KUSA PARIDA Vs. BAISHNAB MALIK

JUDGEMENT

(1.) NAYANI Dei is the daughter of Kusa Parida. She married to Kanhu Mallik, who died on the 27th day of Aswin, 1958. A daughter Pema Dei was born to them in asar 1956. On 17th March, 1961 Kusa Parida filed an application under Section 10 of the Guardians and Wards Act (Act VIII of 1890) hereinafter to be referred to as the Act, with a prayer that he might be appointed as the guardian of the person and property of the minor, Pema Dei. The averments in the application are that on the death of Kanhu Mallik, his brother Baishnab Mallik, mother Suka and another brother Gopal Mallik, who had been adopted away ill-treated Nayani Dei, who left her husband's place and resided with her father. She was not allowed to bring pcma Dei with her. In Asarh 1959 Nayani remarried Baidhar Tarai and she has been throughout living with her second husband thereafter. A son has been born to her through the second husband. Dhani Malik, father of Kanhu Malik and the other members of the family transferred some properties to the detriment of the minor's interest and were ill-treating and harassing the minor and that there was the risk of the minor's losing her life. Nayani Dei, mother of the minor was living with her 2nd husband in a different village after the second marriage and was not taking any interest in the minor's affairs. Baishnab Mallik and the other members of his family denied the aforesaid allegation and averred that the application was not bona fide. Nayani Dei filed her written statement on 3rd July, 1961 supporting the case of her father. She clearly stated that she having remarried a 2nd husband, it was in the interest "of the minor that Kusa Parida should be appointed as the guardian of the minor. On the 12th January 1963 an application was filed on her behalf that she should be appointed as the guardian of the minor. The learned District Judge rejected the application. Against the order of the District Judge dated the 12th July, 1963 dismissing the applications, the two Misc. appeals have been filed. Both the appeals were analogously heard. Mr. Ray did not press Misc. appeal No. 100/63 filed by Kusa Parida and it is accordingly dismissed. He confined his arguments to the appointment of a guardian in respect of person of the minor and not of the properties. The original application for appointment of a guardian in respect of the properties of the minor thus stands dismissed on the statement of Mr. Ray. The discussion must therefore be confined only to the question whether Nayani Dei should be appointed as the guardian of the minor's person.

(2.) BEFORE examining the law on the point, the findings of the learned District Judge may be noticed. Before him the Advocate for the petitioner gave up the plea of cruelty or ill-treatment towards the minor by Baishnab Malik and his family members. The story of the petitioner that the minor was forcibly detained and snatched away from Nayani Dei was discarded. The learned Judge also held that the minor was being properly held and looked after by Baishnab Mallik and his family members, these findings were not assailed by Mr. Ray.

(3.) MR. Ray contends that the mother is the natural guardian and that there being no finding that she is unfit for appointment as guardian of the person of the minor, she should be appointed as guardian. This contention requires close examination of the relevant provisions of the Act and of the Hindu Minority and Guardianship act (32) of 1956, hereinafter referred to as the Act of 1956.