Madras High Court
Manohari vs Veeraiyan on 1 February, 2024
C.M.A(MD)No.1156 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 01.02.2024
CORAM:
THE HON'BLE MR.JUSTICE P. DHANABAL
C.M.A(MD)No.1156 of 2014
Manohari ... Petitioner / Appellant
Vs.
1.Veeraiyan
2.Indirani ... Respondents / Respondents
Prayer : This Civil Miscellaneous Appeal filed under Section 47 of the
Guardian and Wards Act, 1890, to set aside the order, dated 30.06.2014
passed by the Principal Sub Court, Kumbakonam in G.O.P.No.105 of 2013
and to appoint the appellant as Guardian of the minor child Sagar, aged 6
and his properties and to direct the respondents to handover the custody of
the minor child to the appellant.
For Appellant : Mr.P.Sesubalan Raja
For Respondents : Mr.G.Gomathi Sankar
1/11
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C.M.A(MD)No.1156 of 2014
JUDGMENT
The present Civil Miscellaneous Appeal has been filed as against
the order passed in G.O.P.No.105 of 2013, dated 30.06.2014 on the file of
the Principal Sub Court, Kumbakonam, wherein, the appellant herein has
filed a petition to appoint her as a guardian for the minor Sagar aged about
5 years. The Trial Court has dismissed the petition. As against the order
passed by the Trial Court, the present Civil Miscellaneous Appeal has
been filed by the petitioner.
2. For the sake of convenience and brevity, the parties herein after
will be referred to as per their status/ranking in the Tribunal.
3. The brief facts of the petition averments are as follows:
The petitioner is the second wife of one Thangavel, who is the
father of the minor child. Originally, the said Thangavel got married with
Punitha, who is the daughter of the respondents herein and the said
Thangavel and Punitha have a child, namely, Sagar. While so, on
29.01.2010, the said Punitha, who is the mother of the minor Sagar died.
Thereafter, in order to take care of the minor son, the petitioner married
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the father of the minor, namely, Thangavel. The husband of the petitioner
was working in Central Reserve Police Force (CRPF),
Thiruvanandapuram. The petitioner along with her husband and minor son
were living together. While so, on 15.11.2012, the said Thangavel died
due to heart attack and the petitioner and the minor Sagar alone are the
legal heirs to the deceased Thangavel. After the demise of the said
Thangavel, the respondents forcibly took the minor child from the custody
of the petitioner. Hence, the petition is filed to appoint the petitioner as
guardian for the minor Sagar to his person and property.
4. The brief averments of the counter filed by the respondents
are as follows:
The marriage between the petitioner and the deceased Thangavel is
not admitted. The minor Sagar was born to Thangavel and the daughter of
the respondents, namely, Punitha. This petitioner already got married with
one Sahadevan and thereafter, she was abandoned by her husband.
Without any divorce from the competent Court, there cannot be a second
marriage while his spouse is alive. Therefore, there was no marriage
solemnized between the petitioner and the deceased Thangavel. The
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averments made in the petition that the respondents forcibly taken the
minor from the custody of the petitioner is denied as false. The averments
made in the petition that these respondents are not a fit person to have the
custody of the minor are all false. The minor is under the custody of the
respondents. The deceased Thangavel, who is the son-in-law of the
respondents died leaving behind the minor as his legal heir and till date,
the minor is under the custody of the respondents, who are the maternal
grand-parents of the minor son. Therefore, this petition is liable to be
dismissed.
5. In order to prove the case of the petitioner, the petitioner has
examined P.W.1 to P.W.3 and marked Exhibits P.1 to P.9 and on the side of
the respondents, R.W.1 and R.W.2 were examined and marked Exhibits
R.1 to R.10 and Exhibits X.1 to X.5 were also marked.
6. After hearing both sides and perusing the records, the Trial Court
had dismissed the petition. As against the dismissal order, the present Civil
Miscellaneous Appeal has been filed by the petitioner.
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7. The learned Counsel appearing for the appellant would contend
that the appellant / petitioner is the second wife of the deceased Thangavel
and the minor son was born to the said Thangavel through his first wife.
After the demise of his wife, in order to take care of the minor child, the
deceased Thangavel married this appellant / petitioner and after the demise
of mother of the minor child, the appellant / petitioner has been taken care
of the minor child and the minor child was under the custody of the
appellant / petitioner. Thereafter, the father of the minor child died on
15.11.2012. After the demise of the said Thangavel, the respondents /
respondents, who are the maternal grand-parents of the minor child
forcibly taken the minor child and not even allow the appellant / petitioner
to see the minor child. Thereby, the appellant / petitioner filed the petition
before the Trial Court. Before the Trial Court, on the side of the petitioner,
the petitioner had examined P.W.1 to P.W.3 and marked Exhibits P.1 to P.9.
