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2021 DIGILAW 1244 (MAD)

Daniya v. V. Priya Darshini

2021-04-01

S.M.SUBRAMANIAM

body2021
JUDGMENT : Prayer : Civil Miscellaneous Appeal filed under Section 47 of Guardian and Wards Act, 1890, against the order and decree made in G.W.O.P.No.13 of 2017 on the file of the Principal District Judge, Vellore, Vellore District, dated 07.10.2020. 1. The order and decree dated 07.10.2020 passed in G.W.O.P.No.13 of 2017 is under challenge in the present Civil Miscellaneous Appeal. 2. The appellant, who is the Paternal grandmother of the minor children namely V.Sairaghu and V.Swathi, filed a petition under Section 6 of the Guardian and Wards Act, seeking custody of the minor children on the ground that the mother lost her right to maintain the minor children, in view of her behavior. 3. It is pertinent to note that Ex.P10/document signed by the father of the minor children, who is the natural guardian, authorizing his mother/appellant to file a petition. Such a power has been granted to the Paternal grandmother of the minor children, in view of the fact that the father of the children is working in CRPF and now posted in Jammu and Kashmir, more specifically in Kupwara District. Pursuant to the power/Ex.P10 granted by the father of the minor children, the Paternal grand mother of the minor children filed the application before the District Court. The respondent is the mother, who filed a counter. However, she was not subjected herself for Cross-Examination before the trial Court. 4. The learned counsel for the appellant made a submission that the respondent, who is the mother of the minor children, was not behaved herself as a dutiful wife to the father of the minor children and there was a matrimonial dispute between the husband and wife and the petition for divorce filed by the husband in H.M.O.P.No.119 of 2016, which was allowed by passing an exparte decree and the respondent/wife had not even contested the divorce petition. In the present G.W.O.P., except by filing a counter statement, the respondent had not contested the case by subjecting herself for examination or Cross-Examination to establish the contention. In the present G.W.O.P., except by filing a counter statement, the respondent had not contested the case by subjecting herself for examination or Cross-Examination to establish the contention. Relying on the said conduct of the respondent, the learned counsel for the appellant reiterated that all along she has not shown any interest towards the minor children nor contested the divorce case as well as the G.W.O.P and therefore, the case of the appellant was established and in spite of that the trial Court proceeded merely on the fact that the mother is the natural guardian and the father is not a party to the petition. 5. The learned counsel for the appellant reiterated that though the father has not impleaded himself as a party to the proceedings, he had given an authorization / power in favour of his mother to file a case, seeking custody of the minor children. In view of the fact that he is working in CRPF and frequently, he was subjected to transfer in North India, he may not be in a position to come and appear before the Court for conducting the case. With the genuine reason, the power was given in favour of the Paternal grandmother of the minor children and the said document filed as Ex.P10 was not at all considered by the trial Court, while adjudicating the issues. 6. The appellant is of an opinion that the conduct of the mother/respondent is questionable and the learned counsel for the appellant made a submission that the allegation is that the respondent is having an illicit relationship with another man namely Balamurugan and a criminal case registered in FIR.No.700 dated 09.12.2017 (C.C.No.366 of 2018) and the said criminal case is pending against the respondent. The appellant has stated that even the said allegation is not seriously disputed by the respondent/wife, even in the Court proceedings, more specifically, in divorce proceedings as well as in the present G.W.O.P proceedings. When the respondent has not seriously disputed the said allegation, the appellant has to protect the interest of the minor children as the minor boy is aged about 9 years and the minor girl is aged about 7 years. 7. The learned counsel for the respondent disputed the said contentions by stating that the allegations raised are false and the allegation of illicit relationship was not established. 7. The learned counsel for the respondent disputed the said contentions by stating that the allegations raised are false and the allegation of illicit relationship was not established. All along, the children were taken care of by the mother and for the past about 1 ½ years, the children are with the father and the Paternal grandmother. Therefore, they have forcibly taken the children from the respondent and thus, the appeal is to be dismissed. 8. The learned counsel for the respondent further reiterated that the children are willing to join with the respondent/mother and due to forcible attempt, the children are now with the custody of the Paternal grandmother/appellant. Thus, the appeal is to be dismissed and custody is to be handed over to the respondent/mother of the minor children. Mother being the natural guardian, must be given custody and the appellant/Paternal grandmother cannot have custody of minor children. 9. Considering the arguments, this Court has to consider the facts and circumstances, taking into consideration the wishes, interest and the better livelihood for the minor children. The interest of the minor children are of paramount importance and that being the spirit of the Guardian and Wards Act, the Courts are expected to ascertain the wishes as well as the interest of the children for the purpose of deciding the custody. 10. In the present case, the children are aged about 9 years and 7 years and the boy is studying III Standard and the girl is studying II Standard in St.Johns School at Gudiyatham. 11. When the matter is taken up today for final hearing, the appellant/Paternal grandmother, father of the minor children namely Mr.J.Vasudevan and two minor children were present. The respondent Smt.V.Priya darshini is also present along with her learned counsel. 