17. Matter to be considered by the Court in appointing guardian.-
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
In considering what will be for the welfare of the minor, the Courts shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
If the minor is old enough to form an intelligent preference, the Court may consider that preference.
The Court shall not appoint or declare any person to be a guardian against his will.
(i) The Court is under a duty to appoint the most suitable person amongst the rival claimants for guardianship. Under section 17 of the Act a person who under the personal law would be entitled to the custody of the child in preference to anyone else should be appointed as the guardian. This, is however a flexible rule. The scope of section 17 of the Act is that the Court has to see who of the several applicants has a preferential right to be appointed as guardian of the minor under the personal law keeping also in view the welfare of the minor. According to Hanafi law mother is entitled to the custody of child below seven years of age but would lose that right if found unfit. Minor child should be fit enough to form an intelligent preference, held that mother has the capacity to look after the child; Mohd. Ramzan Magrey v. Taja, AIR 1983 J&K 70; See also Mohd. Jameel Ahmed Ansari v. Ishrath Sajeeda, AIR 1983 AP 103.
(ii) The Court should be guided by the sole consideration of the welfare of the minor, and the welfare of the minor in each case depends on facts and circumstances of each particular case. Father is the natural guardian of the minor, so is the mother. The rule that father should get custody of child is always subject to exceptions and not universally applicable. In claim of custody between mother and father, the Court does not always give custody to the father, it can deny him custody if he is found to be unfit. In the absence of mother too the father can be denied custody of the child if the welfare lies either with grandparents or other relative of the child. Held that the children would be scared to be in the custody of father who was accused of murdering the mother and hence custody was given to maternal grandparents; Bimla Devi v. Subhas Chandra Yadav, AIR 1992 Pat 76.
(iii) Under Muslim Law father is entitled to the custody of son who is above seven years of age but this is subject to exceptions, i.e., if welfare lies with mother, she gets custody of the child but in certain cases father can get custody of the child. Mother was getting only Rs. 100 as maintenance and was unable to maintain herself. Held that ordinary rule of Muslim law should be adhered to and custody should be given to the father; Farjanbai v. Ayub Dadamiya, AIR 1989 Bom 357.
(iv) According to Hindu Law father is the natural guardian of a minor and in the next place mother is the natural guardian and mother too can be deprived of the guardianship if it can be shown that she is unfit to act as guardian; Nirmal Jain v. The State, AIR 1983 Del 120.
(v) In intercountry adoption, the petitioners are directed to give undertaking to take proper care, look after, properly educate and to bring up the minor as if it were their own child and to treat the said minor on an equal footing with his natural or adopted children, if any, in all matters of maintenance, education and succession; Johannes Philipus Vadde Venee v. State of Rajasthan, AIR 1990 Raj 124.
1. Sub-section (4) omitted by Act 3 of 1951, sec. 3 and Sch.