FAO No.1511 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1511 of 2008 Date of decision: October 22, 2008 Rajvinder Kaur …..APPELLANT Versus General Public and Another …..RESPONDENTS CORAM: HON’BLE MR JUSTICE T.P.S.MANN PRESENT: Mr Gaurave Bhayyia, Advocate for Mr Karanjit Singh, Advocate for the appellant. Mr Jagdeep Singh, Advocate for respondent No.2. T.P.S.MANN, J. (Oral): From the wedlock of the appellant and respondent No.2, a child, namely, Ekalpreet Kaur was born on 25.10.1993. The matrimonial ties between the parties became strained. Ultimately, they agreed to get their marriage dissolved by a decree of divorce under Section 13-B of the Hindu Marriage Act. During the pendency of the said petition, the parties agreed that Ekalpreet Kaur shall remain with the appellant and respondent No.2 shall never claim custody of the said child. The marriage of the parties was finally dissolved by a decree of divorce by way of mutual consent on 13.12.2002. The appellant then FAO No.1511 of 2008 -2- filed a petition under Sections 7 and 25 of the Guardian and Wards Act, 1980 read with Section 6 of the Hindu Minority and Guardianship Act, 1956 for declaring her as guardian of the person and property of minor Ekalpreet Kaur. The said petition was, however, dismissed by learned Guardian Judge, Armitsar on 19.12.2007 on the ground that the appellant had already obtained custody of the minor child and further that the appellant had not given the detailed description of the property of the minor regarding which she wanted to be appointed as guardian of the minor. There is no denial of the fact that the welfare of the minor, namely, Ekalpreet Kaur lies in her being looked after by the appellant, who is none else but her real mother. The parents of the minor have already agreed between themselves that the minor shall remain with her mother and not with the father. In that situation, the appellant, who is mother of minor Ekalpreet Kaur, becomes her natural guardian in preference to the respondent who is father of the minor. In Jijabai Vithalrao Gajre v. Pathankhan and Others, AIR 1971 Supreme Court 315, the mother of the child was declared its natural guardian although the father was alive but was not taking any interest in the child. The parents of the child had fallen out and living separately for several years and the father was not taking any interest in the affairs of the minor who was being looked after by the mother. The relevant observations are as follows: “........We have already referred to the fact that the father and mother of the appellant had fallen out and that the mother was living separately for over 20 years. It was the FAO No.1511 of 2008 -3- mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non- existent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under Section 6 the natural guardians of a Hindu minor in respect of the minor's person as well as the minor's property are the father and after him, the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.” Under these circumstances, there is no legal hitch in declaring the appellant as guardian of minor Ekalpreet Kaur. In view of the above, the appeal is accepted, application of FAO No.1511 of 2008 -4- the appellant under Sections 7 and 25 of the Guardian and Wards Act, 1980 read with Section 6 of the Hindu Minority and Guardianship Act, 1956 is allowed and the appellant is declared guardian of the person of minor Ekalpreet Kaur. October 22, 2008 (T.P.S.MANN) Pds. JUDGE FAO No.1511 of 2008 -5-