P.Seralathan v. Jayalakshmi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 26.10.2009CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUC.M.A.No.2203 of 2004 P.Seralathan ...Appellant /PetitionerVsJayalakshmi... Respondent /RespondentAppeal filed under Section 47 of the Guardian and WardsAct,1890 against the judgment and decree dated 08.07.2003 made inG.W.O.P.No.30 of 2001 on the file of the Principal District Judge,Vellore District.For Appellant : Mr.A.VenkatesanFor Respondent : No appearance ****J U D G M E N TThis appeal is directed against the the judgment anddecree, dated 08.07.2003 made in G.W.O.P.No.30 of 2001 on the fileof the Principal District Judge, Vellore District.2.In the petition, it is stated as follows:-2.1.The marriage of this petitioner and oneSumeetha, the daughter of this respondent, wassolemnised in 1998 at Rathinagiri Temple, on27.12.1999. Out of their wedlock, a femalechild was born to them and the said child waschristened as Subbulakshmi. On 04.08.2000, thechild developed diarrhoea and breathing troubleand hence, she was admitted at C.M.C.Hospital,Vellore. It was ascertained that the child hadheart disease and a surgical operation wassuggested, for which the infirmary estimated theexpenses at Rs.64,000/-. Since the petitionercould not afford to spend that much of amount,he applied to the Government of Tamil Nadu forsanction of the amount from the Chief Minister'sGeneral Fund. While so, a male child was alsoborn to them on 18.10.2000. Since the secondchild was born by cesarean operation, Sumeetha,wanted to be in her parents' house.2.2.While the matter stood thus, suddenly on02.12.2000, Sumeetha, breathed her last due to heartfailure. On the 16th day ceremony, the second male https://hcservices.ecourts.gov.in/hcservices/ child aged one and half months was handed over to thepetitioner by the respondent and she promised that shewould hand over his daughter, whenever he demanded forcustody. For the purpose of getting pension for hiswife, the petitioner wanted photograph of the child,for which he approached the respondent, but she toldthat only if the respondent is made as a guardian toreceive the pension, she would hand over the child.With a meager income earned by the second son of therespondent, who is an auto driver, the respondent isrunning family. She cannot spend any amount for theoperation of Subbulakshmi. A number of times, thepetitioner approached the respondent and requested tohandover the child, but she refused. She is unfit to bethe guardian for the child.2.3.The continuous custody with the respondentwill also affect child's health. The petitioner is thenatural guardian and he has got all the love andaffection towards the minor child. The male child byname Karthikraja has been well looked after by thepetitioner. The petitioner has no idea to marry anothergirl. Hence, for the welfare of the minor Subbulakshmi,the petitioner has to be appointed as guardian for herperson and property.3. The following are the allegations found in the counter:-3.1. After the death of her daughter, the respondent haslooked after Subbulakshmi, the daughter of the petitioner,properly. The child has got asthma complaint and wheezingproblems. She requires a constant care of a woman due toher health condition. As a grandmother of Subbulakshmi,she has got all love and affection. The petition has beenfiled only to get pension to show as if the child is inhis custody. The petitioner is trying to have a secondmarriage and he has no love and affection on minorSubbulakshmi. The welfare and interest of the minor liesin the care and custody of this respondent. As theguardian of the minor, the respondent has not receivedany money from petitioner for taking care of the child.Hence, the petition may be dismissed.4.The learned Principal District Judge, Vellore, hasdismissed the application by observing that Subbulakshmi is onlyfour years old and if the child is taken from the custody of therespondent, it will lead to her ill-health, that the minor child isin Lucknow along with her grandparents, where the respondent'shusband is working in Military and that, they are havingopportunity to give best treatment at Military hospital. Aggrievedagainst the said order, the petitioner is before this Court. 5.Before entering into the discussion on merits, thecardinal principles of law on this subject have to be borne in mindby 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 thefather is the natural guardian of the minor Subbulakshmi, stillthis Court has to analyse the peculiar circumstances prevailing inthis case in the matter of grant of custody of the child. Inordinary circumstances, the Court may consider entrusting thecustody of the child to the natural guardian, the father. But, asfar as the present case in hand is concerned, the girl is a femaleand from the beginning, i.e. since 2000 onwards, after the death ofher mother, the child has been under the care and custody of therespondent. It is conceded that the child suffers from variousailments, particularly, from heart disease and the Court has to bemore conscious in reaching a decision. If the gravity of theailment is so severe, this Court cannot take the risk of shiftingcustody of the child from one to another. 