SHYAMRAO MAROTI KORWATEversusDEEPAK KISANRAO TEKAM

                  [2010] 11 S.C.R. 473


              SHYAMRAO MAROTI KORWATE                              A
                             v.
               DEEPAK KISANRAO TEKAM
              (Civil Appeal No. 2817 of 2008)
                   SEPTEMBER 14, 2010
                                                                   B
    [P. SATHASIVAM AND DR. B. S. CHAUHAN, JJ.]

     Guardians and Wards Act, 1890:

     ss. 7 and 25 - Rival claims for custody of the minor son      c
by his maternal grand- father and father - HELD: The
provisions of the 1890 Act and the 1956 Act, make it clear
that in a matter of custody of a minor child, the paramount
consideration is the "welfare of the minor'' and not the rights
of the parents or relatives under the statute which are in force   0
- Therefore, the District Judge has rightly given the custody
of the minor to his maternal grand-father - However, keeping
in view the age of the maternal grand-father and the fact that
after four years the child would attain the age of 12 and his
father is free to make fresh application, directions given         E
enlarging visitation rights of the father, in order to ascertain
whether the child would show inclination to join with his father
on his attaining the age of 12 - Hindu Minority and
 Guardianship Act, 1956 - s. 13.

    Consequent upon the death of the wife of the                   F
respondent, after giving birth to their son on 23;03.2003,
the child remained in the custody of his maternal grand-
father, the appellant. On 7.8.2003, the appellant filed
before the Court of District Judge an application uls. 7 of
the Guardians and Wards Act, 18.~0. The respondent                 G
contested the application and also filed another
application u/s 25 of the 1890 Act for custody of his son.
Meanwhile, the respondent remarried and was blessed
with another son from his second wife. The District
                            473                                    H
    474      SUPREME COURT REPORTS            (201 OJ 11 S.C.R.

A Judge, appointed the appellant as guardian of the child,
  allowed his application and rejected that of the
  respondent with liberty to file such an application after
  the minor completed the age of 12. The respondent was
  permitted to meet the minor once in a month. The appeal
B filed by the respondent was allowed by the High Court
  and he was allowed to have custody of the child.
  Aggrieved, the maternal grand-father of the minor filed the
  appeal.

          Partly allowing the appeal, the Court
c
       HELD: 1.1 It is true that under the Guardians and
  Wards Act, 1890, the father is the guardian of the minor
  child until he is found unfit to be a guardian of the minor.
  However, an analysis of the relevant provisions of
D the1890 Act and the Hindu Minority and Guardianship
  Act, 1956 makes it clear that in a matter of custody of a
  minor child, the paramount consideration is the "welfare
  of the minor" and not the rights of the parents or relatives
  under the statute which are in force. The word "welfare"
E used in s. 13 of the 1956 Act has to be construed literally
  and must be taken in its widest sense. [Para 10 and 13]
  (481-A; 482-A; 483-C-D]

       Gaurav Nagpal vs. Sumedha Nagpal, 2008 (16)
F SCR 396 = (2009) 1 SCC 42; Anjali Kapoor (Smt.) vs. Rajiv
  Baijal, 2009 (6) SCR 560 = (2009) 7 sec 322 - relied on.
      1.2 On 23.03.2003, after giving birth to the child, the
  mother died and the child was taken by the maternal
  grand-father. Before the District Judge, it has been
G highlighted that after the death of his wife, the
  respondent-husband has married another woman and
  also has a son from his second marriage. It is also
  highlighted by the appellant that the respondent is
  working as an Operator in the Maharashtra State
H Electricity Board at a distance of 90 kms from his
    SHYAMRAO MAROTI KORWATE v. DEEPAK                        475
             KISANRAO TEKAM
residence. It is further stated that the place where                A
respondent is residing is a rural village and lacks in better
educational facilities. It is the claim of the maternal grand-
father that he is a pensioner getting sizeable income by
way of pension and other retiral benefits and also owns
agricultural properties. It is his further claim that he is         B
living with his wife, i.e. maternal grandmother of the child,
and other relatives such as sons and a daughter. It is also
his claim that he is residing in a Taluk Centre where good
educational facilities are available. In this view of the
matter, the District Judge is. justified in appointing the          c
maternal grand-father as guardian of the minor till the age
of 12 years. It is true that the single Judge of the High
Court interacted with both the parties and the child
separately and noted that "the child could not be
unhappy, uncomfortable and unsafe in the custody of the
                                                                    0
father". However, there is no material to show that at any
point of time the respondent-father had attempted to meet
the child when he was in the custody of maternal grand-
father. [Para 12, 14 and 15] [482-E-H; 483-F-H; 484-A-B]
      1.3 However, it is relevant to note that the maternal         E
grand-fath·er is aged about 63 years and if his sons are
married, undoubtedly the child cannot get the same love
and affection from him and his family. On attaining the age
of 12 years by the minor, the father is free to make a fresh
application and depending on the welfare and wish of the            F
child, further order has to be passed in the matter of
custody. As on date, the child is aged about 8 years and
it is the concern of the Court that after four years, i.e., after
attaining the age of 12 years whether the child would
show any inclination to join with his father. [para 15] [484-       G
A-C]
    1.4 In the circumstances of the case, the order of the
High Court is modified and the appellant grand-father is
permitted to have the custody of the child till the age of
12 years as ordered by the District Judge. This                     H
     476      SUPREME COURT REPORTS               [201 O] 11 S.C.R.


