JUDGMENT

This Civil Miscellaneous Appeal is directed against the order passed in G.W.O.P.No.5 of 2016, dated 10.08.2017, on the file of the Principal District Court, Ramanathapuram granting custody of the minor child to the first respondent-mother.

2. It is not in dispute that the marriage between the first respondent and the second respondent was solemnised on 06.03.2011 at Lena Marriage hall, Paramakudi and that due to their wedlock, they were blessed with a female child – Mirunya on 15.12.2011. Admittedly, the appellant/second respondent is the mother of the second respondent/first respondent and the grandmother of the child Mirunya. It is also not in dispute that the marriage between the first respondent and the second respondent was dissolved by a decree of divorce granted in H.M.O.P.No. 755 of 2014, dated 06.12.2014, on the file of the Family Court, Madurai. It is also not in dispute that the first respondent/wife – mother of the minor child is now working as Assistant Section Officer in the Madurai Bench of Madras High Court, whereas the second respondent-father of the minor child is doing business with his father at Malaysia.

3. For the sake of convenience and brevity, the parties will be referred as per their status and ranking in the trial Court.

4. The case of the petitioner is that as per the permission granted in the divorce order, she visited the school in which her minor daughter was studying, but she was denied permission to see her daughter by the respondents 1 and 2, hence she was subjected to untold misery and mental agony, that the respondents 1 and 2 are making arrangements for the second marriage of the first respondent, that the first respondent, after divorce order, left India for Malaysia leaving the minor child in the custody of his aged mother – second respondent, that the second respondent was then aged 61 years and she was not in a position to meet out the needs and desires of the child, that the petitioner is having necessary educational qualifications and necessary means to take care of her minor daughter, that since the first respondent is in Malaysia, there is no one to take care of the minor child and that therefore, the petitioner being the natural guardian is entitled to get the custody of the minor child.

5. The defence of the second respondent/grandmother of the minor child is that when her son was working at Malaysia, the petitioner stayed with her at her native place, that during her absence, the petitioner had illegal contact with one Muhi @ Karmuhilan, that despite the advice of the first respondent, she had again seen the petitioner along with the said Karmuhilan in her house during her absence, that the petitioner had immediately left the house leaving the two years old Mirunya with her, that in the enquiry conducted in the All Women Police Station, Paramakudi, on the basis of the complaint lodged, the petitioner expressed her non-willingness to live with the first respondent and subsequently filed a divorce petition, that the petitioner did not take care of the minor child at any point of time, that the petitioner has also given an undertaking before the Family Court, Madurai that she may be permitted to see her minor daughter once in a month and that the petitioner has not taken any efforts to visit the child as agreed before the Family Court, Madurai, but filed G.O.W.O.P., seeking custody of the child.

6. During enquiry, the petitioner has examined herself as P.W.1 and exhibited five documents as Exs.P.1 to P.5. The first respondent had remained exparte. The second respondent has examined herself as R.W.1 and adduced no documentary evidence. The learned Principal District Judge, Ramanathapuram, upon considering the evidence both oral and documentary and on hearing the arguments of both sides, has passed the impugned order dated 10.08.2017 granting the custody of the minor Mirunya with the petitioner. Aggrieved by the said order of custody, the second respondent has preferred the presen