• Gaurdian for minor girl child when father and mother die together

4 year girl child-Father and mother died in accident one year back,  girl has got both side grand parents, since the birth of the child and presently also  mother side grand parents are looking after the child,  But the father side  grand parents  want to take the child,  All the money which came from  insurance/property all taken by father side grand parents.  we ( mother side grand parents) want to  have the custody of child till she  become major. All the grand parents are  senior citizens. mother has got two  good understanding sisters. Father has got only  one brother in abroad.
Asked 10 months ago in Family Law from United Kingdom
Religion: Hindu
.1. Since the girl child was already under custody of the maternal grand parents they were not required to file any custody suit though guardian suit was alright.

2. Now if the paternal grandparents oppose it then contest it on merit on the basis of facts as mentioned in your query.

In all these cases the court is purely swayed by the rule of ' welfare of the child is paramount consideration for the court'.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1. Custody of the minor girl will handed over considering the welfare of the child,

2. Since you already have the custody of the child, you need not file any case for her custody ,

3. If her father's side grand parents file a child custody case, contest the same fittingly. 
Krishna Kishore Ganguly
Advocate, Kolkata
12138 Answers
233 Consultations
5.0 on 5.0
1. I would not have suggested you to file the said child custody case since the child is already in your custody. 

2. You should have waited for the other side to file the case and contested it fittingly with all your logic,

3. However, discuss with your advocate and consider the possibility and usefulness of withdrawing the case and wait for the other side to file it.
Krishna Kishore Ganguly
Advocate, Kolkata
12138 Answers
233 Consultations
5.0 on 5.0
1. By filing the case yourself, you have preponed matter when the child is already with you,

2. If by chance the Judgment goes against you, it will appear that you have preponed the evil day of your own.
Krishna Kishore Ganguly
Advocate, Kolkata
12138 Answers
233 Consultations
5.0 on 5.0
1) welfare of child is paramount consideration 

2) since the child has grown with maternal side grandparents court would be more inclined to grant mother side grand parents child custody 

3) since you have already file case in court wait for court orders 
Ajay Sethi
Advocate, Mumbai
23365 Answers
1223 Consultations
5.0 on 5.0
Section 13 of the HMGA declares that, in deciding the guardianship of a Hindu minor, the welfare of the minor shall be the ‘paramount consideration’ and that no person can be appointed as guardian of a Hindu minor if the court is of the opinion that it will not be for the ‘welfare’ of the minor

2) The Supreme Court of Indiaand almost all of the High Courts have held that, in custody disputes, the concern for the best interest/welfare of the child supersedes even the statutory provisions on the subject outlined above.

3) Courts have held that in deciding custody, children should not be uprooted from their familiar surroundings just to give effect to the father’s right to natural guardians

4) in your case grand child was brought up by maternal grandparents hence custody should go to maternal grandparents 

5) a case where the child was brought up by the maternal grandparents after the death of the mother, the Andhra Pradesh High Court held that, in view of Article 21 of the Constitution, children cannot be treated as chattel and the father’s unconditional right to the custody over children and their property cannot be enforced, even if the father was not unfit to act as the guardian 


6) in Nath v. B. Chakraborthy, AIR 1981 Cal 701
Where both parents of the child were dead and the paternal relations claimed custody of the child who was residing with the maternal relations, the Calcutta High Court held thatwelfare of the minor was the paramount concern, and the paternal relations did not have a preferential position in matters of custody.There are similar examples from other High Courts as well.

Ajay Sethi
Advocate, Mumbai
23365 Answers
1223 Consultations
5.0 on 5.0
Custody of child and distribution of properties are different matters.  

Regarding to custody, the court considers welfare of the child.  Mother side grand parents should file a petition before the District Court.  The court put the child in the witness box and asks with whom you want to go.  Simultaneously the court also considers the financial situation, love and affection, past record towards the child and grants the custody to that person only.  

Coming to the distribution of property lying in the child, the property will be kept in the court custody until the child becomes major.  After she attains majority i.e. 18 years, the child will become the absolute owner.  Nobody can claim the child property.  If the property is in the custody of father side grand parents, it has to be surrendered to the court.  Otherwise, the court can seize the same and can also file contempt of court case and also criminal cases against  the persons who violates the court order.  
Ravinder Pasula
Advocate, Hyderabad
316 Answers
68 Consultations
4.9 on 5.0
All the money which came from  insurance/property all taken by father side grand parents.  we ( mother side grand parents) want to  have the custody of child till she  become major. All the grand parents are  senior citizens. mother has got two  good understanding sisters. Father has got only  one brother in abroad.

