IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 26.10.2009 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.M.A.No.2203 of 2004 P.Seralathan ... Appellant /Petitioner Vs Jayalakshmi ... Respondent /Respondent Appeal filed under Section 47 of the Guardian and Wards Act,1890 against the judgment and decree dated 08.07.2003 made in G.W.O.P.No.30 of 2001 on the file of the Principal District Judge, Vellore District. For Appellant : Mr.A.Venkatesan For Respondent : No appearance **** J U D G M E N T This appeal is directed against the the judgment and decree, dated 08.07.2003 made in G.W.O.P.No.30 of 2001 on the file of the Principal District Judge, Vellore District. 2. In the petition, it is stated as follows:- 2.1.The marriage of this petitioner and one Sumeetha, the daughter of this respondent, was solemnised in 1998 at Rathinagiri Temple, on 27.12.1999. Out of their wedlock, a female child was born to them and the said child was christened as Subbulakshmi. On 04.08.2000, the child developed diarrhoea and breathing trouble and hence, she was admitted at C.M.C.Hospital, Vellore. It was ascertained that the child had heart disease and a surgical operation was suggested, for which the infirmary estimated the expenses at Rs.64,000/-. Since the petitioner could not afford to spend that much of amount, he applied to the Government of Tamil Nadu for sanction of the amount from the Chief Minister's General Fund. While so, a male child was also born to them on 18.10.2000. Since the second child was born by cesarean operation, Sumeetha, wanted to be in her parents' house. 2.2. While the matter stood thus, suddenly on 02.12.2000, Sumeetha, breathed her last due to heart failure. On the 16th day ceremony, the second male https://hcservices.ecourts.gov.in/hcservices/ child aged one and half months was handed over to the petitioner by the respondent and she promised that she would hand over his daughter, whenever he demanded for custody. For the purpose of getting pension for his wife, the petitioner wanted photograph of the child, for which he approached the respondent, but she told that only if the respondent is made as a guardian to receive the pension, she would hand over the child. With a meager income earned by the second son of the respondent, who is an auto driver, the respondent is running family. She cannot spend any amount for the operation of Subbulakshmi. A number of times, the petitioner approached the respondent and requested to handover the child, but she refused. She is unfit to be the guardian for the child. 2.3. The continuous custody with the respondent will also affect child's health. The petitioner is the natural guardian and he has got all the love and affection towards the minor child. The male child by name Karthikraja has been well looked after by the petitioner. The petitioner has no idea to marry another girl. Hence, for the welfare of the minor Subbulakshmi, the petitioner has to be appointed as guardian for her person and property. 3. The following are the allegations found in the counter:- 3.1. After the death of her daughter, the respondent has looked after Subbulakshmi, the daughter of the petitioner, properly. The child has got asthma complaint and wheezing problems. She requires a constant care of a woman due to her health condition. As a grandmother of Subbulakshmi, she has got all love and affection. The petition has been filed only to get pension to show as if the child is in his custody. The petitioner is trying to have a second marriage and he has no love and affection on minor Subbulakshmi. The welfare and interest of the minor lies in the care and custody of this respondent. As the guardian of the minor, the respondent has not received any money from petitioner for taking care of the child. Hence, the petition may be dismissed. 4. The learned Principal District Judge, Vellore, has dismissed the application by observing that Subbulakshmi is only four years old and if the child is taken from the custody of the respondent, it will lead to her ill-health, that the minor child is in Lucknow along with her grandparents, where the respondent's husband is working in Military and that, they are having opportunity to give best treatment at Military hospital. Aggrieved against the said order, the petitioner is before this Court. 5. Before entering into the discussion on merits, the cardinal principles of law on this subject have to be borne in mind by the Court in the light of the peculiar circumstances existing in https://hcservices.ecourts.gov.in/hcservices/ this case. The mother of the child Subbulakshmi is no more. Now, she is with her grandmother, the respondent. Even though the father is the natural guardian of the minor Subbulakshmi, still this Court has to analyse the peculiar circumstances prevailing in this case in the matter of grant of custody of the child. In ordinary circumstances, the Court may consider entrusting the custody of the child to the natural guardian, the father. But, as far as the present case in hand is concerned, the girl is a female and from the beginning, i.e. since 2000 onwards, after the death of her mother, the child has been under the care and custody of the respondent. It is conceded that the child suffers from various ailments, particularly, from heart disease and the Court has to be more conscious in reaching a decision. If the gravity of the ailment is so severe, this Court cannot take the risk of shifting custody of the child from one to another. 