Madras High Court
R.Poonkothai vs K.S.Karupaiah on 21 November, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.11.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU Original Petition Nos.682 and 686 of 2011 and Application Nos.1831 to 1833 of 2012 In the matter Guardians and Wards Act 1890 and In the matter of R.Tharun, Minor O.P.No.682 of 2011 : ------------------ R.Poonkothai .. Petitioner Vs. 1.K.S.Karupaiah 2.K.Meenal .. Respondents O.P.No.686 of 2011 : ------------------ 1.K.S.Karuppaiah 2.K.Meena .. Petitioners Vs. 1.Rama Selvarasan 2.R.Poongothai .. Respondents O.P.No.682 of 2011 is filed under Sections 3, 7 to 10 and 29 of the Guardian and Wards Act, 1890 to appoint the petitioner R.Poonkothai as the guardian of the person of the minor R.Tharun. O.P.No.686 of 2011 is filed under Sections 3, 7 to 10 and 29 of the Guardian and Wards Act, 1890 to appoint the petitioners K.S.Karuppaiah and K.Meena as guardians of the minor child R.Tharun of person and property. For Petitioners : Mr.S.Sathya Narayanan in O.P.No.682 of 2011 Mrs.Narmadha Sampath in O.P.No.686 of 2011 For Respondents : Mrs.Narmadha Sampath in O.P.No.682 of 2011 Mr.S.Sathya Narayanan in O.P.No.686 of 2011 - - - - COMMON ORDER
Both original petitions were filed by the respective petitioners seeking for appointment of guardian for the minor child R.Tharun, who was born on 16.07.2006 and at present roughly over 6-1/2 years old. While in O.P.No.682 of 2011, the prayer is to appoint the petitioner Mrs.R.Poonkothai, who is the paternal grand mother of the minor child as the guardian of the person of minor child Tharun, in O.P.No.686 of 2011, the two petitioners sought for the appointment of two petitioners as guardian of minor child R.Tharun both for person and property and that the list of properties were set out in the schedule to the O.P. The two petitioners were respectively the maternal grand father and maternal grand mother of the minor child.
2.It was stated that the parents of the minor child, i.e., the father S.P.Rajesh and mother R.Aarthi, got married on 12.2.2006 at Chennai, which was subsequently registered on 7.5.2010. It was an inter-caste marriage. While the father belonged to scheduled caste community, the mother belonged to most backward class community (Kallar). The marriage arose out of the love between the minor child's father and mother. It must be noted that even before the formal marriage of the father and mother of the minor child, i.e. on 12.2.2006, the mother was conceived. Immediately within 5 months after the marriage, the minor child was born. However, there is no dispute regarding the paternity of the child. The parents of the minor child went for Girivalam at Tiruvannamalai. While they were coming back on the midnight of 12.10.2011, the car in which they were travelling met with an accident when they were crossing Vallam village before reaching Tindivanam. Both of them died in the said accident. Up till now, the petitioners in both original petitions were seemed to have reconciled with the marriage of their children. After the death, both factions started fighting over the custody of the minor and for the properties of the minor left behind by the deceased parents of the minor.
3.Interestingly, in O.P.No.686 of 2011, the maternal grand parents not only impleaded the paternal grand mother as the second respondent, but also shown one Ramaselvarasan as the first respondent alleging that he was not the original husband of the paternal grand mother. Therefore, he cannot be described as the paternal grand father of the minor child. It was also attempted to establish that the first respondent was not the real paternal grand father and he subsequently started living with the paternal grand mother.
4.Both original petitions were admitted on 07.12.2011 and notice was ordered. In O.P.No.682 of 2011, the sole petitioner is only the paternal grand mother. In that O.P., she had not shown the said Ramaselvarasan as the grand father and that the appointment of guardianship was sought only in her name, i.e., R.Poonkothai. Similarly in O.P.No.686 of 2011, though serious allegations were made against the first respondent Ramaselvarasan stating that he was not the paternal grand father, curiously no counter affidavit was filed by the first respondent. No attempt was also made to examine him during trial as a witness. Even before trial could commence, both sides had acrimonious legal battles taking up all interim orders on appeal before the division bench.
5.Initially, in O.P.No.682 of 2011, a application in A.No.5644 of 2011 was filed by the paternal grand mother Poonkothai seeking for custody of the minor as an interim measure pending disposal of the O.P. That application was disposed of by an order dated 8.12.2011. It was observed that in view of the relationship between the parties, the custody of the child has to be determined keeping in view of the welfare of the minor which alone is the paramount consideration. Since the issue of custody was dealt with by the 11th Metropolitan Magistrate, Saidapet, prima facie the custody should be with the maternal grand parents. It was held that it does not call for any interference only on the ground that the minor child was admitted to the lower class than one what was studying. It was also brought to the notice that the child was taken to the police station along with the maternal grand mother at 12.00 midnight. It was also observed that the paternal grand mother has no right to take away the child from the custody of the maternal grand parents.
