AIR 1969 MADRAS 365 ::(1969) 1 MadLJ519 ::1981 MadLW 613

Madras High Court

Hon'ble Judge(s): A. Alagiriswami , J

(A) Guardians and Wards Act (8 of 1890) , S.19(b), S.25— Application u/S.25 by father - He is entitled to guardianship if found fit u/S.19(b) - Consideration of welfare of minor comes into play only when father is found unfit. Person discarding wife and living with mistress, not fit for custody of his child of tender years. AIR 1955 Mad 451, AIR 1922 Bom 405 and AIR 1941 Bom 103, Dissented from - In the case of a minor whose father is living and is not in the opinion of the court unfit to be guardian of the person of the minor, no guardian can be appointed. When, therefore, S. 17 lays down that in appointing or declaring the guardian of a minor, the court shall be guided by what appears in the circumstances to be for the welfare of the minor, it does not mean that Section 17 overrides Section 19. Only if the father is unfit to be the guardian, can the question of the welfare of the minor come into consideration. In other words, under Section 17, there is no question of a guardian of minor's person being appointed if the father is alive and is not unfit to be the guardian. The father is entitled to be the guardian even as against the mother as long as he is not held to be unfit to be the guardian of the person of his son, or whose application under Section 25 is not to forestall any action by the wife.(Para 2 3) ....