OP/659/2025 of Krishnakumar Parameswaran and another Vs Akash Sharma on 3 November 2026

O R D E R

This Original Petition is filed under Section 7 of the Guardians and Wards Act, 1890, read with Order XXI Rules 2 and 4 of the Original Side Rules and Clause 17 of the Letters Patent, seeking a declaration that the petitioners are joint guardians of the person of the minor girl born on 16.10.2021. The second petitioner is the child’s mother. The first petitioner is her present husband and, on the pleaded basis that he is the child’s stepfather, seeks relief.

2. The petitioners married on 24.08.2017. According to them, they lived separately from September 2019, and their marriage was dissolved by mutual consent on 12.08.2021 in O.P.No.2534 of 2021 before the IV Additional Family Court, Chennai. The divorce decree records that no child was born of the marriage and that the second petitioner, who was then pregnant, stated that the first petitioner was not the father of the unborn child.

3. The minor girl was born on 16.10.2021. Her birth certificate, marked Ex.P1, lists the second petitioner as her mother and the respondent as her father. The petitioners allege that the respondent’s contact with the child ceased when she was about ten months old, and that he thereafter provided neither financial support nor parental care.

4. The petitioners state that they reconciled in 2022 and thereafter lived together with the minor girl. Their younger daughter was born on 12.01.2024. They remarried on 11.05.2025, and the marriage was subsequently registered. According to their evidence, the first petitioner has been attending to the minor girl’s education, health, maintenance and daily needs, and the minor girl shares a close emotional relationship with him and her younger sister.

5. After attempts at service and newspaper publication, the respondent did not appear and was set ex parte. The petitioners were examined as P.W.1 and P.W.2, and Exs.P1 to P9 were marked. Given the nature of the relief and its implications for the child, this Court secured independent legal representation for her and obtained reports from the learned Legal Aid Counsel, a counsellor and a psychologist.

6. The reports describe the minor girl as comfortable in her present household and emotionally attached to both petitioners. They also record the first petitioner’s involvement in her upbringing and the support available within the family. The material before this Court discloses no circumstances that warrant disturbing her present care or residence.

7. Learned counsel for the petitioners submits that joint guardianship would recognise the responsibilities already undertaken by the first petitioner and facilitate decisions regarding the minor girl’s education, passport, travel and other matters. Reliance is placed on the child’s welfare, the respondent’s alleged abandonment, the order dated 19.12.2023 in O.P.No.495 of 2021, and the judgment in T.P. Vasanth v. R. Lakshmi Narasimhan, O.P.No.797 of 2017, dated 26.05.2020.

8. The following points arise for consideration:

(i) Whether the petitioners are entitled to appointment or declaration as joint guardians of the minor girl's person?

(ii) What consequential order is warranted in the interests and welfare of the minor girl? Point No.(i):

9. The second petitioner has expressly stated, both in the earlier divorce proceedings and in the present proceedings, that the respondent is the biological father of the minor girl. The petitioners also state that they have lived separately since September 2019. Nevertheless, because the child was born within 280 days of the dissolution of their marriage, Section 116 of the Bharatiya Sakshya Adhiniyam, 2023, corresponding to Section 112 of the Indian Evidence Act, 1872, requires consideration. An admission of an extramarital relationship is not, by itself, proof of non-access between the spouses during the period of conception. It is unnecessary to determine that question in this petition, since the prayer for joint guardianship can be decided on the admitted position that the child’s mother is alive and is not unfit to act as her guardian. Accordingly, no finding affecting the child’s legitimacy or legal parentage is rendered.

10. Section 7 of the Guardians and Wards Act empowers the Court to appoint or declare a guardian where the statutory requirements are met. Section 15(1) permits the appointment or declaration of two or more joint guardians of the person, property, or both, where the law applicable to the minor permits such an arrangement. Joint guardianship is therefore not confined to the management of property. However, Section 15 does not confer an unrestricted power and must be read with the other provisions governing appointment.

11. Section 19(b), as amended by the Personal Laws (Amendment) Act, 2010, restricts the appointment or declaration of a guardian of the person of a minor whose father or mother is alive and, in the opinion of the Court, is not unfit to be the minor’s guardian. In the present case, the mother is alive, personally cares for the child, and supports this petition. No allegation of her unfitness is made. On the contrary, the evidence and professional reports show that she attends to the child’s needs.

12. On the petitioners’ pleaded case that the child was born outside marriage, Section 6(b) of the Hindu Minority and Guardianship Act, 1956, recognises the mother as the first natural guardian of the minor child. Her subsequent marriage does not, by itself, terminate that position. The Explanation to Section 6 excludes a stepfather from the expression “father”. Consequently, on the basis on which the first petitioner seeks relief, marriage to the mother and participation in the child’s upbringing do not, by themselves, confer natural guardianship upon him.

13. The mother’s consent to the proposed arrangement does not remove the restriction under Section 19(b). Nor can that restriction be avoided by seeking the appointment of the first petitioner jointly with her. The respondent’s failure to appear does not establish entitlement to the relief sought; even in an uncontested proceeding, the Court must independently examine the legal basis for the relief. Whatever conclusion might otherwise arise regarding the respondent’s alleged non-participation, the mother’s admitted fitness remains material under Section 19(b).