6. In this regard, the Court should ensure that the paramount interest of the child to outweigh the rights of the parents. Ex.A.2 is the Certificate given by C.M.C.Hospital, Vellore, which shows that the child has been advised to undergo Cardiac Catheterization + Angiogram + Shunt surgery and the current cost of the procedures would be about Rs.64,000/-. Ex.A.3 is the discharge summary which shows that while the minor child, Subbulakshmi, was 7 months old, she was admitted to the C.M.C.Hospital, on 04.08.2000, and was discharged on 06.08.2000. It was diagnosed that the child is suffering from Cyanotic heart disease. The following are the remarks in the said report:- “Course in Hospital: The infant was admitted in shock and had severe matabolic acidosis following gastroenteritis. The infant was resucitated with iv fluids and acidosis was corrected. Subsequently, she was noticed to be cyanosed. Hypoxeamia persisted inspite of adequate oxygen. There was no history of cyanotic spells or poor feeding. ECHO done confirmed cyanotic heart disease and revealed a single ventricle with RV morphology and pulmonary stenosis. In consultation with cardiologists it was decided not to start on digoxin. At the time of discharge the infant was active, alert, respiratory distress had settled. There was mind acrocyanosis at the time of discharge. The parents were advised to take the infant elsewhere for surgical correction of the cardiac lesion. ..... Final Diagnosis: Acute Gastroenteritis with 10% dehydration Shock Anemia Complex Cyanotic Heart disease Single Ventricle with severe pulmonary stenosis” 7. Ex.A.3 portrays clear picture of the ailments from which the child Subbulakshmi is suffering. P.W.1 is the petitioner and R.W.1 is the respondent who would say in line with their https://hcservices.ecourts.gov.in/hcservices/ pleadings in the petition and in the counter. R.W.2 an independent witness, who claims that he is a Nattamai, Shenpakkam, Vellore, says that on the day of the 16th ceremony, aftermath death of Sumitha, there was a negotiation as regards with whom the children have to be entrusted, that the male child was taken by the petitioner and since the female child was having heart disease, he could not afford to spend and in view of the fact that the respondent's husband serving in the Military, in Lucknow, they can give better treatment, the girl baby, Subbulakshmi, was entrusted to the respondent, that occasionally the child would expose fits if anybody speaks louder, that recently the child has been taken to Lucknow Military Hospital by the respondent and that Sumeetha was a diabetic patient for which the petitioner could not spend for treatment and the husband of the respondent alone treated her. 8. Adverting to the guidelines rendered in Judicial pronouncements, it is profitable to note a Division Bench judgment of this Court in 2005 (1) CTC 536 [Asha Varghese V. Leelama Palio and Others] wherein paragraph 8, it is held as follows:- ''It is the law, that till the completion of the year of five of any child the child whether male or female must be with the custody of the mother and even thereafter, if the child is a female child, till such time, that the child attains puberty or the mental make up, so as to withstand and take care of herself without anybody's help, only then, the question as to with whom the child has to be left, that would also arise only between the father and mother of the child.'' 8.1. The Supreme Court in Nil Ratan Kundu and another V. Abhijit Kundu, reported in (2008) 9 SCC 413 has observed that in determining the question as to who should be given the custody of a minor child, the paramount consideration is the 'welfare of the child' and not the rights of the parents under a statute for the time being in force. It is further held as follows:- ''In deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. It is a human 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 even more important, https://hcservices.ecourts.gov.in/hcservices/ 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.'' 9. The learned counsel for the appellant placed reliance upon a decision of this Court in N.Palanisami Vs. A.Palaniswamy, reported in 1998 (III) CTC 158, in which this Court has dealt with implications of the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956 and Section 17 of the Guardians and Wards Act, 1890 and arrived at a conclusion that the father has to be given the custody of the child. In the said decision, earlier decisions have also been referred and the operative portion of the judgment goes thus:- ''18.The The learned counsel for the respondent has cited the following decisions in support of his contentions. 