IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.07.2010 CORAM THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN CIVIL MISCELLANEOUS APPEAL NO.2446 OF 2006 R. Chandrasekaran .... Appellant/Respondent Vs. C.Umamaheswari .... Respondent/Petitioner APPEAL under Section 47a of the Guardian and Wards Act 1890 against the order passed in GWOP.No. 53 of 2005 on the file of the Principal District Judge, Erode District, dated 26.6.2006 and to set aside the same. For Appellant : Mr.K.Doraisami, Senior Counsel for M/s.Muthumani Doraisami For Respondents: Mr.N.Manoharan J U D G M E N T This Civil Miscellaneous Appeal is against the order passed by the learned Principal District Court, Erode in GWOP No. 53 of 2005 as regards the appointment of guardian of two minor children. 2. The appellant herein is the father of the minor children, Sanjuktha and Vigneswaran. Admittedly, the relationship between the appellant herein and the respondent is a strained one. The respondent has filed HMOP No.20 of 2002 for judicial separation on the file of the Principal Subordinate Judge, Erode. The respondent has filed a petition under Section 7(a), 8 and 10 of the Guardian and Wards Act to appoint her as the guardian of the minor children. The learned Sub Judge passed an order on the application allowing the mother to be appointed as the guardian of the two minor children. Aggrieved by the same, the father has come on appeal before this Court, contending that contrary to the desires of the children and much against their interest and without any due regard to the wishes of the minor children, the Court below had passed the order appointing the mother as the guardian and sought permission of this Court to ask the minor children to appear before this Court to express their desire and preferences to stay either with the mother or with the father. https://hcservices.ecourts.gov.in/hcservices/ 3. In the meantime, the respondent had moved this Court in HCP 561 of 2010 that the husband the appellant herein had forcibly taken the custody of the children. The Division Bench adjourned the hearing of the case and directed the listing of the C.M.A. to have the benefit of the order in the C.M.A. 4. A reading of the judgment of the Court below shows a comparison of the kind of education given by the mother to the minor son till he left the mother to join the father. The Court below pointed out that the appellant herein had not filed any evidence to prima facie prove that he had taken steps for the better education of the minor children. The Court below considered the evidence of the appellant only to come to the conclusion that the appellant had not taken any reasonable step to provide better education and basic requirements of the minor children. The respondent, however, relied on the second marriage contracted by the father as a circumstance to show that the father was not interested in the welfare of the minor children. Referring to the dispute as to the birth of child and Exs.A4 to A13, the Court below held that it was appropriate that the mother be appointed as the guardian for the minor children. Thus the Court below allowed the petition filed by the respondent. Barring the above evidence I do not find anywhere in the judgment of the Court below that the interest of the minor children was ascertained before passing the order. 5. Considering the sensitivity of the issue and to ascertain the desire of the children, I directed the children to be brought before this Court. Accordingly minor children Vigneswaran aged 12 years and Sanjuktha aged 14 years appeared before me today and in the presence of the parties and their respective counsel, I examined the children. 6. I have examined both the minor children viz., Vigneswaran aged 12 years and Sanjuktha aged 14 years in the presence of the parties and their respective counsel. Minor Vigneswaran categorically stated that even though he had stayed with his mother for five years, he opted to stay with his father and his sister Sanjuktha, who has always been living with the father. When questioned, both the children expressed their desire to be with the father as their guardian, in preference to the mother, the respondent herein. In fact, the children raised a question emphatically and wanted an answer to be elicited from the respondent as to why the mother preferred the boy child and not the girl child for whom she never showed any affection or sought for her custody all these years and shown any interest even to see her. The examination of the children in the open Court clearly showed that contrary to the allegations of the respondent that the children are tutored, the children appeared normal and they are clear about what they conveyed. In fact, they expressed their desire to stay together and under the care of the father, the appellant herein. After talking to the https://hcservices.ecourts.gov.in/hcservices/ children in the open Court, I have no doubt that as far as the custody cases are concerned, when the children appeared well informed on the nature of proceedings going on and are capable of expressing their preferences coherently and with clarity,it is better that we allow the children to decide their guardian rather than by the rights of the parents. The Apex Court pointed out in the decision