C.M.A(MD)No.919 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON: 02.08.2023

PRONOUNCED ON: 25.08.2023

CORAM

THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR

C.M.A(MD)No.919 of 2017

and

C.M.P.(MD)Nos.9729 and 12037 of 2017

Niranjammal

:

Appellant/Respondent

Vs.

1.Rajeswari

:

Respondent/Petitioner

2.Ramprabhu

:

Respondent/Respondent

PRAYER:- Civil Miscellaneous Appeal filed under Section 47 of

Guardina and Wards Act, 1890, against the order dated 10.08.2017,

passed in G.W.O.P.No.5 of 2016, on the file of the learned District Judge,

Ramanathapuram.

For Appellant : Mr.R.Senthilkumar

For Respondents :Ms.D.Saranya

for R.1

: R2-exparte

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C.M.A(MD)No.919 of 2017

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.

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C.M.A(MD)No.919 of 2017

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.

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C.M.A(MD)No.919 of 2017

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 peti