6.Thereafter, the paternal grand mother filed O.S.A.No.434 of 2011. In the O.S.A., on 23.12.2011, it was stated that the paternal grand mother will have an interim custody of the minor boy on 25.12.2011 to 31.12.2011 between 9 a.m. and 6.00 p.m. on those days. Subsequently by an order dated 12.1.2012, this court extended the interim order to 14.1.2012. The OSA was finally disposed of by the division bench on 7.2.2012 holding that in view of serious allegations between the parties, without going into the merits of the same and considering the paramount consideration is the welfare of the child, the paternal grand mother was given interim custody for 2 days during 1st and 34d week of every month as an interim measure till the O.Ps were disposed of.
7.Thereafter, A.No.1681 of 2012 was filed by the paternal grand mother to have the custody of the minor child during summer vacation. That application was disposed of on 20.04.2012 holding that since the minor boy was always with the maternal grand parents, the paternal grand mother will have the custody only from 1.5.2012 to 5.6.2012. It is aggrieved by the grant of the custody of the minor during summer vacation, it was the turn of the maternal grand parents to challenge the said order by way of an appeal in O.S.A.No.188 of 2012. The division bench had partially modified the arrangement thereby each party will have the custody for one week on rotation starting from 1.5.2012 to 3.6.2012. The said OSA was finally disposed of by the division bench by an order dated 30.8.2012 stating that the report of the Registrar General showed that the body was in good health both physically and mentally. Therefore, the OSA was disposed of with a direction to dispose of the main O.Ps independently on merits and the report sent by the Registrar General as well as the interim arrangement cannot weigh with the judge who is disposing of the O.Ps.
8.The paternal grand mother came up with three other applications in A.Nos.2721, 2722 and 2723 of 2012 respectively for impleading the schools mentioned in the application No.2721 of 2012 as respondents in A.No.1833 of 2012, M/s.Bharathi AXA General Insurance Company Ltd., as respondent in A.Nos.1832 of 2012 and M/s.HDFC Bank Ltd., Auto Loan Department, Chennai as the respondent in A.No.1831 of 2012. A.No.1831 of 2012 was filed by the paternal grand mother for a direction to the bankers of the minor child not to present the cheques issued by the deceased S.P.Rajesh and late R.Aarthi towards the EMI in respect of auto loan account to avoid unnecessary penalization to the minor. In A.No.1832 of 2012, the prayer was to direct the respondents, i.e., the maternal grand parents to bring the original registration certificate of the vehicle No.TN 09 AV 0011, the original driving licence of the person driving the vehicle at the time of the accident and the original insurance policy for verification and inspection for the insurance company to avoid delay in claiming insurance amount. In A.No.1833 of 2012, the prayer was to permit the minor to continue his studies in the 1st standard by considering his age as per the educational norms as he was 6 years old and in the interest of the minor. In A.Nos.2721 to 2723 of 2012, this court by an order dated 10.7.2012 allowed those applications and that the schools, insurance company as well as the HDFC Bank were made as parties in A.Nos.1831 to 1832 of 2012.
9.During the trial, the paternal grand mother took out an application in A.No.4347 of 2012 seeking for permission to have an interim custody of the minor child to enable the minor child to perform the rituals arising out of the death anniversary of the deceased parents falling on 29.9.2012. That application was disposed of on a memo being filed by the maternal grand parents that they will send the child on 29.9.2012 between 10.30 a.. and 12.30 p.m. As directed by the division bench, the main O.Ps were directed to be posted for trial.
10.The learned counsel for the petitioner in O.P.No.682 of 2011 filed a memo stating that both O.Ps should be tried together and that a joint trial should be conducted and evidence be recorded in O.P.No.686 of 2011. Both sides agreed for the joint trial. Hence it is ordered. If it is sent for recording evidence by the learned Master, it may be time consuming, this court itself recorded evidence in camera. The evidence of P.W.1 was started on 12.9.2012 and continued on 13.9.2012, 14.09.2012, 17.09.2012, 18.09.2012 and 20.09.2012. K.Karuppiah, the maternal grand father and the first petitioner in O.P.No.686 of 2011 examined himself as P.W.1. During the course of his evidence, documents were marked both in chief and in cross examination. Exs.P.1 to P.26 were marked on the side of P.W.1. Thereafter, the petitioner in O.P.No.682 of 2011, i.e., the paternal grand mother examined herself as R.W.1. Her examination started on 21.9.2012 and it continued on 24.9.2012, 25.09.2012, 27.09.2012 and 28.09.2012. The first respondent in O.P.No.686 of 2011, i.e., Ramaselvarasan was not examined. On her side Exs.R.1 to R.30 were marked.
