IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.11.2010 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.650 of 2007 M.P.Nos.1 and 2 of 2008 P.Senthil Kumar ... Appellant/Petitioner vs. R.Sunitha ... Respondent/Respondent Civil Miscellaneous Appeal filed under Section 47 of the Guardian and Wards Act, against the order and decree, made in GWOP.No.534 of 2002, dated 23.12.2004 on the file of the Family Court, Coimbatore. For Appellant : Mr.G.Rajan For Respondent : Mr.R.Shanmugasundaran, SC for M/s.Saravanan J U D G M E N T This appeal is directed against the order and decree made in GWOP.No.534 of 2004, dated 23.12.2004 on the file of the Family Court, Coimbatore. 2. For the sake of convenience, the parties are referred to as the petitioner and respondent. 3. Facts leading to the appeal are as follows: Marriage between the parties was solemnised on 29.04.1994, as per the Hindu Rites and Customs and it was registered in the Office of the Registrar, Erode. Out of the wedlock, a male child was born. At that time, the petitioner was the owner of Oil Tanker lorries and doing business in the Coimbatore. Due to strained relationship, the respondent left the matrimonial home and filed M.C.No.245 of 2001 for maintenance in the Family Court, Chennai. The application was dismissed for default, since the respondent did not attend the Court. Thereafter, the respondent filed a Divorce Petition before the Family Court, Coimbatore, with false and untenable allegations. The petition was resisted. During the course of litigation, though the petitioner repeatedly demanded for the custody of the child, but the respondent refused to hand over the child. According to him, the https://hcservices.ecourts.gov.in/hcservices/ respondent was living with her parents separately and that the minor child was a hosteller in Ooty, without any love and care. 4. It is the further contention of the petitioner that though he had made several attempts to see the minor child, all his attempts were in vain and that he was not even permitted to see his child in the hostel. As the respondent has not provided due care and attention to the child and not brought him in good atmosphere and considering the welfare of the child, he was constrained to file a petition under the Guardian Wards Act, for custody. The petitioner has further submitted that he is ready and willing to give all his attention, love and affection to the child, education in a good school and provide all the best, for the welfare of the child. 5. Mother of the child, resisted the petition, contending inter alia that the petitioner has no interest for the welfare of the child and that he has not even mentioned the date of birth of the child in the petition. She further submitted that she was ill- treated and harassed at the hands of the petitioner and therefore, she was forced to leave the matrimonial home. According to her, the child is given the best of education and as a mother, she has put in all her efforts, to provide everything that the child requires. She has denied the contention that as a hosteller, the child has lost the love and affection. She further contended that when the petitioner has refused to provide even reasonable maintenance to herself and the child, she was constrained to prefer M.C.No.245 of 2001 on the file of the Family Court, Chennai, but at that time, she was studying her Secretarial Course and subsequently, shifted to Ooty. In the said circumstances, she could not appear before the Family Court and consequently, the petition ended in dismissal for non-appearance. It is her contention that the petitioner had not shown any love and affection to her or to the minor son and for the abovesaid reasons, sought for dismissal of the Guardian Petition. 6. Before the Family Court, Chennai, in addition to the petitioner, Mr.Senthil Kumar and Mr.Palaniappan, were examined as Pws.1 and 2 respectively. Affidavit and counter affidavit in O.P.No.152 of 2001, filed for divorce by the respondent, were marked on the side of the appellant. The respondent examined herself as RW.1 and marked the reply affidavit of the appellant in the said O.P. On evaluation of the pleadings and evidence, the Family Court, Coimbatore, found that the petitioner has not made out a case for grant of Guardianship and considering the paramount welfare and interest of the minor child and the conduct of the parties, towards the welfare of the child, found that retention of custody and guardianship with the mother would be best suited for the child and accordingly, dismissed the guardianship petition. The Family Court further observed that the petition does not even attract or satisfy the requirements of the provisions of Guardian and Wards Act and Hindu Minority and Guardianship Act. The Family Court also observed https://hcservices.ecourts.gov.in/hcservices/ that when the petitioner had even doubted the paternity of the minor son, in the proceedings instituted for divorce, the request of the petitioner, seeking for custody of the child, is not genuine. 7. In these factual background, referring to Section 25 of the Guardian and Wards Act (8 of 1890) (hereinafter referred to as "the Act"), learned counsel for the petitioner submitted that there is no statutory requirement under the said provision that the child should have been removed from the custody of the natural guardian for maintaining a petition under the Act and what is required to be considered is only the paramount welfare and interest of the child. He further submitted that in order to maintain a petition under Section 25 of the Act, it is immaterial as to whether the minor child left the custody of the guardian on his own accord or removed from him. 8. Learned counsel for the appellant further submitted that when the father is the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, (32 of 1956), the rejection of the petition on the ground that the petitioner did not satisfy the requirements of Section 25 of the Act, is erroneous and therefore, the lower Court has misdirected itself with reference to the statutory provisions of the Act. He also submitted that when an application has been filed under Section 25 of the Act, it is incumbent on the Court to consider only the welfare of the child and non-suiting the petitioner for the abovesaid reasons, is erroneous. 