G.Eva Mary Elezabeth v. K.Jayaraj

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 31-8-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHOSA No.273 of 2009G.Eva Mary Elezabeth .. Appellant vsK.Jayaraj .. RespondentOriginal Side Appeal preferred under Order XXXVI Rule 1 of O.S.Rules read with Clause 15 of Letters Patent against the order of thisCourt made in O.P.No.180 of 2006 dated 27.7.2009.For Appellant: Mrs.BhawathariniJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)The Court heard the learned Counsel for the appellant.2.This appeal challenges an order of the learned Single Judge ofthis Court made in O.P.No.180 of 2006 filed by the respondent, thefather of the minor child Samuel Raily Macon, under Sec.25 of theGuardians and Wards Act, 1890, for a permanent custody of the minorchild.3.The appeal came to be filed by the respondent in the O.P.under the following circumstances:(a) The child was born to the respondent/petitioner and oneMalliga on 10.8.2002, pursuant to the marriage that took place on25.5.1998. Within a short period of two months, she committedsuicide. The respondent abandoned one month old baby in a Churchpremises. One Vasanthi took care of the child for about 15 days, andthereafter, the child was handed over to the Pastor of the Church,who in turn handed over the child to the appellant's mother who was amember of the same Church. The child was put in a nursery school bythe appellant. The child is in her custody. When the respondentfather attempted to take the child, a complaint was given to thepolice. On their intervention, the child was handed over to theappellant. (b) The respondent father got married to one Maria on 20.9.2004.After the marriage, on 4.1.2005, the respondent again took custody ofthe child by force. This has necessitated the appellant filing a https://hcservices.ecourts.gov.in/hcservices/ habeas corpus petition in HCP No.187 of 2005 before this Court,whereby the Division Bench made a final order on 6.7.2005 holdingthat the interim custody of the child should be with the appellant;but, it would not stand in the way of the appropriate forum decidingthe issue. In view of the permission granted, the respondent fatherfiled the O.P. (c) On receipt of notice, the appellant appeared. Therespondent father examined himself as P.W.1, and the appellant wasalso examined as R.W.1. After scrutiny of the materials available,the learned Single Judge took the view that the respondent fathershould be given permanent custody of the child which is the subjectmatter of challenge before this Court.4.Advancing arguments on behalf of the appellant, the learnedCounsel would submit that the learned Single Judge has failed toconsider that the child was abandoned by the respondent herein in theChurch premises, and the same was handed over to the Pastor and thefather of the Church, who handed over the child to the appellant'smother since there was no one to take care of the child; that theparamount interest of the child has not been considered by the Court;but it has directed the child to be handed over to the respondentherein; that the child was brought up by the appellant from the timewhen the child was 1 ½ months old; that the child was adopted and hastaken the appellant and her husband as his real parents; that thoughthe respondent was a biological father, he has not taken any interestto know the welfare of the child all along these years, and he hasnot sponsored any amount for the welfare of the child; that if thechild is handed over to the respondent, the mental frame of the childwould be totally disturbed, and there was all possibility of thechild running away from the respondent; that even it may endanger thelife of the child; that the respondent has married again and claimedthat his wife would take care of the child which was abandoned by himimmediately after the demise of his wife; that the Court has not eventaken an undertaking from the respondent that he would not give thechild in adoption to anybody before passing the orders of handingover the child to the respondent; that the observations made by theDivision Bench of this Court in the habeas corpus petition filed bythe appellant would clearly prove that the child was very muchattached to the appellant; that it has to be taken into considerationthat the child is studying in a decent school; that if the school ischanged, it would lead to mental disturbance because of the change incircumstances in the life, and in such circumstances, the order ofthe learned Single Judge has got to be set aside.5.After hearing the learned Counsel for the appellant and alsolooking into the materials available and in particular, the orderunder challenge, this Court is of the considered opinion that it isnot a fit case where the order of the learned Single Judge could beinterfered with. 6.It is not in controversy that the child was born through hiswife Malliga on 10.8.2002. Thus, he is the natural guardian. It isan admitted position that he has also contracted a second marriageand is living with his second wife. Merely he has contracted the https://hcservices.ecourts.gov.in/hcservices/ second marriage, it cannot be inferred that he has got any adverseinterest against the minor. On the contrary, it is in his evidencethat pursuant to the advice of the Pastor of the Church to marrysecond time in order to take care of the child, he has married. Itremains to be stated that the appellant is only a third party.Originally, the child was handed over to the mother of the appellantherein, and in turn she has also handed over the custody of the childto the appellant. The only contention put forth by the appellant'sside before the learned Single Judge and equally here also was thatthe respondent father has abandoned the child when it was 1 ½ monthsold, and the abandonment itself would indicate that he will notexercise any care over the child. Even assuming that there was anabandonment of the child, the child should have been handed over tothe Child Welfare Committee under the Juvenile Justice (Care &Protection of Children) Act, 2000. 