11.After conclusion of the oral evidence, the matter was posted for arguments. Heard the arguments of Mrs.Narmadha Sampath, learned counsel for the petitioners in O.P.No.686 of 2011 and the respondents in O.P.No.682 of 2011 and Mr.S.Sathya Narayanan, learned counsel for the petitioner in O.P.No.682 of 2011 and the respondents in O.P.No.686 of 2011. The petitioner in O.P.No.682 of 2011 also filed a written submission.
12.As the parties were recording evidence and without referring to the case on hand, marking all kinds of documents and as this court had the benefit of witnessing the recording of evidence of both sides, it is unnecessary to recapitulate the evidence which are no relevance to the case on hand. It is only necessary to refer to the substantial evidence relating to the guardianship. For the sake of convenience, the parties are referred to as the maternal grand parents and paternal grand mother as the case may be.
13.The case of the maternal grand parents was that their daughter Aarthi got married to one S.P.Rajesh, their son-in-law. Immediately thereafter, within 5 months they gave birth to a minor child. The minor child was conceived even before the formal marriage took place between the couple, i..e, on 12.2.2006. It was claimed by them that the love marriage between their daughter and son-in-law was not welcome by the paternal grand mother. Since the death of their daughter and son-in-law, the child was living under the custody of the maternal grand parents. The minor child was studying in Jawahar Vidyalaya Kinder garden school, Stree Seva Mandir, Chennai-83. It was stated that the surviving legal heir of the minor child is the paternal grand father Shankar and paternal grand mother Poonkothai (R.W.1) and they are residing in A-3, Saravana Apartments, M.M.Ramasamy Street, Jafferkhanpet, Chennai. The maternal grand parents are residing in No.7/18, 80th street, 18th Avenue, Ashok Nagar, Chennai. The first respondent in the O.P. Ramaselvarasan was not the paternal grand father of the minor child. The paternal grand mother Poonkothai had deserted her husband by name Shankar and was living with the first respodnent. Hence he has no legal rights. It was stated that the marriage of their daughter with the son-in-law was not accepted by the parents of their son-in-law late S.R.Rajesh. The couple were living separately during their life time. After their marriage, the paternal grand parents never visited their house. It is only the maternal grand parents who assisted and provided full support to the deceased family. During their life time, they purchased properties out of their own fund and income. The properties are a flat in B-5, Ashoka Gardens, Door No.53, 12th Avenue, Ashok Nagar, Chennai and flat No.!, Ground Floor, Plot No.3, G.S.Flats, G.S.Nagar, Ramapuram, Chennai-89, LIC policies mentioned in the schedule and jewels which are listed in the schedule. The properties as well as jewels were purchased by the funds of the deceased parents and that the minor is the only legal heir to succeed to the properties of the deceased parents. The parents of the son-in-law were separated. His father was not residing with the mother. The first respondent Ramaselvarasan was not the real husband of the paternal grand mother. After the death of the deceased parents, the paternal grand mother R.W.1 came to the residence of the deceased and broke open the door and attempted to take away the properties of the minor. Their interest with the minor child was only to swindle the properties. The minor child is being brought up with love and affection by the maternal grand parents.
14.Since no counter statement has been filed in this O.P., and since the paternal grand mother filed a separate O.P., it has to be taken as the stand of the party from the averments made in the O.P. It was stated by the paternal grand mother that her son and daughter-in-law died on 12.10.2011 midnight in an accident and that it was informed by the Gengi police. They died on the spot. Hence they rushed to the accident spot along with the maternal grand parents. After completing necessary formalities, the police handed over the belongings of her son and daughter-in-law, who died on the spot, including Thirumangalyam, jewels, credit cards, debit cards, cell phones, digital camera, pen drive, including the key of the house at Ashoka Garden where her son was living last. Immediately, she handed over those properties to the elder daughter of the maternal grand parents, by name Janaki, who was on the spot at that time. The bodies were brought for rituals to be performed at chennai. The bodies were taken to the house of the maternal grand parents on 13.10.2011 as they wanted to perform certain rituals. Being their daughter, without protest they accepted the same. The maternal grand parents wanted to take the marriage cloths of the deceased couple. The padlock of the house was broken by their daughters as they have lost the key of the house which was handed over to them. The rituals were completed by the paternal grand mother along with the respondents.