A conclusion is based on welfare of the minor as provided
  in s.13 of the 1956 Act. Since on completion of 12 years,
  a fresh decision is to be taken about entrusting the
  custody of the minor child, following directions about the
  visitation rights of the father are issued:
B
       (1) During long holidays/vacations covering more
       than two weeks the child will be allowed to be in the
       company of the father for a period of seven days.

           (2) The period shall be fixed by the father after due
c          intimation to the material grand-father who shall
           permit the child to go with the father for the aforesaid
           period.

           (3) Besides, twice in a month preferably on Saturday
D
           or Sunday or a festival day, maternal grand-father
           shall allow the child to visit the father from morning
           to evening. Father shall take the child and leave him
           back at the maternal grand-father's place on such
           days.
E          (4) The father is free to provide facilities such as
           payment of school fees, books, dress materials,
           eatables etc. during this period to develop a
           conducive relationship with the child. [Para 16] [484-
           E-H; 485-A-C]
F
                           Case Law Reference:
           2008 (16) SCR 396        relied on            Para 10
           2009 (6) SCR 560         relied on            Para 13
G          CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    · 2817 of 2008.

       From the Judgment and order dated 17.10.2007 of the
  High Court of Bombay Bench at Nagpur in First Appeal No. 501
H of 2007.
     SHYAMRAO MAROTI KORWATE v. DEEPAK                       477
              KISANRAO TEKAM
     Anantbhushan Kanade, Amit S. Pandit and R.P. Goyal for          A
the Appellant

    Anagha S. Desai and Satyajit A. Desai for the
Respondent.

    The Judgment of the Court was delivered by                       B

     P. SATHASIVAM, J. 1. This appeal, pertaining to the
custody of a minor child, is directed against the final judgment
and order dated 17.10.2007 passed by the High Court of
Judicature at Bombay, Nagpur Bench, Nagpur in First appeal           C
No. 501 of 2007 whereby the High Court reversed the judgment
and order dated 16.04.2007 passed by the District Judge,
Yavatmal, Maharashtra.

     2. Brief facts:
                                                                     D
     (a) On 03.06.2002, the marriage of the respondent was
solemnized with Kaveri, the daughter of the appellant herein.
Out of the said wedlock, on 23.03.2003, a son, namely,
Vishwajeet @ Sangharsh was born. After giving birth to son,
on the same day, the respondent's wife died due to excessive         E
bleeding. Vishwajeet is residing with the appellant-maternal
grandfather and his family since his birth. After the death of his
wife, the respondent contracted second marriage and also has
a son from the second marriage.
                                                                     F
     (b) On 07.08.2003, the appellant-maternal grandfather of
the minor filed an application in the Court of District Judge II,
Yavatmal, Maharashtra under Section 7 of the Guardians and
Wards Act, .1890 (hereinafter referred to as 'Act 1890') being
M.J.C. No. 10 of 2003 for appointing him as guardian of the
minor Vishwajeet. The said application was opposed by the            G
respondent and, on 15.10.2003, he also filed an application
under Section 25 of the Act 1890 being M.J.C. No. 12 of 2003
for the custody of his son. The District Judge by a common

                                                                     H'
    478     SUPREME COURT REPORTS                 [201 O] 11 S.C.R.

