1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.07.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM C.M.A(MD)No.840 of 2011 and MP(MD)No.1 of 2011 K.Ananthanarayanan .. Appellant/Respondent Vs. Vijayalakshmi .. Respondent/Petitioner Civil Miscellaneous Appeal filed under section 47 of Guardian and Wards Act against the order dated 31.05.2011 passed in GWOP No.2 of 2009 by the First Additional District Court, Trichirapalli. For Appellant : Mr.R.Vijaykumar For Respondent : Mrs.J.Anandhavalli JUDGMENT This Civil Miscellaneous Appeal has been directed against the order dated 31.05.2011 passed in GWOP No.2 of 2009 by the First Additional District Court, Trichirapalli. 2. The respondent herein as petitioner has filed GWOP No.2 of 2009 on the file of the Court below praying to appoint her as guardian of the minor by name Srinath, wherein the present appellant has been shown as sole respondent. 3. It is stated in the petition that the respondent has married the petitioner on 19.05.1995. The petitioner has given birth to minor viz., Srinath on 01.03.2003. Now the minor is under the care and custody of the respondent. The family members of the respondent have not shown any interest towards the minor. The brother of the respondent by name Srinivasan is a mentally retarded person. Under the said circumstances the petitioner is the fittest person to take care and custody of the minor and therefore, the present petition has been filed for getting the relief sought for therein. 4. In the counter filed on the side of the respondent it is averred that the minor viz. Srinath is under the effective care and custody of the respondent and he has been admitted in a reputed school at Srirangam. The petitioner has already filed GWOP No.45 of 2007. The respondent has also filed another petition in GWOP No.86 of 2007. On the basis of compromise, both proceedings have been closed. The petitioner is not having any independent income. The petitioner is solely depending upon her brother. The petitioner is not in a position to provide good education to the minor. The present petition has been filed so as to cause vexation to the respondent and therefore, the same deserves to be dismissed. 5. On the basis of the rival evidence adduced on either side, the Court below has allowed the petition. Against the order passed by the Court below, the present Civil Miscellaneous Appeal has been preferred at the instance of the respondent as appellant. https://hcservices.ecourts.gov.in/hcservices/ 2 6. Before analysing the rival contentions raised on either side, it would be more useful to look into the following admitted facts. The respondent has married the petitioner on 19.05.1995 as per Hindu rites and caste custom and both of them have lived as husband and wife and the petitioner has given birth to the minor in question on 01.03.2003 and now the petitioner and respondent are living separately and the minor in question is under the care and custody of the respondent and in order to get custody of the minor, the present petition has been filed. 7. The Court below after considering the available evidence on record has allowed the petition. Under the said circumstances the only point that comes up for consideration in the present Civil Miscellaneous Appeal is as to whether the impugned order passed by the Court below is perfectly correct or the same requires interference. 8. Since the present petition has been filed so as to get custody of the minor mentioned therein, the Court has to bear in mind about the welfare of the minor as paramount consideration. 9. The learned counsel appearing for the appellant/respondent has contended with great vehemence that the minor in question has attained 9 years of age and he has been admitted in a reputed school at Srirangam and now he is under the effective care and custody of the respondent. Since the petitioner is not having any independent income so as to maintain herself and minor, it is very difficult on the part of the petitioner to look after the interest of the minor by way of providing good education and the court below without considering the welfare of the minor in question has erroneously allowed the petition and therefore, the order passed by the Court below is liable to be set aside. 10. Per contra the learned counsel appearing for the respondent/petitioner has contended that the Court below after considering the available evidence on record and also after considering the fact that the respondent/petitioner is the mother of the minor, has rightly appointed the respondent /petitioner as guardian of the minor and further the minor has also expressed his willingness to live with the respondent/petitioner and therefore, the order passed by the Court below is perfectly correct and the same does not require any interference. 11. The entire argument advanced on the side of the respondent/petitioner is based upon the observations made in paragraph-8 of the order passed by the Court below, wherein it is observed that the appellant/respondent himself has expressed his consent to the effect that the respondent/petitioner is entitled to get the custody of the minor in question. 12. Only on the basis of the observations, the trial Court has allowed the petition. 13. It is an admitted fact that the respondent/petitioner has given birth to two sons. The first son is the minor in question and https://hcservices.ecourts.gov.in/hcservices/ 3 the second son who is aged about 4 is under the care and custody of the respondent/petitioner. Considering the fact that the respondent/petitioner is the mother of the minor and also considering that the second son is under the care and custody of the respondent/petitioner, it is needless to say that both sons can be under the care and custody of the respondent/petitioner. As stated earlier, in a case like this, the Court has to look into the welfare of the minor in question as a paramount consideration. In the instant case, as stated earlier, the respondent/petitioner is the mother of the minor and further his younger brother is under the care and custody of the respondent/petitioner. Under the said circumstances the claim of the respondent/petitioner is really bona fide. Further it is learnt that after passing of the order by the Court below, the minor in question has been taken under the care and custody of the respondent/petitioner and he has been admitted in a school at Vellore. On the basis of the aforesaid circumstances available in the present case, it is very clear that the respondent /petitioner is the fittest guardian of the minor in question and therefore, there is no error in the order passed by the Court below and altogether the present Civil Miscellaneous Appeal deserves to be dismissed. 14. In fine, this Civil Miscellaneous Appeal deserves dismissal and accordingly is dismissed without cost and the order passed in GWOP No.2 of 2009 by the First Additional District Court, Trichirapalli is confirmed. Connected Miscellaneous Petition is also dismissed. Sd/- Assistant Registrar(Crl.Side) /TRUE COPY/ Sub Assistant Registrar To The First Additional District Judge, Trichirapalli. +1cc to Mrs.J.Anandhavalli, Advocate SR.No.22842 C.M.A(MD)No.840 of 2011 14.07.2011 mj PA/03.08.2011/3P/3C https://hcservices.ecourts.gov.in/hcservices/