15.R.W.1 came to understand that the daughter of the maternal grand parents along with their son-in-laws took all documents and valuables when the came back from the house. They have also taken the documents relating to the ration card, educational certificates, community certificates, marriage certificate, jewels worth about 53 sovereigns and other documents including the documents relating to the Scooty and a Bullet (two wheelers) as well as documents relating to Innova Car. It was claimed by R.W.1 that her husband being the Kartha of the family called the maternal grand parents to speak about the minor child. But they were evading for any meeting. When they confronted them as to how the house was broken open and the documents were taken, there was no answer on their part. Even the TVS Scooty owned by their son was used by the daughter of the maternal grand parents. Without their knowledge, the minor child was admitted to Jawahar Vidyalaya in LKG class, while he was already studying UKG in Annai Velankanni School. There was also a move by the another daughter and son-in-law who were living in Karthar, U.A.E., to take away the minor child there. R.W.1 refused to permit such an action. Since the minor child is the son of her deceased son, who died intestate and R.W.1 as the legal heir, owes duty to take care of the minor child and she has sufficient means.
16.With reference to the relationship with the first respondent Ramaselvarasan in O.P.No.686 of 2011, in paragraph 14 of the O.P., R.W.1 stated as follows :
"14.The petitioner states that their deceased son and daughter in law were died intestate leaving behind their son Minor R.Tharun and the petitioner herein as their legal heirs. The petitioner herein owe a duty to take care of the minor R.Tharun, being the elderly person in the family. As such by the grace of god they are sufficient by means. The husband of the petitioner herein, i.e., Mr.Rama Selvarasan, is a retired Village Administrative Officer from Sriperumbudur taluk and he is a graduate. The petitioner's elder son Mr.S.P.Shivekumar is working as an Executive Engineer (Production), ONGC at Karaikal and the elder son's wife Mrs.S.Priya was working as a lecturer at Annai Fathima College at Kumbakonam. Now with a good intention of bringing up their child Minor S.P.Siddarth who is studying 1st Std. and Minor S.P.Darshini, she left her job recently. " (Emphasis added)
17.It was further claimed that R.W.1's first son S.P.Shivakumar is well qualified and well positioned and his wife is also well qualified and educated. The daughter of P.W.1, i..e, deceased Aarthi, was a teacher in Jawahar Vidyalaya, Chennai, which post she got after qualifying herself only after marriage. The house of R.W.1 is larger enough to accommodate the minor child. She also has a grand son through the first son, who will give company to the minor child. With reference to the marriage between her son and the dauther-in-law Aarthi and the child who was born to them, in paragraph 18 of the O.P.No.682 of 2011, it was averred as follows :
"18......The petitioner states that her deceased son late S.P.Rajesh has fallen on love with their deceased daughter in law late R.Aarthi, when he was studying graduation itself. In fact, her deceased son late S.P.Rajesh has chosen to discontinue his studies. Their marriage was a love cum arranged marriage, it was held at Vadapalani Murugan temple on 12/2/2006 and the same was registered on 7/5/2006 before the Registrar of Marriages, Virugambakkam on 7/5/2006. It is an inter-caste marriage. But the petitioner have been put to surprise that their deceased daughter in law late R.Aarthi had given birth to minor R.Tharun on 16/7/2006, within 5 months from the date of marriage. Subsequently they realized that her son and daughter in law were having relationship even before the marriage itself. Hence magnanimously with a good intention of considering the welfare of the youth, they have consented for the marriage, even though the deceased daughter in law is elder than ehtier deceased son. Even the registered marriage was conducted only at the instigation of the petitioner herein....."
(Emphasis added) The allegation that they attempted to swindle the properties of the minor was denied by stating that they are well-off and that their only interest is of the minor child.
18.The maternal grand father examined as P.W.1 stated that his daughter Aarthi was pregnant even at the time of marriage. She was working as a Teacher in Jawahar Vidyalaya. The minor child was admitted to some other school by the parents of the minor child only because that everybody in the school will come to know she was pregnant even before marriage. Subsequently, it is P.W.1 who admitted the child in the same school. Though he asked for admission to the child in the 1st standard, they did not give admission in the 1st standard. The child's mental make up was not very good and therefore, he was admitted to the lower class. The child was disturbed due to the death of his parents. Therefore, the admission could not be obtained in the 1st standard. With reference to the relationship between R.W.1 Poonkothai and Ramaselvarasan, he stated that while R.W.1 was staying as their neighbour for more than 30 years, only 3 years back, Ramaselvarasan came into that house. He also stated that the name of the father of the deceased S.P.Rajesh was one Sankaran, who left their house. Thereafter, Poonkothai started living with Ramaselvarasan. He had not seen the said Sankaran @ Vettalai Kannan. During the marriage discussion, Sankaran was not present. But, he admitted that in Ex.P.21, the marriage invitation and Ex.P.2, the marriage registration certificate, the name of the father of late S.P.Rajesh, was shown as Ramaselvarasan. He also admitted that in Ex.R.2 (series) photographs, they showed the picture of the deceased couple as well as the petitioners in O.P.No.686 of 2011 and Poonkothai, the petitioner in O.P.No.682 of 2011 along with Ramaselvarasan, posint for the picture. The second photograph showed the entire group which gone out for some tour. He insisted that Ex.P.26, the election identity card of the deceased S.R.Rajesh, wherein his father's name was shown as Sankaran. Marking of these documents were objected to by the counsel for R.W.1.