A judgment dated 16.04.2007 in both the proceedings, allowed
  the application filed by the appellant herein and appointed him
  as a Guardian of Vishwajeet till he attains the age of 12 years
  and directed him to deposit the amounts inheritable by the
  minor due to the demise of his mother, in any Nationalized Bank
B in Fixed deposit in the name of minor, which may be renewed
  from time to time till he attains majority and also directed that
  nobody can withdraw the principal or interest amount without
  prior permission of the Court. The District Judge further directed
  the newly appointed guardian to allow the respondent-father to
c meet the minor once in a month. The application filed by the
  respondent was dismissed by the District Judge with the liberty
  to file such application after completion of the age of 12 years
  by the mi.·,or.

       (c) Aggrieved by the said order, the respondent herein filed
D First Appeal No. 501 of 2007 in the High Court of Bombay,
  Nagpur Bench, Nagpur. On 17.10.2007, the learned single
  Judge of the High Court allowed the appeal filed by the
  respondent herein and directed the appellant herein to hand
  over the custody of the child to the respondent. Challenging the
E said order, the appellant has preferred this appeal by way of
  special leave petition before this Court.

        3. Heard Mr. Anantbhushan Kanade, learned senior
    counsel for the appellant and Ms. Anagha S. Desai, learned
F   counsel for the respondent.

       4. The appellant herein is the maternal grandfather of the
  child and the respondent is the father of the child. Since we have·
  already narrated the events for filing the petition for custody/
  guardian of the child, there is no need to traverse the same
G once again. Before considering the claim of both sides, it is
  useful to refer the statutory provisions relevant for our purpose.

       5. The Act 1890 consolidates a/ld amends the law relating
  to guardians and wards. Section 4 of the Act defines "minor"
H as "a person who has not attained the age of majority''.
    SHYAMRAO MAROTI KORWATE v. DEEPAK                        479
     KISANRAO TEKAM [P. SATHASIVAM, J.]
"Guardian" means "a person having the care of the person of A
a minor or of his property, or of both his person and property" ..
"Ward" is defined as "a minor for whose person or property or
both there is a guardian". Sections 5 to 19 of the Act relate to
appointment and declaration of guardians. Section 7 thereof
deals with "power of the Court to make order as to B
guardianship" which reads as under:

    "7. Power of the court to make order as to
    guardianship.-(1) Where the court is satisfied that it is
    for the welfare of a minor that an order should be made-        C

    (a) appointing a guardian of his person or property, or both,
    or

    (b) declaring a person to be such a guardian, the court may
    make an order accordingly.                                      D

    (2) An order under this section shall imply the removal of
    any guardian who has not been appointed by will or other
    instrument or appointed or declared by the court.

    (3) Where a guardian has been appointed by will or other        E
    instrument or appointed or declared by the Court, an order
    under this section appointing or declaring another person
    to be guardian in his stead shall not be made until the
    powers of the guardian appointed or declared as
    aforesaid have ceased under the provisions of this Act."        F

     6. Section 8 of the Act 1890 enumerates persons entitled
to apply for an order as to guardianship. Section 9 empowers
the Court having jurisdiction to entertain application for
guardianship. Sections 10 to 16 deal with procedure and
powers of Court. Section 17 is another material provision and       G
may be reproduced hereunder:

    "17. Matters to be considered by the court in
    appointing guardian.-(1) In appointing or declaring the
    guardian of a minor, the court shall, subject to the            H
    480       SUPREME COURT REPORTS                 [2010) 11 S.C.R.


A         provisions of this section, be guided by what, consistently
          with the law to which the minor is subject, appears in the
          circumstances to be for the welfare of the minor.

          (2) In considering what will be for the welfare of the minor,
B         the Court shall have regard to the age, sex and religion of
          the minor, the character and capacity of the proposed
          guardian and his nearness of kin to the minor, the wishes,
          ~f any, of a deceased parent, and any existing or previous
          relations of the proposed guardian with the minor or his
          property.
c
          (3) If the minor is old enough to form an intelligent
          preference, the court may consider that preference.

