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Custody of Minor — Appointment of Guardian


Bench: JUSTICE K. Chandru


Law Point:
Custody of minor — Appointment of Guardian — Minor child, aged about 9 years in custody of mother for last 8 years — Even during pendency of OP, child is with a mother and going to school — Minor child also expressed her desire to be with mother — Respondent father has got married to another woman — In his evidence, respondent has admitted that he is not contributing to growth and maintenance of child all these years and mother has contributed for everything — Petitioner can be appointed as guardian — Respondent can only have visitorial right.



The Original Petition is filed by the Petitioner/mother, seeking to declare her as the guardian of the minor child Nithya Sigapi Venkat.

2. The OP was admitted on 2.11.2007. However, when the matter came up on 9.2.2009, this Court allowed the OP and declared the Petitioner as the guardian of the minor child. Subsequently, the Respondent filed an Application in A. No. 3693 of 2009 to condone the delay of 150 days in filing the Application to set aside the ex parte order dated 9.2.2009. This Court by an order dated 17.8.2009 condoned the delay and the earlier order was set aside by this Court on 24.10.2009. It was thereafter, the Respondent filed a Counter-Affidavit dated 30.6.2010. The Respondent also filed Written Arguments dated 26.10.2012. Once again the matter was posted for recording evidence. Accordingly, the Petitioner examined herself as PW1 and the Respondent examined himself as RW1.

3. Heard the arguments of Ms. Sheila Jayaprakash, learned Counsel for the Petitioner and Mr. T.S. Baskaran learned Counsel for the Respondent.

4. It is the stand of the Petitioner that she is a graduate from Ethiraj College. From December 2006, she was employed with “Fitness One” Group. The Respondent is a Chemical Engineer from Annamalai University. They lived together in USA from the date of their marriage in November, 2000 till they finally returned to India in March, 2005. The minor child Nithya Sigapi Venkat was born on 28.11.2004 at Pennsylvania, USA and because she was born at USA, the minor child also has USA citizenship. Initially, the Respondent came to India in January 2005 to see his ailing mother. The Petitioner along with minor child came to India in March 2005 as the minor child did not have a passport and she had to wait for completion of the duration. It was thereafter, the Respondent left to USA during April/May 2005. The Respondent moved the USA Court in September 2005. The Petitioner filed an Objection Letter before the USA Court. The USA Court granted divorce on 21.6.2007 after waiting for two years as per the USA laws. After the divorce, she took back her articles and money from the custody of the Respondent’s father. Originally, a Criminal Complaint was given by the Petitioner against her father-in-law. Thereafter the Respondent’s father filed an Application to quash the Complaint and the matter was sent to the Mediation and Conciliation Centre and a compromise was reached on 24.9.2008 and the Complaint was closed. After the divorce, she was not able to know the whereabouts of the Respondent. The Petitioner also filed a Petition for divorce before the Sub-Court, Devakottai as the marriage was performed in India at Devakottau. The Sub-Court, Devakottai granted decree of divorce by judgment dated 23.6.2009. It was stated by her that the Respondent has shown no interest in the welfare and custody of the minor child and therefore, she is entitled for appointment as guardian of the minor child.

5. The Respondent agreed to most of the factual statements made by the Petitioner. He stated that he came back to India during 2006 and his attempt to visit the minor child was not fruitful. But he agreed that he did not send any money for maintenance for the child from 2006 till the date of his examination as their relationship was strained. He became the citizen of USA during 2008 and he came back to India during November, 2008. Thereafter, he settled at Chennai at Indira Nagar and presently, he is working at Madurai. He has also married one Suganya on 1.2.2009 and he has no issues through her. In fact the second marriage took place after he gave an advertisement in the newspaper. While he was in USA, he did not take any steps to seek for the custody of the child. It was also stated that he was prevented visitation of the child.

6. In the light of these facts, Ms. Sheila Jayaprakash, learned Counsel for the Petitioner contended that right from her return from USA, there was no attempt by the Respondent to show any interest in the welfare of the child and it is she out of her own earnings taking care of the child and the Respondent has been disqualified from being a guardian. His only interest was to get divorce and he has also subsequently got married to another woman. Therefore, it is not safe for the child to be with the Respondent.

7. Per contra, Mr. T.S. Bhaskaran, learned Counsel for the Respondent contended that only because the Respondent was prevented from seeing the child, he could not meet the child. The Respondent is the natural guardian under law and he did not seek for any declaration of this nature. At the maximum, the Petitioner can only claim custody of the minor child but not guardianship. Therefore, the Respondent cannot be prevented from being the guardian of the minor child. The minor being a citizen of USA, the Respondent is entitled to take the minor child for renewal of passport and other formalities. He should also be granted visitation rights every week and custody for one half of vacation during summer and Christmas. Since, the Respondent is very much settled at Chennai. he is available for all the needs of the child.

