A.Malaichamy vs James John Britto on 9 October, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 09.10.2017

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

C.M.A.(MD)No.765 of 2017
and
C.M.P.(MD) No.8271 of 2012

1.A.Malaichamy

2.M.Pappa … Appellants

Vs.

James John Britto … Respondent

Prayer: This Civil Miscellaneous Appeal filed under Section 47 of the
Guardians and Wards Act, 1890 to call for the impugned order dated 21.07.2017
made in G.W.O.P.No.138 of 2012 on the file of the learned Additional District
Judge, Dindigul and to set aside the same.

!For Appellants : Mr.S.M.A.Jinnah

^For Respondent : Mr.James John Britto appeared
party in person.

:JUDGMENT

The grand parents of the minor child Sharon are the appellants in this
Civil Miscellaneous Appeal. They challenge the order dated 21.07.2017 made
in GWOP.No.138 of 2017 on the file of the Additional District Judge,
Dindigul.

2.The respondent herein filed the said petition under Section 7 and 10
of Guardian and Wards Act, 1890. The respondent got married to Gethsiya
Chitra, the daughter of the appellants herein on 23.05.2010. The wife of the
respondent left the marital home on 22.01.2011. The respondent thereupon
filed IDOP.No.32/2011 seeking restitution of conjugal rights. In the
meanwhile, Gethsiya Chitra gave birth to minor child Sharon on 16.05.2011.
Due to complications occurred during the delivery, she passed away on
19.05.2011. In the meanwhile, on 17.05.2011, Crime No.17/2011 was filed
against the respondent herein. Thereafter, the appellants filed
M.C.No.37/2011 before the Additional Chief Judicial Magistrate, Madurai
seeking maintenance. A sum of Rs.10,000/- was directed to be paid every
month by the respondent herein. Contending that he should be declared as
the guardian of the minor child, the respondent filed GWOP.No.138 of 2012 and
the same was allowed on 21.07.2017. Aggrieved by the same, this Civil
Miscellaneous Appeal has been filed by the grand parents.

3.Heard the learned counsel for the appellants and the respondent, who
appeared in person. I also had an extensive discussion with both the parties
in my chamber.

4.The respondent herein while contesting MC.No.37 of 2011 filed by the
appellants herein, questioned the very paternity of minor child Sharon. I
was therefore inclined to reverse the order of the Trial Judge in toto and
allow this Appeal. The respondent not only took such a plea in the counter
but also reiterated the same in his proof affidavit. In other words, after
filing the present GWOP, he continued to take such a stand. It is also
evident from the record that the relationship between the respondent and his
wife was under considerable strain. The child was born on 16.05.2011 and it
has been with the grand parents ever since. I examined the child in my
chamber and I found the child to be of friendly disposition. It is being
brought up well and it is studying in a good school. Therefore, the
interest of the child would be seriously affected, if it is forcibly taken
away from the custody of the grand parents and handed over to the respondent.
At the same time, this Court cannot lose sight of the fact that the grant
parents are aged persons. The grand father is not having independent source
of income. On the other hand, the respondent firmly asserted that the
child is very much his and that he has got financial wherewithal to bring her
up well. This Court called upon the respondent to file a memo in this
regard. Memo dated 09.10.2017 filed by the respondent is taken on record.
Having considered all the circumstances, I am inclined to dispose of this
appeal in the following terms :

(i)The order dated 21.07.2017 made in GWOP.138/2012 is confirmed only
to the extent it appoints the respondent as the natural guardian of minor
child Sharon.

(ii)The direction to hand over the minor child to the respondent is
hereby set aside. The minor child Sharon shall continue to be with the
appellants / grand parents. However, the respondent shall be permitted to
see and be with her in the premises of Pasumalai C.S.I Church on every
Sunday. The appellants shall inform the respondent of the timings through
appropriate mode.

(iii)the respondent undertakes to handover 13-1/2 sovereign of gold
which was given by the first appellant herein at the time of marriage of the
appellant’s daughter. The respondent is given sixth months time to hand over
the said quantity of gold in the form of coins issued by a Nationalised Bank.
The appellants shall extend their co-operation for quashing the criminal case
filed by them against the respondent.

(iv)The parties herein shall request this Court to close Contempt
Petition(MD)No.46 of 2014. Whatever cases or complaints have been filed by
the appellants against the respondent shall be given a quietus by taking
appropriate proceedings or by giving their no objection.

(v)The respondent shall deposit a sum of Rs.10,000/- in the bank
account of the grand father / first appellant on or before 5th of every month
towards the maintenance of the minor child Sharon. The appellants shall
withdraw Crl.M.P.No.886 of 2017 in M.C.No.37 of 2011 on the file of the
Additional Chief Magistrate Court, Madurai.

(vi)The respondent is at liberty to approach the concerned authorities
for entering the correct particulars with regard to the name of the child or
that of its parents. The appellants are directed to execute appropriate
consent letters for enabling the respondent to obtain birth certificate of
minor child Sharon or the death certificate of the Gethsiya Chitra with
correct details.

(vii)The respondent on his own submitted that he shall not lay any
claim on the property of the appellants.

(viii)It is open to the respondent or the appellants to take out
appropriate applications in these proceedings even though this CMA stands
disposed of.

5.Both the parties agreed to comply with the directions set out above
in letter and spirit. This Civil Miscellaneous Appeal is partly allowed as
indicated above. No costs. Consequently, connected miscellaneous petition
is closed.

To

1.Additional District Judge, Dindigul.

2.Record Keeper, Vernacular Section,
Madurai Bench of Madras High Court, Madurai.

.

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