IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON’BLE MR.JUSTICE M.GOVINDARAJ
CMA NO.2670 OF 2016
AND CMP NO.19074 OF 2016
2.S.Yogeshwari … Appellants
Parameswary … Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 47 of
Guardians and SectionWards Act, 1890, against the fair and decreetal order
dated 18.10.2016 passed in Guardian Original Petition No.02/2014, on
the file of the Principal District Judge, Dharmapuri.
For Appellants : Mr.I.Abrar Md Abdullah
For Respondent : Mr.S.Nambi Arooran
The present Civil Miscellaneous Appeal is filed against the
fair and decreetal order dated 18.10.2016 passed in GWOP No.02/2014
by the Principal District Judge, Dharmapuri.
2. The appellants are the third parties who claim that
they brought up the child for the money sent by the
respondent/mother. Now the boy is aged about nine years. When the
parties were directed to appear before this Court, the Boy refused to
go with the respondent/mother. Thereafter, an interim arrangement
was made on 29.03.2019, as follows:
“The matter was taken up in the Chambers and
negotiations are held. Minor is studying IV Standard and
he has to attend the annual examination from 8th April
to 12th April 2019. After the examinations are over, the
appellants agree to send the minor to their daughter’s
house at Vaniyambadi, where the respondent / mother of
the minor can visit and make close acquaintance with
Post the matter on 25.04.2019 at 02.00 pm in the
Chambers for appearance of parties.”
3. It is the contention of the learned counsel for the
respondent that during the brief stay, the boy was very much attached
to the respondent/mother and only when he went back to the
caretaker/appellants, he behaved otherwise.
4. Now that the learned counsel for the appellants would
vehemently contend that the Lower Court failed to consider the
principles governing appointment of Guardians. The minor is so
emotionally attached with the appellants and his family members. The
respondent being a relative can visit the child anytime. Granting
custody to the mother will seriously prejudice the interests and well
being of the minor.
5. The Hon’ble Supreme Court in VIVEK SINGH VS.
ROMANI SINGH [2017 (3) SCC 231] has categorically held that the age
around eight or nine is a very crucial and it is the age when his/her
emotional development may be evolving at a deeper level than ever
before. At that stage, keeping away the child from the relationship of
a father or mother will create Parental Alienation Syndrome.
6. It will have serious consequences in the behavioural
pattern of the child as he / she grows. Therefore, it is always better
to give the custody to the natural guardian in the interest and welfare
of the minors.
7. Curiously, in this case, the appellants are neither
parents nor biologically connected to the child. They had taken care
of the child during the absence of the mother when she was out of
India for some money paid to them. They cannot claim any right over
the child legally or on factual aspects. In the light of the judgment of
the Hon’ble Supreme Court in Vivek Singh’s case (cited supra) it is
better to hand over custody of the child to the respondent / mother.
8. In such circumstances, this Court confirms the order
dated 18.10.2016 passed in Guardian Original Petition No.02/2014 by
the Principal District Judge, Dharmapuri, granting custody of the child
in favour of the respondent/mother. The appellants are directed to
hand over the child to the respondent within a period of one month
from the date of receipt of a copy of this order without causing any
emotional disturbances to the minor.
9. It is also necessary to issue a direction to the
respondent/mother, in the interest of the minor, to retain the child in
India without causing any emotional disturbances to the child and to
maintain him well. If there is any complaint against taking the child
outside India or any attempt to take him away, without getting further
orders from this Court, the same will be seriously viewed warranting
penal consequences. Liberty is granted to the respondent/mother for
approaching this Court for appropriate orders.
10. The Civil Miscellaneous Appeal is disposed of with the
above observations and directions. No costs. Consequently, connected
civil miscellaneous petition is closed.
Index : Yes/No
Internet : Yes/No
Speaking / Non speaking order
The Principal District Judge
CMA NO.2670 OF 2016