7. Power of the Court to make orders as to guardianship.-
(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made- Appointing a guardian of his person or property or both, or declaring a person to be such a guardian the Court may make an order accordingly.
An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
Where a guardian has been appointed by will or other instrument or appointed or declare by the Court, an order under this section appointing or declaring another person to be guardian in his stand shall not be made until the powers of the guardian appointed or declare as aforesaid have ceased under the provision of this Act.
(i) It is true that father being a natural guardian of a minor child has a preferential right to claim custody of his son. However, the paramount consideration is the welfare of the minor and not the legal right of a particular party; Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148.
(ii) Minor child expressed her willingness to stay with natural grandparents. The Court considers interest and welfare of minor child and directed custody of child to her maternal parents; M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315.
(iii) ‘Declaration’ of a guardian by the Court is recognition of pre-existing rights of that person according to the will of the last guardian of the minor child whereas in ‘appointment’ there is no such pre-existing right and a person has to apply to the Court to be appointed as a guardian.
(iv) Welfare of the minor child is of paramount consideration in the appointment of a guardian. The term guardian has to be taken in its widest possible sense. It has to be measured not only in terms of money and physical comfort but also should include moral and ethical welfare of the child. Welfare of the child depends on facts and circumstances of each particular case; Bimla Devi v. Subhash Chandra Yadav, AIR 1992 Pat 76, see also Elizabeth Dinshaw v. Arvand M. Dinshaw, AIR 1987 SC 3.
(v) The term custody should not be interpreted in its strict sense as physical custody. Custody means custody in the sense of supervision and control over the child. In some cases of recognized institutions for orphans the children have to be kept in the care of suitable private persons or private nursing homes either becuase the institution does not have proper facilities for healthy upbringing of the child or it is undergoing some treatment in some nursing home and in these cases even though the child is not in actual physical custody of the institution they are deemed to be in custody of the recognized institution; Jay Kevin Salerno (in re:), AIR 1988 Bom 139.
(vi) The father’s right to the custody of his minor child is no longer absolute, it is circumscribed by the consideration of the welfare of the minor. The legal right or financial affluence is not decisive but the welfare of the minor which is decisive for the claim of custody; A.V. Venkatakrishnaiah v. S.A. Sathyakumar, AIR 1978 Kant 220. See also Tarun Ranjan Majumdar v. Siddhartha Datta, AIR 1991 Cal 76; Vijayalakshmi v. Inspector of Police, Karur Police Station, Karur, AIR 1991 Mad 243.
(vii) In case of dispute between mother and father for the custody of the child the Court is expected to strike a just and proper balance between the requirements of welfare of the minor child and the rights of the parents over the minor child. The Court should also take into account the preference of the minor child to stay with either parent or grandparent if he is old enough to form an opinion; S. Abboy Naidu v. R. Sundara Ram, AIR 1989 Mad 129.
(viii) The claim for custody of a child by any person should be for bona fide reasons, i.e., out of genuine love and affection for a healthy upbringing of the child in a congenial atmosphere. It should not be for ulterior purposes or to avoid giving maintenance to the mother who is competent to look after the child with all love, care and affection. The only consideration of the Court should be welfare of the child; Dolku Nihal Singh v. Nihal Singh Karnail Singh, AIR 1992 HP 3; See also Thrity Hoshie Dolikuka v. Hoshiam Dolikuka, AIR 1982 SC 1276.
(ix) The parent or grandparent of the child whose custody has been given to the other parent has visitation rights at frequent intervals. In case where the child has attained the age of five years the father of the child can claim custody of the child from the mother who had been given the custody of the child because of its tender age; Mohamed Jameel Ansari v. Ishrath Sajeeda, AIR 1983 AP 106.
(x) Adoption of orphaned children should be first offered to Indians and if any Indian is not coming forward to adopt the child the recognized institution can offer it to foreigners for intercountry adoption. The Supreme Court has laid down guidelines for the adoption of children from recognized institutions; Laxmi Kant Pandey v. Union of India, AIR 1986 SC 272. The child should be in the custody of the recognized institution for a period of at least one month before it can give in the child for adoption. An unrecognised institution or agency can give a child for adoption only through a recognized agency, reaffirmed in; Jay Kevin Salerno (in re:), AIR 1988 Bom 139; Society of Sisters of Charity St. Gerosa Convent v. Karnataka State Council for Child Welfare, AIR 1992 Kant 263; K.S. Council for Child Welfare v. Society of Sisters of C.S.G. Convent, AIR 1994 SC 658.
(xi) Section 7 of the Guardians and Wards Act, 1890 and section 9 of the Hindu Minority and Guardianship Act, 1956 are not inconsistent with each other and operate in two different fields; Shoba Kshirsagar v. Janaki Kshirsagar, AIR 1987 MP 145.