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2001 DIGILAW 411 (MAD)

Rajarathinam v. David Raj

2001-03-30

V.BAKTHAVATSALU

body2001
Judgment : The respondent in GWOP.No.136 of 1993 is the appellant herein. The respondent herein filed GWOP under Sec.10 of Guardian and Wards Act. 2. The case of the petitioner is as follows: The petitioner married one Diana Isabel, daughter of the respondent on 15.9.1988. After the marriage, there were several police cases between them. But some how, they prolonged their day as husband and wife and during that wedlock, the petitioners wife delivered a male child on 18.9.1990. But the petitioner and his wife lived separately for several months. Subsequently I.D.O.P. No.117 of 1991 was filed before the District Court, Nagercoil by the petitioners wife for judicial separation and finally on 21.7.1992, judicial separation was ordered. The petitioners son was in the custody of the petitioners wife from the date of judicial separation. The petitioners wife suddenly became ill while she was in custody of respondent and she expired on 11.9.1993, leaving behind the custody of the child with the respondent. The petitioner sent many of his relatives for securing the custody of his son from the respondent. But the respondent turned down the request of the petitioner. Thereupon, the petitioner issued notice on 5.10.1993 for which, replay was sent. The petitioner is the legal guardian of the minor child. If the minor child is allowed to continue living under the custody of the respondent, the petitioners right will be affected and the petitioners sons education and brought up will not be upto the expected lines and the respondent may not have interest over the minor after the death of his daughter. Therefore, the O.P. is filed for declaring that the petitioner is the guardian of the minor and for directing the respondent to hand over the custody of the minor to the petitioner. 3. The case of the respondent is as follows: The mother of the minor child is the daughter of the respondent and she was harassed and tortured for more dowry from the very beginning. She was unable to suffer the prolonged harassment and therefore, she filed O.P., for judicial separation. The petitioner was always threatening her and the respondent and even assaulted both of them. The minor child has been under the affectionate care and custody of the respondent and his wife ever since his mothers death. The mother of the minor child was living with the respondent since 24.3.1990. The petitioner was always threatening her and the respondent and even assaulted both of them. The minor child has been under the affectionate care and custody of the respondent and his wife ever since his mothers death. The mother of the minor child was living with the respondent since 24.3.1990. However, the petitioner deserted the minor childs mother, while the child was in her womb. The mother had to undergo major and complicated operation during her confinement. After wards also, the petitioners harassment for more dowry and money continued. Due to the harassment and cruelty which the petitioner imposed, the mother of the minor child became ill within four months of her marriage and had been under medical treatment from 7.1.1989. But the minor is not facing any crisis after the death of his mother. He is embraced with much affection and compassion by his maternal grand father i.e., the respondent and his wife. The apprehension of the petitioner that the minor childs life may be in danger in the hands of respondent is false. The minor child is hale and healthy. He is studying in Kindergarten school. The minor child has been made the nominee of the fixed deposit of the respondent and his wife amounting to more than Rs.one lakh. The petitioner who is a spend thrift cannot even afford for his own lavish expenses. The only other member in the family of the petitioner is his illiterate mother, who is also aged. The petitioner is not competent enough to perform the duties of legal guardian. Therefore, the Court may be pleased to appoint the respondent as guardian. 4. Before the Court, the petitioner has been examined as P.W.1 and respondent has been examined as R.W.1. On consideration of oral and documentary evidence, the learned District Judge has allowed the application appointing the petitioner as guardian and directing the respondent to handover the custody of the child within three months from the date of receipt of order. Aggrieved by the said order, the respondent has filed this appeal. On consideration of oral and documentary evidence, the learned District Judge has allowed the application appointing the petitioner as guardian and directing the respondent to handover the custody of the child within three months from the date of receipt of order. Aggrieved by the said order, the respondent has filed this appeal. It is contended by the appellant in the appeal that the trial Court has not properly appreciated the averment contained in the counter and the judgment of the District Court passed in this O.P., is liable to be set aside and that the petitioner/ father has not even seen the face of this child all these years and as such, the Court ought to have held that the petitioner is unfit to act as guardian of the minor. On the other hand the respondent contended that the petitioner is the natural guardian contended and as such, is entitled to have the custody of his son. 5. During thependency of this appeal, this Court directed the appellant to bring the child before this Court and accordingly the child was produced before me on 27.3.2001. When the child was enquired by me in Court, he has stated that he is not willing to go with his father i.e., the respondent herein and that he is willing to live with his grand father. Having regard to the above fact, it has to be seen whether the handing over the custody of the child with the petitioner at this stage would be in the interest and welfare of the minor. 6. The minor child as born on 18.9.1990. The wife of the respondent filed IDOP for judicial separation in the year 1991. It is alleged in the above O.P., that the respondent harassed his wife to bring more dowry and he beat her. The respondent husband contended in the above proceeding that his wife is a hysteria patient. On consideration of all those facts, the Court has held that the petitioner i.e., the wife has stated that she apprehends danger to her life and child, if she lives with her husband. On the basis of the above evidence, the Court has held that it is impossible for the couple to live together and therefore it is just and necessary to grant decree for judicial separation. The above order was passed on 21.7.1992. On the basis of the above evidence, the Court has held that it is impossible for the couple to live together and therefore it is just and necessary to grant decree for judicial separation. The above order was passed on 21.7.1992. It is also admitted that the wife of the respondent i.e., the mother of the minor child died on 11.9.1993. It is seen that the petitioner is a M.A. graduate and that he is employed as a teacher. Hence, it is contended that he has got capacity to maintain his child and that therefore, the petitioner has got capacity to educate his son and that in the interest of child, the child should be in the custody of the father- petitioner who is respondent herein. 