9. Taking this Court through the impugned order, learned counsel for the appellant submitted that the observations of the lower Court that when the appellant had doubted the chastity of his life and paternity of the child and that it only reflects the conduct of the petitioner and therefore, he is not entitled to guardianship, is factually incorrect. It is his further contention that the petitioner had never doubted the paternity of the child. 10. Though before the lower Court, there is no averment, alleging that the respondent had solemnised a marriage, prior to contracting a marriage with the petitioner, learned counsel for the petitioner attempted to rely on a xerox copy of a document, before this Court, not marked before the lower Court and further submitted that even before the petitioner solemnised the marriage with the petitioner, she was already married to somebody and after the decree of divorce granted in HMOP.No.152 of 2001, the respondent had contracted another marriage. He therefore submitted that the respondent, who had wilfully and intentionally suppressed the earlier marriage and contracted another marriage after the decree of divorce, is not entitled to guardianship and custody of the minor child. 11. Inviting the attention of this Court to the absence of any specific denial in the counter affidavit filed by the respondent, https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the petitioner submitted that the abovesaid averment touching upon the suppression and the conduct of the respondent, is implicitly admitted and therefore, the lower Court ought not to have allowed the custody of the child to be retained with such a person and should have considered the paramount welfare of the child, who is now forced to live in such atmosphere. 12. Learned counsel for the petitioner further submitted that the paternity of the respondent was never questioned in the Guardian Petition and even assuming that the said issue was considered earlier, while adjudicating the right of the respondent to seek for divorce in HMOP on the file of the Family Court, Chennai, any finding recorded adverse to the petitioner should be confined only to the said proceedings and it cannot be considered in a petition filed for guardianship. He further submitted that even assuming that the alleged conduct of questioning the paternity was one of the basis for arriving at the conclusion that there was cruelty, leading to an order of divorce, the said aspect should not be taken as a material factor in deciding the inter se rights of the parties, in an application for Guardianship, when the paramount welfare of the child is the sole criterion. 13. On the finding of the lower Court that the appellant had not taken sufficient care and attention of the minor child and that he has not spent any money in buying clothes and incurred expenditure, learned counsel for the petitioner submitted that the petitioner is a businessman in Coimbatore, owing an Oil Tanker lorry and normally, when any expenditure is incurred for the maintenance of the family, providing education for the children, etc., no husband who contributes a portion of the income towards routine expenditure, including education, food, shelter, etc., would maintain any separate accounts. He therefore submitted that these aspects cannot be proved with any materials and in such circumstances, the finding rendered by the lower Court that the petitioner has not paid any amount for educating his minor son, is factually incorrect. 14. Learned counsel for petitioner further submitted that though he has attempted to see his child, both at the residence of the respondent and in the School, the respondent has deliberately thwarted his sincere efforts and even the School authorities have refused to permit him to see the child. Placing reliance on a decision of this Court reported in In Mohan Kumar Rayana v. Komal Mohan Rayana reported in 2008 (3) MLJ 536 (SC), he submitted that the petitioner should not be denied access to the minor child and therefore, the deliberate and wilful denial of visiting rights would support the case of the petitioner, that he has due regard for the welfare of the minor child and that the respondent has only deprived of petitioner's legitimate right. https://hcservices.ecourts.gov.in/hcservices/ 15. Comparing the financial status of the parties and the dependency of the respondent, even for her own maintenance, learned counsel for the appellant submitted that better financial resources of either of the parents is certainly an important factor in determining the custody of the minor child. He also submitted that between a short span of time, the child has been transferred to, not less than six schools and certainly frequent dislocation would cause emotional strain and affect his education and talent. It is also his contention that sitting at Coimbatore and bringing up the child in Hostel at Ooty, cannot be said to be extending love and affection and it would not inculcate the values of care and guidance required to be provided to a minor child. In this context, he relied on decisions of this Court in Sharli Sunitha v. D.Balson reported in 2007 (1) MLJ 56 and J.Selvan v. N.Punidha reported in 2007 (4) MLJ 967. 