The petitioner is the father of the minor child Samuel Raily Macon. This petition is filed under Section 25 of the Guardians and Wards Act, 1890 (for short GAWA) for a permanent custody of the minor child. The respondent is at present having the custody of the minor child.

.2. Admittedly, the child was born to the petitioner and one Malliga on 8. 2002. The petitioner got married to the said Malliga on 25. 1998. Subsequent to the birth of the minor child, barely after 2 months, the said Malliga had allegedly committed suicide on 110. 2002. The petitioner abandoned his one month old baby in a Church premises. One Vasanthi took care of the child for about 15 days and the minor child was handed over to the Pastor of the Church. The Pastor of the Church handed over the child to the respondent’s mother one Buela, who was also a member of the same Church. It is also admitted that the child was in a nursery school by the respondent who had brought up the child till date.

3. While it is so, it was stated that the petitioner tried to take custody of the child, which resulted in the respondent complaining to the police station. At the intervention of the police, the petitioner handed over the child to the respondent. The petitioner got married to one Maria on 20.9.2004. It was stated by him that the Pastor of the Church told him to get married second time, so that he can bring up his child. It was stated that after the marriage, on 1. 2005, the petitioner once again took back the custody of the child by force. This necessitated the respondent filing a Habeas Corpus petition being H.C.P. No. 187 of 2005 before this Court.

.4. A Division Bench of this Court dealt with the matter and by its final order, dated 7. 2005 disposed of the HCP. Prima facie, the Division Bench held that in the best interest and welfare of the minor child, the custody was given in the hands, ci the respondent. However, in paragraph 23, the Division Bench had observed as follows:

.“23. It is true that the first respondent is the natural guardian and he has got a legal right. In the light of the legal position, it is open to the first respondent to approach the appropriate forum to establish his legal right. The observation made by this Court with reference to the interim custody of the child in the hands of the petitioner would not stand in the way of the appropriate forum deciding the issue raised before it.”

5. After getting liberty from the Division Bench, the petitioner filed the present OP. Notice was ordered to the respondent on 23. 2006. Thereafter, on 26. 2006, the matter was directed to be posted for recording evidence. The petitioner examined himself as P.W.1. Though the name of the counsel who appeared for the respondent in the HCP was directed to be printed, they did not make their presence felt. Subsequently, when the matter came up on 13. 2007, this Court directed a fresh notice to be served on the respondent. Accordingly, a fresh notice was served and she had engaged a counsel. Thereafter, the petitioner was cross examined and the evidence of R.W.1. commended on 29. 2007.

6. Subsequently, when the matter came up before this Court on 7. 2009, this Court directed the continuation of the evidence to be recorded before this Court. Accordingly, on 7. 2009, the respondent was cross examined. Thereafter, the matter was posted for arguments on 17. 2009. Heard both sides.

7. The petitioner who had examined him self as P.W.1, deposed that after his second marriage, he had approached the respondent’s mother for returning the custody of the child and his request was refused. He had also given a police complaint in Exhibit P-4 against the respondent’s mother. He had stated because his place was affected by Tsunami, he could not get the child’s custody. In the cross examination, he had denied that his first with Malliga had committed suicide. He also denied the suggestion that he had abandoned the child. In fact, the miner child was taken care of by