IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 Mat.Appeal.No. 713 of 2009() ---------------------------- GOP.1000/2009 of FAMILY COURT,THRISSUR .................... PETITIONER(S): APPELLANTS/PETITIONER ------------------------------------ 1. N.K.HIDAR, AGED 43 YEARS, S/O. KADAR, NADIYA PARAMBIL HOUSE, P.O.NATTIKA BEACH, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. SABIRA, AGED 33 YEARS, W/O. N.K.HIDAR, NADIYA PARAMBIL HOUSE, P.O.NATTIKA BEACH, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.A.F.SEBASTIAN RESPONDENT(S): RESPONDENTS -------------------------- 1. ABDUL RASHEED, AGED 47 YEARS, S/O. KADAR, NADIYA PARAMBIL HOUSE, P.O.NATTIKA BEACH, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. HAFSATH, AGED 37 YEARS, W/O. ABDUL RASHEED, NADIYA PARAMBIL HOUSE, P.O.NATTIKA BEACH, CHAVAKKAD TALUK, THRISSUR DISTRICT. MINOR-RINSHI, AGED 17, DATE OF BIRTH-9/11/1991, D/O. RESPONDENTS ADV. SMT.K.V.SHENU FOR R1,2 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- Mat. Appeal No. 713 of 2009 ------------------------------------------------- Dated this the 6th day of October, 2009 JUDGMENT Basant,J. The appellants in this appeal assail the order passed by the Family Court turning down their prayer to appoint the 1st appellant as guardian of the minor child Rinshi aged 17 years - the daughter of respondents 1 and 2. 2. The crucial facts are: The appellants are a couple aged 43 and 33 years. In their matrimony, they are blessed with two male children. They have no female child. Respondents herein are the elder brother of the 1st appellant and his wife (R1 and R2). In their matrimony, they are blessed with two children. Rinshi - the minor aged 17 years concerned in this appeal, is one of the daughters of the respondents. According to the appellants/petitioners, as they Mat. Appeal No. 713 of 2009 -: 2 :- have no female child, they have been looking after, maintaining and taking care of the minor child Rinshi aged 17 years. The 1st appellant is employed abroad and enjoys a sound financial position. The respondents do not have comparable financial affluence. Rinshi - the minor, is being looked after and educated by the appellants. The appellants want to adopt that child and take care of all her needs and requirements. 3. The minor child Rinshi has now secured admission to the Engineering Course. That admission has been secured in the N.R.I. quota. The appellants felt that they can sponsor the education of their ward - minor Rinshi. But the authorities insisted that the appellants must be shown to be the legal guardian of the minor Rinshi. In these circumstances, the appellants became obliged to come to Court for appointment of the 1st appellant as guardian of the minor Rinshi. According to the appellants, it is only de jure recognition of a de facto situation. The minor was always under the care and custody of the appellants, she was being looked after and educated by the appellants. They are interested in the continued education of the minor in the Engineering College. Because of the insistence of the authorities for an order appointing the appellants as guardian, they became obliged to come to Court with a request Mat. Appeal No. 713 of 2009 -: 3 :- to get the 1st appellant appointed as guardian. 4. Respondents 1 and 2 entered appearance before the court below. They accepted the submissions of the petitioners/ appellants. They raised no objection against the appointment. The court below considered all the relevant circumstances and proceeded to pass the impugned order rejecting the prayer for appointing the 1st appellant as guardian of the minor. The relevant discussions/findings appear in para-3 of the impugned order which we extract below: “3. I have perused the petition thoroughly. Minor child Rinshi is aged 17 years. She has passed the Plus Two course and is aspiring to get admission to Engineering course in the NRI Quota. The date of birth of the minor is 9/11/1991. She will attain majority on 9/11/2009, that means the guardianship will have force only for two months. It is obvious that the present application is filed with the sole idea of getting admission to the child in the NRI Quota. Appointment of guardianship for two months for the purpose of getting NRI Quota doesn't appear justifiable. Petitioner is attempting to get admission on the strength of court order. In the absence of justifiable Mat. Appeal No. 713 of 2009 -: 4 :- ground, I am not inclined to allow the petition. In the result, petition stands dismissed.” 5. The appellants have come before this Court aggrieved by the rejection of their prayer and the dismissal of their application. The respondents have also entered appearance. They also claim to be aggrieved by the impugned order. Obviously, the appellants and the respondents are together praying that the 1st appellant may be appointed as guardian of the minor and may be permitted to act as such guardian to make necessary payment and secure admission for the minor in the NRI quota for admission to the Einstein College of Engineering, Nelveli. 6. The learned counsel for the appellants submits that the court below unnecessarily looked at the prayer with suspicion and distrust. The fact that the minor child was aged about 17 years and was likely to attain majority shortly was definitely not a valid reason to turn down the prayer. The appellants would not have come to the Court for such an order; but for the insistence on the part of the College authorities. The appellants, it is repeated, were only insisting on a document for Mat. Appeal No. 713 of 2009 -: 5 :- de jure recognition of a de facto situation which situation is not disputed by any one of the parties. On broad probabilities the court should have noted that the appellants who have no female child naturally yearns to have a female child to be looked after, maintained and brought up as their own. The 1st respondent - the brother of the 1st appellant has two female children and they are willing to permit the 1st appellant to be the guardian of the minor child and look after and maintain her. Such appointment is further welfare of the minor. In these circumstances, the relief must have been granted as prayed for. The rejection of the prayer results in frustration of the desire of the appellants and the minor to get the minor educated in the Engineering College. In these circumstances, this appeal may be allowed, the impugned order may be set aside and the relief may be granted, the learned counsel for the appellants submits. The said prayer is endorsed by the learned counsel for the respondents. 7. We have considered all the relevant circumstances. Inherently and on broad probabilities, we find no reason to justify an approach with doubt and distrust against the claim of the appellants. Broad probabilities rhyme well with the claim of the appellants. There is nothing to assume that the appellants Mat. Appeal No. 713 of 2009 -: 6 :- and the respondents are acting in collusion or with mala fides. Obviously, they are seeking the order of appointment of the 1st appellant as guardian to facilitate the advancement of the interest of the minor - to enable her to secure admission to the Engineering College. It is, of course, true that if such requirement were not there, the appellants would not have come to court. But that itself is no reason to assume that the parties are acting in collusion. The fact that the appellants are obliged to come to court only to secure admission for their ward in the Engineering College or the fact that the minor child born on 9/11/91 would attain majority on 9/11/09 are, according to us, not sufficient or satisfactory reasons to turn down the prayer of the appellants. In these circumstances, we are satisfied that the appellants are entitled to succeed. 8. It is submitted that the minor has no properties. In the circumstances of the case, we are satisfied that it is not necessary to impose any condition for such appointment of the 1st appellant as guardian of the person of the minor. 9. In the result: (a) This Mat. Appeal is allowed. (b) The impugned order is set aside. (c) G.O.P.No.1000/09 is allowed. The 1st appellant is Mat. Appeal No. 713 of 2009 -: 7 :- appointed as guardian of the person of the minor child Rinshi aged 17 years - date of birth 9/11/91, the daughter of the respondents herein. The 1st appellant is permitted to do the needful to ensure that the minor child secures admission in the NRI quota to the Einstein College of Engineering, Nelveli. 10. Hand over a copy of this judgment to the learned counsel for the appellants forthwith. R. BASANT (Judge) M.C. HARI RANI (Judge) Nan/