16. Learned counsel for the petitioner further submitted that when the petitioner is willing to provide the child, all the needs that are required, to have a better socio and economic support, the lower Court has misdirected itself, in approaching the statutory provision under Section 25 of the Guardian and Wards Act and failed to consider the paramount welfare and interest of the child. He therefore submitted that when the whole approach to the issue is both factually and legally untenable, the impugned order deserves to be set aside and consequently, prayed to declare the petitioner, as the guardian for the minor child. 17. Per contra, Mr.R.Shankmugasundaram, Learned Senior Counsel for the respondent submitted that the marriage between the petitioner and the respondent was solemnised on 29.04.1994 and that it was a love marriage, performed without the knowledge of their parents, but with their blessings. Out of the wedlock, a male child was born on 06.01.1995 and that within a short span of time, the respondent underwent tremendous mental tension and physical torture. She was beaten black and blue in drunken condition by the petitioner and unable to bear the physical and mental creulty, she even attempted to strangulate herself. Unfortunately, the respondent was admitted in a nearby hospital and in these circumstances, she was forced to leave the matrimonial home and filed O.P.No.152 of 2001 on the file of the Family Court, Coimbatore, for divorce on the ground of cruelty. 18. Taking this Court through the judgment in H.M.O.P.No.152 of 2001, dated 18.12.2003, learned counsel for the respondent further submitted that the appellant had even doubted the paternity of the minor child and alleged adulterous living with another person. He further submitted that when the male child was born, the respondent refused to accept the child, since the child was little dark in colour. https://hcservices.ecourts.gov.in/hcservices/ 19. Inviting the attention of this Court to the specific finding recorded by the lower Court with regard to mental and physical cruelty, including suspicion of paternity of the child, Learned Senior Counsel for the respondent submitted that when the petitioner has not questioned the findings recorded in the judgment recorded in the proceedings for divorce, in O.P.No.152 of 2001 by the Family Court, Chennai, it is not open to the petitioner to project a case, as if, he was very much affectionate and interested in the welfare of the child. 20. Learned Senior Counsel further submitted that ever since the child was born on 06.01.1995, the petitioner had never paid any attention either to the mother or the minor son and when the respondent filed M.C.No.57 of 2003 on the file of the Family Court, Coimbatore, claiming maintenance of Rs.10,000/- each for herself and the minor son, the petitioner filed a counter affidavit, denying his liability to pay maintenance and ultimately, by order, dated 23.12.2004, the Family Court, Coimbatore, ordered the appellant to pay maintenance. 21. Learned Senior Counsel further submitted that when the petitioner's strong opposition to discharge his moral and legal obligation to provide maintenance was repelled by the Family Court, Coimbatore, by its order, dated 23.12.2004, directing the petitioner to pay maintenance, it is not open to the petitioner to contend that he was always ready and willing to provide care and attention, extending financial support with love and affection to the minor son. 22. Learned Senior Counsel further submitted that when the order in M.C.No.57 of 2003, dated 23.12.2004, directing the appellant to pay maintenance was sought to be enforced, by claiming the arrears of maintenance amount of Rs.4,54,833/-, the petitioner filed Crl.R.C.No.908 of 2005 before this Court in July' 2005 to set aside the abovesaid order. He further submitted that a conditional order to deposit the arrears of maintenance was made by this Court on 06.12.2005 and thereafter, though the matter was referred to Lok Adalat for an amicable settlement, the petitioner was not willing for any settlement and consequently, the Criminal Revision Petition was sent back to this Court and upon hearing the parties, this Court, by order, dated 09.11.2006, dismissed the revision petition, upholding the order of maintenance to the minor son and the respondent, till her remarriage on 17.04.2006. Thereafter, the appellant filed SLP (Crl) No.1131 of 2007 before the Supreme Court, challenging the order, dated 09.11.2006 and obtained an order of stay of the maintenance decree on frivolous grounds. 23. Inviting the attention of this Court to the sequence of events from 1994 till 2008, Learned Senior Counsel further submitted https://hcservices.ecourts.gov.in/hcservices/ that to thwart and defeat the order made in M.C.No.57 of 2003, the petitioner has now taken out a false claim of guardianship under the Guardian and Wards Act. He further submitted that from 1994 to 2008 onwards, the petitioner has not made any attempt to see the child and that no application was also filed for the said purpose. Now, for the first time, in the year 2008, the petitioner has taken out an application under Guardian and Wards Act, as if he is interested in the welfare of the child. According to him, the conduct of the petitioner would clearly reflect his malafide intention to deny the entitlement of the respondent and her minor son, for maintenance. 