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Report No. 83

6.40. Effect of sections 17 and 19 taken together.-

As to the first question posed above,1 it is proper to note the combined effect of sections 17 and 19 of the Act of 1890.2 Consistent with the law to which the minor is subject (section 17), the welfare of the minor should be taken into account in appointing a guardian (section 17). However, according to the text of the Act-section 19(a) and 19(b)-the preferential right of the husband or father cannot be ignored unless, the opinion of the Court, the husband or father is unfit to be the guardian.

It should be noted that Courts have taken a liberal view in the matter. For example, the Supreme Court in a recent case,3 keeping in view the welfare of a male child of eleven years, declared the mother as his guardian. In this case, there was nothing against the father to disentitle him to be a guardian, but the Court felt that the "child's welfare is financially and affectionately safe in the hands of the mother".

There are other judicial decisions following the same approach and thus advancing the cause of justice. In this position, it is appropriate that the text of the law should be amended by ensuring that the consideration of the welfare of the minor shall be paramount. Such an amendment will settle the position for all times to come, eliminating the possibility of any arguments4 being taken to the effect that the father must be appoint if he is not "unfit".4

1. Para. 6.39, supra.

2. Para. 6.38, supra.

3. Mohini v. Virender Kumar, AIR 1977 SC 1359.

4. Cf. Snehlata v. Mahendra, AIR 1979 Raj 29 (34), para. 10 (February-March).



The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back




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