2004(4) ALL MR 54
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.V. MOHTA, J.

Mr. Ralph Clive Cabral Vs. Mr. Rilley Dias & Anr.

Guardianship Petition No.133 of 2003

21st April, 2004

Petitioner Counsel: Shri. AVINASH CHINDHE

Guardians and Wards Act (1890), S.10 - Appointment of guardian - Predominant factor to be considered is welfare of minor, while exercising court's power to appoint a guardian. AIR 1987 SC 3 - Followed. (Para 12)

Cases Cited:
Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw, AIR 1987 SC 3 [Para 12]


JUDGMENT

JUDGMENT :- Heard Shri. Avinash Chindhe for the petitioner.

2. The present guardian petition is filed under Section 10 of the Guardians and Wards Act, 1890 (for short "Act") by the petitioner, as maternal Grand-Father of minor Master Jordan Kyle Cabral Dias, (for short "minor") Roman Catholic, aged 5-1/2 years, who is son of respondents, namely Mr. Rilley Dias and Mrs. Aneesha Dias nee Aneesha Cabral.

3. The affidavit of service of notice under section 11(1)(b) of the Act to the respondents No.1 and 2 is placed on the record by the petitioner. None appeared for the respondents.

4. The Petitioner submits that his daughter the respondent No.2 got married to respondent No.1 on 30th September, 1997 and after the marriage, the respondents stayed for some time at the matrimonial home at B-24, Osman Chambers, Juhu, Tara Road, Mumbai-49.

5. The respondent No.2 after some altercations left the matrimonial home and shifted to her parents house i.e. of the petitioner and thereafter, continued to live with the petitioner. On 1st December, 1997 the said minor Master Jordan Dias i.e. Jordan Kyle Cabral Dias was born. The respondent No.1 occasionally, visited the petitioner. However, after the birth of the said minor, abruptly, stopped visiting minor and respondent No.2. Respondent No.1 employed with some Company in Goa. The petitioner had no knowledge of whereabouts of the respondent No.1. The respondent No.1, thereafter had never contacted, since he left the Respondent No.2.

6. On or about September, 2000, the Respondent No.2 because of Mental strain and as unable to maintain herself and said minor child, had also deserted the said minor child and since then the said minor is in care and custody of the petitioner. The petitioner is not aware of the whereabouts of the respondent No.2, also. In the result respondents have deserted the said minor since September, 2000 and never taken care of the said minor. Petitioner, since September, 2000 taking all necessary care and looking after the said minor, and providing all day to day requirements, food, clothes, education and shelter etc.

7. The petitioner got admission of the said minor to the St. Sanilaus High School at Hill Road, Bandra (West), Mumbai-50 and paying all the fees and bearing all the expenses of the said minor.

8. The petitioner was employed with Rallis India for last 35 years and took voluntary retirement on or about February-2003 and presently residing at the address stated above with his wife and minor. The petitioner owns the said house and having sufficient means and source of income to live a comfortable life as well as, to take care and look after the minor.

9. The petitioner had also contacted the parent of respondent No.1 viz. Mr. Rocky Dias and Mrs. Irene Dias and requested them to take the custody of their grand son, but they have refused the request of the petitioner and servered their relationship with the minor, as well as, with the petitioner. The said paternal grand father and mother have also refused to take care and custody of the minor. In the result the said minor is without any shelter or source of income and have no near relations to take care or to take responsibility of the minor.

10. The petitioner's case is that the said minor has no property either movable or immovable in his name and there is no source of income of his own. There are no provisions made by his parents, respondents. The petitioner therefore, is maintaining and volunteered to maintain the said minor. The petitioner is taking care and looking after the minor out of love and affection. The minor too, wishes to live with the petitioner, having extreme love, affection and attachment towards the petitioner, as being maternal Grand-father. The petitioner is not having any vested interest in the property and/or estate of the minor. It appears from the facts and circumstances referred above that the respondents are not communicating or even bothering to contact the petitioner and said minor. It appears that they have no intention to take care of the minor.

11. The School authorities of the minor have demanded the whereabouts of the parents of the said minor and are demanding their signatures for all the necessary purpose. The minor should not suffer for these technicalities and signatures, for want of whereabouts of the parents. The School authorities in the given case may remove the said minor child from the school. Considering the averments, made in the petition and as the petitioner has volunteered and in fact taking care of the minor, it will be in the interest and welfare of the said minor that the petitioner be appointed and declared as guardian of the said minor, Master Jordan Kyle Cabral Dias, till he attains the age of majority as per the law.

12. Having regard to the Scheme and purpose of Sections 7 and 10 of the Act and as welfare of the minor referred above, is prime paramount consideration to appoint guardian as prayed. The Apex Court has held in AIR 1987 S.C. 3, (Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw and another) that pre-dominant factor to be considered is welfare of the minor, while exercising Court's power to appoint a guardian. In this case all the related ingredients of Sections 7, 10, 11, 17 of the Act have been complied with substantially. In view of the facts and circumstances, referred above, it is necessary to pass order without further delay in the interest of justice.

13. The petitioner, as well as, the said minor are residing within the jurisdiction of this Hon'ble Court, therefore, as prayed appointed/declared as the guardian of the said minor till he attains the age of majority and be permitted to keep the custody of the said minor in his custody till the said minor reaches the age of majority or till the respondents claim the custody of him. The petitioner in my opinion has bonafide intention, love and affection for the said minor. The commendable approach of the petitioner, as intended, cannot be over looked. He wants that the said minor should be protected and maintained atleast till he attains the majority.

14. In view of the above facts and circumstances, the present petition is allowed in terms of prayer clauses (a) and (b) with liberty.

15. No order as to costs.

16. C.C. expedited.

Parties concerned including School Authorities to act on a simple copy of this order, duly authenticated by the Court Stenographer/Chamber Registrar of this Court.

Petition allowed.