19.Since during the cross examination of R.W.1, she disowned two computer generated birth certificates of S.P.Rajesn and S.P.Shivakumar, i.e., the sons of Poonkothai. He filed a memo seeking permission to file two computer generated birth certificates of the individuals. This was objected to by the counsel for Poonkothai by filing objection statements which was to show that a male child was born to Kannan and Poonkothai on 12.5.1978, living at No.9, Rajeswari Colony, Virugambakkam, Chennai. Similarly a male child was born on 10.1.1980 for the said Kannan and Poonkodi living at No.9, Rajeswari Colony, Virugambakkam. Poonkothai, being R.W.1 admitted in her cross examination that No.9, Rajeswari colony is the address of her mother. But she disowned as to who is Kannan as mentioned in the said certificate. But, P.W.1 had admitted that in Ex.P.1, the insurance deposits, late S.P.Rajesh had nominiated Ramaselvarasan as his nominee. He also admitted that in the sale deed in Ex.P.6, the witnesses were shown as Ramaselvarasan and Poonkothai. In Ex.P.19, the community certificate, the father of late S.P.Rajesh was shown as Ramaselvarasan. It is in this form of evidence, it was sought to be established that the first respondent in O.P.No.686 of 2011 was not the actual father of the deceased S.P.Rajesh, the father of the minor child.
20.Poonkothai, the petitioner in O.P.No.682 of 2011, was examined as R.W.1. She agreed that she used to be called in the name of Poonkodi. Her marriage took place on 30.11.1977. It was not an arranged marriage and it was an inter-caste marriage. She agreed that her first son was born on 12.5.1978 and the second son was born on 10.1.1980. She has no marriage invitation and no photographs during her marriage. She also stated that she has not filed any document to prove that she and Ramaselvarasan were the wife and husband. She admitted that in Ex.R.22, the pension payment order, the photograph of Ramaselvarasan was affixed along with her. But he was described as Selvarasan.R, being the nominee of R.W.1. She filed the electoral identity card of Ramaselvarasan in Ex.R.5, wherein he was described as Ramaselvarathinam, S/o.Ramasamy. The card was issued on 28.6.1998 at Chengalpattu and the address was shown as No.9,Sivalingapuram, J-Block, Kodambakkam. Similarly Ex.R.6 (series) were the other election identity cards issued by the Election Commission on 07.05.2009, wherein his date of birth was shown as 25.11.1947 giving address as M.M.Ramasamy Street, Saravana Kudiyiruppu, Jafferkhanpet. In Ex.R.6 his name was described as Selvarasan, S/o.Ramasamy. She also admitted that she got a job in an Anganwadi centre, Valluvarkottam, Nungambakkam for 3 years and she was staying alone. Her husband was staying with the children at Varadapuram. She denied the suggestion that the two sons S.P.Shivakumar and S.P.Rajesn were not born to her through Ramaselvarasan. As to why her initial was shown as R.Poonkothai, she stated that her father's name was Ramachandran.
21.She admitted that her son Rajesn had relationship with Aarthi even before the marriage. They were shocked by the fact that the minor son was born within 6 months and his action was wrong. They also did not print any separate invitation, but gifted Mangalsutra and Saree for the marriage. The parents of Aarthi told them that they will bear the expenses of the marriage and pleaded them to attend the marriage. Therefore, they attended the marriage. But her elder son S.P.Shivakumar did not attend the marriage as he was insulted that he belonged to scheduled caste. The parents of Aarthi also insulted her first son that he belonged to scheduled caste. On the question as to why her second son was not insulted who also belonged to the same community, she could not give any direct rely, but stated that her second son was in love with Aarthi and that they did not insult her second son. She admitted that on the date of the accident, the minor child was in the house of the maternal grand parents.
22.This court directed the minor to be produced in the chambers to ascertain the view of the minor child. Accordingly, the minor child Tharun was produced. This court had an interaction with the minor child. The minor child was of the opinion that he is very much attached to the family of the maternal grand parents and he would like to stay with them. He has also developed a bondage with his aunt, who has taken keen interest in the welfare of the child and also shows lot of care and affection.
23.In the light of these facts, the guardianship of the minor will have to be decided on the basis of the pleadings and evidence.
