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2011 Supreme(Mad) 436
2011 (1) LW 953, 2011 (1) MWN(Civil) 465, 2011 (2) CTC 372
High Court of Judicature at Madras
D. MURUGESAN & S. NAGAMUTHU
Sarah Vijayalakshmi & Others
Versus
Dr. J.D. Devadatta
O.S.A.No.331 of 2010 & M.P.No.1 of 2010
Decided on : 28-01-2011
For the Appellants:V. Raghavachari for V. Karthikeyan, Advocates.
For the Respondent:T.V. Ramanujam, SC for C. Rajan, Advocate.
The welfare of the child is the paramount consideration in deciding interim custody, as established by the court's interpretation of the Guardians and Wards Act and previous judgments.
Headnote:
Interim Custody - Guardians and Wards Act - Section 12, Section 94 C.P.C. - The court granted interim custody of the minor child to the respondent based on the welfare of the child as the paramount consideration. The court also allowed visitation rights to the appellants.
Fact of the Case:
The appeal challenged an order granting interim custody of a minor child to the respondent during the pendency of a guardianship petition. The child's biological mother and grandparents were appellants, and the respondent claimed custody based on a registered Deed of Adoption.
Finding of the Court:
The court found that the welfare of the child was paramount in deciding interim custody. It considered the child's well-being and education under the respondent's care, and granted visitation rights to the appellants.
Issues: The main issue was the interim custody of the minor child during the pendency of the guardianship petition. The appellants contested the respondent's claim based on the Deed of Adoption.
Ratio Decidendi: The court's decision was based on the welfare of the child as the paramount consideration, as established in previous judgments. It emphasized that interim custody should prioritize the child's best interests, regardless of legal entitlement.
Final Decision: The court allowed the respondent to retain interim custody of the child, granted visitation rights to the appellants, and emphasized the welfare and well-being of the child as the guiding principle.
Based on the provided judgment, grandparents can be granted visitation rights, but not necessarily custody, at this stage. The court emphasized that the primary consideration in interim custody matters is the welfare and best interests of the child. In this case, the court granted visitation rights to the grandparents, allowing them to see the child on specified days, but maintained the child's custody with the respondent until the final decision in the guardianship proceedings (!) (!) .
The court noted that the question of permanent custody or guardianship was still pending and that the child's welfare was the paramount concern. It also highlighted that visitation rights are appropriate even if the final custody decision has not yet been made, especially to maintain the child's relationship with the grandparents (!) .
Therefore, while grandparents are not granted custody at this interim stage, they are granted visitation rights, and the court's decision is based on the child's best interests. Custody will be decided in the final proceedings, considering the child's welfare as the ultimate factor.
1. Challenge in this appeal is to the order made in Application No.1249 of 2009 in O.P.No.687 of 2009 dated 30.08.2010 wherein, the learned Single Judge has granted interim injunction against the appellants restraining therein from interfering with the custody of minor child “Sharon Rose” who is under the respondent’s care.
2. The facts of the case are as follows:- The first appellant is the biological mother of the female child in question. The appellants 2 & 3 are the parents of the first appellant. The respondent is a Christian by religion whereas, the appellants claim that they are Hindus and the child is also a Hindu. The father of the child is no more. While so, according to the respondent, the child was given in adoption to him and his wife by the first appellant by means of a registered Deed of Adoption dated 22.11.2000. It is the case of the respondent that all along the minor child has been in his care and custody and he has been bringing her up. It is his further case that the child is now studying in a school at Vellore and the respondent is taking full care of her education, safety, health etc. On the basis of Deed of Adoption, the respondent has filed O.P.No.687 of 2009 seeking an order appointing him as guardian of the person and property of minor “Sharon Rose” and the said original petition is pending.
3. During the pendency of the said case, the respondent filed Application No.1249 of 2009 before the learned Single Judge of this Court praying for an interim injunction restraining the appellants herein from interfering with the custody of the minor child under the respondent’s care during the pendency of O.P.No.687 of 2009.
4. The main contention of the appellants is that in a petition for appointment of guardian for a minor child, an interlocutory application for injunction against the mother to restrain her from in any manner disturbing the custody of the child at the instance of a stranger is not at all maintainable. The learned counsel for the appellants would submit that the Deed of
Adoption said to have been executed, upon which reliance is placed by the respondent, is void under law and therefore, the respondent is an utter stranger to the child and so, the custody of the child should not be allowed to be with the respondent. The learned counsel would further, while reiterating the grounds raised in the appeal, submit that the learned Single Judge ought to have directed the custody of the child to be with the first appellant . He would further add that allowing the child to be in the custody of the respondent would be detrimental to the interest and welfare of the child. For all these reasons, the learned counsel would submit that the order of the learned Single Judge needs to be interfered with.
5. Per contra, the learned Senior Counsel appearing for the respondent would submit that though technically, an order of temporary injunction to restrain the first appellant to see the child cannot be granted, nevertheless, the order impugned in this appeal should be construed as an order under Section 12 of the Guardians and Wards Act, 1890. The learned counsel would submit that the validity of the document or the factum of the adoption cannot be gone into in this appeal as it is the matter to be gone into only in the original petition. He would further submit that the child has been continuously in the custody of the respondent for several years and the same cannot be denied by the first appellant. He would further submit that the learned Single Judge had an occasion to hear the child personally and from out of the same, it came to light that the child is interested only to be in the custody of the respondent. He would further submit that taking the child now from the custody of the respondent would be detrimental to the welfare of the child as the same would drastically affect the mind, health and education of the child. He would further add that while deciding the interim custody of a minor child, it i
