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2021 DIGILAW 1159 (MAD)

G. Rajendran v. P. Lakshmanan

2021-03-29

S.M.SUBRAMANIAM

body2021
JUDGMENT : [Prayer : Civil Miscellaneous Appeal filed under Section 47 of the Guardians and Wards Act, 1890, against the order passed by the Hon'ble District Judge-II, District Court, Kanchipuram in G.W.O.P.No.49 of 2013 on 14.06.2018.] This civil miscellaneous appeal is filed against the order passed by the Hon'ble District Judge-II, District Court, Kanchipuram in G.W.O.P.No.49 of 2013 on 14.06.2018. 2. The appellant is the father of the minor children and the respondents are the maternal grand parents of the minor children. The two children are R.Balasubramani (now attained the age of majority) and R.Kuzhalarasi. The marriage between the appellant and the mother of the minor children Poonguzhali was solemnized on 22.10.2001 as per the Hindu Rites and Customs. The mother of the children died and the respondents registered a complaint on the ground that the death was suspicious. A criminal case registered is still pending without any progress in Crime No.589 of 2013 on the file of the B2, Vishnu Kanchi Police Station, Kanchipuram. 3. The learned counsel for the respondents reiterated that inspite of efforts, the criminal case is yet to be disposed of and the police is also not initiating proper investigation till today. Several representations were sent and the efforts taken by the respondents went in vein. The death of the mother of the minor children is yet to be ascertained. The appellant father of the minor children filed an application in G.W.O.P.No.49 of 2013 under Section 25 of Guardianship and Wards Act, seeking the custody of two children by declaring him as a natural guardian of the children. 4. The District Court, Kanchipuram adjudicated the issues with reference to the facts and circumstances as well as the evidences. The Trial Court made a finding that the appellant as a natural guardian under the Act, is having every right to see the children. However, the Trial Court found that the appellant has not cared about the children after the death of his wife. More specifically, he remarried a woman and now, residing at Mumbai. The minor children are in grown up stage and they have clearly stated even before the Trial Court that they are not willing to go along with their father. It was found that the appellant has not provided any financial assistance to the children and therefore, the father is not entitled for the relief as such sought for. The minor children are in grown up stage and they have clearly stated even before the Trial Court that they are not willing to go along with their father. It was found that the appellant has not provided any financial assistance to the children and therefore, the father is not entitled for the relief as such sought for. The Trial Court found that the children have not made any complaint against the respondents/maternal grand parents and they are studying peacefully with the assistance of the respondents/maternal grand parents. Based on these findings, the Trial Court formed an opinion that the interest of the minor children are to be protected and accordingly, rejected the petition for custody by granting visitation right. However, it is contended by the appellant that the visitation right is not exercised due to the restriction of the respondents. 5. The learned counsel for the respondents states that the appellant had not made any attempt for such visitation right. The fact remains that the appellant father is residing at Mumbai along with his second wife and has got one child and practically it may not be possible to him to come over to Kanchipuram once in a week to exercise the visitation right as ordered by the Trial Court. Subsequently, the children are also not interested to see the appellant father. 6. With a view of ascertaining the choice of the minors, this Court directed the parties to be present before this Court. Both the appellant as well as the respondents along with the children are present before this Court. The appellant is interested in seeing his children. However, the boy attained the age of majority and now studying first year B.Com Course in an Arts College. The boy in clear terms stated that he is not at all interested to see his father. He made a complaint that his father has not taken care of their needs and he has not taken efforts even to see them during the previous years and their grand parents are only taking care of them. Therefore, he is not at all interested in talking to the appellant. The boy has already attained the age of majority and therefore, he is at liberty to take his decision and this Court cannot interfere with his opinion and wishes. 7. Therefore, he is not at all interested in talking to the appellant. The boy has already attained the age of majority and therefore, he is at liberty to take his decision and this Court cannot interfere with his opinion and wishes. 7. As far as the girl child is concerned, she is studying in 7th Std and she is capable of understanding the proceedings of this Court. She also in clear terms informed this Court that she is not interested or willing to see his father and she is not interested to talk to his father. She also made a complaint against her father. 8. The boy is having a negative opinion and having a bad impression with regard to the suspicious death of his mother. Such an emotional state has been expressed by the children before this Court. 9. This Court is not interested to act against the choice of the children and more specifically, the minor girl. The appellant made a submission that he wants to talk to his children. This Court even gave an opportunity to the boy, he being a major, but, the boy again refused to talk to his father. As far as the minor girl is concerned, this Court cannot give any such option, in view of the fact that the visitation right alone has not been exercised and further, the minor girl is not at all interested to see her father. The emotions and the well being of the minor children are to be protected by the Courts. 10. The children have got a right to have peaceful and happy life. The Courts are expected to ensure the well being of the children including education are to be protected. Due to the dispute between the parties or between the father and the grand parents, the right and interest as well as the happiness of the children should not be affected and the Courts are bound to ensure that every children lives in peaceful and happy atmosphere. This being the very intention of the Act, this Court is of the opinion that the expressions made by the children before this Court reveals that they are not at all interested to go along with the appellant nor to see him or speak with him. 11. This being the very intention of the Act, this Court is of the opinion that the expressions made by the children before this Court reveals that they are not at all interested to go along with the appellant nor to see him or speak with him. 11. This being the clear expressions of the boy attained the age of majority and the girl is studying 7th Std, there is no point in considering the request made by the appellant at this length of time. This Court cannot find any perversity or infirmity in the conclusion arrived by the Tribunal. 12. Accordingly, G.W.O.P.No.49 of 2013 dated 14.06.2018 stands confirmed and C.M.A.No.1039 of 2019 stands dismissed. No costs. 13. Even the appellant cannot have any visitation right as such visitation right granted by the Trial Court is not exercised.