nBEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 24.07.2024 DELIVERED ON : 21.10.2024 CORAM THE HON'BLE MR.JUSTICE G.ILANGOVAN C.M.A.(MD).No.370 of 2021 K.Palanikumar ... Appellant/Petitioner Vs.

S.Subhathra ... Respondent/Respondent PRAYER : Civil Miscellaneous Appeal is filed under Section 47 of the guardians and Wards Act, 1890, to set aside the fair and decreetal order dated 06.10.2018 passed in G.W.O.P.No.38 of 2016 on the file of the I Additional District Court, Madurai.

For Appellant : Mr.K.Raghul Priyan For Respondent : No Appearance

JUDGMENT

This appeal has been directed against the fair and decreetal order dated 06.10.2018 passed in G.W.O.P.No.38 of 2016 on the file of the I Additional District Court, Madurai.

2.The facts in brief:

The appellant Palanikumar filed a petition against the respondent herein under Sections 7 & 10 of the Guardian and Wards Act, 1994, seeking the relief of appoint himself as guardian of the minor son Kesavalingam, directing the respondent to hand over the custody of the minor and for other reliefs.

3.That petition has been filed with the following averments: The petitioner is the father of and natural guardian of the minor Kesavalingam, who is aged about 3 years. The respondent is his wife. The marriage between the parties took place on 05.02.2017 at Tharumai Aadinam Shree Chockanathar Kalyana Mandapam, Madurai, in the presence of the relatives and elders as per the Hindu Customary Rites. After their marriage they started their matrimonial life and due to the wedlock the minor Kesavalingam was born on 14.04.2013.

4.After the birth of their son, there was frequent quarrel made by the respondent. He was treated cruelly by the respondent. Slowly her attitude also started changing. She never acted as a dutyful wife. Because of the issue between the parties, the respondent pressured the petitioner to give consent for mutual divorce. The efforts made by the family members and elders to resolve the issue failed. A deed of dissolution of marriage was executed on 28.09.2015. Before the deed of dissolution of marriage the petitioner was permitted to visit the child, but, the respondent later failed to comply the undertaking. On 28.09.2015 the petitioner went to respondent's house. But, he was not permitted to see the child. The respondents are not taking appropriate care to the health of the child and slowly the health condition is deteriorated. Since the health of the minor child is paramount consideration and being the natural guardian he is entitled for custody of the minor child. For that purpose this petition was filed.

5.Counter was filed disputing the allegations stating that the marriage is admitted. But other allegations are denied as false. The respondent is having sufficient source of income to maintain and educate the minor. The petitioner does not have any proper monthly income or any other source. Now the child is aged about only 4 years. If the custody is given to the petitioner the welfare of the child will be affected and prayed for dismissal of the petition.

6.After full enquiry, the custody of the child was permitted under the respondent. But however, the petitioner was given visiting right once in a month of every second Saturday from 10.00 a.m. to 12.00 noon.

Against which this appeal has been preferred by the appellant / husband.

7.Heard the learned counsel for the petitioner.

8.Pending the appeal process, the matter was referred to the Mediation and in the Mediation process, it appears that there is no settlement reached between the parties. So the matter was heard on merits.

9.The learned counsel for the petitioner reiterated the grounds made in the trial court. But, in spite of repeated adjournment there was no appearance for the respondent. Finally she did not turn up. So her name was ordered to be printed in the cause list. On 24.07.2024, orders was reserved.

10.It is a matrimonial issue between the husband and wife. For what reason they want to separate is beyond the scope o