6.In this regard, the Court should ensure that theparamount interest of the child to outweigh the rights of theparents. Ex.A.2 is the Certificate given by C.M.C.Hospital,Vellore, which shows that the child has been advised to undergoCardiac Catheterization + Angiogram + Shunt surgery and the currentcost of the procedures would be about Rs.64,000/-. Ex.A.3 is thedischarge summary which shows that while the minor child,Subbulakshmi, was 7 months old, she was admitted to theC.M.C.Hospital, on 04.08.2000, and was discharged on 06.08.2000.It was diagnosed that the child is suffering from Cyanotic heartdisease. The following are the remarks in the said report:-“Course in Hospital: The infant was admitted in shockand had severe matabolic acidosis followinggastroenteritis. The infant was resucitated with ivfluids and acidosis was corrected. Subsequently, shewas noticed to be cyanosed. Hypoxeamia persistedinspite of adequate oxygen. There was no history ofcyanotic spells or poor feeding. ECHO done confirmedcyanotic heart disease and revealed a singleventricle with RV morphology and pulmonary stenosis.In consultation with cardiologists it was decided notto start on digoxin. At the time of discharge theinfant was active, alert, respiratory distress hadsettled. There was mind acrocyanosis at the time ofdischarge. The parents were advised to take theinfant elsewhere for surgical correction of thecardiac lesion......Final Diagnosis:Acute Gastroenteritis with 10% dehydrationShockAnemiaComplex Cyanotic Heart diseaseSingle Ventricle with severe pulmonary stenosis”7.Ex.A.3 portrays clear picture of the ailments fromwhich the child Subbulakshmi is suffering. P.W.1 is the petitionerand 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 independentwitness, who claims that he is a Nattamai, Shenpakkam, Vellore,says that on the day of the 16th ceremony, aftermath death ofSumitha, there was a negotiation as regards with whom the childrenhave to be entrusted, that the male child was taken by thepetitioner and since the female child was having heart disease, hecould not afford to spend and in view of the fact that therespondent's husband serving in the Military, in Lucknow, they cangive better treatment, the girl baby, Subbulakshmi, was entrustedto the respondent, that occasionally the child would expose fits ifanybody speaks louder, that recently the child has been taken toLucknow Military Hospital by the respondent and that Sumeetha was adiabetic patient for which the petitioner could not spend fortreatment and the husband of the respondent alone treated her.8. Adverting to the guidelines rendered in Judicialpronouncements, it is profitable to note a Division Bench judgmentof this Court in 2005 (1) CTC 536 [Asha Varghese V. Leelama Palioand Others] wherein paragraph 8, it is held as follows:- ''It is the law, that till the completion of the yearof five of any child the child whether male or femalemust be with the custody of the mother and eventhereafter, if the child is a female child, till suchtime, that the child attains puberty or the mentalmake up, so as to withstand and take care of herselfwithout anybody's help, only then, the question as towith whom the child has to be left, that would alsoarise only between the father and mother of thechild.''8.1.The Supreme Court in Nil Ratan Kundu and another V.Abhijit Kundu, reported in (2008) 9 SCC 413 has observed that indetermining the question as to who should be given the custody of aminor child, the paramount consideration is the 'welfare of thechild' and not the rights of the parents under a statute for thetime being in force. It is further held as follows:- ''In deciding a difficult and complex question asto the custody of a minor, a court of law shouldkeep in mind the relevant statutes and the rightsflowing therefrom. It is a human problem and isrequired to be solved with human touch. A courtwhile dealing with custody cases, is neither boundby statutes nor by strict rules of evidence orprocedure nor by precedents. In selecting properguardian of a minor, the paramount considerationshould be the welfare and well-being of the child.In selecting a guardian, the court is exercisingparens patriae jurisdiction and is expected, naybound, to give due weight to a child's ordinarycomfort, contentment, health, education,intellectual development and favourablesurroundings. But over and above physicalcomforts, moral and ethical values cannot beignored. They are equally, or even more important, https://hcservices.ecourts.gov.in/hcservices/ essential and indispensable considerations. If theminor is old enough to form an intelligentpreference or judgment, the Court must considersuch preference as well, though the final decisionshould rest with the Court as to what is conduciveto the welfare of the minor.''9.The learned counsel for the appellant placed relianceupon a decision of this Court in N.Palanisami Vs. A.Palaniswamy,reported in 1998 (III) CTC 158, in which this Court has dealt withimplications of the provisions of Section 6 of the Hindu Minorityand Guardianship Act, 1956 and Section 17 of the Guardians andWards Act, 1890 and arrived at a conclusion that the father has tobe given the custody of the child. In the said decision, earlierdecisions have also been referred and the operative portion of thejudgment goes thus:-''18.The The learned counsel for the respondent hascited the following decisions in support of hiscontentions.