Madras High Court
A.Jegathambal vs B.Kothalam @ Saravanan on 20 January, 2021
C.M.A(MD)No.1048 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE : 20.01.2021
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
and
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A.(MD).No.1048 of 2014
A.Jegathambal : Appellant /Petitioner
Vs.
B.Kothalam @ Saravanan : Respondent/Petitioner
Prayer: This Civil Miscellaneous Appeal is filed under Section 47 of
Guardian and Wards Act, 1890 and Section 19(1) of Family Courts Act,
1984) against the Fair and Executable Order, dated 07.08.2014 passed in
G.W.O.P.No.10 of 2013 on the file of the Family Court, Madurai.
For Appellant : Mr.J.Barathan
For Respondent : Mr.Arivukumar
for Mr.C.Ramesh
1/8
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C.M.A(MD)No.1048 of 2014
JUDGMENT
(Judgment of the Court was delivered by S.KANNAMMAL, J.)
This appeal has been filed by the appellant against the
judgment and decree made in G.W.O.P No.10/2013, dated 04.08.2014 on
the file of the Family Court, Madurai.
2.For the sake of convenience, the parties are referred to as the
petitioner and respondent.
3. Facts leading to the appeal are as follows:
The petitioner is the mother in law of the respondent. The
petitioner’s daughter Nithya was given in marriage to the respondent on
04.09.2008. The respondent is none other than the own sister’s son of the
petitioner’s husband Arumugam. After marriage both Nithya and the
respondent settled at Tirupur. Out of wedlock, a male child by name
Sanjeev was born on 17.08.2009. It is an admitted fact that the said
Nithya died on 23.09.2011. The minor child was kept under the custody
of petitioner as per the suggestions of the elders of the family. It is also an
admitted fact that the petitioner and her husband admitted the minor child
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C.M.A(MD)No.1048 of 2014
in TVS school. After the death of said Nithya, the respondent married
another lady on 19.01.2013 and no issue born to them. The petitioner
wanted her to be appointed as guardian of the minor grand child Sanjeev
and hence filed G.W.O.P No.10/2013.
4.The respondent herein, who is a natural guardian had filed a
counter by denying all the allegations made by the petitioner and had
sought for dismissal of the petition. After considering all the material
facts the Family Court, Madurai passed an order by dismissing the
petition in G.W.O.P No.10/2013.
5. Section 13 of Hindu Minority and Guardianship Act, 1956,
says welfare of minor to be paramount consideration. The said provision
is extracted herunder:
“(1) In the appointment or declaration of any
person as guardian of a Hindu Minor by a court, the
welfare of the Minor shall be the paramount
consideration.
(2) No person shall be entitled to the
guardianship by virtue of the provisions of this Act or of
any law relating to Guardianship in marriage among
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C.M.A(MD)No.1048 of 2014
Hindus, if the court is of opinion that his or her
guardianship will not be for the welfare of the minor.”
6.Section 17 of the Guardian and Wards Act, 1890, deals with
Matters to be considered by the Court in appointing guardian. Section
17(1) of the said Act, is extracted hereunder:
“(1) In appointing or declaring the guardian
of the minor, the Court shall, subject to the provisions of
this section, be guided by what, consistently with the
law to which the minor is subject, appears in the
circumstances to be for the welfare of the minor. ''
7.The Family Court, Madurai in its order in
G.W.O.P.No.10/2013 has observed that the child was brought before the
court for more than four occasions during enquiry and the minor child is
very much affectionate towards his father, the respondent herein. The
family court also observed that the minor son should at least have his
father’s love and affection as he has lost his mother’s love and the said
observation is very true and sustainable. Further, the minor child is all
along with the custody of the father. The reasoning given by the Family
Court, Madurai for the dismissal of G.W.O.P.No.10/2013 is also
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C.M.A(MD)No.1048 of 2014
sustainable, hence no interference is called for.
8. Hence, this Civil Miscellaneous Appeal is dismissed
confirming the judgment and decree dated 07.08.2014 passed in
G.W.O.P.No.10 of 2013 on the file of the Family Court, Madurai.
No Costs.
9. Insofar as the visiting rights, the learned counsel for the
appellant would submit that at least the right of visiting the minor
grandson shall be ordered for the petitioner. The learned counsel for the
respondent has no objection for visiting the minor child Sanjeev by the
petitioner and her family members. The petitioner being the maternal
grandmother and who along with her husband took much care in the
welfare of the minor grandson should be given the right of visiting their
grandson.
10. In the above circumstances and considering the
submissions made by both the learned counsels, this Court is of the
considered view to order for visitation right to the petitioner in the
following manner:
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C.M.A(MD)No.1048 of 2014
1.Whenever the petitioner wants to visit the
minor child prior intimation shall be given to the
respondent.
2.The respondent shall make arrangements for
the visitation by the petitioner.
3.Venue and time of visit shall be decided by
the petitioner and the respondent.
4.If the minor child wishes to be with his
grandmother (the petitioner) for a weekend or a
vacation, both parties shall discuss and make
arrangements for the same.
(P.S.N.J.,) (S.K.J.,)
20.01.2021
Index :yes/No
Internet :yes
vsd
To
1.The Judge,
Family Court,
Madurai.
2.The Section Officer,
VR Section,Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.1048 of 2014
PUSHPA SATHYANARAYANA, J.
AND
S.KANNAMMAL, J.
vsd
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C.M.A(MD)No.1048 of 2014
Judgment made in
C.MA(MD)No.1048 of 2014
20.01.2021
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