Madras High Court
V.Susai David vs S.Joseph Victor on 11 September, 2024
C.M.A.(MD) No.463 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.09.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) No.463 of 2016
1.V.Susai David
S/o.Visuvasam Pillai
2.S.Arockia Kishore
S/o.Susai David ... Appellants
Vs.
S.Joseph Victor
S/o.S.A.Soosai Prakasam ... Respondent
Prayer:- Civil Miscellaneous Appeal filed under Section 47 of the
Guardian and Wards Act, 1890 r/w. Order 43 Rule 1(a) of CPC to set
aside the fair and decreetal order dated 18.02.2016 passed in
G.W.O.P.No.35 of 2012 on the file of the II Additional District Court,
Tiruchirapalli.
For Appellants : Mr.H.Arumugam
For Respondent : No appearance
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Page No. 1 of 6
C.M.A.(MD) No.463 of 2016
JUDGMENT
The instant appeal challenges the order of the II Additional District
Court, Tiruchirapalli, dismissing G.W.O.P.No.35 of 2012, which was filed
by the appellants seeking guardianship or, in the alternative, visitation
rights for the minor child.
2. The facts leading to the filing of this appeal are as follows:
(a) The first appellant is the maternal grandfather, and the
second appellant is the maternal uncle of the minor child.
The respondent is the father of the minor child. The mother
of the minor child died on 10.09.2009.
(b) The appellant had suspicion over the death of the mother
of the child and also initiated a criminal proceeding against
the respondent.
(c) The appellants filed a petition before the trial court stating
that the respondent is incompetent to be the guardian as
there is a criminal case against him; that the respondent is
likely to marry for the second time; and that if the custody
of the minor child is retained by the respondent, it would
not be in the interest of the minor child.
(d) The respondent filed a counter before the trial court stating
that the criminal case filed against him is false; that the
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appellants, who are the lawyers, had forcefully taken the
minor child from his custody; and that thereafter, with the
intervention of the police, he got back the custody of the
minor child.
(e) The trial court, after considering the evidence on record,
held that the appellants are not entitled to the prayer
sought for in the petition. However, the trial court held
that the appellants would be entitled to the alternative
prayer for visitation rights and directed the respondent to
hand over the custody of the minor child to the appellants
once a week, on Sundays, at a common place, namely a
church.
3. The learned counsel for the appellants submitted that the minor
child was born on 26.12.2006 and would attain majority on 26.12.2024
and that the issue in the instant appeal has almost become infructuous.
However, the learned counsel submitted that the respondent has violated
the order of the trial court in respect of the second prayer, namely,
visitation rights granted in favour of the appellant. The learned counsel
submitted that the trial court had also made some unwarranted
observations as regards the motive of the appellants in filing the petition
for guardianship.
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4. Though notice has been served on the respondent, none has
entered appearance.
5. The only point for consideration in this appeal is whether the
appellants are entitled to be appointed as the guardians of the minor child.
6. Admittedly, the minor child would attain majority in three
months. This Court is of the view that, since the custody of the minor
child has been with the respondent since he was 6 years old, it cannot be
altered at this stage, especially when he is close to attaining majority. No
useful purpose will be served in adjudicating this appeal filed by the
appellants on merits. However, this Court finds merit in the submission of
the learned counsel for the appellants that the observation of the trial court
attributing motive to the appellants is unwarranted.
7. The conduct of the respondent is also not above board. Though
notice has been served, he had chosen not to enter appearance. In fact, it
is submitted by learned counsel for the appellants that though this Court
had earlier directed the police to produce the minor child, the child has not
been produced before this Court till date. In the interest of the minor
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child, this Court refrains from issuing any further directions in this regard.
The respondent had also violated the order of the trial court in respect of
visitation rights. The respondent is therefore directed to comply with the
directions of the trial court as regards visitation rights.
8. With the above observations, this Civil Miscellaneous Appeal is
dismissed. No costs.
11.09.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
1.The II Additional District Judge,
Tiruchirapalli,
Tiruchirapalli District.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras high Court, Madurai.
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SUNDER MOHAN, J.
JEN
11.09.2024
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