7. It is no doubt true that the respondent being the father of the minor child is the natural and legal guardian. The fact that the respondent is the natural and legal guardian of the minor child cannot be disputed by the appellant. The question whether the petitioner is incompetent and unfit to act as guardian has not been decided by the trial Court. As already stated, the petitioner being the father of the minor child is the legal and natural guardian of the minor child. But the question is, whether it would be just and proper to direct the respondent to handover the custody of the child to his father. On this aspect, the learned counsel for both parties have cited number of decisions. It is well settled that the matter relating to custody of the minor child or handing over the custody is a sensitive matter and certain sentimental values are attached towards the claim for custody of the minor child. It is also well-settled that it is the welfare of the child and not legal right to have the custody of the child that has to be considered in the petition filed for custody of the child. In Indira Kumari v. B.Ramakrishnan Indira Kumari v. B.Ramakrishnan Indira Kumari v. B.Ramakrishnan (1995)1 L.W. 671 the Division Bench of this Court has held that welfare of the child is important consideration. As regards the change of custody of the child, the Division Bench of this Court has observed thus: “The boy expressed his desire that he wanted both his mother and father to be with him. As regards the change of custody of the child, the Division Bench of this Court has observed thus: “The boy expressed his desire that he wanted both his mother and father to be with him. But at the same time, he was definite that in the present circumstances, he cannot go with his father, leaving alone his mother. In those circumstances, he prefers to be only with his mother. He has also expressed his desire that he prefers to be with his mother for the purpose of his education. According to him, the mother gives him very good coaching. He also said that he is within the first 10 ranks in the school and that he has secured more than 90% marks in Mathematics. We found him to be intelligent and in a position to give answers on not on the basis of any coaching from any side. Even in our presence, he was very happy in the company of both his father and mother. We feel that any change in the custody will affect the welfare of the child.” 8. The learned counsel for the appellants also relies on decision reported in Githa Hariharan v. Reserve Bank of India (1999)2 L.W. 723 wherein it is held that the welfare of the minor is the paramount consideration and that even during the life time of father, if necessary, he can be replaced by mother or any other suitable person by an order of Court. 9. The learned counsel for the respondent relies upon the decision reported in Jayalakshmiammal v. L.Venkataramaiah and another Jayalakshmiammal v. L.Venkataramaiah and another Jayalakshmiammal v. L.Venkataramaiah and another (1997)2 MLJ. 494 : (1997)2 C.T.C. 37 it is held in the above decision, “father who did not suffer disqualification is entitled to custody and that continued stay of minor child with grand mother will lead to aversion to father”. The learned counsel for the respondent also relies upon another decision of this Court reported in Krishna Raj v. Rajasekar and another Krishna Raj v. Rajasekar and another Krishna Raj v. Rajasekar and another (1997)1 MLJ. 645 : (1997)2 C.T.C. 92 . In this above decision, it is held thus: Maternal uncle or maternal grandmother cannot claim custody of minor child unless it is proved that father or natural guardian is not a fit person to be guardian of person and property of minor child. 645 : (1997)2 C.T.C. 92 . In this above decision, it is held thus: Maternal uncle or maternal grandmother cannot claim custody of minor child unless it is proved that father or natural guardian is not a fit person to be guardian of person and property of minor child. A custody which is not supported by legal sanction cannot be protected during legal proceedings. 10. In the decision reported in Santabai Sonu Barathe v. Goutam Vishnu Shellar 1995 C.C.R. 436 the Bombay High Court has held that it is the welfare of the child which is paramount and that in matters relating to custody of child, it is not the legal right of the claimant, which is decisive, but it is the welfare of the child, which is the paramount test. If the principles of law laid down in the above decisions are considered along with the facts of this case, I am of the considered view that handing over the custody of the child at this stage to the custody of father will not be in the interest and welfare of the child. 11. As already stated, the child when enquired by me, has stated that he is not willing to go with his father. The respondent/ grandfather have also adduced materials to show that he has deposited amount in the name of minor child. The appellant also filed C.M.P. No.1884 of 1996 to receive the additional documents for reference. In the above petition, mark lists of the boy are enclosed. The above mark list shows that the child has secured 100 marks in English first paper and 97 marks in English Second Paper. The appellant has also filed letter issued by Indian Overseas Bank, which would show that the appellant has deposited Rs.1,90,000. It is also admitted that the minor is living with the appellant from the date of birth. Now the minor child is aged about 11 years. The learned counsel for the appellant also has drawn my attention to the evidence of P.W.1 the father in cross-examination P.W.1 has stated that he was not allowed to see his son and that he did not see his child after the Court passed an order for judicial separation. He has also admitted that he does not know the name of his son. He has also admitted that he does not know the name of his son. As the minor child is living with appellant for the past 11 years, the change of custody of child at this stage would only affect the physical and mental condition of the minor child. 12. It is also admitted that after the death of the mother of the child, the respondent has contracted second marriage and that through his second wife, he has got two children. In the above change of circumstances, the change of custody of the child at this stage will not be in the interest and welfare of the child. 13. For the above reasons, I hold that the order of the trial Court directing the appellant to hand over the custody of the child is liable to be set aside. It is however open to the respondent to seek for custody of the child if certain change of circumstances are established by him. As the respondent is the legal guardian of the minor child, he is entitled to meet and visit the child at least once in a month. With the above modifications the appeal has to be disposed of. 14. In the result, the C.M.A. is allowed in part. The order of the District Judge, directing the appellant to hand over the custody of the child is set aside. The respondent/ father is permitted to meet and see the minor child once in a month after giving due intimation to the appellant. It is open to the respondent to seek for custody of the child in the event of change of circumstances. No costs. Consequently, C.M.P. Nos.11884 and 11885 of 1996 are closed.