Report No. 133

4.6. In considering the claim of grand-parents, whether they are paternal grand-parents or maternal grand-parents is a matter of no consequence.-

Very often the courts are confronted with the question as to whether the paternal grand-parents should be appointed the guardians of the person and property of the minor or the maternal grand-parents should be so appointed. Just as in considering the claim between the father and the mother, a preferential treatment was being accorded to the father vis-a-vis the mother, the pro-male bias was often projected in considering the question in the context of the grand-parents as well.

It would appear that there is a psychological complex that the paternal grand-parents should be preferred to the maternal grand-parents. In considering the rival claims, whilst applying the welfare principle, weightage is often accorded to the 'paternal' grand-parents and they are often preferred to the 'maternal' grand-parents1. There is no rational basis for doing so2. It is, therefore, desirable to make it explicit that the 'paternal' and 'maternal' grand-parents shall be treated at par having equal claim to be appointed as guardians subject to the overriding consideration regarding the welfare of the minor.

1. Nirode Barani Debya v. Bholanath Sarkar, AIR 1915 Cal 435; Gulbai and Lilbai, Minors (in re:), ILR 32 Bom 50.

2. Satyendra Nath Maitra v. Balram Chakraborty, AIR 1981 Cal 206.

4.7. The pro-male bias and anti-female prejudice has been projected in section 19(b) of the Guardians and Wards Act of 1890 as well. It provides:-

"19. Guardian not to be appointed by the Court in certain cases.-Nothing in this chapter shall authorize the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person-

(a) * * *;or

(b) of a minor whose father is living and is not, in the opinion of the Court unfit to be guardian of the person of the minor; or

(c) * * *."

The Legislature, in its wisdom, has provided that so long as the father of a minor is living and is not, in the opinion of the court, unfit to be the guardian of the person of the minor, the court shall not appoint or declare someone else as a guardian of the person of the minor. But then there is no reason why the same principle should not apply when the mother of a minor is living and is not, in tie opinion of the Court, unfit to be guardian of the person of the minor. If when the father of a minor is not unfit, no one else can be appointed as guardian of the person of the minor, why should someone else be appointed as guardian of the minor when the mother is alive and is not unfit in the opinion of the Court.

The interest of the minor can be safeguarded with as much vigour and sincerity by the mother as by the father. It, therefore, stands to reason that so long as the "father or the mother" of a minor is living, and, in the opinion of the Court, is not unfit to be the guardian of the person of the minor, the Court shall not appoint someone else as the guardian of the person of the minor. Section 19(b), therefore, requires to be amended on the aforesaid lines. A consequential amendment will also be required to be made in section 41(e) of the Guardians and Wards Act pertaining to cessation of authority of the guardian. The words "father or mother" should be substituted in place of the word "father" wherever it occurs in the said provision.