IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 Mat.Appeal.No. 783 of 2010(B) ---------------------------- OPG&W.525/2006 of FAMILY COURT,TRIVANDRUM .................... APPELLANT:2nd RESPONDENT ------------------- P.REGHUVARAN, S/O.PONNU, JAYABHAVAN, PANAYIL VEEDU, MUTTAMPARAMBATHU DEVI LANE, SREEKARIYAM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENTS : PETITIONER AND 1st RESPONDENT --------------- 1. C.PADMAKSHY, W/O.P.RAGHUVARAN, T.C.NO.6/486 (T.P.1/626), VRINDAVAN VEEDU, THIRUVALLOM P.O., THIRUVANANTHAPURAM. 2. PANKAJAKSHY, PUTHUVAL POTTAVILA VEEDU POONKALA, PACHALLOOR P.O., PACHALLOOR VILLAGE, THIRUVANANTHAPURAM. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. *********************** Mat.Appeal No.783 of 2010 ***************************** Dated this the 25th day of November, 2010 JUDGMENT BASANT, J. The appellant/husband has come to this Court with this appeal to assail the order passed by the Family Court appointing his wife, the 1st respondent herein, as the guardian of a child born to the 2nd respondent. 2. Marriage between the appellant and the 1st respondent stands admitted by all concerned. Admittedly the spouses are residing separately. The appellant herein had filed an application for divorce and the same stands dismissed. Of course, an appeal is pending. Suffice it to say that it is admitted at all hands that the spouses are leading a separate life though the marital tie has not been dissolved. 3. In this context, the wife/1st respondent wanted her to be appointed as the guardian of the minor female child by name, Ariya Devi, who is the daughter of the 2nd respondent. That minor was born on 15.11.1991 and it is not disputed that the minor has now attained majority. Mat.Appeal No.783 of 2010 2 4. The 1st respondent claimed before the Family Court that she had adopted the minor child. She wanted herself to be recognised as the legal guardian of the child. O.P(G&W) No.525 of 2006 was filed with that prayer. The appellant was arrayed as the 2nd respondent. 5. The court below by the impugned order came to the conclusion that there is no valid adoption, as contended by the 1st respondent. However, the court below held that the application is maintainable as an application for appointment of guardian. Notwithstanding the opposition of the appellant, the husband of the 1st respondent, the court below took the view that the 1st respondent can be appointed as guardian of the minor child. It was accordingly that the court below proceeded to pass the impugned order appointing the 1st respondent as guardian of the minor child. 6. When this appeal came up for admission hearing, this Court wanted the learned counsel for the appellant to explain the grounds on which he wants to challenge the impugned order. The learned counsel for the appellant asserted that as rightly found by the court below, the theory of adoption cannot be Mat.Appeal No.783 of 2010 3 accepted. The same has not been accepted and that question is not before the appellate court. 7. The counsel initially contended that, as the spouse of the 1st respondent, the appellant is entitled to raise objection against the appointment of his wife as guardian of a minor child without his consent and will. We were not satisfied that the said contention is prima facie sustainable. The learned counsel for the appellant was hence requested to work up the position in law and explain to the Court whether the spouse of a petitioner, who does not consent to the appointment of his spouse as guardian, can have any legal right to object against the proposed appointment as guardian. We do not intend to lay down any rigid principle that the spouse in any situation cannot raise any valid objection. It may depend upon the facts of each case. Where the spouses are living together and one spouse wants to get appointed as guardian, in the teeth of objections of other spouse, it may have to be considered by the court whether the proposed appointment is in the interest of the child and would advance the welfare of the child. We do not want to express any final opinion on that question. Mat.Appeal No.783 of 2010 4 8. Coming back to the facts of the case. Admittedly the spouse are residing separately. The appellant had moved for divorce and that petition for divorce stands dismissed. He has pursued the matter further and an appeal is pending before this Court against the rejection of the claim for divorce. In these circumstances, the wife on the showing of both cases, is leading virtually a single life. In the facts and circumstances of this case, we do not hence find any worth in the objection raised by the appellant against appointment of his estranged wife as guardian of a minor child. 9. The learned counsel for the appellant after working up the position concedes that the appellant/husband has no legal right to object and the consent of the spouse cannot be insisted legally in all cases. But the learned counsel points out another legal defect in the petition filed before the Family Court. Counsel points out that as per the law “parents” of the child for whom guardian is to be appointed, must be arrayed as parties in the petition in the light of Section 11 (a) of the Guardians and Wards Act. In the instant case, only one of the parents has been arrayed as parties. The counsel submits that this is a legal defect. Mat.Appeal No.783 of 2010 5 10. It is conceded that the issue of non jointer of necessary parties has not been raised before the court below. Further we do not find any merit in that contention raised by the appellant; more so, because it has not been raised before the court below. In these circumstances, we are not persuaded to agree that the appeal merits admission on that score also. 11. The learned counsel for the appellant fairly points out that the child, for whom the 1st respondent has been appointed guardian, has already attained majority. That further exposes the irrelevance of the present contest. 12. This appeal is, in these circumstances, dismissed in limine. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/