Madras High Court
Maharasi vs S.Velaiutham @ Suresh on 24 October, 2024
Cros. Obj (MD) No.19 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD)No.1066 of 2018
Maharasi ...
Appellant
vs.
S.Velaiutham @ Suresh ...
Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 47 of the
Guardians and Wards Act, against the award dated 03.02.2018 in
G.W.O.P.No.314 of 2012 on the file of the District Court, Kanyakumari.
For appellant : Mr.M.Sankar
For Respondent : Mr.M.P.Senthil
*****
JUDGMENT
The grandmother of the minor children aggrieved by the order of
the Trial Court appointing the respondent as a guardian with a direction to
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hand over the custody of the minor child to the respondent, has preferred
the instant appeal.
2. The facts leading to the filing of the appeal are as follows:
a. The respondent and the daughter of the appellant got married on
29.01.2007. A minor son by the name V. Sivathanu Pillai @ Vighnesh @
Vicky was born on 09.04.2008. The wife of the respondent, who is the
daughter of the appellant, committed suicide on 26.02.2012. The minor
child has been in custody of the appellant since then. The respondent filed
G.W.O.P.No.314 of 2012 before the District Court, Kanyakumari District,
under Section 7 1(a) of the Guardian and Wards Act III of 1980, to
appoint him as a guardian and for resumption of the custody of the minor
child.
b. The appellant filed a counter stating that the respondent was not
competent to be appointed as a guardian; that it would not be in the
interest of the minor child to hand over his custody to the respondent; and
that the daughter of the appellant committed suicide because of the cruelty
committed by the respondent.
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c. Before the Trial Court, the respondent examined himself as P.W.
1 and marked Exs.P1 to P4. The appellant examined herself as R.W.1 and
marked Exs.R1 to R3.
d. The Trial Court, after considering the evidence on record, held
that the respondent would be a fit person to be appointed as a guardian
and consequently, directed the appellant to hand over the custody of the
minor child to the respondent.
3. The learned counsel for the appellant would submit that
admittedly, the minor child is in custody of the appellant from 26.02.2012,
i.e., the date on which the appellant's daughter committed suicide. The
child was 4 years old when the custody was handed over to the appellant
and the appellant had also lodged a complaint against the respondent
regarding the suspicious death of her daughter; that though the respondent
had filed the petition seeking guardianship and the custody, he is not
interested in the welfare of the minor child and had not provided any
assistance for education or for other expenses; and that in any case, since
the minor child is now 16 years and 6 months old, it would not be in the
interest of the minor child to change the custody and hence, prayed for
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allowing the appeal.
4. The learned counsel for the respondent, per contra, submitted that
the respondent had filed G.W.O.P.No.314 of 2012 after the death of his
wife, since he wanted to take care of the minor child; that he is always
interested in the welfare of the minor child; and that the Court below had
rightly allowed his petition and hence, prayed for dismissal of the appeal.
5. The only point for consideration in the appeal is 'whether the
respondent can be appointed as a guardian of the minor child?'
6. Admittedly, the respondent is the father of the child; the child
was born on 09.04.2008; the wife of the respondent, who is also the
daughter of the appellant, died on 26.02.2012; and the minor child is in
the custody of the respondent ever since she died on 26.02.2012; when the
minor child was handed over to the appellant, the minor child was, hardly,
four years old.
7. No doubt, the respondent had filed the petition for appointing
him as a guardian and for resumption of the custody in the year 2012
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itself. The child is now 16 years and 6 months old and has been taken care
of by the appellant well so far. It is well settled that the interest and
welfare of the minor child should be the paramount consideration while
adjudicating the disputes with regard to the guardianship and custody. The
child is still in the custody of the appellant and would attain majority
within two years from now. He has been brought up all along by the
appellant and it would not be in the best interest of the minor child if his
custody is handed over to the respondent at this stage. In fact, this Court
had asked the learned counsel for the respondent to get instructions from
his client as to how he could support the minor child monetarily and if
possible, make a deposit in the name of the minor to prove his bonafide.
8. The learned counsel for the respondent submitted, on
instructions, that the respondent has no capacity to support the minor child
monitarily.
9. Therefore, in view of the changed circumstances and considering
the above facts, this Court is of the view that the custody of the minor
child cannot be handed over to the respondent at this stage. For the above
reasons, this Court finds that the order of the Trial Court is liable to be set
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aside and hence, the order of the Trial Court is set aside.
10. However, the respondent would be entitled to visitation rights.
Hence, the respondent shall be permitted to visit the minor child once in a
fortnight, i.e., on the first and third Sunday of every month between 10.00
a.m and 1.00 p.m at the residence of the appellant.
11. In the result, this Civil Miscellaneous Appeal is allowed, with
above directions. No costs.
24.10.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
apd
To
1.The District Judge, Kanyakumari.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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SUNDER MOHAN,J
apd
24.10.2024
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