14. The paramount importance of the minor’s welfare under Section 17 of the Guardians and Wards Act and Section 13 of the Hindu Minority and Guardianship Act is fully recognised. Welfare remains central to the Court’s consideration of the child’s care and any appropriate protective relief. However, it does not render every form of appointment legally available. Guardianship, custody and participation in daily care have distinct legal consequences, and beneficial caregiving does not, by itself, establish entitlement to a judicial appointment as guardian.

15. The order dated 19.12.2023 in O.P.No.495 of 2021, relied upon by the petitioners, granted guardianship to a mother and her subsequent husband. However, that order does not examine the restriction under Section 19(b) or its application to the proposed appointment alongside a living and fit mother. It therefore cannot be treated as determining the statutory objection arising in the present case. Further, the joint-custody direction in T.P. Vasanth was modified by the Division Bench in R. Lakshmi Narasimhan v. T.P. Vasanth, O.S.A.No.230 of 2020, dated 21.10.2024. The Division Bench confined that custody direction to the biological mother, leaving the other portions of the order intact. Consequently, the original joint-custody direction cannot support the relief now sought. It is right to record that I was a member of the Division Bench which decided O.S.A.No.230 of 2020, and that the written arguments filed for the petitioners do not refer to that judgment.

16. The petition also invokes this Court’s protective jurisdiction under Clause 17 of the Letters Patent, preserved by Section 3 of the Guardians and Wards Act. The claim has therefore been considered independently on the basis of the minor girl’s welfare. This Court understands what lies behind this petition. The petitioners would have the minor girl’s records show the first petitioner as her father, and the difficulties they speak of are real. But that is not something an order under Section 7 can achieve. Entries in the public records are governed by their own law, and no appointment or declaration of guardianship alters any of them. There is also a better reason. The name upon her record carries rights which are hers and not her parents’, and whether one day to keep them or to question them is a choice that belongs to her. It is for that reason that Section 116 of the Bharatiya Sakshya Adhiniyam, 2023, has been noticed and no finding upon her parentage has been made. Nothing has been closed to her. Even assuming that the preserved jurisdiction permits relief beyond the appointment available under Chapter II of the Act, the answer is the same. The child’s settled care and beneficial relationships can continue without conferring that status on the first petitioner. In fine, Point No. (i) is answered against the petitioners. Point No. (ii).

17. The refusal of joint guardianship does not require any change. The first petitioner may continue to assist with the child’s care with the mother’s

concurrence. Where the applicable requirements permit, the second petitioner may authorise the first petitioner to attend to such matters concerning the minor girl’s upbringing, education, health and daily activities as the second petitioner may think fit. However, such authorisation does not transfer guardianship or substitute his consent where the law requires the consent of a parent or legal guardian.

18. The professional reports support the continuation of the existing caregiving arrangement and disclose no current circumstances requiring periodic court-directed supervision. Accordingly, no continuing monitoring is ordered. The reports shall remain confidential, subject to lawful access and any further orders of this Court. Nothing in this order restricts the powers of the competent authorities to act to protect the child if circumstances subsequently warrant intervention. Accordingly, this point is answered.

19. This Court records its appreciation of the assistance rendered by the learned Legal Aid Counsel Ms Subhalaxmi Samanta, the counsellor Ms Neya Santro R and the psychologist Tmt. M. Malathi

20. Accordingly, the prayer for the appointment or declaration of the petitioners as joint guardians of the minor girl's person is declined, and the Original Petition is dismissed. It is, however, recorded that nothing in this order prevents the first petitioner from continuing to care for the minor girl with the concurrence of the second petitioner. No order as to costs shall be made. 03-11-2026

AY Index:Yes/No Neutral Citation: Yes/No Speaking Order / Non-speaking Order List of witnesses examined on the side of the Petitioners: PW1 –Krishnakumar Parameswaran PW2 –Rennee Saradha. List of documents marked on the side of the petitioners: Ex.P1 Photocopy of the birth certificate of minor Siarah.A (compared with the original) Ex.P2 Computer generated birth certificate of minor Jodha Jagattarini.K.R. Ex.P3 Photocopy of the order dated 12.08.2021 in O.P. No. 2534 of 2021 passed by IV Additional Family Court, Chennai (compared with the original) Ex.P4 Photocopy of my marriage registration certificate (compared with the original) Ex.P5 E-mail communication dated 24.01.2025 sent by the Pupil International School. Ex.P6 Photocopy of my Aadhaar Card (compared with the original) Ex.P7 Declaration of willingness Ex.P8 Certificate filed under Section 63 (4)(c) of BSA. Ex.P9 Photocopy of my Aadhaar card (compared with the original)

List of witnesses examined on the side of the Respondent: Nil List of documents marked on the side of the Respondent: Nil 03.11.2026 ay

DR.A.D.MARIA CLETE, J AY PRE-DELIVERY ORDER MADE IN O.P. No. 659 of 2025 03-11-2026