Dismissed

Ronalad Felix Menezes and 3 Ors. v. Joseph Mendonca and 2 Ors.

Bombay HC20 Aug 2014GP/15/2014

Case brief

AI extract

What is this about?

The High Court dismissed a guardianship petition filed by maternal uncles seeking appointment as guardians for four minor children, holding that the father remained the natural guardian as no unfitness was shown and the petition failed to demonstrate petitioner fitness or welfare.

What did the court decide?

Guardianship petition dismissed; no appointment of petitioners as guardians made.

Ronalad Felix Menezes and 3 Ors. Vs Joseph… — Child Custody and Guardianship | Bombay HC (2014)

GP No.15_2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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GUARDIANSHIP PETITION NO.15 OF 2014

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Ronald Feliz Menezes & Ors. … Petitioners Vs. Joseph Mnendonca & Ors. … Respondents

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Mr. A.K. Saxena, Adv. for the petitioners. Mr. Vishal Kanade, Adv. a/w. Mr. Ranvir Shekhawat, Adv. i/b. M/s. Raj Legal for the respondents.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 20th August, 2014.

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P.C. :

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The petitioners are 4 maternal uncles of four minor children aged 15, 13, 12 and 7 years. Their mother has expired. Their father respondent no.1 resists the petitioners being appointed guardian. The children have a paternal aunt and paternal grandmother living close-by who are respondent Nos.2 and 3 in the petition. Three of the children live in Vikhroli in the flat which belongs to their deceased mother and their paternal grandmother. Petitioner No.4, who is a bachelor, lives with them despite having another permanent residence shown in the title of the petition.

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The petition is filed under Section 7(1) (a) of the Guardian and Wards Act, 1890 (the Act). The petitioners desire the guardianship rights in respect of the person and property of the minors. No property of the minor is specified in the petition. However, from the reading of the interim prayers it can be seen that

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2 GP No.15_2014

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one flat of the mother of the minors which was jointly held by her with the paternal grandmother of the minors would be their property, a half share of which devolved upon the four minor children. It can also be seen that there is some amount deposited by way of maintenance by respondent 1 father in a Family Court Petition No. A- 1598 of 2008 for the maintenance of the children which would form a part of their property.

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The petitioners, therefore, contend that this Court would have jurisdiction to appoint the petitioners as the guardian of the person and property of the minor children under Section 7(1) (a) of the Act.

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The petitioners would have to show that such an order of appointment of guardian would be in the welfare of the minor children under Section 7 (1) (a) itself.

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For that purpose the application is required to be made in the form specified under Section 10 of the Act. It is contended on behalf of the respondent no.1 father that an important provision in the petition showing the qualification of the proposed guardian under Section 10 (1) (i) is wholly absent in the petition.

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The respondent no.1 has set out in his affidavit in reply to the petition, which was filed as far as back on 16^th September, 2013, the disqualifications of the petitioners to be appointed guardians. They may be briefly enumerated thus : petitioner no.1 is a butcher and with two children, petitioner no.2 is retired with three children,

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petitioner no.3 having a shop with two children and petitioner no.4 having no source of income and no house being a bachelor who lives in the flat jointly owned by the mother of the minor children and the paternal grandmother of the minor children. Respondent no.1 has shown an entry in the passbook of his bank account showing certain amount of Rs.4,000/- paid to petitioner no.4. It is, however, not known for what this amount is paid. Though averment in that behalf is made, the specifics with regard to the payment is not shown.

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It may be stated that the three petitioners having their own two or three children specially petitioner Nos.1 and 2 would not be in position to act entirely for the welfare of the children. The 4^th petitioner, who is the bachelor and who is not otherwise indisposed, would have been in a more fit position to act in the welfare of the children but for the fact that he himself lives and has accordingly appropriated the property which otherwise devolved upon the children upon the death of their mother.

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The averments in the affidavit in reply have not been denied since no affidavit in rejoinder is filed. It may be mentioned that such statements of facts would require a rejoinder which has not been made for about one year. Instead the petitioners have tendered a list of their details without any substantiating evidence showing inter-alia their occupation which would reflect, if given, their qualification for being appointed guardians of the four children. Such a list without it being on affidavit, specially in view of the affidavit in reply of the respondent no.1, cannot be countenanced.

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The provision in Section 10 (1) (i) not being complied the welfare of the children contemplated under Section 7(1) (a) is not shown.

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Respondent no.1 is the father of the children. He is the natural and legal guardian of the child. He is stated to be residing and working as Computer Programmer for International School of Choueifat, Muscat – Oman. He would claim that he can take his children to the school to be with him.

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The four children were attending the school in Vikhroli where their mother was a teacher before she expired. The first child has passed out of the school and is attending college. The other children are sought to be removed from the school. It was not possible for four petitioners to care for the four children severally. In paragraph 13 of the petition it is averred that the petitioners decided to take care of the minors jointly. They sought to remove the second and third child and admit them to St. Anthony School at Malwani and St. Thomas High School, Goregaon. The school authorities did not issue the school leaving certificate in the absence of the guardianship of the petitioners. The 4^th child who is the daughter has been admitted to St Mary High School, Mulund under an order of this Court.

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It is clear from the petition that the siblings are sought to be separated. That would be the first act to the detriment of the children specially in the absence of their mother who has expired. These children are 13, 12 and 7 years old. The petitioners act in the

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welfare of the children is, therefore, not shown.

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Under Section 19 of the Act a guardian has not to be appointed if he is unfit to be a guardian. This is a case in which the father of the minor children is living; their mother has expired. The petition does not show how the father is unfit to be the guardian of his children.

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However, reference to a divorce petition having been filed by the mother of the minor children against respondent no.1 father has been made. There has been no final order in the divorce petition. An application for maintenance for the minors was also made. An order of payment of maintenance of Rs.4,000/- pm for each child has been passed aside from other ancillary orders. An order for access given to the father in the Family Court complex has been passed. Overnight access has been refused. The father states that he would enjoy leave of 30 days in a year when he would come to Mumbai from Oman to meet his children.

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Under interim orders of the Court certain workable arrangements for the tiffin of the children to be obtained from their paternal aunt and the paternal grandmother, respondent Nos. 2 and 3, have been passed and is continuing.

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A custody petition has been filed by the respondent No.1 father in the Family Court which would decide that issue. Pending that issue only the guardian of the children has to be appointed, if respondent No.1 is seen to be unfit and the appointment of one or all

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the petitioners as the guardian is seen to be in the interest of the minors.

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The petition as filed does not show such interest being served. In fact the very case of the petitioners of taking care of the children set out in paragraph 13 of the petition is seen to be an act of segregation which would be against the welfare of the children. The father is not shown to be a particularly unfit person. The father is shown to have deposited certain amounts in the Family Court petition which is stated to be a part of the property of the children and for which interim orders have been sought in this petition.

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Consequently this Court is not satisfied that any or all the petitioners would be fit and proper persons to be appointed guardian of the children in the place of their natural and legal guardian, respondent no.1 father.

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Hence the Guardianship Petition is dismissed.

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( ROSHAN DALVI, J. )

Ronalad Felix Menezes and 3 Ors. v. Joseph Mendonca and 2 Ors.

Case brief

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Ronalad Felix Menezes and 3 Ors. v. Joseph Mendonca and 2 Ors.

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