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Judgment
The mother of minor - Ayush Shivakumar (date of birth 31.03.2008) - sought for appointing her as his guardian. As per the impugned judgment she was permitted to take the child to United Kingdom for educational purposes without appointing her as guardian. By this appeal, she seeks for further relief of appointing her as the guardian of the minor.
The marriage between the petitioner and the respondent herein was severed as per a decree of divorce. The child, Ayush Shivakumar, was born in their wedlock on 31.03.2008. The petitioner is employed in United Kingdom and intends to take the child to United Kingdom for educational purposes. It is accordingly that the Original Petition was filed seeking guardianship of the minor. In the Original Petition though the respondent husband was served with notice, he did not care to enter appearance and was set ex parte. However, the court below refused to appoint the petitioner as guardian of the minor stating that it could not be declared that the father does not have even visitation right over the child.
Heard. The respondent-husband, is ex parte.
In support of the averments in the Original Petition a proof affidavit was filed by the petitioner, reiterating the petition averments. There is no reason to disbelieve her statements that she is employed in United Kingdom as a nursing auxiliary, that the respondent is not interested in the welfare of the minor child and that she intends to take the child to United Kingdom for educational purposes. Section 17 of the Guardian and Wards Act, 1890 reads thus:
"17. Matters to be considered by the Court in appointing guardian.-(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor,the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If minor is old enough to form an intelligent preference, the Court may consider the that preference.
(4)...
(5) The Court shall not appoint or declare any person to be a guardian against his will".
In spite of service of notice in the Original Petition before the Family Court and also in this appeal twice, viz. in the delay petition and also in the appeal, the respondent father has not cared to appear either in person or through counsel. It can only be concluded that he is least interested in the welfare of the minor. The child is aged only 10 years as on today. The child could be with his mother and he will have her care, protection and affection. Considering the fact that the petitioner is none other than the mother of the child, and that it is only in the best interests of the minor and for better prospects, that he is being taken to United Kingdom, we feel that it is only just and proper that the petitioner is appointed as the guardian of the minor.
In the result, the appeal is allowed. The appellant - petitioner - mother - is declared as the guardian of the minor child Ayush Shivakumar with date of birth 31.03.2008 and passport No.M2831273.
No costs.