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High Court of Judicature at Madras
The Honourable Mr. Justice I. David Christian
Mary Sumathi, No. 128/5 Emerald Flats, Anna Nagar West, Chennai
Versus
Charles Asirvatham No.36 Anna Street, Taramani Chennai
Original Petition No.338 of 99
Decided On : 16-08-1999
GUARDIANSHIP AND WARDS ACT, 1890 - SECTIONS 2, 7 TO 10 - APPOINTMENT OF GUARDIAN - INTEREST AND WELFARE OF MINOR - MOTHER VERSUS FATHER - CUSTODY AND GUARDIANSHIP GRANTED TO MOTHER - FATHER'S VISITATION RIGHTS DENIED.
Fact of the Case:
The petitioner, a medical doctor, filed a petition under the Guardians and Wards Act, 1890, seeking appointment as the guardian of her minor daughter, Swetha Beulah, and custody of the child. The respondent, the father of the child, contested the petition, claiming that he was a fit and proper guardian and should be granted custody. The petitioner alleged that she had been subjected to cruelty and ill-treatment by the respondent, leading to their separation in 1993. She further stated that she had been taking care of the child since birth and had provided for her needs and upbringing. The respondent, on the other hand, denied the allegations of cruelty and claimed that he had always been willing to provide for the child's welfare.
Finding of the Court:
The court found that the petitioner had been the primary caregiver for the child since birth and had provided for her needs and upbringing. The court also found that the respondent had not shown any interest in the child's welfare and had even disowned her in a previous petition for divorce. The court further found that the petitioner had a stable and supportive home environment, while the respondent was living alone and did not have any female relatives to care for the child.
Issues: 1. Whether the appointment of the petitioner as guardian would be in the best interest and welfare of the minor child, Swetha Beulah? 2. Whether the respondent, the father of the child, should be granted custody of the child?
Ratio Decidendi: The court held that the paramount consideration in determining the appointment of a guardian is the interest and welfare of the minor child. The court found that the petitioner, as the primary caregiver and provider for the child, was the better choice to be appointed as guardian. The court also found that the respondent's lack of interest in the child's welfare and his unstable living situation made him an unsuitable guardian. The court further held that it was in the best interest of the child to deny the respondent visitation rights, as this could potentially harm the child and poison her mind against her mother.
Final Decision: The court allowed the petition and appointed the petitioner as the guardian of the minor child, Swetha Beulah. The court also granted the petitioner custody of the child to the exclusion of the respondent. The court denied the respondent any visitation rights.
I. David Christian.J.
1. In the matter of minor Swetha Beulah. Petition filed under sections 2 & 7 to 10 of the Guardians and Wards Act, 1890. This petition is filed by Mary sumathi mother of the minor alleges that she was given in marriage to the respondent on 2. 1989, that the marriage was held in Maranadha Church at Thiruninvavur in Thiruvallar District, that after the marriage they were living together as husband and wife, that the petitioner is a Doctor holding M.B.B.S. degree, that she has also obtained a Post Graduate Diploma, that after the marriage in 1989 they were residing together in Bhuvaneshwar in Orissa. Where the respondent in General Insurance Corporation, that even from the initial period, the petitioner was subjected to cruelty and ill-treatment at the hands of her husband, namely the respondent, that the petitioner came to Hyderabad in 1990 and joined Post Graduate Course and was residing with her parents in Hyderabad for sometime, that the respondent transferred to Hyderabad and both of them were living together at Hyderabad for sometime, that ill-treatment become so untenable and therefore the petitioner was forced to leave the matrimonial home, that the minor Swetha Beulah was born on 9. 1990, that when she left her husband she also took the minor child with her, that she had earlier filed a petition for divorce which was allowed to be dismissed because the elders prevailed upon her to withdraw the petition, that the petitioner again joined the respondent in Hyderabad in 1993 but the ill-treatment still continued, that the petitioner was forced to leave the matrimonial home in September, 1993, that thereafter the petitioner has come with the child and settled at Madras along with her parents, that she was previously employed as a Doctor in C.S.I.Kalyani Hospital, Chennai, that now the petitioner has started her private practice, that she is liking for the child and the child is being brought up nicely, that minor is studying in a good school, that the respondent has married a second wife in 1995, that he has also got a female child born to her, that he has deserted his second wife also, that eversince the birth of the child she has been only brought up by this petitioner with her own resources, that the respondent has never evinced any interest in the welfare of the minor so far, that in fact the respondent has given a written undertaking that the child shall be only in the custody of the petitioner, that the respondent is recently threatening the petitioner to take away the child forcibly from the school, that therefore she is constrains to file this petition praying for appointment of herself as guardian for the minor and allowing her to have the custody of the minor.
2. Respondent filed a counter contesting the claim of the petitioner by contending that it is true that he married the petitioner on 2. 1989 and the marriage was solemnised according to personal law governing the parties, that they were residing in Bhuvaneshwar after the marriage where the respondent was working, that at the instigation of the parents, the petitioner left the respondent and went to Hyderabad, that the respondent also got transfer and went to Hyderabad with the only desire to resume normal married life with the petitioner, that the petitioner was adamant in taking her Post Graduate course, that even though she had completed the degree course in 1982 she has chosen to join Post Graduate Course in 1989 only to leave the respondent and to live with her parents in Hyderabad, that the minor was born on 9. 90 at Secundarabad, that they were living together at Hyderabad, that the petitioner parents were not giving proper treatment to this respondent as a member of the family, that the petiti oner’s parents wanted this respondent to come and live with them in their house, that they tried to dominate the life of the petitioner and the respondent, that the respondent has served eight years in Indian Air Force from 1978
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