1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.07.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM C.M.A(MD)No.822 of 2011 M.Pandidevi .. Appellant/1st Respondent Vs. V.Rajammal .. Respondent/Petitioner Prayer : Civil Miscellaneous Appeal filed under section47 of Guardian and Wards Act against the order dated 29.03.2010 passed in GWOP No.5 of 2008 by the Family Court, Madurai. For Appellant : Mr.G.Thiagarajan For Respondent : Mr.S.Muthukrishnan JUDGMENT Challenge in this Civil Miscellaneous Appeal is to the order dated 29.03.2010 passed in GWOP No.5 of 2008 by the Family Court, Madurai. 2. The respondent herein as petitioner has filed the petition in question under sections 7 and 10 of Guardian Wards Act, 1890, wherein the present appellant has been shown as first respondent. 3. The nubble of the petition can be stated like thus: The first respondent has been given in marriage to one Murugan on 08.06.1996 and both of them have lived as husband and wife. The first respondent has given birth to minor by name Santhoshkumar on 10.02.1998 and she has given birth to another minor by name Soumya on 06.12.2000. The father of the minors has passed away on 30.08.2001. After the demise of the husband of the first respondent, she lived in the house of her parents. The petitioner is the mother of the first respondent. Since the petitioner is the maternal grandmother of the minors, she has taken care of them. For the past 6½ years the petitioner has been maintaining the minors. She has executed a release deed in favour of the first respondent and her husband after receiving Rs.5,000/- in respect of certain properties. The first respondent has not cared to maintain the minors and since the minors are under the care and custody of the petitioner and since the first respondent has not cared anything about their welfare, the present petition has been filed so as to appoint the petitioner as guardian of the minors. 4. In the counter filed on the side of the first respondent it is stated that it is true that the first respondent has been given in https://hcservices.ecourts.gov.in/hcservices/ 2 marriage to Murugan and he died due to accident on 30.08.2001. After accident, the petitioner has used to stay in the house of the first respondent and dealt with money and properties etc. During 2005, the first respondent has joined in Bachelor of Law. The first respondent and one Rameshkumar have become friends and both of them have married on 11.02.2008 and their marriage has been registered on 19.02.2008. On 13.03.2008 the petitioner and her husband have come to know the marriage of the first respondent. Having frustrated in the marriage of the first respondent, the minors in question have been forcibly taken away from the custody of the first respondent and due to that a police complaint has been given by the first respondent. It is false to say that the petitioner is the fittest guardian so as to maintain the minors and there is no merit in the petition and the same deserves to be dismissed. 5. On the basis of the available evidence on record, the Court below has allowed the petition and thereby appointed the petitioner as guardian of the minors in question. Against the order passed by the Court below, the present Civil Miscellaneous Appeal has been preferred at the instance of the first respondent as appellant. 6. Before considering the rival submissions made on either side, it would be more useful to look into the following admitted facts. The first respondent has been given in marriage to one Murugan on 08.06.1996 and after marriage both of them have lived as husband and wife and both of them have been blessed with the minors in question. The said Murugan has passed away on 30.08.2001 due to accident. The first respondent is the daughter of the petitioner. The petitioner is the maternal grandmother of the minors in question. 7. The specific contention urged on the side of the petitioner is that after the demise of the husband of the first respondent, the first respondent with her children has lived in the house of the petitioner and since then the minors in question are under the care and custody of the petitioner and in the interest of minors, the petitioner is the fittest guardian so as to maintain them. Under the said circumstances the present petition has been filed for getting the relief sought for therein. 8. The main defence taken on the side of the first respondent is that after the demise of her husband by name Murugan, she has studied Law and during her study one Rameshkumar has become her friend and subsequently both of them have got married on 11.02.2008 and having enraged at the conduct of the first respondent, the petitioner and others have unlawfully kidnapped the minors from the custody of the first respondent and due to that a police complaint has been given and since the first respondent is the mother of the minors, she is the natural guardian of them and she can maintain them in a proper manner and therefore, the petitioner is not entitled to get the relief sought for in the petition. 