A minor child when he has no legal guardian, some nearer relation takes the responsibility of the management of his property and on his application to the court as guardian, if the court appoints him, he becomes the court guardian.
However, such person, if he does not make application to the court, but manages the property of minor, he is referred to as de facto guardian. He is also referred to as de facto manager of the property, because a de facto guardian of a minor, is neither a legal guardian nor a testamentary guardian and nor a guardian appointed by the court, but he is a person, who himself, has taken over the management of the affairs of the minor, as if he were a natural guardian.
The Hindu Minority and Guardianship Act, 1956 does not recognise a de facto guardian. Section 11 of the Act expressly negates the power of de facto guardian to alienate or deal with the property of a Hindu minor. A de facto guardian is a person who takes continuous interest in the welfare of the minor's person or in the management and administration of his property without any authority of law.  The term 'de facto guardian' as such is not mentioned in any of the texts, but his existence has never been denied in Hindu law

Therefore to manage the property of the minor child, one has to apply to the court for guardianship of the minor child.  The courts are empowered to appoint guardians under the Guardians and Wards Act, 1890.  The District Court may appoint or declare any person as the guardian whenever it considers it necessary in the welfare of the child.' In appointing ,,a" guardian, the court takes into consideration various factors, including the age, sex, wishes of the parents and the personal law of the child. The welfare of the children is of paramount consideration.
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
we have lodged a case and case is in court.  mother side grant parents want to have the guardian till she gets major/ The child does not have attachment with the father side grand parents even  when the parents are live. Since  the parents are working the  mother side parents only was there during all the time till their death.what else cases can be lodged to keep the child with mother side grandparents??
This is a very good situation to put forth pleadings in the child custody case.  The evidences if any, like medical slips or any other evidences that are available dating back to the days of the child's mother's life time during which she had left the child under the custody of her parents while she was away at her office,  can be produced before court while arguing for child custody case.  In most of the cases, the minor child will be given custody to the grand parents from mother's side only provided they are capable enough to take care of the minor child's welfare and interest.  You may put forth relentless arguments.in this regard.
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
In this situation can we  put up a suit   to ask for  finance assistance for maintaining the baby? All the  money which came  through their  company/LIC/ Property all are with paternal  grand parents
Since the child is residing with you for the present, you may approach the court for asking the child's paternal grandparents to deposit all the monies that belongs to the minor child with the court as court deposit and to allow the present custodian to withdraw the interest amount to take care and maintain the child  as an interim relief until the main case for child custody and guardian ship is decided. A mandatory injunction suit may be filed in this regard. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
you can get custody of child if you successfully prove that your custody is better than her grandfather. Court always takes notice that which custody is better for the child in order to provide proper care, education and attachment of child. however attachment cannot be proved because child is only 4 years old but older age of her grandparents is sufficient ground to prove you custody is better. 

In this condition court grant custody and as well as make order regarding her right in father's ancestral property. Kundan Varshey vs Kamal Kant AIR 1989 it is held by the court that maternal grandfather and his family can take better care if maternal aunt and other female members are more competent than grandparents. 
Shivendra Pratap Singh
Advocate, Lucknow
2771 Answers
41 Consultations
4.9 on 5.0
1. After the demise of parents of the child the grandparents (whether paternal or maternal) who apply for custody will have to prove that they are better placed to secure the welfare of child which is the only consideration in child custody cases. If the child is already in the custody of the maternal grandparents the court may not alter this arrangement. However, shared custody may be awarded to the grandparents on both sides. 

2. You have already filed the petition for child custody, so no other case is made out.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
You have no right to claim maintenance from the paternal grandparents on behalf of the child. Insurance and property of your deceased daughter, in the absence of a will, has devolved on her child. So you can file a lawsuit to claim the share of your granddaughter for and on her behalf.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23365 Answers
1223 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12138 Answers
233 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
Atulay Nehra
Advocate, Noida
443 Answers
15 Consultations
4.7 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2771 Answers
41 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
5.0 on 5.0
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0