The welfare of the minor child is the paramount consideration in guardianship matters, as interpreted by the Supreme Court and the Hindu Minority and Guardianship Act, 1956.

Both original petitions were filed by the respective petitioners seeking for appointment of guardian for the minor child R.Tharun, who was born on 16.07.2006 and at present roughly over 6-1/2 years old. While in O.P.No.682 of 2011, the prayer is to appoint the petitioner Mrs.R.Poonkothai, who is the paternal grand mother of the minor child as the guardian of the person of minor child Tharun, in O.P.No.686 of 2011, the two petitioners sought for the appointment of two petitioners as guardian of minor child R.Tharun both for person and property and that the list of properties were set out in the schedule to the O.P. The two petitioners were respectively the maternal grand father and maternal grand mother of the minor child.

2. It was stated that the parents of the minor child, i.e., the father S.P.Rajesh and mother R.Aarthi, got married on 12.2.2006 at Chennai, which was subsequently registered on 7.5.2010. It was an inter-caste marriage. While the father belonged to scheduled caste community, the mother belonged to most backward class community (Kallar). The marriage arose out of the love between the minor child's father and mother. It must be noted that even before the formal marriage of the father and mother of the minor child, i.e. on 12.2.2006, the mother was conceived. Immediately within 5 months after the marriage, the minor child was born. However, there is no dispute regarding the paternity of the child. The parents of the minor child went for Girivalam at Tiruvannamalai. While they were coming back on the midnight of 12.10.2011, the car in which they were travelling met with an accident when they were crossing Vallam village before reaching Tindivanam. Both of them died in the said accident. Up till now, the petitioners in both original petitions were seemed to have reconciled with the marriage of their children. After the death, both factions started fighting over the custody of the minor and for the properties of the minor left behind by the deceased parents of the minor.

3. Interestingly, in O.P.No.686 of 2011, the maternal grand parents not only impleaded the paternal grand mother as the second respondent, but also shown one Ramaselvarasan as the first respondent alleging that he was not the original husband of the paternal grand mother. Therefore, he cannot be described as the paternal grand father of the minor child. It was also attempted to establish that the first respondent was not the real paternal grand father and he subsequently started living with the paternal grand mother.

4. Both original petitions were admitted on 07.12.2011 and notice was ordered. In O.P.No.682 of 2011, the sole petitioner is only the paternal grand mother. In that O.P., she had not shown the said Ramaselvarasan as the grand father and that the appointment of guardianship was sought only in her name, i.e., R.Poonkothai. Similarly in O.P.No.686 of 2011, though serious allegations were made against the first respondent Ramaselvarasan stating that he was not the paternal grand father, curiously no counter affidavit was filed by the first respondent. No attempt was also made to examine him during trial as a witness. Even before trial could commence, both sides had acrimonious legal battles taking up all interim orders on appeal before the division bench.

5. Initially, in O.P.No.682 of 2011, a application in A.No.5644 of 2011 was filed by the paternal grand mother Poonkothai seeking for custody of the minor as an interim measure pending disposal of the O.P. That application was disposed of by an order dated 8.12.2011. It was observed that in view of the relationship between the parties, the custody of the child has to be determined keeping in view of the welfare of the minor which alone is the paramount consideration. Since the issue of custody was dealt with by the 11th Metropolitan Magistrate, Saidapet, prima facie the custody should be with the maternal grand parents. It was held that it does not call for any interference onl