Point of Law: There cannot be any quarrel on the proposition that the custody of the minor children is to be granted to the parents at the first instance and only in the absence of parents, the custody can be granted to the grandparents as the case may be. However, the peculiar facts and circumstances and the interest of the children is to be considered, which is of paramount importance as well as the spirit of the Guardian and Wards Act.

JUDGMENT :

Prayer : Civil Miscellaneous Appeal filed under Section 47 of Guardian and Wards Act, 1890, against the order and decree made in G.W.O.P.No.13 of 2017 on the file of the Principal District Judge, Vellore, Vellore District, dated 07.10.2020.

1. The order and decree dated 07.10.2020 passed in G.W.O.P.No.13 of 2017 is under challenge in the present Civil Miscellaneous Appeal.

2. The appellant, who is the Paternal grandmother of the minor children namely V.Sairaghu and V.Swathi, filed a petition under Section 6 of the Guardian and Wards Act, seeking custody of the minor children on the ground that the mother lost her right to maintain the minor children, in view of her behavior.

3. It is pertinent to note that Ex.P10/document signed by the father of the minor children, who is the natural guardian, authorizing his mother/appellant to file a petition. Such a power has been granted to the Paternal grandmother of the minor children, in view of the fact that the father of the children is working in CRPF and now posted in Jammu and Kashmir, more specifically in Kupwara District. Pursuant to the power/Ex.P10 granted by the father of the minor children, the Paternal grand mother of the minor children filed the application before the District Court. The respondent is the mother, who filed a counter. However, she was not subjected herself for Cross-Examination before the trial Court.

4. The learned counsel for the appellant made a submission that the respondent, who is the mother of the minor children, was not behaved herself as a dutiful wife to the father of the minor children and there was a matrimonial dispute between the husband and wife and the petition for divorce filed by the husband in H.M.O.P.No.119 of 2016, which was allowed by passing an exparte decree and the respondent/wife had not even contested the divorce petition. In the present G.W.O.P., except by filing a counter statement, the respondent had not contested the case by subjecting herself for examination or Cross-Examination to establish the contention. Relying on the said conduct of the respondent, the learned counsel for the appellant reiterated that all along she has not shown any interest towards the minor children nor contested the divorce case as well as the G.W.O.P and therefore, the case of the appellant was established and in spite of that the trial Court proceeded merely on the fact that the mother is the natural guardian and the father is not a party to the petition.

5. The learned counsel for the appellant reiterated that though the father has not impleaded himself as a party to the proceedings, he had given an authorization / power in favour of his mother to file a case, seeking custody of the minor children. In view of the fact that he is working in CRPF and frequently, he was subjected to transfer in North India, he may not be in a position to come and appear before the Court for conducting the case. With the genuine reason, the power was given in favour of the Paternal grandmother of the minor children and the said document filed as Ex.P10 was not at all considered by the trial Court, while adjudicating the issues.

6. The appellant is of an opinion that the conduct of the mother/respondent is questionable and the learned counsel for the appellant made a submission that the allegation is that the respondent is having an illicit relationship with another man namely Balamurugan and a criminal case registered in FIR.No.700 dated 09.12.2017 (C.C.No.366 of 2018) and the said criminal case is pending against the respondent. The appellant has stated that even the said allegation is not seriously disputed by the respondent/wife, even in the Court proceedings, more specifically, in divorce proceedings as well as in the present G.W.O.P proceedings. When the respondent has not seriously disputed the said allegation, the appellant has to protect the interest of the minor children as the minor boy is aged about 9 years and the minor girl is aged about 7 years.

7. The