NOUSHAD M. Vs. JUBUNA S.S.

JUDGEMENT

(1.) Appeal is filed against the order passed by Family Court, Chavara in O.P. (G&W) No. 830 of 2013. The O.P. was filed by the appellant against the respondent, his wife seeking a declaration that he is the guardian of the minor and for his custody. In that application, Family Court passed the order in question declining the prayer of the appellant and declaring the respondent wife as the guardian of the child and leaving the child in her custody. Visitation rights have been given to the petitioner. The contention raised by the learned counsel for the petitioner is that such an order declaring the respondent to be the guardian of the child could not have been passed by the Family Court, in the absence of an application filed by her. He referred to Section 8 of the Guardians and Wards Act in this context. Learned counsel also contended that there is no finding that the welfare of the child demands his continued custody with the respondent. Further, he also complained that visitation rights allowed by the Family Court were inadequate.

(2.) Admittedly, the child is now only 3 years old and such a child, in our view, should be in the custody and care of the mother, lest his welfare would be in peril. Law is settled that in an application made under the Guardians and Wards Act, where the parents of a minor child are raising conflicting claims for guardianship and custody, irrespective of the legal rights, the paramount consideration which should guide the court is the welfare of the child.

(3.) In so far as this case is concerned, we are satisfied that what is sought to be achieved by the Family Court by making the existing arrangement is the welfare of the child and nothing else. It is true that as per Section 8 of the Guardians and Wards Act, appointment of a guardianship should not be made in the absence of an application and in that technical sense, may be Family Court was not justified in saying so. But however, the tenor of the order shows that Family Court was mainly guided by the welfare of the child and the custody of the child was left with the respondent. For that reason, we do not find any justification to interfere with the order. Be that as it may, if the appellant has any grievance that the visitorial rights granted is inadequate, or if he has a grievance that there are change of circumstances, we clarify that it would be open to the appellant to move the Family Court itself for appropriate variations in the order.