MINOR MAHESHWATIBEN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is the appeal filed on behalf of two minors against the order passed by the learned Civil Judge (S.D.) Baroda rejecting their application to file the suit as indigent persons. The appellants are a daughter aged 15 years and a son aged 11 years whose mother died in the family planning operation at Sayaji General Hospital Baroda. It is not in dispute that the minors reside with their maternal grandfather who is the guardian and next friend in the present proceedings The learned Judge rejected the application on the grounds that the grandfather was not entitled to file the application while the father was still alive and that the grandfather who is the guardian and next friend of the minors has means to pay the court fees. It must be stated that both these grounds for rejection of the application are untenable. It is not correct to say that when the father is alive the maternal grandfather cannot file a claim as a guardian and next friend of the minors. In this case there is no dispute that the minors are infact residing with the grandfather. That fact is sufficient to show that the father is not interested in keeping his own children after the death of his wife. He may have his own reasons for doing so. But that should not deprive the minors of their legal rights. The learned Judge is wholly wrong in holding that the maternal grandfather who is the guardian and next friend is not entitled to file this application.

(2.) The rejection of the minors application for permission to file the suit as indigent persons on the ground that the grandfather has means to pay the court fees is equally untenable and must be rejected straightway. In an application for permission to file a suit as an indigent person the financial condition of the applicant alone is to be seen. The financial condition of the guardian or any other relative is totally irrelevant and should not be taken into consideration at all for the purpose of arriving at a decision regarding the financial condition of the applicant.

(3.) Mr. S. R. Divetia learned A.G.P. who has appeared on behalf of the respondent No 1-State has not been able to show any material to justify this wholly unjustifiable order by the learned trial Judge. Indeed there cannot be any justification for the impunged order either in law or on facts. Hence the appeal is allowed The impugned order is quashed and set aside. It is directed that the trial Court will proceed With the matter after granting the permission to the present appellants to file the suit as indigent persons and hear and dispose of the same on merits as expeditiously as possible. The appeal is allowed. Interim relief vacated. In the circumstances of the case there shall be no order as to costs. Appeal allowed.