Seen. Heard. This is an application under the Guardians and Wards Act, VIII of 1890 for appointing the father as guardian and obtaining permission by the father for the sale of the landed property belonging to the two minors. Today is fixed for hearing on the maintainability of the application.
02. Heard. The record is taken up for
passing necessary order. Perused the application, submitted documents, and the
case record. On such perusal of the materials available on record, it appears
that it appears to the court that a biological father applied for guardianship
in respect of his own son. It also finds that the impugned child is being
brought up under care and custody of his natural father who is bearing all
expenses and maintenance for the former. So apparently, the natural father
prayed here for the appointment of himself as legal guardian of his own son’s
person and property.
03. In legal parlance, the Guardianship
of a minor person means overall supervision of the minor’s personality. It
means ‘care and welfare’ of the child including the liability to maintain it.
It is more than simply custody of the child at a certain age. According to section 4(2) of the Guardian and Wards Act, 1890, ‘Guardian’ means a person
having the care of the person of a minor or of his property, or of both his
person and property. Moreover, a father is recognized as a natural guardian of
his biological child under all the Schools of Muslim law. The father’s right to
act as guardian of a minor is an independent right and is given to him under
the substantive law of Islam. The father’s right of guardianship exists even
when the mother, or any other female, is entitled to the custody of the minor.
04. More importantly, a natural guardian
is also called de jure or legal guardian. As stated above, only father is the
legal guardian of his child. Even Father, under Muslim personal law, gets top
priority in the order of preferences, is recognized as the legal guardian of a
minor’s property. Therefore, in cognizance of the fact, ensuing circumstances, and legal mandates, it appears that since a natural guardian (biological
father) needs not to be appointed as legal guardian through court, let alone
sale permission, the suit clearly appears to be needless and abuse of process
of law and thus, is held not maintainable in law. So, the suit is liable to be
dismissed point-blank.
Paid court fee is sufficient. Hence, It is ordered that the suit be dismissed for non-maintainability against the plaintiff without costs.