24. Learned Senior Counsel for the respondent submitted that when no specific averments were made in the guardianship petition and when no supporting evidence, was let in both oral and documentary, it is not open to the petitioner to make a false allegation against the respondent that she was already married, before contracting a marriage with him. He further submitted that the arguments of the petitioner are liable to be rejected in limini. 25. On the aspect of providing education, health, moral and social support, Learned Senior Counsel further submitted that the respondent has admitted her minor son, in a Convent School with high profile and better coaching in Ooty. Her parents, who are financially sound, have taken up the responsibility of educating her son. All along the petitioner had not spent even a single pie for the education of his minor son and even during the short period of 10 days, where they lived together, as per the directions of this Court, he did not spend any money towards the education or for any other requirements of the child and therefore, the attitude and conduct of the petitioner is only to snatch away the custody of the child. He further submitted that for the past 15 years, not even once, he has attempted to see the minor son and though the present appeal, is pending since 2008, he has not filed a petition for visitation rights. 26. Learned Senior Counsel for the respondent submitted that though her parents insisted her to live them, she is living separately in a flat, purchased by her father, which is just opposite to the School, where, the minor son is studying. He further submitted that when the minor son underwent his education in a Convent School in Ooty, with good and quality education, he had never felt isolated, as more than 100 students were staying in the Hostel. It is his further contention that the minor son has been provided with all his needs and that he has excelled in playing cricket and swimming. He represents the District and the School in various disciplines of sports. In order to improvise his sports interest, she had to accommodate him in different schools and that would not affect his education. https://hcservices.ecourts.gov.in/hcservices/ 27. Learned Senior Counsel for the respondent further submitted that the minor son has grown up and is also matured. On an earlier occasion, he had appeared before this Court and expressed his clear intention to stay with his mother and in such circumstances, the attempt on the part of the petitioner to get the guardianship and custody of the minor child, would certainly cause mental strain, affecting his concentration in studies. 28. According to the Learned Senior Counsel for the respondent, the petitioner has gone to the extent of instituting criminal cases against the parents of the respondent and even for declaration of the marriage, dated 29.04.1994 between the parties, as null and void. In these circumstances, the intention of the petitioner is only to grab the minor son, from the respondent and thwart the claim of maintenance, which is upheld by this Court. According to him, the Court below has considered all the parameters that are necessary for adjudication the issue, paramount welfare of the child, and rightly declined the guardianship, in favour of the petitioner. 29. Learned Senior Counsel for the respondent submitted that re-marriage of the respondent per-se is no ground to disentitle the claim of the respondent for retention of guardianship. According to him, she got married on 17.03.2006 and that her re-marriage would in no way affect her love and affection for the minor son nor there is any grievance from her son. In this context, he placed reliance on a decision of the Supreme Court in Lekha v. P.Anil Kumar reported in 2007 (2) MLJ 298 (SC). 30. Placing reliance on a catena of decisions, Learned Senior Counsel further submitted that the petitioner, who has refused to pay maintenance to the minor son, has no statutory or legal right to seek for guardianship and hence, prayed for dismissal of the appeal. Heard the learned counsel for the parties and perused the materials available on record. 31. Before adverting to the facts of this case, it is necessary to have a cursory look at the provisions dealing with the appointment of guardian to a minor, under the Guardian and Wards Act and Hindu Minority and Guardianship Act. Section 7 of the Guardian and Wards Act deals with the power of the Court to make an order, as to guardianship and it reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "7. Power of the Court to make order as to guardianship.-(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made-- (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act. 32. Section 6 of the Hindu Minority and Guardianship Act deals with natural guardians of a Hindu Minor and it reads as follows: "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, and 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 becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). https://hcservices.ecourts.gov.in/hcservices/ Explanation.--In this section, the expressions "father" and "mother" do not include a step-father and a step- mother." 33. On the pleadings, some of the issues that come up for considerations are, (1) Whether the petitioner-father, who has made scurrilous allegations against the respondent-mother of the child, if proved, would disentitle the custody and guardianship of the mother and not proved in the manner known to law, is unsuited in a claim for custody and guardianship, because of his conduct, in making such wild allegations, for the sole purpose of obtaining custody and guardianship of the child? (2) Whether the economic soundness of the inter-se parties to provide health, education and other facilities, for the betterment of the child is the sole factor