living since birth with the mother and now is aged about 15 years and is old enough to form an intelligent preference and has shown his desire before the Court on 16.02.2012 to live with mother. This Court is satisfied that the welfare of the minor is more appropriately be with mother and not with father and under Section 17 (3) of the Act his desire should be given preference. In view of the above, the appeal is allowed. The impugned order dated 30.08.2006 is set aside.

Reported/published in http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do
HIGH COURT OF JUDICATURE AT ALLAHABAD 

COURT NO.5 
FIRST APPEAL FROM ORDER NO.2826 OF 2006 
Smt. Rizwana Begum @ Pappoo. ....Appellant 
Versus 
Noor Ahmad. ....Respondents 
********** 
Hon'ble Rajes Kumar, J. 
Heard Sri T.A.Khan, learned counsel for appellant and Mohd. Islam, learned counsel appearing on behalf of the respondents. 
This is an appeal by the mother, Faraz Ahmad against the order dated 30.08.2006 passed by Additional District Judge, J.P.Nagar, by which the petition filed by the respondent/father has been allowed and Noor Ahmad has been appointed as guardian and a direction has been issued for giving custody to him. 
Learned counsel for the appellant submitted that out of the wedlock of the appellant and the respondent, Faraz Ahmad was born on 20.10.1997. Due to some dispute, the marriage ended in divorce on 07.10.2002. 
From the wedlock of the appellant and the respondent, Faraz Ahmad and one daughter, Shumaila were born. After the divorce, Faraz Ahmad was in the custody of the appellant and Shumaila was in the custody of the father. Faraz Ahmad was aged about five year when the divorce took place. After the divorce, Noor Ahmad remarried and from the second wife three children were born. 
He submitted that in the circumstances, the welfare and interest of minor, Faraz Ahmad can more appropriately be looked after by the appellant. He submitted that Faraz Ahmad, who is now aged about 15 years old appeared before the Court on 16.02.2012 and on the query being made by the Court he desired to live with his mother, Smt. Rizwana Begum. The court below has allowed the application of Noor Ahmad on the ground that the legal provision does not permit to give the custody to the mother, which is patently illegal. He submitted that it is true that under the Muslim Law upto the age of seven years, the mother is entitled for the custody of the minor and after the age of seven years, the father is entitled for the custody of the minor but there is no provisions under Muslim Law for the appointment of the guardian. He submitted that under the Guardian and Wards Act, 1890 (hereinafter referred to as the "Act") is Central Act and section 7 of the Act provides the power to the court to appoint the guardian for the welfare of the minor. Therefore, irrespective of the provision under the Muslim Law even after the age of seven year, father is entitled for the custody of the minor but under the Guardian and Wards Act, 1890 the court can appoint any person as guardian other than the natural guardian as provided under the Personal Law for the welfare of the minor. He submitted that on the facts and circumstances, the welfare of the minor is with mother. 
Mohd. Islam, learned counsel for the respondent submitted that Section 6 of the Act provides that in the case of minor, nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his persons or property or both, which is valid by the law to which the minor is subject. In the present case, the minor is subject to the Muslim Law and under the Muslim Law, father is entitled for the custody of minor, therefore, the provisions of Guardian and Wards Act does not apply and no one else can be appointed as guardian. He further submitted that under Section 19 of the Act, the Court is not authorised to declare a guardian of minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor. In the present case no finding has been recorded that father is unfit to be guardian of minor and in the absence of any such finding, mother can not be appointed as guardian. 
I have considered the rival submissions and perused the impugned order. 
There is no dispute that minor is now more than seven years.
 It is also not in dispute that under the Muslim Law, the father of minor, who is above seven year is entitled for the custody. 
The question for consideration is that 
whether under the Guardian and Wards Act, 1890 for the welfare of the minor any person other than father can be appointed as guardian. 
Section 7 of the Act gives power to the court to appoint any person as guardian for the welfare of minor. 
It is further provided that the Court can appoint any person as guardian. 
It is settled principle of law that the welfare of the minor is paramount for the appointment of the guardian. 
Section 6 of the Act provides that in case of a minor nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property or both, which is valid by the law to which the minor is subject. 
I am of the view that Section 6 of the Act only says that the Act will not take away the power to appoint a guardian provided under the law to which minor is subject, i.e. Muslim Law but it does not say that this Act does not apply to Muslims governed by the Muslim Law. Therefore, in case, if there is any provision under the Muslim Law providing the power to any authority to appoint the guardian, the same may continue and will not be taken away or derogated by this Act. 

Therefore, I am of the view that the provisions of Guardian and Wards Act, 1890 is applicable to the Muslim. 
Section 19 of the Act provides that the Court is not authorised to appoint or declare a guardian of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian. 
However, Section 17(3) of the Act provides that if minor is old enough to form an intelligent preference the Court may consider that preference. 
Thus reading of Sections 7, 17 and 19 of the Act together it emerges that in the appointment of the guardian the welfare of the minor is paramount and in case, if minor is old enough to form an intelligent preference his desire and option should be given preference. 

In the case of Lekha Vs. Anil Kumar, reported in 2007 AWC-5-5494 the minor was aged about 12 years. 
Before the Court he has expressed his preference to stay with mother. 
Apex Court held that the minor was intelligent enough to express his desire and desire should be given preference. 
Apex Court further held that the welfare of the minor is paramount. Learned Single Judge of this Court in the case of Navin Singh vs. Jyoti Parashar, reported in AIR (All)-0-441 has held that while deciding the question of custody, the welfare of the child to be looked into and the claim of the mother can not be ignored or denied on the ground that the husband is natural guardian under Section 6 (a) of Guardians and Wards act, 1890. 
In my view on the facts and circumstances, namely that the father has divorced the mother in the year 2002 and remarried and has three children from the second wife and further minor is living since birth with the mother and now is aged about 15 years and is old enough to form an intelligent preference and has shown his desire before the Court on 16.02.2012 to live with mother. This Court is satisfied that the welfare of the minor is more appropriately be with mother and not with father and under Section 17 (3) of the Act his desire should be given preference. 
In view of the above, the appeal is allowed. The impugned order dated 30.08.2006 is set aside. 

Dated : 08.03.2013. 
R./ 

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