1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.2009 OF 2011 Sunil Gulabrao Satav, Age-35 years, Occu-Service and Agriculture, R/o.Arangaon Dumala, Tal.Shrigonda, Dist.Ahmednagar APPELLANT VERSUS 1. Balu Karbhari Kutal, Age-55 years, Occu-Agriculture, R/o.Arangaon Dumala, Tal.Shrigonda, Dist.Ahmednagar, 2. Sanket Sunil Satav, (Through respondent no.1) R/o.As above. RESPONDENTS Mr.V.D.Sapkal, learned counsel for the appellant. Mr.V.D.Hon, learned counsel for respondents no.1 and 2. (CORAM : A.V.POTDAR, J.) DATE : 08/11/2011 ORAL JUDGMENT : 1. Challenge in this first appeal is to the order passed by the Principal District Judge, Ahmednagar in Misc.C.A.No.66/2010 by judgment and order dated 02/07/2011, by which the application filed by the first respondent for the custody of minor child by name Sanket 2 Sunil Satav, the son of the appellant u/s. 7 and 17 of The Guardian and Wards Act of 1956 was allowed. 2. Admit. By consent, heard finally at this stage. 3. Few facts, which gave rise to file the present appeal can be summarized as follows : Respondent no.1 herein, who is the grand father of minor Sanket Sunil Satav, the son of the present appellant, has applied u/s. 7 and 17 of The Guardians and Wards Act of 1956 to appoint him as a guardian of the minor. It is alleged in the said application that daughter of respondent no.1 by name Rekha was married with the appellant herein. Minor Sanket and daughter Shweta were borne out of the said wedlock. There are allegations of harassment at the hands of appellant. It is alleged that due to harassment caused at the hands of present appellant, said Rekha has committed suicide on 13/11/2009. Accordingly, complaint came to be lodged in Shrigonda Police Station against the present appellant, his parents and wife of younger brother of the appellant for an offence punishable u/s. 306, 498, 323, 504, 506 r/w. 34 of The IPC. It is further alleged that even though the appellant is the father of minor Sanket, appellant has never discharged his responsibility towards minor Sanket. According to respondent no.1, the appellant had not taken proper care of welfare of the minor. It is also alleged that the first respondent is retired from the defence services and is getting monthly 3 pension in the sum of Rs.4,000/- He is having sufficient bank balance and having agricultural land at his native place. The respondent no.1 claims that he has one more son and one more daughter who are well educated and his family is well educated family. In the light of this, for the welfare of the minor, the respondent no.1 prayed that he may be appointed as the guardian of the minor Sanket and accordingly certificate be issued. 4. In the say cum written statement filed by the appellant, he has denied all the allegations lavelled against him. According to him, he is having sufficient agricultural land and is able to take care of his minor son. With an intention to grab the property of the minor, false application is moved by the respondent no.1 before the District Court to appoint him as the guardian of the minor. 5. Considering the pleadings of the parties, it appears that the learned Principal District Judge, Ahmednagar has framed the point for consideration - “whether applicant is entitled to be appointed as guardian? If yes, whether his appointment shall be beneficial in the interest of minor.” The parties were directed to lead evidence and thereafter considering it, the application was allowed by the learned Principal District Judge, by its order dated 02/07/2011, which is impugned in this application. 4 6. During the course of submissions across the bar, learned counsel appearing for the appellant has drawn attention of this Court towards Chapter II of The Guardians and Wards Act, 1890, which deals with appointment and declaration of guardians. In the said chapter, my attention is drawn towards section 19 sub clause ‘B’ of the Act of 1890, which reads as : Guardian not to be appointed by the Court in certain cases – Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person **** (a) - ......, (b) of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or (c) ......... 7. Further, he has drawn attention of this Court towards section 2 of The Hindu Minority and Guardianship Act, 1956, which reads as : The provisions of this Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of, the Guardian and Wards Act, 1890 (8 of 1890) . In the light of Section 2 of The Act of 1956, learned counsel for the 5 appellant would urge that the provisions of the Act of 1956 are supplementary to the Act of 1890 and not in derogation. In the light of this legal position, learned counsel for appellant would urge that while deciding the application moved by the respondent no.1, u/s. 7 and 17 of The Act of 1956, the learned Trial Court ought to have frame the issue in the light of provisions u/s. 19 Sub Clause B of 1890, where the appellant, as the father of the minor, whether is competent to act as a guardian of the minor or not and then an opportunity to be given to the parties to lead the evidence to that effect and then to decide the application in accordance with law. Attention of the Court is drawn towards the judgment and order impugned passed by the learned Principal District Judge, Ahmednagar in Misc.Civil Application No.67/2010 and it is urged that the requisite issue about the competency of the father, the natural guardian of the minor, the appellant herein, was not framed by the Court below, which amounts to an illegality. On this ground alone, the order passed by the Court below is required to be quashed and set aside and it is prayed that the matter be remitted back to the Court below, to frame the issue accordingly and after giving an opportunity to both the sides to lead the evidence in the light of the issue framed, to decide the application in accordance with Law. 8. While opposing these submissions, learned counsel appearing for the first respondent would urge that considering the observations of the Court below, particularly in para no.9, it is observed by the 6 Court that the appellant is not competent to act as a guardian of the minor and in view of this, there is no necessity to remit the matter back to decide afresh in accordance with Law in the light of Section 19(b) of The Act of 1890. 9. Considering the submissions advanced by both the sides, it can not be disputed that the appellant herein is the father of minor Sanket Satav and prior to the sad demise of the mother of minor Sanket by name Rekha, the wife of the appellant, the minor was residing with the appellant, his father. Custody of the minor Sanket was obtained by respondent no.1 after the demise of his daughter/ the wife of appellant and the mother of minor Sanket. This Court do not intend to dilute on the issue whether the appellant is competent to be appointed as aguardian of minor Sanket or not as this fact required to be considered in the light of the evidence to be lead by the parties before the Court below, but the fact remains that as there is embargo on the appointment of guardian by virtue of the provisions u/s. 19(b) of The Act of 1890 and Act of 1956 is supplemental to the Act of 1890, it is the duty of the Court to frame proper issue, while deciding the application of the appointment of the guardianship. Admittedly, the learned Lower Court has not framed the issue to that effect to decide the competency of the natural guardian/ the father of the minor and in absence of such specific issue, parties have not lead evidence in support of the issue framed by the Court below. 7 10. Considering this legal aspect, the appeal ought to be allowed. The order impugned passed by the Principal District Judge, Ahmednagar in Misc.Civil Application No.67/2010 dated 02/07/2011 is hereby quashed and set aside. The matter is remitted back to the Lower Court with the directions to frame issue in accordance with the provisions of section 19(b) of The Act of 1890 and then to give an opportunity to the appellant and the first respondent to lead evidence in support of the issue to be framed u/s. 19(b) of The Act of 1890 and then to decide the application in accordance with Law. The parties to appear before the Lower Court on 22/11/2011. Thereafter, the learned Lower Court to frame the issue as directed in this judgment and then to decide the application in accordance with Law within the period of 3 months thereafter. Appeal is allowed accordingly. No order as to costs. 11. In view of the fact that the appeal is itself decided at the stage of admission, civil application no.9947/2011 does not survive, hence dismissed. (A.V.POTDAR, J.) khs/NOV.2011/fa2009-11