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, afterciting number of decisions, has held as follows:-“I am in respectful agreement with the viewsexpressed by Nainar Sundaram J., andK.M.Natarajan, J., in the decisions citedsupra. Applying the ratio laid down in thesetwo cases there is absolutely no circumstancewhich warrant deprivation of parental right ofthe father. It is not proved by the respondentthat the father does suffer from anycircumstance which deprive his parental right.The mere fact that the respondents are muchattached to the minor itself is not a ground tonegative the claim of the petitioner. In anyevent such custody cannot have any preferenceto the legitimate claim of the naturalfather.''20. In the second cited decision, JusticeC.V.Govardhan.J., has also held in paragraph 9 asfollows:''The learned counsel appearing for theappellant has finally argued that the minorsare capable of taking a decision of their ownand it is desirable that they are summoned tothe Court and their desire is also ascertained.The minors are with the grandmother for thepast more than eight years. Therefore, I am ofthe opinion that even if they are summoned toCourt and their desire is also ascertained, itmay not give a correct solution to decide https://hcservices.ecourts.gov.in/hcservices/ whether the first respondent is entitled to thecustody of his children or not. From thematerials placed before the Court, I am of theopinion that the appellant has not establishedany disqualification for the first respondent,in order to have the custody of his two minorchildren.21. From the aforesaid two decisions, it is clear that ifthe father is not disentitled to the custody of the minorchild, as a natural guardian, he is entitled to.''10.In Nil Ratan Kundu's case cited supra, the Supreme Courtobserved that the custody of the minor is a complex question and itis a human problem, which is required to be solved with human touchthat a court while dealing with custody cases, is neither bound bystatutes nor by strict rules of evidence or procedure nor byprecedents and while selecting a guardian, the Court has toconsider the child's ordinary comfort, contentment, health,education, intellectual development and favourable surroundings.Therefore, this Court concentrates more on the findings in MedicalReport contained in Ex.A.3, cautiously and consciously enough toconsider the custody of the child. Whatever may be the evidence ofR.W.2 with regard to the ill-health of the child, Ex.A.3 plyas avital role in understanding the sufferings, which the child wouldexperience then and there. Subbulakshmi is a female child, nowaged about 10 years and at any time, she may attain puberty. Shehas been continuously under the care and custody of her mother i.e.right from 2000 and if the present situation is altered, this Courtcould visualise that, the mind set up of the child would getaffected and her health may also deteriorate. The petitioner eventhough says that the respondent is not fit to take care of thechild, the fact remains that the child has been under the care andcustody of the respondent for about 10 years. During this periodof 10 years, there has been no adverse complaints about the healthof the child reported. The court is afraid, in case, if thecustody is being transferred to the father, the child may suffermore inconvenience and her health may also be put to peril. Thereis no convincing material on record to show that the respondent isnot fit to be the guardian for the minor. 11. Apart from that, the Court is also considering theage of the respondent. She is not old aged woman. While she wasexamined in the Court in 2003, her age has been mentioned as 43years. Hence, she could not be disqualified to be a guardian inview of her age. This court is of the firm view and reachedinferential conclusion that the custody of the child with therespondent could be more advantageous to the welfare of the childand shifting custody to her father would not be beneficial norprofitable to her. In view of this matter, the upshot of the Courtbelow need not be upset by this Court. 12.Hence, the order challenged before this Court has tobe 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 orderchallenged before this Court. 13.In fine, this Civil Miscellanous Appeal standsdismissed. Consequently, connected M.P. is closed. No costs. ssm Sd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1) The Principal District Judge, Vellore District.2) The Record Keeper, VR Section, High Court, MadrasC.M.A.No.2203 of 2004MBS (CO)SS (26.11.2009)