24.Mrs.Narmadha Sampath, learned counsel for the maternal grand parents, the petitioners in O.P.No.686 of 2011, submitted that from the beginning since the marriage was an inter-caste marriage between the parents of the minor child, the paternal grand mother was in friction with the couple and even with reluctant, she had attended the marriage. Even thereafter, after the death of the deceased parents, the child was only in the custody of the maternal grand parents and is well attached to the family. There is also a sister of the mother of the minor child, who has taken keen interest in taking care of the child. They have sufficient means to support the child. Besides, the paternal grand mother's marriage was shrouded with mystery. Though her husband's name was originally shown as Sankaran, it was shown as Ramaselvarasan in some documents and as Selvarathinam in some documents. The documents produced by them cannot be relied upon. The Ramaselvarasan who was present in court on several occasions and even offered to go to the witness box, finally refused. Therefore, the name difference found in three different electoral identity cards as well as birth certificate of Rajesh and his brother Shivakumar and also the electoral identity card produced by them showed that the real name of the husband of Poonkothai is shrouded with mystery. Further, in the O.P filed by the maternal grand parents, no counter affidavit was filed by Ramaselvarasan, though he was made as the first respondent in the O.P. In order to explain the difference found in various documents, the said Ramaselvarasan had not got into the box, but evaded after the cross examination of Poonkothai. In fact, when the cross examination took place, it was asked to the counsel for Poonkothai whether Ramaselvarasan was also going to be examined. Since the counsel proposed to examine him, he was asked to remain outside the court hall. But it is only after the evidence of R.W.1 was over, suddenly the counsel stated that they are not examining Ramaselvarasan. In the absence of any counter pleadings and not getting into the witness box, the sole testimony of R.W.1 bristles with contradictions and it cannot be relied upon.
25.It was also stated that they were unhappy with the pre-marital relationship between their son and late Aarthi. They were shocked by the birth of the minor child within 6 months of the marriage. Hence it will not be safe to keep the minor child in the house of the paternal grand mother. She further stated that the child being admitted to the lower class cannot be held as a disqualification as even it was noted in the interim order passed by this court for the grant of custody. It was further stated that it was in the best interest of the child, admission was made in the same school, especially when his mother was no more. If he had continued in the same school, it would have been the subject matter of ridiculousness as having born even before marriage of his mother especially when the mother was teaching in the school. It is after her death, the child was admitted to the good school. They have wherewithal to take care of the child and that the custody of the property of the minor also should not be left with the respondents. It must also be noted that in the O.P filed by Poonkothai, in the 14th paragraph extracted above, she made a very evasive stand relating to the relationship of Ramaselvarasan with her son. She merely described him as her husband and not the father of late Rajesh and that it is yet another factor to disqualify the said Poonkothai from being the guardian.
26.Per contra, Mr.Sathya Narayanan, learned counsel for the paternal grand mother Poonkothai made an elaborate submissions both oral and also filed written submissions. In the written submission and in the oral arguments, his main attempt was to find holes in the oral evidence given by P.W.1. His attempt was to show that in all important events between the two families, Ramaselvarasan was present and he is not a stranger as alleged by the maternal grand parents. He was present during the marriage function. The community certificate shows that he is the father of late S.P.Rajesh. Similarly, in the nomination forms of Poonkothai, his name was described. But he could not explain the difference in names in three different electoral identity cards. The fact of some person is nominated in the pension form as a nominee does not automatically a proof that he is actually the father of late S.P.Rajesh. It may be that Poonkothai could have married Ramaselvarasan subsequently, but nowhere she asserted in her O.P. that her son S.P.Rajesh was the biological son of Ramaselvarasan. This could be seen in paragraph 14 of the O.P filed by her. In the light of the bristles of contradictions between various documents and in the absence of the relevant person not getting into the box, this court is not willing to accept that R.W.1 Poonkothai has proved to the satisfaction of the court that Ramaselvarsan was the father of late S.P.Rajesh, whose minor son's custody is now sought for.
