BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 29.01.2018

(Reserved on 13.12.2017)

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

C.R.P(PD)(MD)No.270 of 2017
and
C.M.P(MD)Nos.1272 and 7594 of 2017

Kalaivani … Petitioner

vs.

S.Sivaraman … Respondent

PRAYER: The Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the order dated 22.12.2016 made in I.A.No.54
of 2016 in G.W.O.P.No.28 of 2016 on the file of the learned Principal
District Court, Theni.

!For Petitioner : Mr.T.Senthil Kumar
^For Respondent : Mr.R.Venkateswaran

:Order

The Civil Revision Petition has been filed against the order passed by
the learned Principal District Judge, Theni in I.A.No.54 of 2016 in
G.W.O.P.No.28 of 2016, dated 22.12.2016.

2. The brief facts of the case is as follows:

The petitioner is the wife and the respondent is the husband. The
marriage between the petitioner and the respondent took place on 01.12.2013
at Pechiamman Temple, Kulathur, Tuticorin District as per Hindu Rites and
Customs and on 10.07.2014, they were blessed with female child Yazhisai.
According to the respondent, due to some difference of opinion between them,
in the year 2015, the petitioner deserted him and was living separately along
with her minor child. On 08.09.2016, when the petitioner went to the school,
the respondent along with his family members entered into the house of the
petitioner and forcibly taken away the minor child Yazhisai. Hence, the
petitioner lodged a complaint against the respondent and others before Kombai
Police Station about the kidnap of minor child Yazhisai on the same day and
the same was registered as C.S.R.No.181 of 2016. On 11.09.2016, the
respondent/husband filed a petition in G.W.O.P.No.28 of 2016 before the
Principal District Court, Theni, against the petitioner to declare him as
natural guardian as well as custodian of minor child. Since the police
officials attached to Kombai Police Station failed to secure the minor child,
the petitioner gave a representation on 14.09.2016, to the Superintendent of
Police, Theni. Thereafter, in order to secure the minor child, the petitioner
filed the Habeas Corpus Petition in H.C.P.(MD).No.1282 of 2016 before this
Court. This Court, by an order dated 21.09.2016, disposed the
H.C.P.(MD).No.1282 of 2016, observing that there is some dispute regarding
custody of the child, which can be resolved by the petitioner before the
District Court, Theni, where GWOP is pending. During the pendency of
G.W.O.P.No.28 of 2016, the petitioner/wife filed an application in I.A.No.54
of 2016 before the Principal District Court, Theni, for the custody of the
minor child. On 22.12.2016, the Principal District Court, Theni has
dismissed the I.A.No.54 of 2016, against which, the petitioner/wife has filed
the present Civil Revision Petition before this Court.

3.Learned counsel for the petitioner would further submit that the
divorce petition filed by the respondent is pending before the Sub Court,
Theni, in O.P.No.188/16 and the petition for restitution of conjugal rights
is pending in O.P.No.55/17. Learned counsel for the petitioner would further
submit that collective reading of Section 4(2) of the Guardians and Wards
Act, 1890, Section 4 of the Hindu Minority and Guardianship Act, 1956 and
Section 6 of the Hindu Minority and Guardianship Act, 1956 clearly shows that
mother should be the natural guardian of the child, if the child is below the
age of 5 years and in the instant case, the minor child was aged about 2
years and 2 months when the respondent has forcibly taken away the child from
the lawful custody of the petitioner/mother.

4.It is further submitted that under Section 25 of the Guardians and
Wards Act, 1890, the petitioner filed interlocutory application seeking
restoration of custody of the child where respondent/husband had forcibly
taken away the child from the lawful custody of the petitioner. Hence,
filing of the petition under Section 25 of the Act is only to find out
whether the child was removed from the lawful custody of the guardian and the
Trial Court without even going into the merits of the case ought to have
restored the child to the custody of the mother, but, unfortunately dismissed
the application. Therefore, he has filed the present revision petition for
restoration of the child. In support of his contention, learned counsel
relied on the following judgments:-

1)V.Vinod Kumar vs. V.Arunadevi reported in 2016 (1) MLJ (Crl) 1.

2)Vadivel vs. Umamaheswari reported in 2014 (1) MLJ 150.

5.In the counter, the respondent would submit that the petition is not
maintainable as the child under the custody of the father and therefore, the
petitioner ought to have filed application where the child ordinarily resides
and the learned counsel for the respondent would submit that the welfare of
the child is paramount and the circumstances in which the child was living is
hazardous and injurious to the health of the child and has affected the
breathing system which if not treated properly, it would endanger the life of
the child and therefore, he would contend that the mother has left the child
under the custody of her mother and had gone to school and he would state
that the child is more attached to father and the petitioner filed complaints
against the respondent.

6.Heard the learned counsel for the petitioner as well as respondent.

7.Before going into the merits of the case, this Court tried to mediate
the issue between the petitioner as well as the respondent and it is found
that though the petitioner was willing to live with the respondent, the
respondent was not willing to live with the petitioner and therefore, this
Court has no other option except to proceed with the case legally.