          Xxxxxxxxx
D         (5) The Court shall not appoint or declare any person to
          be a guardian against his will."

       7. The Hindu Minority and Guardianship Act, 1956
  (hereinafter referred to as 'Act 1956') is another important
E statute relating to minority and guardianship among the Hindus.
  Section 4 defines "minor'' as "a person who has not completed
  the age of eighteen years". "Guardian" means "a person having
  the care of the person of a minor or of his property or of both
  his person and property", and includes a "Natural guardian".
F "Natural guardian" means any of the guardians mentioned in
  Section 6 of the Act 1956.

        8. Section 6 enacts as to who can be said to be a "Natural
    guardian". It reads thus:

G         "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-
H
    SHYAMRAO MAROTI KORWATE v. DEEPAK                        481
     KISANRAO TEKAM [P. SATHASIVAM, J.]
           (a) in the case of a boy or an unmarried girl - the      A
           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             8
           illegitimate unmarried girl - the mother, and after
           her, the father;

           (c) in the case of a married girl -    the husband:

           Provided that no perspn shall be entitled to act as      c
           the natural guardian of a minor under the provisions
           of this section-

           (a) if he has ceased to be a Hindu, or

           (b) if he has completely and finally renounced the       D
           world by becoming a hermit (vanaprastha) or an
           ascetic (yati or sanyasi).

    Explanation.-ln this section, the expressions 'father' and
    'mother' do not include a stepfather and a stepmother."         E

    9. Section 8 thereof enumerates powers of natural
guardian and Section 13 deals with welfare of minor which
reads thus:

    "13. Welfare of          minor     to    be     paramount       F
    consideration.-

    (1) In the appointment or declaration of any person as
    guardian of a Hindu minor by a court, the welfare of the
    minor shall be the paramount consideration.
                                                                    G
    (2) No person shall be entitled to the guardianship by virtue
    of the provisions of this Act or of any law relating to
    guardianship in marriage among Hindus, if the court is of
    opinion that his \Or her guardianship will not be for the
    welfare of the minor."                                          H
    482      SUPREME COURT REPORTS                   (2010] 11 S.C.R.


A      10. If we analyze the above provisions, one thing is clear
  that in a matter of custody of a minor child, the paramount
  consideration is the "welfare of the minor" and not rights of the
  parents or relatives under a statute which are in force. The word
  "welfare" used in Section 13 of the Act 1956 has to be
B construed ·literally and must be taken in its widest sense.

       11. In Gaurav Nagpal vs. Sumedha Nagpal, (2009) 1
    SCC 42, this Court held:

          "51. The word "welfare" used in Section 13 of the Act has
C         to be construed literally and must be taken in its widest
          sense. The moral and ethical welfare of the child must also
          weigh with the court as well as its physical well-being.
          Though the provisions of the special statutes which govern
          the rights of the parents or guardians may be taken into
D         consideration, there is nothing which can stand in the way
          of the court exercising its parens patriae jurisdiction arising
          in such cases."

        12. In the light of the above background, let us consider
E whether the custody of the minor is to be entrusted with the
  maternal grandfather as ordered by the District Court or with
  the father as directed by the High Court. We have already
  referred to the fact that on 23.03.2003, after giving birth to the
  child, the mother died and the child was taken by the maternal
  grandfather. The maternal grand-father filed a petition for
F custody on 07.08.2003 and father also made a similar petition
  for custody on 15.10.2003. Before the District Judge, it was
  highlighted that immediately after the death of his wife, the
  respondent-husband married another woman and also has a
  son from his second marriage. Though the exact date of
G marriage is not mentioned anywhere, the fact remains that
  within a period of one year after the death of Kaveri, daughter
  of the appellant herein, the respondent-husband married
  another woman. It is also highlighted by the appellant that the
  respondent is working as an Operator in the Maharashtra State
H Electricity Board at a distance of 90 kms from his residence. It
     SHYAMRAO MAROTI KORWATE v. DEEPAK                        483
      KISANRAO TEKAM [P. SATHASIVAM, J.]
is further stated that the place where respondent is residing is      A
a rural village and there is lack of better educational facilities.
It is the claim of the maternal grandfather that he is a pensioner
getting sizeable income by way of pension and other retiral
benefits and also own agricultural properties. It is his further
claim that he is living with his wife i.e. maternal grandmother       B
of the child and other relatives such as sons and a daughter. It
is also his claim that he is residing in a Taluk .Centre where
good educational facilities are available.