reported in 1973 3 SCR 918 (Rosy Jacom Vs. Jacom A. Chakramakkal)that the object and purpose of the 1890 Act was to give due protection of the rights of the ward's health, maintenance and education. In the decision reported in (2008) 9 SCC 413 (Nil Ratan Kundu and another Vs. Abhijit Kundu), the Apex Court referred to the decisions of the Apex court on this issue as well as the law prevailing in other countries only to point out that the first and paramount consideration is the welfare of the child and not of the parent. Hence, heavy duty is cast on the Court to exercise its judicial discretion judiciously while considering the question as to which parent the care and control of the minor child should be committed. In paragraph 56 of the judgment, the Apex court pointed out as follows: " 56. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor. " https://hcservices.ecourts.gov.in/hcservices/ 7. As already pointed out, assessing the mind of the minor children who appeared before me today, I have no hesitation in holding that it would not be in the interest and welfare of the minor children to hand over their custody to the mother. 8. Learned counsel for the respondent, however, strongly opposed by pointing out to the dates and events on record only to emphasize that the minor boy Vigneswaran was forcibly taken away from the mother and that the boy had been tutored to make the statement against the mother. He also referred to the criminal Court proceedings wherein, the boy Vigneswaran had stated earlier about his preference to be with the mother. He further submitted that if the children are permitting to be with the father, it would amount to this Court putting a seal of approval on the conduct of the appellant herein forcibly taking away the minor child Vigneswaran. I do not think learned counsel is justified in making such a strong exception to this Court giving effect to the wishes of the minor children. As already pointed out, in my presence, the minor children expressed their desire to be under the custody of the father; the minor child Vigneswaran expressing his strong desire to be with the sister. In fact, the minor child Vigneswaran directly opened out to his mother, the respondent herein, as to his desire to be with his father and sister. In a recent decision reported in (2009) 1 SCC 42 (Gaurav Nagpal Vs. Sumedha Nagpal), reiterating the earlier decisions, the Supreme Court held as follows: "40. ... Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. " Thus when the Court is confronted with conflicting demands from the parents, the Court does not give emphasis on what the parties say but it has to exercise its jurisdiction to protect and promote the welfare of the minor. The Apex Court pointed out that though the provisions of special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases. https://hcservices.ecourts.gov.in/hcservices/ 9. In the light of the above-said decisions, going by the desire expressed by the children expressed in open Court, I have no hesitation in giving effect to the wishes of the minor children who are intelligent and clear enough to state their preferences. Consequently, I have no hesitation in allowing the appeal, thereby appointing the father as the guardian of the minor children of Vigneswaran and Sanjuktha. 10. Learned counsel for the respondent, however, sought for visitation rights at least to be with the children. Considering the initial hesitancy in the mind of the minor children to go to the mother's place, this Court suggested the children and their mother meet each other in a common place so that there is at least a normalcy restored in their reaction with each other. At the suggestion of the parties herein, the respondent is hereby permitted to be with the children on every Sunday evening between 3.00 pm and 6.00 pm at V.O.C. Park, Erode that a cordiality in their feelings towards each other stands restored. It is hereby made clear that the appellant shall not shirk from his responsibility to see that the children show the same kind of affection to the mother too that they build up a normal relationship as a child to a mother and a mother to a child. With a fond hope that elders would cooperate in this matter that the interest of the minor children is of utmost importance to them too, that the differences between the couple shall give way for promoting the welfare of the minor children. Keeping this in mind, this Court expressed its desire that the parties shall cooperate and the counsel on either side would advise the parties to act with a sense of responsibility. 11. With this, the appeal is allowed and the father appellant is appointed as the guardian for the persons of the minor children. The appointment of the father as guardian, however, does not prevent the children from making any representation on a future date as to the modification of the order passed today. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar bg To 1. The Principal District Judge, Erode District. https://hcservices.ecourts.gov.in/hcservices/ 2. The Section Officer, V.R.Section, High Court, Madras. 1 cc To Mr.N.Manokaran, Advocate, SR.48360. 1 cc To Mrs.Muthumani Doraisamy, Advocate, SR.48373. C.M.A.No.2446 of 2006 RSI(CO) RVL 18.10.2010 https://hcservices.ecourts.gov.in/hcservices/