A court cannot appoint a guardian of a minor’s person while a fit father is living.

The petitioner, the children’s biological father, sought permanent custody of his two minor sons and appointment as their guardian after his wife died in a road accident on 20 March 2025.

The children were living with him and attending school; the respondents were their maternal grandparents. The respondents were served but did not appear.

The petitioner gave evidence and marked Exs. P1–P23, which included the children’s birth records, their mother’s death certificate and school certificates.

The petition also sought appointment as guardian of the children’s persons and property; the petitioner separately sought an interim injunction against interference with his custody.

1. Whether the petitioner should have permanent custody of the minor children, having regard to their welfare.

2. Whether the petitioner could be appointed guardian of the children’s persons and property, including in light of Section 19 of the Guardians and Wards Act, 1890.

The petition was brought under Sections 3, 7–10 and 25 of the Guardians and Wards Act, 1890.

The Court applied the principle that the welfare of the minor is the paramount consideration in determining custody.

It also relied on Section 19 of the Act, under which the Court cannot appoint or declare a guardian of a minor’s person where the father or mother is living and is not, in the Court’s opinion, unfit.

As to the children’s property, the Court directed that it be administered in accordance with law and that permission of the competent Court be obtained where required for alienation.

The Court accepted the petitioner’s uncontroverted evidence that the children were already in his custody, were being educated by him, and that there was no evidence of his unfitness or inability to care for them.

It therefore found their welfare lay in continuing with him.

However, because the father was living and not found unfit, Section 19 precluded his appointment as guardian of their persons; the Court also observed that the law already recognises the father’s guardianship.

It permitted his appointment as guardian of their property, subject to legal requirements for its administration and alienation.

Although the Court found that the children’s welfare lay in remaining with their father, the operative order does not expressly state that permanent custody was granted.

The connected application was closed.