Law applied – Guardians and Wards Act
On one side maternal grand father is claiming the custody of minor children and to appoint him as guardian of the children and the properties. On the other hand the paternal uncle i.e. brother of the deceased father is claiming to appoint him as guardian of minor children and their properties.
The trial court passed the order appointing the paternal uncle as the guardian of minor children and also as receiver of the properties of the minors only on the basis of the wishes and preference of minors who are aged 71/2 and 5 years. Though it was evident from the statement of minors recorded, the same was not voluntary but was tutored by paternal uncle.
The maternal grand father filed a writ petition in the High Court.
The high court after realizing the ulterior motive of the paternal uncle who had not disclosed the material fact such as details of the gold ornaments of the couple and non disclosure of withdrawal of certain money from the two partnership firms [in which the father of the minors was partner] in full and final settlement of the deceased. And also Proper accounts were not produced by the paternal uncle with regard to the income from the plastic bag factory run by the deceased.
Court felt, grand parents will have natural love and affection towards the minor children more over grand father is a retired Head Master, he and his wife are in a better position to spend and dedicate more time and attention to look after the minor children. Whereas the paternal uncle and his wife both are full time employed and as such they find little time or no time to spend and take care of minor children.
Court held the custody of the minor children cannot be decided on legal right of parties but to be decided on the basis of who would best serve the interest of minor children. The paramount consideration is the interest and welfare of the minor children. The welfare of minor includes financial, educational, physical, moral and religious. It is not possible to catalogue exhaustively the factors which contribute to the welfare of the minor. It depends upon the facts and circumstances of each case. [2007(4) AIR kar R 491]
*Special thanks to Pangala N Rao