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Madras High CourtCMA/1236/2016dismissed

Kumar v. Rajkumar

2021-03-17Honourable Mr Justice S.M. Subramaniam3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 17.03.2021 CORAM :

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM C.M.A.NO.1236 OF 2016 AND C.M.P.NO.9349 OF 2016 Kumar ... Appellant/Petitioner Vs.

1.Rajkumar 2.Kannammal 3.Anandhan ... Respondents/Respondents Prayer : Civil Miscellaneous Appeal filed under Section 47 of Hindu Minority and Guardianship Act, 1890, to set aside the judgment and decree dated 18.01.2016 made in G.O.P.No.259 of 2014 passed by the learned Principal District Judge, Salem, by allowing the appeal as prayed for in the said G.O.P. For Appellant : Mr.M.Elango For Respondents : Mr.R.Marudhachalamurthy

J U D G M E N T

The judgment and decree dated 18.01.2016 passed in G.O.P.No.259 of 2014 is under challenge in the present Civil Miscellaneous Appeal.

2.The appellant is the father of the minor child. A petition was filed under Sections 6 and 12 of the Hindu Minority and Guardian and Wards Act to appoint the appellant as guardian of the minor child Ashwitha and hand over the custody of the minor child.

3.On 31.05.2012, the appellant got married to one Anitha and she was the daughter of the respondents 1 and 2 and sister of the 3rd respondent. A female child was born through and out of the wedlock on 13.04.2013 and was named as Ashwitha. After delivery, the baby as well as the mother stayed in the house of the respondents 1 and 2 for about 7 months and thereafter, the wife of the appellant joined with the appellant along with the child and they were living happily. On 08.04.2014, the wife of the appellant Anitha committed suicide by hanging in the house of the appellant. On 07.06.2014, the respondents came to the house of the appellant and insisted that the child be given to their custody, and however, to maintain the child, demanded Rs.

10,00,000/- and 1 acre of land to be registered in the name of the 1st respondent as Guardian for the child. The petitioner refused to give the child and the respondents forcibly took the child with them. Thereafter, the respondents filed a complaint before the Attayampatti Police Station and a case was registered in Crime No.278 of 2014 under Sections 306 and 201 IPC. 4.With these facts, the trial Court adjudicated the issues. The appellant denied the allegations and the trial Court elaborately considered the facts and circumstances. The findings of the trial Court reveal that the investigation in Crime No.278 of 2014 was not completed during the relevant point of time.

The trial Court considered the fact that the evidence on record is not adequate enough to conclude that the petitioner/appellant is not competent to have custody of the child, however, a dispute that concerns the emotional upheavals of a non-party to the dispute, the child Ashwitha, cannot be decided as solving an algebraic equation. The trial Court considered the issues in a pragmatic manner and arrived a conclusion that the child, during the relevant point of time, was about 2 1⁄2 years old and on account of the other factors, the custody was to be with the respondents. But the trial Court held that the appellant is not incompetent to have the custody of the little daughter, and accordingly, visitation rights have been provided to the appellant.

5.This Court is of the considered opinion that the right of the appellant as a father was recognised by the trial Court. However, the trial Court considered the practical difficulty of a father to bring up a girl child and now, the girl child would be around 9 years old. At this point of time, if the custody is taken away from the grandparents, it will cause greater hardship to the minor child as rightly pointed out by the trial Court. Therefore, this Court is of an opinion that the right of the appellant has been properly recognised by the trial Court by giving visitation rights on all holidays and therefore, this Court is not inclined to interfere with the findings of the trial Court in the impugned judgment.

6.Accordingly, the judgment and decree, dated 18.01.2016, passed in G.O.P.No.259 of 2014, is confirmed and consequently, the Civil Miscellaneous Appeal is dismissed. No costs. Connected miscellaneous petition is closed.

Sd/- Assistant Registrar(P & A) // True Copy // Sub Assistant Registrar mkn To The Principal District Judge, Salem.

+1cc to Mr.R.Marudhachalamurthy, Advocate, S.R.No.17209 C.M.A.No.1236 of 2016 NR(CO) RLP(08/11/2021)