KESHAV GANPATRAO HEDAU Vs. DAMODHAR UDARAMJI

JUDGEMENT

(1.) THIS Appeal has been preferred by the grandfather of a minor - Rohit, son of the appellants's late son Ramchandra and non-applicant/respondent No. 2 Mrs. Usha and thereby, challenged the order dated 5th january, 1995, passed by the 7th Additional district Judge, Nagpur in Misc. Civil (Guardian) Application No. 430 of 1982 under section 8 of the Guardians and Wards Act (for short "the Act"), whereby appellant's application for appointment as guardian of the minor Rohit was dismissed. The crystallized facts, according to me, itself are sufficient to dismiss this Appeal.

(2.) APPELLANT's son viz. Ramchandra keshav Hedau had married with the respondent no. 2 on 1/6/1986. The male child i. e. Rohit was born on 23/9/1987. The said Ramchandra, father of minor Rohit, died on 1/3/1988. The mother, respondent No. 2, left the matrimonial house of the appellant and started living with respondent No. 1, who is the father of the respondent No. 2. Rohit, being minor, has been living with her mother respondent No. 2 since birth. Respondent No. 2 left the matrimonial house with the said minor sometime in the month of April, 1991 and never returned thereafter. Appellant, therefore, being the grandfather, moved an application for the custody and guardianship of the minor under section 8 of the Act. On the date of the application, the age of the minor was 4 years and 10 months. On 11/5/1992, respondent no. 2 has married again and is living with her second husband since then along with the minor Rohit. This application of the appellant dated 31/7/1992 was objected by Written statement filed by the respondents dated 8/12/ 1992. The parties have led evidence through keshav (A1), Raoji (A2 ). Shankar (A3), Usha- respondent No. 2 (NA1), Sau. Indu (NA2) and damodar (A3 ). The learned Judge, after considering the material on the record, as well as, the evidence led by the parties, held that the applicant is not entitled for order of appointment of the guardian of the minor Rohit and or for his property. Respondent No. 2, on account of a second marriage, is not disentitled for the custody of Rohit as a guardian of Rohit and the Court has no jurisdiction to interfere in the application and accordingly dismissed the said application even on merits also. Therefore, this Appeal.

(3.) HEARD Mr. Thingre for the appellant and Mr. Wankhede for the respondents. After considering the arguments, as well as, the present position as said minor rohit is now 17 years old and is likely to be major on 23/9/2005 and as since birth the said minor is living and residing with her mother respondent No. 2, Mr. Thingre fairly conceded the position without raising any objection so far as the jurisdiction pan is concerned and, according to me, rightly so. The learned Judge, after considering the material, observed in paragraph 16 as under: