SHYAMRAO MAROTI KORWATE versus DEEPAK KISANRAO TEKAM

Citation: [2010] 11 S.C.R. 473 · Decided: 14-09-2010 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Case Partly allowed

Judgment (excerpt)

[2010] 11 S.C.R. 473 
SHYAMRAO MAROTI KORWATE 
v. 
DEEPAK KISANRAO TEKAM 
(Civil Appeal No. 2817 of 2008) 
SEPTEMBER 14, 2010 
[P. SATHASIVAM AND DR. B. S. CHAUHAN, JJ.] 
Guardians and Wards Act, 1890: 
A 
B 
ss. 7 and 25 - Rival claims for custody of the minor son c 
by his maternal grand- father and father -
HELD: The 
provisions of the 1890 Act and the 1956 Act, make it clear 
that in a matter of custody of a minor child, the paramount 
consideration is the "welfare of the minor'' and not the rights 
of the parents or relatives under the statute which are in force 
0 
- Therefore, the District Judge has rightly given the custody 
of the minor to his maternal grand-father - However, keeping 
in view the age of the maternal grand-father and the fact that 
after four years the child would attain the age of 12 and his 
father is free to make fresh application, directions given 
E 
enlarging visitation rights of the father, in order to ascertain 
whether the child would show inclination to join with his father 
on his attaining the age of 12 -
Hindu Minority and 
Guardianship Act, 1956 - s. 13. 
Consequent upon the death of the wife of the 
F 
respondent, after giving birth to their son on 23;03.2003, 
the child remained in the custody of his maternal grand-
father, the appellant. On 7.8.2003, the appellant filed 
before the Court of District Judge an application uls. 7 of 
the Guardians and Wards Act, 18.~0. The respondent G 
contested the application and also filed another 
application u/s 25 of the 1890 Act for custody of his son. 
Meanwhile, the respondent remarried and was blessed 
with another son from his second wife. The District 
473 
H 
474 
SUPREME COURT REPORTS 
(201 OJ 11 S.C.R. 
A Judge, appointed the appellant as guardian of the child, 
allowed his application and rejected that of the 
respondent with liberty to file such an application after 
the minor completed the age of 12. The respondent was 
permitted to meet the minor once in a month. The appeal 
B filed by the respondent was allowed by the High Court 
and he was allowed to have custody of the child. 
Aggrieved, the maternal grand-father of the minor filed the 
appeal. 
c 
Partly allowing the appeal, the Court 
HELD: 1.1 It is true that under the Guardians and 
Wards Act, 1890, the father is the guardian of the minor 
child until he is found unfit to be a guardian of the minor. 
However, an analysis of the relevant provisions of 
D the1890 Act and the Hindu Minority and Guardianship 
Act, 1956 makes it clear that in a matter of custody of a 
minor child, the paramount consideration is the "welfare 
of the minor" and not the rights of the parents or relatives 
under the statute which are in force. The word "welfare" 
E used in s. 13 of the 1956 Act has to be construed literally 
and must be taken in its widest sense. [Para 10 and 13] 
(481-A; 482-A; 483-C-D] 
Gaurav Nagpal vs. Sumedha Nagpal, 2008 (16) 
F SCR 396 = (2009) 1 SCC 42; Anjali Kapoor (Smt.) vs. Rajiv 
Baijal, 2009 (6) SCR 560 = (2009) 7 sec 322 - relied on. 
1.2 On 23.03.2003, after giving birth to the child, the 
mother died and the child was taken by the maternal 
grand-father. Before the District Judge, it has been 
G highlighted that after the death of his wife, the 
respondent-husband has married another woman and 
also has a son from his second marriage. It is also 
highlighted by the appellant that the respondent is 
working as an Operator in the Maharashtra State 
H Electricity Board at a distance of 90 kms from his 
SHYAMRAO MAROTI KORWATE v. DEEPAK 
475 
KISANRAO TEKAM 
residence. It is further stated that the place where 
A 
respondent is residing is a rural village and lacks in better 
educational facilities. It is the claim of the maternal grand-
father that he is a pensioner getting sizeable income by 
way of pension and other retiral benefits and also owns 
agricultural properties. It is his further claim that he is 
B 
living with his wife, i.e. maternal grandmother of the child, 
and other relatives such as sons and a daughter. It is also 
his claim that he is residing in a Taluk Centre where good 
educational facilities are available. In this view of the 
matter, the District Judge is. justified in appointing the c 
maternal grand-father as guardian of the minor till the age 
of 12 years. It is true that the single Judge of the High 
Court interacted with both the parties and the child 
separately and noted that "the child could not be 
unhappy, uncomfortable and unsaf

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