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O.P.No. 483 of 2022

C.V.KARTHIKEYAN, J.,

This Petition has been filed under Section 26 of the Guardian and

Wards Act, 1890 read with Order XXI Rule 1 of the Original Side Rules of

the Madras High Court by the mother of the minor child Carice Miriam

Wilkins, who was born on 15.05.2018, seeking a declaration that the

petitioner / mother is the guardian by the minor child Carice Miriam

Wilkins and to grant permission to the petitioner to remove the said minor

child from the jurisdiction of this Court to Melbourne Australia or to any

other country for the duration of the visa applied for even in the absence of

consent of the respondent/father.

2.

In the petition it had been stated that the petitioner Candice

Antonette Wilkins and the respondent Joseph Prince Heiden were married

on 01.06.2013 at Our Lady of Lourdes Shrine, Perambur, Chennai – 600

001 as per Christian Customs. The marriage was however dissolved by an

order dated 05.02.2020 in O.P.No. 246 of 2020 by the II Additional Family

Court at Chennai. The order was passed under Section 10(A) of the Indian

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Divorce Act and it had been very specifically stated that the respondent

herein would not have any responsibility towards the minor child and that

the petitioner herein alone would be the guardian and that the respondent

would not claim status as father and that the respondent’s name can be

removed from the records of the parties as the father of the child.

3.

The petitioner had very specifically stated that since the date of

separation from the respondent, from 24.01.2017, the child has been with

her and there has been no interaction with the respondent. The petitioner

had also stated that she had applied for passport and immigration authorities

for visiting Australia. She had obtained visa, but the Australian embassy

had raised a querry with respect to grant of visa for the minor child in the

absence of consent given by the father and as an alternate had sought an

order of the Court granting permission to remove the child from the

jurisdiction of the Court under Section 26 of the Guardian and Wards Act,

1890 in the absence of such consent by the respondent/father. It is under

these circumstances, the present Petition has been filed.

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4.

Notice had been directed to the respondent. Service on the

respondent had proved a futile exercise and the petitioner had to effect

paper publication and accordingly, publication had been directed in Tamil

daily ‘Makkal Kural’ and was also effected on the issue dated 03.10.2022.

The respondent had apparently taken a concious decision not to appear

before this Court. He was therefore set ex-parte on 01.11.2022.

5.

The petitioner was directed to tender evidence. The petitioner

examined herself as PW-1 and filed proof affidavit affirming the facts stated

in the Petition. She also marked the birth certificate of her daughter Carice

Miriam Heiden as Ex.P-1. The Petition, Decree and Order in O.P.No. 246

of 2020 on the file of II Additional Family Court, Chennai, were marked as

Exs. P-2, P-3 and P-4. The status of Visa application of the petitioner was

marked as Ex.P-5 and the request for further information relating to the

child was marked as Ex.P-6. The Online request check list was marked as

Ex.P-7 and the Aadhaar card of the minor child was marked as Ex.P-9. The

petitioner also filed Ex.P-10, the declaration of her willingness to accept the

office of guardian of the minor child.

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C.V.KARTHIKEYAN, J.,

vsg

6.

In view of the evidence recorded and particularly since the

respondent had taken a decision not to appear before the Court, and more

particularly since before the Family Court, he had disowned responsibility

over the minor child and had also stated that he will not claim the status as

father and that the name of the child can be cha