RAICHAND NETHAJI Vs. SAYAR BAI

JUDGEMENT

(1.) PETITION under Ss. 7 and 10 of the Guardians and Wards Act for appointing the petitioner as guardian of his minor daughter-in-law Chandra Bai, aged 16 years. Minor Chandra Bai was married to the petitioner's son R. Mangilal Mehta. The said mangilal Mehta died on 24th May 1964 as a result of an explosion in a godown in govindappa Naicken Street, on 19th May 1964. He had taken a multiple risk policy with the Life Insurance Corporation of India on 28th March 1964 on his life. The petitioner's case is that he is entitled to be appointed as guardian of the minor under the Hindu Minority and Guardianship Act of 1956.

(2.) THIS application is opposed by Srimathi Sayar Bai, the mother of minor chandra Bai and also by Udairaj Gulecha, a cousin of minor Chandra Bai. Neither side adduced oral evidence in this case. In fact the petitioner was not even present in court and I was therefore unable to put questions to him in respect of the several allegations made against him in para 10 of the counter of Udairaj Gulecha.

(3.) THE learned advocate for the petitioner relied on the statement in Principles of Hindu law, Mullah, 12th Edn. , page 619, para 443, that after the husband's death, the guardianship of the wife, if she is a minor, devolves on the husdand's relation in preference to her paternal relations. But it is stated in the same paragraph that it has been held in a Madras case that in default of the husband no other person is entitled to act as guardian de jure of the minor wife. In Chinna Alagamperumal v. Vinayagathammal, 55 Mad LJ 861: (AIR 1929 Mad 110) it was held by a Bench of this court that the husband is the legal guardian of his minor wife and if he happens to die during her minority, his nearest sapinda will be her guardian and not her paternal relations. Under S. 13 of the Hindu Minority and Guardianship Act, in the appointment of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. Under S. 13 (2) of the act, no person shall be entitled to the guardianship by virtue of the provisions of the 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. Thus the welfare of the minor would always prevail when it conflicts with other considerations. Thus the fact that under Hindu law the petitioner has preferential right to be appointed as guardian is only a matter of secondary consideration which should give place to the primary and paramount consideration, namely, the welfare of the minor. There are several circumstances to show that it is against the welfare of the minor Chandra Bai to appoint the petitioner as guardian of her property.