7.Apart from the above, the learned Single Judge has pointed outthat though it was contended that it was a case of suicide, no proofwas forthcoming. The Pastor has pointed out in Ex.R1 that hisinvolvement was only for the child's placement on a volunteer, and hedid not have any authority in such placement matters. The learnedSingle Judge has also pointed out that under Sec.19, the Courts areprohibited to appoint any other person regarding the property ofminor if the minor's father is living. The question of appointmentof any other person as guardian would arise only if, in theconsidered opinion of the Court, the father was found to be unfit.In the case on hand, this Court is unable to notice anydisqualification except the only allegation of abandonment of thechild immediately after the death of his first wife. When such aclaim for custody of the child is made by the lawful guardian namelythe father, the appellant who is the third party, should not beallowed to have the custody of the child, and that too without anyinterest or entrustment legally. 8.The Apex Court had an occasion to consider such a situation ina case reported in 2006 (13) SCC 555 (LEKHA V. P.ANIL KUMAR), whereinit has been held as follows:"19.The law permits a person to have the custodyof his minor child. The father ought to be theguardian of the person and property of the minorunder ordinary circumstances. The fact that themother has married again after the divorce of herfirst husband is no ground for depriving themother of her parental right of custody. In caseslike the present one, the mother may haveshortcomings but that does not imply that she isnot deserving of the solace and custody of herchild. If the court forms the impression that themother is a normal and independent young woman andshows no indication of imbalance of mind in her,then in the end the custody of the minor childshould not be refused to her or else we would be https://hcservices.ecourts.gov.in/hcservices/ really assenting to the proposition that a secondmarriage involving a mother per se will operateadversely to a claim of a mother for the custodyof her minor child. We are fortified in this viewby the authority of the Madras High Court in S.Soora Reddi v. S. Chenna Reddi4 where GovindaMenon and Basheer Ahmed Syed, JJ. have clearlylaid down that the father ought to be a guardianof the person and property of the minor underordinary circumstances and the fact that a Hindufather has married a second wife is no groundwhatever for depriving him of his parental rightof custody.20.A man in his social capacity may be reckless oreccentric in certain respects and others may evendevelop a considerable distaste for his companywith some justification but all that is a far cryfrom unfitness to have the natural solace of thecompany of one’s own children or for the duty ofbringing them up in proper manner. Needless to saythe respondent husband, in this case, seems to beanxious to have the minor child with him as earlyas possible in order to look after him properlyand to provide for his future education. Thefeelings being what they are between therespondent and the appellant we think it is alsonatural on the part of the husband to feel that ifthe minor child continues to live with his formerwife, it may be brought up to hate the father orto have a very adverse impression about him. Thiscertainly is not desirable. Needless to say, thisCourt is not called upon to find that therespondent husband has been entirely blameless inhis conduct and few occasions referred to in thiscase and by the boy at the time of interview, itis not the duty of this Court even to ascertainwhether the respondent is a responsible and goodcitizen and a preferred individual. Many peoplehave shortcomings but that does not imply thatthey are not deserving of the solace and custodyof their children."9.In the case on hand, taking intoconsideration the relevant facts that therespondent is the father and the natural guardianof the child, and he has got nothing adverseto the interest of the child, and his intention ofgetting married for the second time was only tobring up the child, the view taken by the learnedSingle Judge that the respondent father wasentitled to have the custody of the minor childwas correct, and hence the order has got to besustained. Accordingly, it is confirmed. https://hcservices.ecourts.gov.in/hcservices/

10.In the result, this original side appeal fails, and the sameis dismissed leaving the parties to bear their costs. Consequently,connected MP is also dismissed.nsvSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Sub.Asst. Registrar Original side High Court, Madras.+ 1 CC to Mr. J.Bhawatharini Advocate SR.No.43232 OSA No.273 of 2009 AKR (CO)VC (11.09.2009)