Madras High Court
S.Balakrishnan vs A.Malaimegu on 23 September, 2014
Equivalent citations: AIR 2015 (NOC) 212 (MAD.)
Author: R.Subbiah
Bench: R.Subbiah
In the High Court of Judicature at Madras Dated : 23.09.2014 Coram The Honourable Mr.Justice R.SUBBIAH C.M.A.No.244 of 2014 and M.P.No.1 of 2014 S.Balakrishnan ....Appellant Vs. 1.A.Malaimegu 2.Panjavarnam ....Respondents Civil Miscellaneous Appeal has been filed under Section 47 of the Guardian and Wards Act, 1890, against the fair and decreetal order dated 21.11.2013 in G.W.O.P.No.3 of 2013 on the file of the learned District Judge, Nagapattinam. For Appellant : Mr.R.Selvakumar For Respondents : Mr.R.John Sathyan (For R1 & R2) JUDGMENT
This appeal has been filed by the father of the minor child as against the order dated 21.11.2013 in G.W.O.P.No.3 of 2013 passed by the learned District Judge, Nagapattinam dismissing the application filed by him to appoint him as the guardian of the minor child, with a direction to the maternal grand-parents to hand over the custody of the said minor child to him.
2.The appellant herein is the petitioner before the Trial Court. Before the trial Court, it is the case of the appellant/father that he married the respondents' daughter Gomathi on 14.09.2008 as per the Hindu rites and customs and they led their matrimonial life at the house of the appellant at Thenkarai Village in Nagapattinam Taluk. The appellant's parents were also residing with them. Due to the wedlock, the respondents' daughter gave birth to a male child on 14.11.2009 and they named the child as Ranjith Kumar. After one year from the marriage, the appellant had left to abroad on account of his job. While so, on 14.04.2011, the respondents' daughter Gomathi, who was residing along with the parents of the appellant, out of anger poured kerosene and set herself on fire and despite the treatment given to her, she died on 15.04.2011. Thus, she had committed suicide. Hence, the appellant returned to India on 17.04.2011. Upon the death of the said Gomathi, a criminal case was registered as against the mother and brothers of the appellant under Section 306 IPC on the allegation of abetting the said Gomathi to commit suicide, and a charge-sheet was also filed against them in S.C.No.29 of 2012 on the file of the learned Assistant Sessions Judge, Nagapattinam. Pending the said criminal case, the respondents, who are the maternal grand-parents of the minor child Ranjith Kumar, took the child forcibly from the custody of the family of the appellant and inspite of the repeated demand made by the appellant to hand over the minor child into his custody, the respondents refused to hand over the custody of the minor child.
3.It is further case of the appellant that the respondents are eking their livelihood with meager income by maintaining sheep and they are going to various places for their livelihood and they use to stay in open space with temporary shed. On the other hand, the appellant is doing construction work and earning sufficient income and he can properly look-after his minor son Ranjith Kumar with his income by providing food, shelter and education to him. The appellant has also taken insurance policy in the name of his minor son Ranjith Kumar for the benefit of his future. The respondents are age-old persons and they have no sufficient earning. On account of their avocation of maintaining sheep, they use to go to various places and they would not stay in a particular place. So, if the minor child Ranjith Kumar is allowed to be in the custody of the respondents, it would affect the welfare and future of the minor child. Whereas the appellant is possessing an ancient ancestral house and nanja land and he is also having sufficient income to bring up the minor child and the parents of the appellant are also hale and healthy and they are also ready to take care of the minor child. Hence, the appellant, as a natural guardian, is entitled to seek the custody of the minor child Ranjith Kumar from the custody of the respondents. Thus, the appellant prayed for appointing him as guardian of his minor son Ranjith Kumar and also for a direction to the respondents to hand over the custody of the minor child to him.
4.The case of the appellant was opposed by the respondents by filing a counter affidavit contending that the petition filed by the appellant is not maintainable both on law and facts; when the appellant was in abroad on account of his job, the daughter of the respondents viz. Gomathi was harassed by the mother and brothers of the appellant; unable to tolerate the harassment given by the parents and brothers of the appellant, on 14.04.2011 the daughter of the respondents poured herself kerosene and set fire on her and thus, committed suicide. In the dying declaration given by the said Gomathi, she had stated that the family members of the appellant are responsible for her death. In fact, the charge-sheet was filed in the criminal case as against the family members of the appellant and in the said criminal case in S.C.No.29 of 2012 on the file of the learned Assistant Sessions Judge, Nagapattinam, the family members of the appellants were acquitted only by granting benefit of doubt. The respondents have decided to prefer appeal before this Court. The respondents, who have lost their daughter, now share the love and affection and are taking care of their grand-son Ranjith Kumar. The respondents are also owning a house at Krishnapuram Village in Elayankudi Taluk and they have got admitted the minor child Ranjith Kumar in Sri Devibala Elementary School at Paramakudi and now, he is studying in that school. The respondents are hale and healthy and as the maternal grand-parents, they are taking care of the their grand-son Ranjith Kumar. The respondents have denied the allegation made by the appellant that they are eking their livelihood by maintaining sheep. It is further case of the respondents that they are having permanent resident and they are not leading their life in open space as alleged by the appellant. They are having sufficient income to maintain the family. On the other hand, the appellant is not a man of means and he is taking steps for his second marriage also. Thus, according to the respondents, if the custody of the minor child Ranjith Kumar is handed over to the appellant, the minor child will be put to inconvenience. Thus, they sought for dismissal of the petition.