8.It is an admitted fact that the chid was forcibly taken away from the
custody of the mother of the petitioner when the petitioner has gone to the
school. At this juncture, it is relevant to extract below Section 4(2) of
the Guardians and Wards Act, 1890 and Section 6 of the Hindu Minority and
Guardianship Act, 1956:-

”Section 4(2) of the Guardians and Wards Act, 1890:-
”guardian” means a person having the care of the person of a minor or
of his property or of both his person and property.

Section 6 of the Hindu Minority and Guardianship Act, 1956:-

6.Natural guardians of a Hindu minor.- The natural guardians of a Hindu
minor, in respect of the minor’s person as well as in respect of the minor’s
property (excluding his or her undivided interest in joint family property),
are

(a)in the case of a boy or an unmarried girl, the father, and after
him, the mother; provided that the custody of a minor who has not completed
the age of five years shall ordinarily be with the mother;

(b)in the case of an illegitimate boy or an illegitimate unmarried
girl, the mother, after her, the father;

(c)in the case of a married girl, the husband; provided that no person
shall be entitled to act as the natural guardian of a minor under the
provisions of this section (a) if he has ceased to be a Hindu, or (b) if he
has completely and finally renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi)
Explanation.- In this section, the expressions ‘father’ and ‘mother’ do not
include a stepfather and stepmother.”

9.A conjoint reading of the above provisions shows that for the child
below the age of 5 years, the natural guardian should be only the mother and
perusal of the records shows that the petition filed under Section 25 of the
Guardians and Wards Act, 1890 has been filed for restoration of the custody
of the child stating that the child was forcibly taken away by the husband
and therefore, the Court has to only decide whether the child has been
forcibly taken or not.

10.Here is a case, where the husband had kidnapped the minor child on
08.09.2016 and rightly the petitioner had gone to the police and lodged a
complaint and she has also filed HCP(MD)No.1282/16 and the respondent has
filed GWOP within two days of kidnapping and this Court in HCP(MD)No.1282/16
directed the parties to seek their remedy before the appropriate Court where
GWOP is pending and what ought to have transpired in the mind of the Judge
was since the petition is pending, the Court thought that even custody can be
got before the concerned Court where the GWOP is pending. It is unfortunate
that since the dismissal of HCP on 04.10.2016, the respondent also filed a
divorce petition against the petitioner. After the respondent has forcibly
kidnapped the minor child from the lawful custody of the mother, he has filed
a petition to appoint him as natural guardian which in my considered opinion
is a clear abuse of process of the Court. The power to remove guardianship
from one person to another lies only with the Court and not on any individual
person who has forcibly removed the child from a woman who has been deserted
by him.

11.As rightly contended by the learned counsel for the petitioner, no
man can take advantage of his own wrong ‘Nulls commodum capere potest de
injuria sua propria’. It is to be noted that the respondent/husband was
earlier married to one Krishnaveni through her, he has got a child by name,
Ilakkiya and during the pendency of divorce proceedings, he filed GWOP.No.11
of 2004 dated 05.08.2010 and in the maintenance case filed by the first wife,
the learned Judicial Magistrate, Rajapalayam, directed him to pay Rs.4,000/-
towards maintenance for his wife and daughter. Challenging the same, he has
filed Crl.R.C.No.9 of 2014, wherein, he has filed an affidavit stating that
after divorce, he married one Kalaivani and a female child namely, Yazhisai
was born on 10.07.2014 and he has also stated that he is working in a
jewellery shop and have a meagre income and since he has to maintain the
second wife and child born through her, sought for reduction of maintenance.

12.In my considered opinion, the issue to be decided before this Court
is whether the child has been removed from the custody of the mother. The
reasons given by the respondent for removal of the custody of the child
cannot be sustained in the eye of law and the judgments produced by the
respondent also not applicable to the present facts and circumstances of the
case. It is an unfortunate case for nearly one year the poor woman was made
to run from pillar to post and the learned Judge has dismissed the
interlocutory application seeking custody of the child. It is also very
unfortunate that the complaint of kidnapping given by the petitioner was also
closed.

13.It is also borne by records that the petitioner has filed
Crl.R.C.No.9/2014 seeking reduction of maintenance amount stating that he has
to maintain the second wife/petitioner and the child, however, quite contrary
to the same, he has got misunderstanding with the 2nd wife and has taken the
child forcibly from the custody of the petitioner/mother. Further, the
divorce petition filed by the respondent against the present petitioner(2nd
wife) in HMOP.No.188/ 16 and the petition for restitution of conjugal rights
filed by the petitioner in HMOP.No.355/17 are pending before the Sub Court,
Theni.

14.The attitude of the respondent in my considered opinion has to be
viewed seriously. Since the child was at the age of 2+ years and she was
removed from the custody of the mother forcibly by the respondent, the
respondent is directed to hand over the custody of the child Yazhisai, within
ten days from the date of receipt of a copy of this order, failing which, the
Superintendent of Police, Theni, is directed to ensure that the custody of
the child is handed over to the petitioner/mother.

15.Accordingly, the impugned order passed by the learned Principal
District Judge, Theni, in I.A.No.54 of 2016 in GWOP.No.28 of 2016 is set
aside and the Civil Revision Petition is disposed of with the above
directions. No costs. Consequently, connected miscellaneous petitions are
closed.

To

1. The learned Principal District Court,
Theni.

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

.