     13. Though several allegations have been made by the
parties against each other, we feel that in the absence of any        C
specific finding by the Courts below on either of them, it is
unnecessary to refer to the same. It is true that under the Act
1890, the father is the guardian of the minor child until he is
found unfit to be a guardian of the minor. In deciding such
question, this Court consistently held that the welfare cif the       D
minor child is the paramount consideration and such a question
cannot be decided merely on the basis of the rights of the
parties under the law. This principle is reiterated in Anjali
Kapoor (Smt.) vs. Rajiv Baijal, (2009) 7 SCC 322.
                                                                      E
     14. Though father is the natural guardian in respect of a
minor child, taking note of the fact that welfare of the minor to
be of paramount consideration inasmuch as the respondent-
father got married within a year after the death of his first wife-
Kaveri and also having a son through the second marriage,             F
residing in a rural village, working at a distance of 90 kms and
of the fact that the child was all along with the maternal grand-
father and his family since birth, residing in a Taluka Centre
where the child is getting good education, we feel that the
District Judge was justified in appointing the appellant maternal     G
grandfather as guardian of the minor child till the age of 12
years.

     15. The High Court reversed the said conclusion and
appointed father of the child as his guardian. It is true that the
learned single Judge interacted with both the parties and the         H
    484      SUPREME COURT REPORTS                 [2010] 11 S.C.R.


A child separately and noted that "the child could not be unhappy,
  uncomfortable and unsafe in the custody of the father".
  However, there is no material to show that at any point of time
  the respondent-father had attempted to meet the child when he
  was in the custody of maternal grandfather. No doubt, it is true
B that on attaining the age of 12 years by the minor, the father is
  free to make a fresh application and depending on the welfare
  and wish of the child, further order has to be passed in the
  matter of custody. It is said that as on date, the child is aged
  about 8 years. Our anxiety is that after four years, i.e., after
c attaining the age of 12 years whether the child would show any
  inclination to join with his father. It is relevant to note that the
  maternal grandfather is aged about 63 years and if his sons
  are married, undoubtedly the child cannot get the same love
  and affection from him and his family.

D      16. Inasmuch as the child has continuously been living with
  the maternal grandfather and his family from the date of his birth
  i.e. 23.03.2003 and getting good education at their hands,
  taking note of the position of the father of the child who is
  working 90 kms. away from his house in a rural village, we
E modify the order of the High Court and permit the appellant
  grandfather to have the custody of the; Child Vishwajeet @
  Sangharsh till the age of 12 years as ordered by the District
  Judge. The above contlusion is based on welfare of the minor
  as provided in Sectior#'13/ofthe Act 1956. Since on completion
F of 12 years, a freshf dec'ision is to be taken about entrusting
  the custody of the minor child, while modifying the order of the
  High Court as mentioned above, we issue the following
  directions about the visitation rights of the father:

          (1) During long holidays/vacations covering more than two
G
          weeks the child will be allowed to be in the company of
          the father for a period of seven days.

          (2) The period shall be fixed by the father after due
          intimation to the maternal grandfather who shall permit the
H         child to go with the father for the aforesaid period.
      SHYAMRAO MAROTI KORWATE v. DEEPAK                        485
       KISA~RAO TEKAM [P. SATHASIVAM, J.]

      (3) In addition)o tpe,same,. twice in a month preferably on     A
      Saturday or ~unday 9! a festival day, maternal grand-father
      shall allow t~e ch\~'to visit the father from morning to
      evening. F~ther sha(I take the child and leave him back at
      the maternal grc~nd-father's place on such days.'
                                                                      8
      (4) The father is free to provide facilities such as payment
      of school fees, books, d~e'Ss materials, eatables etc. during
      this period to develop a conducive relationship with the
      child.

    17. With the above direction, the impugned order of the           C
High Court is modified. The appellant-maternal grandfather is
permitted to continue the custody of the child till the age of 12
years as ordered by the District Judge. The decision regarding
investment in the name of minor child is also restored. To the
extent mentioned above, the appeal is allowed. No costs.              D

R.P                                       Appeal partly allowed.




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