A father is entitled to custody of his minor daughter despite no guarantee against remarriage, reaffirming parental rights under the Guardians and Wards Act.

JUDGMENT :

ABDUL QUDDHOSE, J.

1. This appeal has been filed by the father challenging the order dated 04.03.2021 passed by the Principal District Court, Dharmapuri in G.O.P. No.48 of 2020.

2. By the impugned order, dated 04.03.2021, the petition filed by the appellant under Section 10 of the Guardians and Wards Act seeking to appoint him as the guardian for the Minor T. Thaswika and to direct the respondents to handover custody of the Minor T. Thaswika to him, has been dismissed on the ground that the Minor child was not examined and there is no guarantee given by the appellant that he shall not re-marry.

3. Before going into the merits of the matter, it is to be noted that both before the Principal District Court, Dharmapuri in G.O.P. No.48 of 2020 as well as before this Court, the respondents have remained ex- parte, despite service of notice on them. It is also to be noted that to give one more opportunity for the respondents to enter appearance in this matter, a direction was issued to the learned counsel for the appellant to intimate the next date of hearing to the respondents by Registered Post with Acknowledgement Due. As directed by this Court, the learned counsel for the appellant has also sent a communication to the respondents dated 10.06.2024 intimating the next date of hearing as 02.07.2024. An Affidavit of Service has also been filed enclosing the communication of the learned counsel for the appellant, dated 10.06.2024 along with the acknowledgement cards received by the respondents. Despite the same, the respondents have chosen not to enter appearance in this matter.

4. Heard Mr. P. Valliyappan, learned counsel for the appellant.

5. The appellant got married to Vennila on 09.04.2017. Out of the wedlock, they had a Daughter by name T. Thaswika, who was born on 31.07.2018. However, due to Jaundice (Hepatitis), the appellant's wife Vennila died on 24.10.2020. The respondents are the grandparents of Minor T. Thaswika, who is the appellant's daughter. According to the appellant, after the death of his wife, his Minor Daughter was under the care of the respondents for a few days. According to the appellant, the respondents gave assurance that they would hand over the Minor T. Thaswika to him after completion of funeral ceremonies i.e., 11^th day funeral rites. However, according to the appellant even after completion of funeral ceremonies, the respondents refused to hand over custody of his Minor Daughter T. Thaswika. As seen from the petition filed by the appellant before the Principal District Court, Dharmapuri, several attempts were made by the appellant to get custody of his Minor Daughter T. Thaswika from her grandparents, the respondents herein, but despite the same his attempts went in vain. According to the appellant only under those circumstances, he was constrained to file a petition under Section 10 of the Guardians and Wards Act, 1890 for the reliefs as prayed for by him, as stated supra. However, the respondents remained ex-parte before the Principal District Court, Dharmapuri in G.O.P. No.48 of 2020.

6. Before the Principal District Court, Dharmapuri in G.O.P. No.48 of 2020, the appellant had filed 12 documents, which were marked as Exs.P1 to P12. On his side, three witnesses were also examined viz., the appellant himself as PW1, Vengammal as PW2 and Kiliammal as PW3 respectively. PW2 and PW3 were the close relatives known to both the parties.

7. The Principal District Court, Dharmapuri, under the impugned judgement and decree, dated 04.03.2021 has dismissed G.O.P. No.48 of 2020 on the following grounds :-

a) there is no guarantee that