BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 10.10.2017

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

C.M.A.(MD)Nos.425 of 2015
426 of 2015
and
M.P.(MD).Nos. 1 and 1 of 2015

S.Chandramohan … Appellant
in C.M.A.(MD).No.425 of 2015

S.Chandramohan … Appellant
in C.M.A.(MD).No.426 of 2015

vs

1.A.Govindarajan
2.G.Kalaiselvi … Respondents
in C.M.A.(MD).No.425 of 2015

1.A.Govindarajan
2.G.Kalaiselvi … Respondents
in C.M.A.(MD).No.426 of 2015

Common Prayer: Appeals filed under Section 47 of the Guardian and Wards Act,
1890, to call for the records and set aside the order G.W.O.P.Nos.225 and 257
of 2011, on the file of the Principal Sub Court, Thanjavur, dated 23.12.2014
and allow these Civil Miscellaneous Appeals with cost.

!For Appellant : Mr.T.V,Sivakumar
in both appeals

^For Respondents : Mr.G.Karnan for R.1 R.2
in both appeals

:JUDGMENT

The father of the minor child Srilekha is the appellant in both these
appeals. C.M.A.(MD).No.425 of 2015 is directed against the order made in
G.W.O.P.No.225 of 2011 on the file of the Principal Sub Court, Thanjavur.
C.M.A.(MD).No.426 of 2015 is directed against the order made in
G.W.O.P.No.257 of 2011 on the file of the Principal Sub Court, Thanjavur.
G.W.O.P.No.225 of 2011 was filed by the appellant herein seeking custody of
the child. G.W.O.P.No.257 of 2011 was filed by the respondents herein
seeking declaration that they are the guardians of the minor child. While
the petition filed by the appellant was dismissed, the one filed by the
respondents was allowed by a common judgment dated 23.12.2014 by the Trial
Court. Aggrieved by the same, these appeals have been filed.

2.The respondents herein gave their daughter in marriage to the
appellant on 08.12.2002. The minor child Srilekha was born on 11.07.2004.
The appellant’s wife Kavitha died on 22.11.2005. It is the case of both the
parties that the child was willingly and voluntarily handed over by the
appellant to the respondents who are none other than the grand parents of the
child. The understanding between the parties was that the appellant would go
for a re-marriage and thereafter take back the child. The appellant has not
begotten any child through his second wife. When the appellant wanted the
grand parents to hand over the custody of his child, the grand parents
refused. This led to the institution of the present proceedings. The Court
below examined the child. The child expressed her wish that she wanted to
continue to be with the grand parents. In that view of the matter, the Trial
Court declared the grand parents as the guardian of the child. The Trial
Court not only dismissed the petition filed by the father / appellant herein,
but even denied his visitational rights.

3.The learned counsel for the appellant would point out that the Trial
Court erred in deciding the issue solely based on the wish expressed by the
child. It is his contention that the father being a natural guardian could
not be denied his status, unless he is specifically found unfit. The
learned counsel took me through the deposition of the maternal grand father /
first respondent herein and it could be seen that the respondent have not
really said anything against the father of the child.

4.I am therefore of the view that the Court below could not have
declared the grand parents as guardian when the father is very much alive.
Absolutely nothing can be said against the appellant herein. I therefore
unhesitatingly set aside the decree dated 23.12.2014 made in
G.W.O.P.(MD).No.257 of 2011 on the file of Sub Court, Thanjavur. But the
question is whether the custody of the child should be handed over to the
father. It is seen that the child was born on 11.07.2004. It has been with
the grand parents for the last 12 years. Therefore, the child would suffer
psychological damage if she is forcibly removed from the custody of the grand
parents. Therefore, I do not wish to interfere with the order passed by the
Court below declining to hand over the custody of the child to the appellant
herein. It is seen that the Court below has given liberty to the appellant
and file a fresh petition on the completion of 15 years of age by the child.
At the same time, the appellant cannot be denied his visitation rights.

5.I therefore direct the respondents to permit the appellant to see the
child on the second and the fourth Sunday of every month. It is a duty of
the respondents to make appropriate arrangements in their house so as to
enable the appellant to be with his daughter atleast for a few hours. If
this would led to some embarrassment, any meeting place such as the premises
of the local temple can be agreed upon. The appellant/father is also
entitled to take his daughter for two weeks during summer vacation. The
respondents are strictly instructed that this order permitting the visitation
rights for the appellant / father cannot be frustrated by citing some flimsy
reasons. The decree dated 23.12.2014 made in G.W.O.P.No.225 of 2011 is
accordingly modified. C.M.A.(MD).No.425 of 2015 is partly allowed.
C.M.A.(MD).No.426 of 2015 is allowed. No costs. Consequently, connected
miscellaneous petitions are closed.

To

1.The Principal Sub Court, Thanjavur.

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

.