27.Mr.Sathya Narayanan also placed reliance upon a judgment of this court in Kola Surayya and others Vs. Kola Subamma and others reported in AIR 1923 Madras 42 for contending that in the absence of the father and mother and considering the habit and in view of the people of this part of the country, the paternal grand mother can be considered as a natural guardian in the absence of the father. But that case was rendered before the advent of the Hindu Minority and Guardians Act, which is now the codified law. Under Section 6(a) of the Act, in the absence of the father, any other person including mother could act as the guardian and there is no disqualification. In fact, this position of law with reference to Section 6(a) came to be considered by the Supreme Court in Githa Hariharan v. Reserve Bank of India reported in (1999) 2 SCC 228 and in paragraphs 7 to 10, the Supreme Court had observed as follows :
"7. The expression natural guardian is defined in Section 4(c) of the HMG Act as any of the guardians mentioned in Section 6 (supra). The term guardian is defined in Section 4(b) of the HMG Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of guardian and natural guardian do not make any discrimination against mother and she being one of the guardians mentioned in Section 6 would undoubtedly be a natural guardian as defined in Section 4(c). The only provision to which exception is taken is found in Section 6(a) which reads the father, and after him, the mother. (emphasis ours) That phrase, on a cursory reading, does give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime of the father. In fact, that appears to be the basis of the stand taken by the Reserve Bank of India also. It is not in dispute and is otherwise well settled also that the welfare of the minor in the widest sense is the paramount consideration and even during the lifetime of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of the court, where to do so would be in the interest of the welfare of the minor.
8.Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a court of law, the word after in the section would have no significance, as the court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as the guardian of the minor during the lifetime of the father, without the matter going to the court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of Section 6(a) (supra). In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the lifetime of the father and not during his lifetime.
9.Is that the correct way of understanding the section and does the word after in the section mean only after the lifetime? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. Did Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on the grounds of sex? In our opinion No. It is well settled that if on one construction a given statute will become unconstitutional, whereas on another construction which may be open, the statute remains within the constitutional limits, the court will prefer the latter on the ground that the legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions.
10.We are of the view that Section 6(a) (supra) is capable of such construction as would retain it within the constitutional limits. The word after need not necessarily mean after the lifetime. In the context in which it appears in Section 6(a) (supra), it means in the absence of, the word absence therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of a harmonious construction of Section 4 and Section 6 of the HMG Act, without causing any violence to the language of Section 6(a) (supra)."
28.Therefore, in this case, there is no disqualification of the maternal grand parents being guardians. On the other hand, time and again the Supreme Court has held that paramount interest in such matter is the welfare of the minor.
29.The learned counsel also referred to a judgment of the Lahore High Court in Ram Labhai Vs. Durga Das and others reported in AIR 1933 Lahore 817 and stated that the mother does not lose the right of guardianship where remarriage is permitted. In this case, this court is not considering the guardianship of minor by the biological parents. But it is a fight over the guardianship of the minor between the two sets of grand parents. In normal circumstances, both stand in the same capacity. The ultimate decision is based upon the welfare of the minor.
30.The learned counsel further referred to a judgment of the Punjab and Haryana High Court in Amrik Rai Vs. Sat Pal Sood and another reported in AIR 1983 Punjab and Haryana 301 for contending the factors to be considered for deciding the issue of guardianship. He also referred to a judgment of the Kerala High Court in Baby Sarojam Vs. S.Vijayakrishnan Nair reported in AIR 1992 Kerala 277 for contending that no one has absolute right of guardianship and that the welfare of the minor is supreme.
31.He further referred to a judgment of the Calcutta High Court in Smt.Anamitra Dutta Gupta Vs. Soumey Dutta Gupta reported in AIR 2001 Calcutta 88 for contending that equal love and affection from both ends should be required and that just and proper balance between the welfare of the minor and the right of the respective parents has to be considered by this court. He further referred to a judgment of the Bombay High Court in Ramesh Tukaram Gadhwe and others Vs. Sou.Sumanbai Wamanrao Gondkar and another reported in AIR 2008 (NOC) 1803 (Bom.). But in that case, he was able to produce only the notes of the case, wherein it was stated that willingness of the minor should be considered as one of the factor. A reference was also made to a judgment of the Bombay High Court in Ashok Shankarrao Ghatage Vs. Mahipati Yashwant Khutale reported in AIR 2006 Bombay 347 for contending that persons other than natural guardian can be appointed as guardian in an exceptional circumstance.
32.It is necessary to refer to a judgment of the Supreme Court in Anjali Kapoor v. Rajiv Baijal reported in (2009) 7 SCC 322, wherein the entire issue has been analyzed with reference to the previous cases including some judgments of foreign Courts bearing on the subject relating to guardianship matters. It is necessary to extract the following passages found in paragraphs 15 to 26, which reads as follows :
"15.Under the Guardians and Wards Act, 1890, the father is the guardian of the minor child until he is found unfit to be the guardian of the minor female child. In deciding such questions, the welfare of the minor child is the paramount consideration and such a question cannot be decided merely based upon the rights of the parties under the law. [See Sumedha Nagpal v. State of Delhi1 (SCC p. 747, paras 2 & 5).]
16. In Rosy Jacob v. Jacob A. Chakramakkal2 this Court has observed that: (SCC p. 847, para 7) 7. the principle on which the court should decide the fitness of the guardian mainly depends on two factors: (i) the father's fitness or otherwise to be the guardian, and (ii) the interests of the minors. This Court considering the welfare of the child also stated that: (SCC p. 855, para 15) 15. The children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society.
