JUDGMENT

The present Civil Miscellaneous Appeal has been filed as against the order passed in G.O.P.No.105 of 2013, dated 30.06.2014 on the file of the Principal Sub Court, Kumbakonam, wherein, the appellant herein has filed a petition to appoint her as a guardian for the minor Sagar aged about 5 years. The Trial Court has dismissed the petition. As against the order passed by the Trial Court, the present Civil Miscellaneous Appeal has been filed by the petitioner.

2. For the sake of convenience and brevity, the parties herein after will be referred to as per their status/ranking in the Tribunal. 3. The brief facts of the petition averments are as follows:

The petitioner is the second wife of one Thangavel, who is the father of the minor child. Originally, the said Thangavel got married with Punitha, who is the daughter of the respondents herein and the said Thangavel and Punitha have a child, namely, Sagar. While so, on 29.01.2010, the said Punitha, who is the mother of the minor Sagar died. Thereafter, in order to take care of the minor son, the petitioner married the father of the minor, namely, Thangavel. The husband of the petitioner was working in Central Reserve Police Force (CRPF), Thiruvanandapuram. The petitioner along with her husband and minor son were living together. While so, on 15.11.2012, the said Thangavel died due to heart attack and the petitioner and the minor Sagar alone are the legal heirs to the deceased Thangavel. After the demise of the said Thangavel, the respondents forcibly took the minor child from the custody of the petitioner. Hence, the petition is filed to appoint the petitioner as guardian for the minor Sagar to his person and property.

4. The brief averments of the counter filed by the respondents are as follows:

The marriage between the petitioner and the deceased Thangavel is not admitted. The minor Sagar was born to Thangavel and the daughter of the respondents, namely, Punitha. This petitioner already got married with one Sahadevan and thereafter, she was abandoned by her husband. Without any divorce from the competent Court, there cannot be a second marriage while his spouse is alive. Therefore, there was no marriage solemnized between the petitioner and the deceased Thangavel. The averments made in the petition that the respondents forcibly taken the minor from the custody of the petitioner is denied as false. The averments made in the petition that these respondents are not a fit person to have the custody of the minor are all false. The minor is under the custody of the respondents. The deceased Thangavel, who is the son-in-law of the respondents died leaving behind the minor as his legal heir and till date, the minor is under the custody of the respondents, who are the maternal grand-parents of the minor son. Therefore, this petition is liable to be dismissed.

5. In order to prove the case of the petitioner, the petitioner has examined P.W.1 to P.W.3 and marked Exhibits P.1 to P.9 and on the side of the respondents, R.W.1 and R.W.2 were examined and marked Exhibits R.1 to R.10 and Exhibits X.1 to X.5 were also marked.

6. After hearing both sides and perusing the records, the Trial Court had dismissed the petition. As against the dismissal order, the present Civil Miscellaneous Appeal has been filed by the petitioner.

7. The learned Counsel appearing for the appellant would contend that the appellant / petitioner is the second wife of the deceased Thangavel and the minor son was born to the said Thangavel through his first wife. After the demise of his wife, in order to take care of the minor child, the deceased Thangavel married this appellant / petitioner and after the demise of mother of the minor child, the appellant / petitioner has been taken care of the minor child and the minor child was under the custody of the appellant / petitioner. Thereafter, the father of the minor child died on 15.11.2012. After the demise of the said Thangavel, the respondents / respondents, who are the mat