IMPORTANT POINT
In custody matter welfare of child is of paramount importance.

K. Chandru, J.— The Original Petition is filed by the petitioner/mother seeking to declare her as the guardian of the minor child Nithya Sigapi Venkat.

2. The OP was admitted on 2.11.2007. However, when the matter came upon 9.2.2009, this Court allowed the OP and declared the petitioner as the guardian of the minor child. Subsequently, the respondent filed an application in A No. 3693 of 2009 to condone the delay of 150 days in filing the application to set aside the ex parte order dated 9.2.2009. This Court by an order dated 17.8.2009 condoned the delay and the earlier order was set aside by this Court on 24.10.2009. It was thereafter, the respondent filed a counter affidavit dated 30.6.2010. The respondent also filed written arguments dated 26.10.2012. Once again the matter was posted for recording evidence. Accordingly, the petitioner examined herself as PW1 and the respondent examined himself as RW1.

3. Heard the arguments of Ms. Sheila .Jayaprakash, learned Counsel for the petitioner and Mr. T.S. Baskaran learned Counsel for the respondent.

4. It is the stand of the petitioner that she is a graduate from Ethiraj College. From December 2006, she was employed with “Fitness One” Group. The respondent is a Chemical Engineer from Annamalai University. They lived together in U.S.A. from the date of their marriage in November 2000 till they finally returned to India in March, 2005. The minor child Nithya Sigapi Venkat was born on 28.11.2004 at Pennsylvania. U.S.A. and because she was born at U.S.A., the minor child also has U.S.A. citizenship. Initially, the respondent came to India in January, 2005 to see his ailing mother. The petitioner alongwith minor child came to India in March. 2005 as the minor child did not have a passport and she had to wait for completion of the duration. It was thereafter, the respondent left to U.S.A. during April/May, 2005. The respondent moved the U.S.A. Court in September, 2005. The petitioner filed an objection letter before the U.S.A. Court. The U.S.A. Court granted divorce on 21.6.2007 after waiting for two years as per the U.S.A. laws. After the divorce, she took back her articles and money from the custody of the respondent’s father. Originally, a criminal complaint was given by the petitioner against her father-in-law. Thereafter the respondent’s father filed an application to quash the complaint and the matter was sent to the Mediation and Conciliation Centre and a compromise was reached on 24.9.2008 and the complaint was closed. After the divorce, she was not able to know the whereabouts of the respondent. The petitioner also filed a petition for divorce before the Sub-Court. Devakottai as the marriage was performed in India at Devakottai. The Sub-Court, Devakottai granted decree of divorce by judgment dated 23.6.2009. It was stated by her that the respondent has shown no interest in the welfare and custody of the minor child and therefore, she is entitled for appointment as guardian of the minor child.

5. The respondent agreed to most of the factual statements made by the petitioner. He stated that he came back to .India during 2006 and his attempt to visit the minor child was not fruitful. But he agreed that he did not send any money for maintenance for the child from 2006 till the date of his examination as their relationship was strained. He became the citizen of U.S.A. during 2008 and he came back to India during November 2008. Thereafter, he settled at Chennai at Indira Nagar and presently, he is working at Madurai. He has also married one Suganya on 1.2.2009 and he has no issues through her. In fact the second marriage took place after he gave an advertisement in the newspaper. While he was in U.S.A., he did not take any steps to seek for the custody of the child. It was also stated that he was prevented visitation of the child.

6. In the light of these facts. Ms. Sheila Jayaprakash, learned Counsel for the petitioner contended that right from her return from U.S.A., there w