1.J.Velan V. Muthu and three others, 1991 (1) LW 643 and 2.Jayalakshmiammal v. L.Venkataramaiah and another, 1997 (II) CTC 37: 1997(2) LW 143. 19. In the first case Justice A.R.Lakshmanan, after citing number of decisions, has held as follows:- “I am in respectful agreement with the views expressed by Nainar Sundaram J., and K.M.Natarajan, J., in the decisions cited supra. Applying the ratio laid down in these two cases there is absolutely no circumstance which warrant deprivation of parental right of the father. It is not proved by the respondent that the father does suffer from any circumstance which deprive his parental right. The mere fact that the respondents are much attached to the minor itself is not a ground to negative the claim of the petitioner. In any event such custody cannot have any preference to the legitimate claim of the natural father.'' 20. In the second cited decision, Justice C.V.Govardhan.J., has also held in paragraph 9 as follows: ''The learned counsel appearing for the appellant has finally argued that the minors are capable of taking a decision of their own and it is desirable that they are summoned to the Court and their desire is also ascertained. The minors are with the grandmother for the past more than eight years. Therefore, I am of the opinion that even if they are summoned to Court and their desire is also ascertained, it may not give a correct solution to decide https://hcservices.ecourts.gov.in/hcservices/ whether the first respondent is entitled to the custody of his children or not. From the materials placed before the Court, I am of the opinion that the appellant has not established any disqualification for the first respondent, in order to have the custody of his two minor children. 21. From the aforesaid two decisions, it is clear that if the father is not disentitled to the custody of the minor child, as a natural guardian, he is entitled to.'' 10. In Nil Ratan Kundu's case cited supra, the Supreme Court observed that the custody of the minor is a complex question and it is a human problem, which is required to be solved with human touch that a court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents and while selecting a guardian, the Court has to consider the child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. Therefore, this Court concentrates more on the findings in Medical Report contained in Ex.A.3, cautiously and consciously enough to consider the custody of the child. Whatever may be the evidence of R.W.2 with regard to the ill-health of the child, Ex.A.3 plyas a vital role in understanding the sufferings, which the child would experience then and there. Subbulakshmi is a female child, now aged about 10 years and at any time, she may attain puberty. She has been continuously under the care and custody of her mother i.e. right from 2000 and if the present situation is altered, this Court could visualise that, the mind set up of the child would get affected and her health may also deteriorate. The petitioner even though says that the respondent is not fit to take care of the child, the fact remains that the child has been under the care and custody of the respondent for about 10 years. During this period of 10 years, there has been no adverse complaints about the health of the child reported. The court is afraid, in case, if the custody is being transferred to the father, the child may suffer more inconvenience and her health may also be put to peril. There is no convincing material on record to show that the respondent is not fit to be the guardian for the minor. 11. Apart from that, the Court is also considering the age of the respondent. She is not old aged woman. While she was examined in the Court in 2003, her age has been mentioned as 43 years. Hence, she could not be disqualified to be a guardian in view of her age. This court is of the firm view and reached inferential conclusion that the custody of the child with the respondent could be more advantageous to the welfare of the child and shifting custody to her father would not be beneficial nor profitable to her. In view of this matter, the upshot of the Court below need not be upset by this Court. 12. Hence, the order challenged before this Court has to be confirmed and it is accordingly confirmed. This Court does not https://hcservices.ecourts.gov.in/hcservices/ find any infirmity either legally or factually in the order challenged before this Court. 13. In fine, this Civil Miscellanous Appeal stands dismissed. Consequently, connected M.P. is closed. No costs. ssm Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1) The Principal District Judge, Vellore District. 2) The Record Keeper, VR Section, High Court, Madras C.M.A.No.2203 of 2004 MBS (CO) SS (26.11.2009) https://hcservices.ecourts.gov.in/hcservices/