But the Trial Court without considering the evidence adduced on the
appellant / petitioner's side, erroneously dismissed the petition. Hence, the
order passed by the Trial Court is liable to be set aside.
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8. The learned Counsel appearing for the respondents / respondents
would contend that there was no marriage solemnized between the
appellant / petitioner and the said Thangavel. In fact, the said Thangavel
married the daughter of the respondents / respondents, namely, Punitha
and due to the wedlock, the minor son born to them. In the meanwhile, the
mother of the minor child died in the year 29.01.2010. Thereafter, the
minor child was with the custody of his father Thangavel. The said
Thangavel did not marry the appellant / petitioner as alleged by her.
Unfortunately, the father of the minor child also died on 15.11.2012.
Thereafter, the minor child is under the care and custody of the
respondents. The respondents are the competent persons to have the
custody of the minor child and they are the guardians for the minor child.
In order to prove the case of the respondents, they have examined R.W.1
and R.W.2 and marked Exhibits R.1 to R.10 and also marked Exhibits X.1
to X.5. After analyzing the evidences adduced on both the sides, the Trial
Court has correctly dismissed the petition filed by the appellant /
petitioner. Since the minor child is under the custody of the respondents
they being maternal grand-parents are able to take care of the minor child
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and they are not acting as against the interest of the minor. Thereby, the
Trial Court has dismissed the application and allowed the minor is to be in
the custody of the respondents. Therefore, the present Civil Miscellaneous
Appeal is liable to be dismissed.
9. This Court after hearing both sides and upon perusing the
documents including the order of the Tribunal, the point for determination
in this appeal is:
i) Whether the appeal is liable to be allowed or not?
10. In this case, according to the appellant / petitioner, she is the
second wife of the father of the minor child and the father of the minor
child married the appellant / petitioner to take care of the minor child and
the minor child was under the custody of the appellant / petitioner. After
the demise of the husband of the appellant / petitioner (i.e.,) after
15.11.2012, the respondents, namely maternal grand-parents forcibly taken
the minor child from the custody of the appellant / petitioner.
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11. The contention of the respondents is that the appellant /
petitioner is not the second wife of the deceased Thangavel and she was
wife of one Sahadevan. The respondents are the maternal grand-parents of
the minor child. After the demise of the Thangavel, the minor child has
been under the custody of the maternal grand-parents and they are now
taking care of the minor child and they will not act as against the interest
of the minor. Therefore, they are the proper persons to take care of the
minor child. The Trial Court after taking into consideration of all the
evidences adduced by both the parties, correctly dismissed the application.
Therefore, the present Civil Miscellaneous Appeal is liable to be
dismissed.
12. This Court has perused the entire materials in this case and
observed that the appellant / petitioner is neither the parent nor the close
relative of the minor child and it is also admitted that the respondents are
the maternal grand-parents of the minor child. There is no any evidence to
show that the minor child was under the custody of the appellant /
petitioner.
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13. Per contra, the respondents' side evidence shows that the minor
is under the custody of the respondents, who are all the maternal grand-
parents of the minor child. The minor child also very comfortable with the
respondents and the respondents are only taking care of the minor child
and now the minor child is aged about 16 years. From the childhood (i.e.,)
four years still he is under the custody of the respondents and thereby, it is
appropriate to continue the custody of the minor with the respondents.
14. It is well settled law that as far as the custody of minor child is
concerned, the welfare of the minor is the paramount consideration and
since the minor is under the care and custody of the respondents for more
than 16 years, it is appropriate not to disturb the custody of the minor
child. At the same time, the appellant / petitioner is at liberty to visit the
minor child subject to the willingness of the minor child.
15. In view of the above said discussions and considering the facts
and circumstances of this case, this Court is of the opinion that this Civil
Miscellaneous Appeal has no merits and deserves to be dismissed.
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Accordingly, this Civil Miscellaneous Appeal stands dismissed. There
shall be no order as to costs.
01.02.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
BTR
To
1.The Principal Sub Court,
Kumbakonam.
2.The Section Officer,
Vernacular Record Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
P. DHANABAL, J.
BTR
01.02.2024
https://www.mhc.tn.gov.in/judis
