Madras high court appoints Hindu couple as guardians of Muslim child

MADURAI: Madras high court appointed a Hindu couple as guardian of a Muslim child, observing that the sentiments of the parties towards the minor child and the welfare of the minor child are of paramount importance.

The court was hearing an appeal filed by a Hindu man (appellant) challenging the order passed by a family court in Madurai. He was married to a woman in 2012. Since they did not have a child, they decided to adopt a child. A Muslim woman, a daily wager, known to them for more than 10 years, had three children. The third child was born in 2023.

As her husband had passed away, and because she was struggling to provide the basic amenities to her children, she came forward wholeheartedly to give her third female child on adoption to the appellant and his wife. The appellant and his wife started taking care of the child.

In order to legalise the adoption, the appellant filed a petition before the family court to appoint the appellant as the legal guardian of the minor child till she attained majority. However, the family court dismissed their petition saying it was a girl child and the appellant and his wife were strangers. It, however, conceded that even a non-Muslim can be appointed as a guardian to the child.

Hearing the appeal, a division bench of Justice N Anand Venkatesh and Justice K K Ramakrishnan took note of the fact that right from birth, the child has been taken care of only by the appellant and his wife. The child has been calling the appellant and his wife as father and mother and calling the biological mother as aunt. The biological mother has also wholeheartedly consented to appoint the appellant as the guardian.

The judges observed that the Guardians and Wards Act 1890, is religion-neutral and it will apply to every person desirous of being appointed as a guardian of a minor and religion becomes one of the considerations when the court deals with the petition in line with Section 17 of the Act. Section 17 of the Act provides for matters to be considered by the court in appointing a guardian.

The primary factor to be considered by the court is the welfare of the child. Apart from that, the court must also take into consideration the age, sex and religion of the minor and the character and the capacity of the proposed guardian. The scope of sub-section (1) of Section 17 of the Act is that the court has to strike a balance between the attachment and sentiments of the parties towards the minor child and the welfare of the minor child, which is of paramount importance, the judges observed.

The judges observed that the right of the appellant to be appointed as a legal guardian is recognized by the Act. While implementing the provisions of the Act, the court is exercising its parents patriae jurisdiction in the best welfare of the child. It will be in the welfare of the child to appoint the appellant as the legal guardian, since the child recognises the appellant and his wife as the parents and the child has been taken care by the appellant and his wife right from the birth.

“Therefore, the court is satisfied with the credentials of the appellant and his wife and is also satisfied that the consent has been given by the biological mother wholeheartedly,” said the judges.

Setting aside the order passed by the Family court, the judge appointed the appellant as the legal guardian of the appellant.


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