Madras High Court
A. Shaamsudeen Raja vs Raneesha P.V on 13 June, 2022
O.S.A.No.152 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.06.2022
CORAM :
THE HON'BLE MR. JUSTICE M.DURAISWAMY
AND
THE HON'BLE JUSTICE MR. SUNDER MOHAN, J
O.S.A.No.152 of 2022
and C.M.P. Nos.9290 and 9291 of 2022
A. Shaamsudeen Raja .. Appellant
v.
Raneesha P.V. .... Respondent
Original Side Appeal filed under Clause 15 of Letters Patent and Order
36 Rule 11 of Original Side Rules to set aside the Judgment and decree
dated 26.04.2022 passed in O.P. No.423 of 2020.
For Appellant : Mr. V.Lakshmi Narayanan
For Respondents : Mr. S. Rajaguru – Caveator
JUDGMENT
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O.S.A.No.152 of 2022
(Order of the Court made by M.DURAISWAMY,J.)
Challenging the order passed by the learned Single Judge in O.P.
No.423 of 2020, the husband has filed the above Original Side Appeal.
2. The appellant-husband filed the Original Petition under
sections 3, 7 to 10 and section 25 of the Guardian and Wards Act read
with Order XXI Rule 2 and 3 of the Original side Rules praying for grant
of permanent custody of the minor male child Armaan Marzuq born on
10.11.2017 and to appoint him as the guardian to the minor male child.
3. The learned Single Judge, by order dated 26.04.2022, dismissed
the Original Petition finding that the Criminal Miscellaneous Petition filed
by the respondent-wife before the First Class Magistrate III, Palacad,
Kerala was dismissed for the reason that the petition was not properly
contested by the respondent-husband.
4. Mr. V.Lakshmi Narayanan, learned counsel appearing for the
appellant submitted that the minor boy aged 4½ years and the
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O.S.A.No.152 of 2022
appellant-father is having the custody of the minor child right through.
Further the learned counsel submitted that the learned Single Judge
dismissed the petitioner without recording the oral and documentary
evidences of the parties and solely based on the pleadings. The learned
counsel further submitted that the dismissal of the petition by the learned
Single Judge without affording an opportunity to the parties to let in oral
and documentary evidences is against the provisions of the law, hence, on
that ground alone the order passed by the learned Single Judge is liable to
be set aside.
5. Mr. S. Rajaguru, learned counsel for the respondent-caveator
also submitted that no opportunity was given to the parties to let in oral
and documentary evidences by the learned Single Judge.
6. It is settled law that while deciding the Original Petition to
appoint the guardian the courts should allow the party to let in oral and
documentary evidences. In such view of the matter, on that ground
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O.S.A.No.152 of 2022
alone, the order passed by the learned Single Judge in O.P.No.423 of
2020 is liable to be set aside. The learned counsel on either side
submitted that a time limit may be fixed for the disposal of the Original
Petition and that both the parties would co-operate for the early disposal
of the petition.
7. Accordingly, the order passed in O.P.No.423 of 2020, dated
26.04.2022 is set aside and the matter is remitted back to the learned
Single Judge to decide the matter afresh after affording the parties to
let in oral and documentary evidences. We request the learned Single
Judge to dispose of the Original Petition as expeditiously as possible,
preferably, within a period of four months from the date of receipt
of a copy of this Judgment. It is made clear that the custody of the child
shall remain with the appellant-husband till the disposal of the Original
Petition It is also brought to the notice of this court that an
arrangement was made in the Original Petition permitting the respondent-
wife to talk to the minor boy through video conferencing during the
pendency of the Original Petition. We also make it clear that the said
arrangement shall continue till the disposal of the Original Petition. The
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O.S.A.No.152 of 2022
parties are at liberty to file appropriate application seeking for appropriate
relief before the learned Single Judge.
With the above observations, the Original Side Appeal is
Allowed. No costs. Consequently, the connected Miscellaneous
Petitions are closed.
[M.D., J.] [S.M., J.]
13.06.2022
Index : Yes/No
Speaking Order/Non Speaking Order
Rj
M. DURAISWAMY, J.
and
SUNDER MOHAN, J
Rj
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O.S.A.No.152 of 2022
O.S.A.No.152 of 2022
and C.M.P. Nos.9290 and 9291 of 2022
13.06.2022
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