Deepa Sasikumar & Santhosh Balagangadar v. Sasikumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN** **& THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 16TH DAY OF DECEMBER 2011/25TH AGRAHAYANA 1933** **MA.No. 841 of 2011 ( )** **===================** **OP.315/2011 of FAMILY COURT, PALAKKAD** ## **APPELLANT(S)** **============** **1. DEEPA SASIKUMAR, R/A.'DEEPA' 100 FEET ROAD MALAMPUZHA ROAD PALAKKAD DIST** **2. SANTHOSH BALAGANGADAR,** **R/A.'DEEPA' 100 FEET ROAD MALAMPUZHA ROAD PALAKKAD DIST** **BY ADV.SRI.T.C.SURESH MENON** **RESPONDENT(S) ==============** **SASIKUMAR R/A.'POOJA SREE' VALIYAPADAM KALPATHY PALAKKAD-678 003** **BY ADVS. SRI.N.M.MADHU SMT.C.S.RAJANI** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RK** ## **THOTTATHIL B.RADHAKRISHNAN & C.T.RAVIKUMAR, JJ.** ----------------------------------- Mat.A.No.841 of 2011 -----------------------------------Dated this the 14[th] day of December, 2011 ## **JUDGMENT** ## **“C.R.”** ## Thottathil B.Radhakrishnan,J. 1.First appellant is the respondent’s wife. Second appellant is her brother. Appellants applied for appointment of the second appellant as the guardian of the daughter of the first appellant and the respondent. That girl is due to become a major by the 22[nd] of this month, that is, December 2011. The appeal is directed against an order by which the matter was dismissed stating that it is on default. But, that order goes with the reason, which would be seen as we proceed. - 2.Having regard to the urgency sounded by the appellants, persuaded to look deeper into the matter on merits, the lower court records were called for and we have examined the pleadings and materials available therein. Heard learned counsel for parties. MA.841/11 2 - 3.There are no allegations among the couple of any matrimonial misdemeanour, except that each accuses the other of desertion. It appears that the couple now live apart. The respondent, the father of the girl, is a doctor while the mother is unemployed. The daughter, who is the subject matter of this litigation, now reaching 18 years of age, is with the mother. Apart from her, the couple has a son, twelve years old, in school, now in the 7[th] class. To the mother, he is the father’s pet. - 4.The application for appointment of the girl’s maternal uncle, who is in UAE, as guardian, is on the premise that her affairs can be better managed and she could be provided with proper education by virtue of such appointment. - 5.Proof affidavits are filed by the appellants before the court below in support of their version. The counter-affidavit filed before this Court, by the respondent, the father of the girl, is to the effect that he is unable to dance to the tunes of his MA.841/11 3 wife and daughter, whose demands are endless and that it is the wife who deserted him. He says that the only possible reason for seeking the appointment of the maternal uncle of the girl as her guardian is the unhappiness over his unwillingness to meet the unreasonable demands of his wife and daughter. He asserts that his failure to meet their demands will not entitle them to the reliefs sought for. In reply to our query, the husband, through his learned counsel, submits that he did not file counter affidavit before the court below because he did not want his daughter to gather an impression that he stood against her betterment. 6.As noted above, the impugned order is not bereft of any reason, though the dismissal is on default. The learned Judge was not prepared to proceed further without an explanation being offered, to the satisfaction of the judicial conscience, as to the requirement for appointing the maternal uncle as the guardian, when the parents of the MA.841/11 4 child were alive. This is how we see the impugned order. The learned judge of the Family Court says: “...... while the case came up for evidence, the Court expressed doubt about the prayer sought for in the petition since the father and mother of the minor are alive, what is the necessity of appointing the uncle as guardian of the minor daughter......” That doubt expressed by the court below, lingers, nay, persists, more emphatically, in the mind of this Court. The anxiety sounded by the court below is the reflection of the pangs of parens patriae jurisdiction, where the only and paramount consideration is the best interest of the ward, on the totality of the facts and circumstances; not the whimsical views of a parent, to exclude the other from parental authority and duty. 7. It appears that the girl prefers to study medicine and desires to get admission in the quota earmarked for non- MA.841/11 5 resident Indians. She is stated to be preparing for the admission test to that course. May be, she could use the factum of her uncle being an NRI, for that purpose. The question is, are we to grant guardianship of the girl in hand, to the maternal uncle in preference to her parents. 8.Section 6 of the Hindu Minority and Guardianship Act, 1956, among other things, provides that in the case of an unmarried girl, the father, and after him, the mother, shall be the natural guardian in respect of the person and property of that minor. Dilating on this, the Apex Court laid down in **Githa Hariharan v. Reserve Bank of India {1999 (2) SCC 228}** that the said provision does not mean that the mother could be recognised as a natural guardian only after the lifetime of the father. Obviously therefore, the biological parents, the father and mother, who are the natural guardians, are to be preferred, while making a declaration as to guardianship or in making an appointment of a guardian, for whatever be its purpose. This can be MA.841/11 6 excluded only in cases where both the parents are found, either unfit to be the guardian, or to discharge the duties and responsibilities attendant to guardianship, or upon their failure, refusal or abandonment of such duty and responsibility. In the case in hand, we see absolutely no material to hold that the father of the girl cannot continue as the natural guardian. He is not liable to be removed from that capacity. May be, the mother, for reasons best known to her, would not be interested to act as the guardian of the girl in-lieu of the father. We also see no rhyme, rationale or reason for a maternal uncle to be declared as guardian of his niece, to support her for higher studies. Sublime love would necessarily prompt a motivated person to help out another human being, more so when the recipient of such support is related by blood. In the case in hand, there is no material on record to denude the father of his statutory status, eligibility and entitlement to be the natural guardian of his daughter. Therefore, we find no grounds to interfere with the impugned order. MA.841/11 7 ## 9. In the result this appeal is dismissed. No costs. Send down the LCRs with a copy of this judgment. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- C.T.RAVIKUMAR, Judge. spc/kkb.