12. This Court, in order to find out the wishes of the children, examined the children independently and both the minor boy and minor girl are competent enough to answer the questions asked by this Court. When this Court asked the question, whether they are willing to go back and join with the mother, spontaneously, they reacted by saying ‘No’. The children had jointly said that they are not willing to join with the mother. Then, this Court asked the reason and both the boy and the girl, in clear terms, said that they were subjected to harassment by their mother/respondent frequently. The children had jointly said that they are not willing to join with the mother. Then, this Court asked the reason and both the boy and the girl, in clear terms, said that they were subjected to harassment by their mother/respondent frequently. They said that their mother used to scold, abuse and beat them and forced the children to call one Mr.Balamurugan as their father. The minor children repeatedly answered by stating that they are not willing to go back with their mother and the mother used to beat them frequently and abuse them with filthy languages. The children further said that they are very happy with the Paternal grandmother and the Paternal grandmother is looking after the interest of the children and the father whenever he gets leave from CRPF, is visiting the children and providing good education and all facilities to the children. The father of the minor children, who is present before this Court also informed that now he is working in the State of Jammu and Kashmir, more specifically, in Kupwara District. In view of the fact that he will be subjected to frequent transfers in CRPF, he authorized his mother/Paternal grandmother to take care of the minor children and he used to frequently visit whenever he gets leave from the CRPF organization. The minor children are very happy with the Paternal grandmother and the father. When this Court asked the minor children, whether their father is taking care of them, they said in clear terms that the father is very much affectionate with them and he is talking frequently to them over phone. 13. The expressions made by the minor children gave a clear opinion that they are not willing to go back and join with the respondent/mother. Contrarily, their wishes are to continue to live with the father as well as the Paternal grandmother and both of them are living happily. 14. After ascertaining the wishes of the children, this Court provided an opportunity to the father of the minor children and the respondent/mother of the minor children. Contrarily, their wishes are to continue to live with the father as well as the Paternal grandmother and both of them are living happily. 14. After ascertaining the wishes of the children, this Court provided an opportunity to the father of the minor children and the respondent/mother of the minor children. After made several complaint against the respondent, the father of the minor children said that the respondent developed an illicit relationship with some other person and thereafter, she had neglected the children and that is the reason why, he authorized his mother to file a petition on his behalf, seeking custody of the minor children and his name was not impleaded at that point of time. But he filed Ex.P10, authorizing / granting power to his mother/appellant to conduct the case for the purpose of getting the custody of the minor children. 15. The respondent made a submission that she is ready to protect the interest of the children and for the past 1 ½ years, the children are with the father and the paternal grandmother. She said that the custody should be handed over to her. 16. However, this Court do not find any force on her expressions and the manner, in which, the respondent acted before this Court is not satisfactory. 17. When the minor children and the respondent/mother of the minor children are present, this Court made clear observations and for about one hour, the children had not even looked their mother/respondent and they had not made any attempt even to see the mother even inside the Court Hall. The behavior of the children towards their mother/respondent is clearly evident that they are not at all interested to go along with their mother/respondent. When the respondent/mother requested the Court to grant permission to speak with the children, this Court, in order to provide an opportunity to the mother of the minor children, asked the minor boy and girl, whether they are willing to talk with their mother. The minor boy and the minor girl immediately responded by stating that they are not willing to talk with their mother. Thus, this Court has formed a clear opinion that the respondent / mother cannot be a better person for the purpose of protecting the interest of the minor children. 18. The minor boy and the minor girl immediately responded by stating that they are not willing to talk with their mother. Thus, this Court has formed a clear opinion that the respondent / mother cannot be a better person for the purpose of protecting the interest of the minor children. 18. The trial Court mainly proceeded on the footing that the custody petition was filed by the Paternal grandmother and the father has not filed any petition and therefore, only the parents are entitled to seek custody and accordingly, dismissed the petition for custody. The trial Court is of an opinion that custody is to be given only to the parents and not to the grandparents. Undoubtedly, there cannot be any quarrel on the proposition that the custody of the minor children is to be granted to the parents at the first instance and only in the absence of parents, the custody can be granted to the grandparents as the case may be. However, the peculiar facts and circumstances and the interest of the children is to be considered, which is of paramount importance as well as the spirit of the Guardian and Wards Act. 19. When there is an allegation of illicit relationship and even the minor children made a statement before this Court that their mother used to beat them and abuse them frequently and forced them to call one Mr.Balamurugan as their father, then the Court has to draw an inference that the mind of the children got affected due to such behavior of the respondent/mother and therefore, this Court has to take an exceptional view in such circumstances for the purpose of handing over the custody of the minor children. 20. In view of the facts and circumstances, this Court has no hesitation in arriving a conclusion that the respondent/mother is not a fit guardian for the purpose of handing over the custody of the minor children and the father is looking after the interest of the children and even before this Court, the children are interested in going with the father as well as the Paternal grandmother and father of the minor children also made an assurance that he will look after the interest of the children all the times. 21. 21. Accordingly, this Court is of an opinion that the order and decree of the trial Court is perverse and not in conformity with the spirit of the provisions of the Guardian and Wards Act and the judgment runs counter to the wishes and the interest of the minor children. Thus, the order and decree dated 07.10.2020 passed in G.W.O.P.No.13 of 2017 is set aside and the Civil Miscellaneous Appeal in C.M.A.No.139 of 2021 stands allowed. The custody of the minor children is handed over to the father, who is present before this Court along with his mother, who is the Paternal grandmother of the minor children and both together can take the custody of the children and look after their interest. This Court is not inclined to grant even any visitation right to the mother/respondent, considering the peculiar facts and circumstances prevailing in the case on hand. No costs.