5.Before the trial Court, the appellant examined himself as P.W.1 and marked eleven documents as Ex.P.1 to Ex.P.11. On the side of the respondents, the 1st respondent examined himself as R.W.1, besides examining two other witnesses as R.W.2 & R.W.3 and marked four documents as Ex.R.1 to Ex.R.4.
6.The Trial Court, after analysing the entire evidence adduced on both sides, had dismissed the petition filed by the appellant/father. Aggrieved over the same, the present appeal has been filed by the appellant.
7.It is the main submission of the learned counsel for the appellant that in the counter filed by the respondents, they have not stated as to how the appellant is not entitled for the guardianship of the minor child. Secondly, the lower Court has dismissed the petition only on the ground that no tangible evidence was produced by the appellant to show that he is having a house at Nagapattinam, as mentioned in the certificate issued by the VAO, marked as Ex.P.5. Yet another reason assigned by the lower Court is that the appellant has not produced any acceptable evidence to show that he is possessing sufficient means for livelihood of him.
8.Assailing the said findings rendered by the lower Court, it is submitted by the learned counsel for the appellant that the reasons assigned by the trial Court for dismissing the petition filed by him are not legally sustainable. In fact, before the trial Court, the appellant had produced evidence to show that he is owning a house and eking his livelihood by doing construction work. Hence, the appellant, as a father of the minor child, is the natural guardian of the minor child Ranjith Kumar and therefore, the trial Court ought to have allowed the petition filed by the appellant as prayed for. It is further submitted by the learned counsel for the appellant that the criminal case was filed only as against the mother and the brothers of the appellant, on account of the suicide committed by his wife, while he was in abroad. Even in the said criminal case, P.W.1, who is the father of the deceased Gomathi, had admitted in his cross-examination that his daughter Gomathi informed him that she was living peacefully in the house of the appellant and when the appellant was in abroad. In the said criminal case, the other witnesses did not support the case of the prosecution. But, without considering all these aspects, while dismissing the petition, the trial Court has stated in its order that the mother and brothers of the appellant were acquitted in the said criminal case only by giving benefit of doubt. No valid reason was given by the trial Court for denying the custody of the minor child to the natural guardian/father. In this regard, the learned counsel for the appellant relied on the decisions reported in_ 2000(1) MLJ 330 (G.Bakthavatsalam and others Vs. K.Srinivasan), 1997(1) MLJ 645 (Krishna Raj Vs. Rajasekar and another) and AIR 1989 Madras 129 (S.Abboy Naidu and others vs. R.Sundara Rajan).
9.Per contra, the learned counsel for the respondents submitted that the respondents' daughter was forced to commit suicide due to the harassment made by the mother and brothers of the appellant, while she was staying in the house of the appellant's family. In the criminal case, the family members of the appellant were acquitted only by giving benefit of doubt. In fact, after the demise of his wife, till the date of acquittal of the family members of the appellant in the criminal case, the appellant has not taken any effort to get the custody of the minor child. If he is really interested in getting the custody of the minor child, he ought to have taken steps at the earliest point of time itself. The appellant is not doing any construction work and he is only a mason and the house, which is claimed by the appellant to be his house, was provided only by the Government. Whereas the respondents are owning 4 < cents of land and 200 sheep. It is further submitted by the learned counsel for the respondents that at the time of deciding the custody of the minor child, the paramount interest of the child has to be taken into consideration for the welfare of the child. If the minor child is put under the custody of the appellant, there would be a mental disturbance to the minor child, since his mother has committed suicide.
10.The learned counsel for the respondents further submitted that since the appellant had agreed that he would not ask for the custody of the minor child, the respondents have not filed any appeal as against the acquittal of the appellant's mother and brothers in the criminal case. Thus, the learned counsel for the respondents sought for dismissal of the appeal.
11.Keeping the submissions made on either side, I have carefully gone through the entire materials available on record and I find that the petition has been filed by the father of the minor child, who is the natural guardian. The trial Court has dismissed the petition filed by the appellant mainly on the reasoning that the appellant has not established that he is having sufficient means for his livelihood and as such, he is not a proper person to be appointed as a guardian of the minor child. But, it was established by the appellant that he is eking his livelihood by doing construction work and he is owning a house at Nagapattinam and to substantiate the same, he has also produced the certificate issued by the VAO. But, the said certificate was rejected by the trial Court by assigning a reason that the said document is not sufficient enough to prove that the appellant is owning a house and nanja land. Further, the trial Court has come to the conclusion that the respondents are having sufficient means to bring up the minor child and thus, the Tribunal dismissed the petition filed by the appellant.
