Guardian and Wards Act, 1890
Section 47 and Section 19 of the Family Courts Act—Rejection of guardianship petition—Appeal—Appellant is natural father of the second respondent (child) and first respondent is the maternal grandfather of minor child—Father, being the natural guardian of the minor child, is having a legal right to claim custody of the child, once the child attains the age of five years in terms of Sec. 6 of the Hindu Minority and Guardianship Act—However, after the death of his wife, the entitlement of father to the custody of child cannot be disputed—Father, being natural guardian, after the death of his wife, was justified to approach the court below for guardianship of the minor child—If no custody is granted to the father, the court would be depriving both the child and father of each other’s love and affection to which they are entitled—Keeping in view the legal provisions under the Hindu Minority and Guardianship Act, the welfare of child, the right of father to have his custody and after consideration of all the facts and circumstances of case, the court finds that court below was not justified to reject such prayer for custody of the child on technical ground for not producing and proving the death certificate of appellant’s wife as well as birth certificate of the child—Apart from the appellant being natural guardian, even in order to ensure the welfare of the minor child, more particularly, after the death of his mother, should live with his natural father—Impugned judgment passed by the Family Court is set aside and first respondent directed to handover the custody of minor child to the appellant—Appeal allowed.
[Paras 15 to 18]