REPORTABLE  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2817 OF 2008

Shyamrao Maroti Korwate       .... Appellant (s)

Versus

Deepak Kisanrao Tekam             .... Respondent(s)

J U D G M E N T  

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 No. 501  

of  2007 whereby the High Court  reversed the judgment  

and order dated 16.04.2007 passed by the District Judge,  

Yavatmal, Maharashtra.   

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2) Brief facts:

(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 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.    

(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 respondent and, on 15.10.2003, he  

also filed an application under Section 25 of the Act 1890  

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being M.J.C. No. 12 of 2003 for the custody of his son.  

The  District  Judge  by  a  common  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 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 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 minor.   

(c)   Aggrieved by the  said  order,  the  respondent  herein  

filed First Appeal No. 501 of 2007 in the High Court of  

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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 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 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 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  and  amends  the  law  

relating  to  guardians  and  wards.  Section  4  of  the  Act  

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defines “minor” as “a person who has not attained the age  

of majority”. “Guardian” means “a person having the care  

of the person of 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  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— (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.

(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  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.”

6) Section  8  of  the  Act  1890  enumerates  persons  

entitled to apply for an order as to guardianship.  Section  

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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 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  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,  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, if any, of a  deceased parent,  and any existing or previous relations of  the proposed guardian with the minor or his property.

(3)  If  the  minor  is  old  enough  to  form  an  intelligent  preference, the court may consider that preference.      Xxx xxx xxx (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  

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  

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includes a “Natural guardian”.  “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:

“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—

(a) in the case of a boy or an unmarried girl — the  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 illegitimate  unmarried  girl  —  the  mother,  and  after  her,  the  father;

(c) in the case of a married girl — the husband: Provided that no person shall be entitled to act as 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  world  by  becoming  a  hermit  (vanaprastha)  or  an  ascetic (yati or sanyasi).

Explanation.—In  this  section,  the  expressions  ‘father’  and  ‘mother’  do  not  include  a  stepfather  and  a  stepmother.”

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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  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.

(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.”              

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 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 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  

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the parents or guardians may be taken into 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  

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  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  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  

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by  the  appellant  that  the  respondent  is  working  as  an  

Operator in the Maharashtra State Electricity Board at a  

distance of 90 kms from his residence.  It is further stated  

that  the  place  where  respondent  is  residing  is  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  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 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  

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minor.  In deciding such question, this Court consistently  

held that the welfare of the 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.  

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, 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  

grandfather as guardian of the minor child till the age of  

12 years.  

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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 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  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 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,  

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undoubtedly  the  child  cannot  get  the  same  love  and  

affection from him and his family.   

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 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  

conclusion is based on welfare of the minor as provided in  

Section 13 of the Act 1956.  Since on completion of 12  

years, a fresh decision 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 weeks the child will be allowed to be in  

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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 child to go with the father for  

the aforesaid period.

(3)  In addition to  the  same,  twice  in a  month  

preferably on Saturday 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.’

(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.  

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17) With the above direction, the impugned order of the  

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.       

...…………………………………J.                   (P. SATHASIVAM)  

...…………………………………J.           (DR. B.S. CHAUHAN)  

NEW DELHI; SEPTEMBER 14, 2010.   

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