12.It is no doubt, whether a person, who seeks the custody of the minor child, is having sufficient means or not, is one of the criteria to decide the custody of the minor child. At the same time, I am of the opinion, it would not be the sole criterion to dismiss the petition. On perusal of the evidence adduced before the trial Court, I find that the trial Court, by weighing the wealth of the parties, has come to the conclusion that among the two, the respondents are more wealthier than the appellant and thus, dismissed the petition. Such a reasoning is not legally sustainable. In my considered opinion, the appellant is the natural guardian of the minor child. As per Section 6 of the Hindu Minority and Guardianship Act, he is having the right to have the custody of the minor child. Unless it is shown that he is unfit to have the custody of the minor child, the petition filed by him cannot be dismissed by comparing the wealth of the parties. If it is proved by the father of the child that he is having sufficient means to bring up the child, it would suffice to give the custody of the minor child to him and he need not be wealthier than the party who is denying to give the custody of the child. In the instant case, the appellant who is the father of the child by producing tangible evidence had established that he is having sufficient means to bring up the child. Further, in the instant case, absolutely there is no allegation against the appellant to the effect that he is not entitled to have the custody of the minor child. When that being so, the reason assigned by the trial Court for denying the custody of the minor child to the father cannot be accepted.
13.In this regard, a reference could be placed in the judgment reported in 2000(1) MLJ 330 (G.Bakthavatsalam and others Vs. K.Srinivasan), wherein it has been held as follows_ 5.A Hindu father is the natural guardian of the children during their minority and has prima facie a paramount right to their custody and must be given such custody unless he is unfit or there are other circumstances. But, the welfare of the minor child is a very important matter for consideration and the interest and welfare of the minor are even paramount to the rights of the father.
6.The principal considerations or tests which have been laid down under Section 17 of the Guardian and Wards Act in order to secure the welfare of the minor are equally applicable in considering the welfare of the minor under Section 25 of the Guardians and Wards Act. The father marrying a second wife is not a valid ground for his disqualification. Even the fact that the first wife was not properly treated is not a ground for presuming that the child will not be properly looked after by the father. In the judgment reported in 1997(1) MLJ 645 (Krishna Raj Vs. Rajasekar and another) wherein it held that_ maternal uncle and maternal grand-mother cannot claim custody of the minor child unless it is proved by them that the father, appellant, is not a fit person as contemplated under the Guardians and Wards Act to be the guardian of the person and property of the child.
A reading of the above judgments would clearly shows that the father of the minor child is having primary right to have the custody of the minor child. It is not the case of the respondents that the appellant is not a fit person to have the custody of the minor child. The respondents have not made any allegation against the conduct or character of the appellant.
14.It is yet another submission of the learned counsel for the respondents that mother of the minor child has committed suicide and if the minor child is handed over to the custody of the father, there will be a mental disturbance to the child in future. Further, the respondents, as grand-parents of the child, are very much attached to the minor-child and therefore, if the minor child is separated from them, it would affect the child.
15.But, for this contention of the learned counsel for respondents, the decision reported in 1990(II) MLJ 417 J.Velan Vs. G.Muthu and others) gives a fitting answer, wherein it has been held as follows_ The mere fact that the natural grand-parents are much attached to the minor itself, is not a ground to negative the claim of the petitioner. In any event, such custody cannot have any preference to the legitimate claim of the natural father. Therefore, I am of the opinion that the submission made by the learned counsel for the respondents that since the minor child is having attachment with the grand-parents, there will be a mental disturbance to the child, if the child is separated from them, cannot be a ground to deny the custody of the child to the father.
16.Further more, in the instant case, the criminal case was filed only as against the mother and brothers of the appellant and not against the appellant. The 1st respondent has also admitted in his evidence before the trial Court that even after acquittal of the mother and brothers of the appellant from the criminal case, no appeal was filed by the respondents. Therefore, I do not find any valid ground to deny the custody of the minor child to the father, who is the natural guardian.
17.For the foregoing reasons, the impugned order passed by the Court below is liable to be set aside and accordingly, the same is hereby set aside. The Civil Miscellaneous Appeal is allowed. The appellant is declared as guardian of the minor child Ranjith Kumar and he is entitled to have the custody of the minor child. The respondents are directed to hand over the custody of the minor child to the appellant within a period of two weeks from the date of receipt of a copy of this order. The respondents are entitled to the visitation right and they may have the custody of the minor child for one day, once in two weeks, and also for a week in summer vacation of the school.
Consequently, connected Miscellaneous Petition is closed.
No costs.
23.09.2014 Internet: Yes / No Index : Yes / No ssv Copy to
1.The District Judge, Nagapattinam.
R.SUBBIAH, J., ssv Pre-delivery judgment in C.M.A.No.244 of 2014 and M.P.No.1 of 2014 23.09.2014