17. In Elizabeth Dinshaw v. Arvand M. Dinshaw3 this Court has observed that whenever a question arises before court pertaining to the custody of the minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child.
18. At this stage, it may be useful to refer to the decision of the Madras High Court, to which reference is made by the High Court in the case of Muthuswami Moopanar4 wherein the Court has observed, that, if a minor has for many years from a tender age lived with grandparents or near relatives and has been well cared for and during that time the minor's father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the bona fides of the petition by the father for their custody. In our view, the observations made by the Madras High Court cannot be taken exception to by us. In fact those observations are tailor-made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision.
19. In McGrath (infants), Re5 it was observed that: (Ch p. 148) ... The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.
20. In American Jurisprudence, 2nd Edn., Vol. 39, it is stated that:
An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the court may properly consult the child, if it has sufficient judgment.
21. In Walker v. Walker & Harrison6 the New Zealand Court (cited by British Law Commission, Working Paper No. 96) stated that:
Welfare is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents. (emphasis supplied)
22. Bearing these factors in mind, we proceed to consider as to who is fit and proper to be the guardian of the minor child Anagh in the facts and circumstances of the present case. In this case, the appellant is taking care of Anagh, since her birth when she had to go through intensive care in the hospital till today. The photographs produced by her along with the petition, which is not disputed by the other side would clearly demonstrate the amount of care, affection and the love that the grandmother has for the child having lost her only daughter in tragic circumstances. She wants to see her daughter's image in her grandchild. She has bestowed her attention throughout for the welfare of reminiscent of her only daughter, that is the minor child which is being dragged from one end to another on the so-called perception of judicial precedents and the language employed by the legislatures on the right of natural guardian for the custody of minor child.
23. Anagh is staying with the appellant's family and is also studying in one of the reputed schools in Indore. It must be stated that the appellant has taken proper care and attention in upbringing of the child, which is one of the important factors to be considered for the welfare of the child. Anagh is with the appellant right from her childhood which has resulted into a strong emotional bonding between the two and the appellant being a woman herself can very well understand the needs of the child. It also appears that the appellant, even after her husband's demise, is financially sound as she runs her own independent business.
24. On the other hand, considering the evidence of the respondent, it seems to us that since he has borrowed money from several persons and since he has a meagre income he may not be in a position to give comfortable living for the child. In spite of notices issued to him, he has not appeared before the Court personally or through his counsel which shows his lack of concern in the matter.
25. It is also brought to our notice that the respondent has got married for the second time and has a child too, and the minor child might have to be in the care of stepmother, specially the father being a businessman, he has to be out of the house frequently on account of his business.
26. Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child.
33.In the light of the above factual matrix and the legal precedents, this court is convinced that it is the best interest of the minor child Tharun is to be with the maternal grand parents subject to visitation right of the second respondent in O.P.No.686 of 2011 and the petitioner in O.P.No.682 of 2011. So far as the properties are concerned, since contradictory statements are made, it is not safe to rely upon the scanty materials produced and also there is no reason to totally disqualify the paternal grand mother from the property issue.
34.Therefore, this court directs the first petitioner Karuppiah in O.P.No.686 of 2011 and R.Poonkothai, the petitioner in O.P.No.682 of 2011 to be joint custodian of the properties of the minor Tharun. They will take inventories of all properties and submit a report to this court within 60 days from the date of the receipt of the copy of this order. They will administer the property in the well-being of the minor. Thereafter, if they want to alienate or encumber the property, they will file an appropriate application before this court. Until such time, moneys received on behalf of the minor shall be kept in the joint account to be opened by the maternal grand father Karuppiah and paternal grand mother Poonkothai. If there is is any dispute, the matter can be resolved by taking out applications in O.P.No.686 of 2011.
35.In view of the above, it is hereby ordered that O.P.No.686 of 2011 is allowed partly and the petitioners therein are appointed as guardians of the minor child Tharun. The first petitioner Karuppiah in O.P.No.686 of 2011 and R.Poonkothai the petitioner in O.P.No.682 of 2011 are appointed as a joint custodian of the properties of the minor with liberty to move an application in case of any difficulty or difference and to get orders. They should file the entire list of properties both movables and immovables within 60 days as directed above.
36.In the result, O.P.No.682 of 2011 will stand dismissed with liberty to the petitioner Poonkothai to have an interim custody of the minor child during three vacations, i.e., quarterly, half yearly and summer vacations for a period of one week each after due notice to the guardians appointed by this court and without causing any inconvenience to the child's academic study. Consequently connected applications will stand dismissed. However, the parties will bear their own costs.
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