8. In this context, he placed reliance on the judgment of the Supreme Court reported in Sheila B. Das v. P.R. Sugasree, I (2006) DMC 343 (SC)=I (2006) CLT 211 (SC)=II (2006) SLT 351=2006 (3) SCC 62, for contending that in the matter of child custody, the paramount interest of the child has to be considered. But in that case, the mother was found to be a busy medical practitioner. The Court found the child being 12 years of age was intelligent and was doing well in her studies and the child preferred to stay with the father where she felt more comfortable. It was also found that the child has developed good relationship with her paternal aunt who was staying with her father. Under these circumstances, the Court held that while the child will stay with her father to continue the school, the mother will have the right of visitation on every second Saturday of the month and if the child is willing, the mother will also be entitled to keep the child with her overnight on such Saturday and will also be entitled to the custody of the minor during summer vacation on dates to be mutually settled between the parties. It is not clear as to how the said judgment is of any assistance to the Respondent.

9. The learned Counsel thereafter referred to the judgment of the Supreme Court reported in Lekha v. P. Anil Kumar, I (2007) DMC 57 (SC)=I (2007) CLT 170 (SC)=IX (2006) SLT 222=2006 (13) SCC 555, for contending that mere fact that a person is married will not deprive the parental right of custody. Therefore, the father was given custody for weekend on the ground the parental right of custody cannot be denied and the mother should not prevent the father from coming to see the child. Therefore, he stated that the re-marriage cannot be a ground to deny the custody of the child. Even that case do not help the Respondent except to the extent it does not totally disqualify from having the custody.

10. The learned Counsel also referred to the judgment of the Supreme Court reported in Mohan Kumar Rayana v. Komal Mohan Rayana, II (2010) CLT 26 (SC)=III (2010) SLT 156=2010 (5) SCC 657, wherein the Supreme Court held that the wishes of the minor is the paramount consideration and in that case, the Court found that the child had no inhibition in meeting the father with whom she had excellent understanding but she preferred her mother’s company as the bond between them was greater. Since it was found the child was a girl, it requires the company of the mother more and therefore, the Court did not disturb the status quo of the child’s custody but granted weekends custody.

11. The learned Counsel also referred to the judgment of the Supreme Court reported in Athar Hussain v. Syed Siraj Ahmed and Others, I (2010) SLT 76=I (2010) CLT 11 (SC)=2010 (2) SCC 654, for contending that the father is the natural guardian of a child. Unless he is found not fit to be the guardian, the Court has no jurisdiction to appoint another guardian, though it would not necessarily affect the issue of custody. Though the said judgment arose under the Mohammedan Law, the learned Counsel insisted that since the Hindu Law has the similar provision, the law laid down therein will equally apply. However, in the very same judgment in paragraph 44, the Supreme Court held as follows:

“44. The second marriage of the Appellant, though a factor that cannot disentitle him to the custody of the children, yet is an important factor to be taken into account. It may not be appropriate on our part to place the children in a predicament where they have to adjust with their stepmother, with whom admittedly they had not spent much time as the marriage took place only in March 2007, when the ultimate outcome of the Guardianship proceedings is still uncertain.”

(Emphasis added)

12. Though the Respondent very much relied upon the provisions of Hindu Minority and Guardianshipship Act, 1956 for contending that the father is the natural guardian in terms of Section 6(a) of the Act and therefore, his right to be a guardian cannot be disturbed under the provisions of the Guardians and Wards Act, this Court is unable to accept the same.

13. The Supreme Court in Githa Hariharan v. Reserve Bank of India, II (1999) SLT 138=1999 (2) SCC 228, dealt with the scope of Section 6(a) of the Hindu Minority and Guardianshipship Act and in paragraphs 16 and 18, it was held as follows:

“16. While both the parents are duty-bound to take care of the person and property of their minor child and act in the best interest of his welfare, we hold that in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the lifetime of the father, who would be deemed to be “absent” for the purposes of Section 6(a) of the HMG Act and Section 19(b) of the GW Act.

18. We are conscious of the fact that till now, many transactions may have been invalidated on the ground that the mother is not a natural guardian when the father is alive. Those issues cannot be permitted to be reopened. This judgment, it is clarified, will operate prospectively and will not enable any person to reopen any decision already rendered or question the validity of any past transaction on the basis of this judgment.”

14. In the light of the above, the contention made by the learned Counsel for the Respondent relying upon Section 6(a) does not stand to reason.

15. The only question to be decided is whether the Petitioner can be appointed as the guardian of the minor child. In this case, the child has been with the mother for the last eight years and she is already nine years old. Even during the pendency of the OP, the child is only with the mother and going to school. The minor child also expressed her desire to be with the mother. Considering the crucial age of the child, this Court is of the view that it is just and proper that the child should grow in the custody of the mother. Yet another factor is that the respondent has also got married to another woman. The hypertechnical argument of the Respondent that there is distinction between custody and guardianship does not stand to reason. In this case, even in evidence, the Respondent has admitted that he is not contributing to the growth and maintenance of the child all these years and it is the mother, who has contributed for everything. Therefore, as interpreted in Githa Hariharan’s case (cited supra), in the light of Section 6(a) of the Hindu Minority and Guardianship Act, the Petitioner can be appointed as guardian. The only right that the Respondent can have is visitorial right.

16. In the light of the above, OP stands allowed. However, the Respondent, if he is interested in seeing the child, he must first develop a bondage and he can interact with the child initially through telephone once a week and if the child so desires, can be sent along with the father on Saturdays for a period of two hours after prior intimation and without disturbing the child’s School curriculum.