9. The Court below after evaluating the available evidence on record and also after considering the welfare of the minors as a paramount consideration, has allowed the petition in question and thereby appointed the petitioner as guardian of the minors. https://hcservices.ecourts.gov.in/hcservices/ 3 10. The learned counsel appearing for the appellant/first respondent has attacked the order passed by the Court below on the following grounds: (a) The appellant/first respondent is the mother of the minors and she is a fit person to maintain them and also to educate them properly and since the petitioner is the maternal grandmother of the minors she cannot be appointed as their guardian. (b) The petitioner and others have kidnapped the minors in question and also abducted the first respondent/appellant and to that effect a police complaint has been given and no fruitful action has been taken. Under the said circumstances the petitioner cannot be appointed as guardian of the minors. 11. In order to controvert the contentions urged on the side of the appellant/first respondent the learned counsel appearing for the respondent /petitioner has contended that after the demise of the husband of the first respondent, she has been admitted in law college and subsequently one Rameshkumar has married her on 11.02.2008 and after the demise of her first husband the minors in question have been put under the care and custody of the petitioner. Under the said circumstances the Court below has come to a definite conclusion to the effect that the petitioner is the fittest guardian of the minors so as to look after them and ultimately allowed the petition and therefore, the order passed by the Court below need not be set aside. 12. It is an admitted fact that the appellant/first respondent is the mother of the minors. It is also equally an admitted fact that the husband of the first respondent has passed away due to accident on 30.08.2001. Now the minors are under the care and custody of the petitioner who is none other than their maternal grandmother. 13. The Court below after considering the available evidence has come to the conclusion that the first respondent (appellant) is totally unfit so as to act as guardian of the minors. 14. In the counter filed on the side of the first respondent it has been explicitly stated that the first respondent and one Rameshkumar have got married on 11.02.2008 and both of them have been blessed with a male child. Therefore, it is quite clear that the first respondent through her second husband is having a son of tender age. In the instant case the first respondent is living with her second husband. The second husband of the first respondent has not given any evidence to the effect that he is ready to accommodate the minors in question. Since the first respondent is having a son of tender age and she is living with her second husband, it is highly impossible on her part to maintain the minors in question by way of providing good education. As stated earlier, the petitioner is nothing but maternal grandmother of minors and after the demise of the husband of the first respondent, the minors are under the custody of the petitioner. 15. At this juncture, it would be more useful to look into the evidence given by the first respondent. The first respondent has been examined as RW1. During the course of cross examination she has admitted https://hcservices.ecourts.gov.in/hcservices/ 4 to the effect that for the past two years the petitioner has been spending money towards educational expenses of minors. Further she has admitted to the effect that she has not filed any petition so as to claim guardianship of the minors. Further she has stated in her evidence that through her second husband she has given birth to a male child. By way of considering the aforesaid evidence given by the first respondent, the Court can very well infer that the first respondent has not taken any care about the welfare of the minors including their education. If really the first respondent is having interest in the welfare of the minors including their education, definitely she would have spent something towards their education and definitely she would have filed a proper petition seeking their custody. But the first respondent has not evinced any interest towards the minors. Since the first respondent has not evinced any interest towards the minors, since the petitioner being their maternal grandmother has taken their entire care and custody, it is needless to say that the petitioner is the fittest guardian to maintain the minors in question. 16. The Court below after considering the available evidence on record and also subsequent marriage of the first respondent and her son born through her second husband has clearly come to the conclusion that the first respondent is totally unfit to act as the guardian of the minors. In view of the discussion made earlier, this Court has not found any force in the contention urged on the side of the appellant/first respondent and altogether the present Civil Miscellaneous Appeal deserves to be dismissed. 17. In fine, this Civil Miscellaneous Appeal deserves dismissal and accordingly is dismissed without cost and the order passed in GWOP No.5 of 2008 by the Family Court, Madurai is confirmed. sd/- Assistant Registrar (Crl. Side) /True Copy/ Sub Assistant Registrar (C.S) To The Presiding Officer, Family Court, Madurai. C.M.A(MD)No.822 of 2011 20.07.2011 mj RJ/5.8.11 4p/2c https://hcservices.ecourts.gov.in/hcservices/