Disposed
Vijay Kusaji Modak v. Duhita Sanjay Modal (Minor)
Bombay HCGP/35/2015
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from the order text
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COURT OF JUDICATURE AT BOMBAY ORDINARY
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1-GP-35-2015.DOC
JSN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION GUARDIANSHIP PETITION NO.35 OF 2015
Shri Vijay Kusaji Modak
...Petitioner
Mr. Raj J. Khude, for the Petitioner.
CORAM:G.S. PATEL, J
DATED:22nd June 2016
PC:-
1.At my instance, in this somewhat disturbing matter, the
Petitioner, Vijay Kusaji Modak, and his wife, Vaishali, are present in
Court. So, too, is one Dilip Shankar Gawade, who was previously
the guardian of the female minor, Duhita Sanjay Modak.
2.The context in which this Petition comes to be filed requires
some elucidation. The Petitioner is Duhita’s paternal uncle, i.e. her
father’s brother. The minor’s father was one Sanjay Kusaji Modak.
Her mother was Sandhya Sanjay Modak. Duhita is an only child.
She was born on 26th August 2002 in Nashik. Sandhya died on 26th
April 2003. Sanjay died barely a fortnight later on 17th May 2003.
Duhita was not even a year old at that time. Since she was eight
months old she has been staying with her maternal uncle Dilip
Gawade. Dilip Gawade was appointed her guardian by an order 23rd
January 2008 passed in Guardianship Petition No.105 of 2007.
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1-GP-35-2015.DOC
3. Today Duhita is in the 7th standard. She still stays with Dilip and his wife Deepika.
4.Given this background the present application before me for
substitution of one uncle as Duhita’s guardian by another uncle is
indeed unusual. The Petition itself does not give any reason. It says
that Dilip has consented, and this is true, for I find that his consent
Affidavit is annexed at page 42. But there is no other reason in the
Petition itself to justify this. On the previous occasion, therefore, I
orally directed that a reason be given and that the Petitioner and his
wife should both remain present in Court, as should the present
guardian Dilip Gawade. All three are present in Court today.
5.I also have before me an Additional Affidavit dated 9th March
2016 filed by the Petitioner. In this he provides an explanation.
Having read this Affidavit fairly closely I have no doubt that what is
stated in this borders on the tragic. Dilip Gawde appears to have
fallen on hard times. There are statements made on page 50 which I
will not repeat here, most especially since this order is dictated in
open Court. It is enough to note that I do not believe that this is an
atmosphere in which Duhita should remain or one in which she
should grow up.
6.The Petitioner himself says that he and his family are
attached to Duhita. This is expressed by the Petitioner’s wife
Vaishali as well. The Petitioner’s mother, Duhita’s grandmother,
also stays with Vijay and Vaishali. They have a son aged 21 and two
married daughters. As to their employment, Vijay works with CEAT
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1-GP-35-2015.DOC
Limited at Thane and has sufficient means to provide for Duhita,
almost certainly better than Dilip can or could. Copies of his salary
slips, income tax returns and bank statements are annexed. Dilip
and Deepika have consented to the Petitioner being appointed
Duhita’s guardian.
7.I also note the statement made in paragraph 12 of the Petition
that the Petitioner does not seek to be appointed a legal guardian of
the minor in respect of her share in any property she may have
inherited. That is a matter covered by Letters of Administration
separately obtained by the minor’s maternal grandmother, Parvati
Shankar Gawade. The Petitioner only seeks to be appointed a
guardian of the person of the minor. He has no interest adverse to
that of the minor.
8.It is in these circumstances I accept the statements made in
the Petition and in the Affidavits as undertakings to the Court. The
Petition is made absolute in terms of prayer clauses (a), (b) and (c).
It is clarified that should the minor’s interest in any immovable
property be required to be alienated, the Petitioner will need to seek
leave of this Court.
9. The Guardianship Petition is disposed of in these terms.
Page 3 of 3
22 June 2016
Vijay Kusaji Modak
Duhita Sanjay Modak
G.S. PATEL
As recorded by the court registry
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