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Judgment
M. Chockalingam, J.—This judgment shall govern the above appeals, which have arisen from the order of dismissal of O.P. No. 145 of
2005, seeking appointment of petitioners 2 and 3 as guardians and also for the custody of minor child Vishal Balaji aged 4-1/2 years at the time of
filing of O.P., and also from the other interim orders. The appellants herein filed O.P. No. 145 of 2005 seeking appointment of petitioners 2 and 3
as guardians of the said minor child and also for a direction to the respondent to hand over the custody of the child to petitioners 2 and 3 within the
time to be fixed by the Court. The petitioners also filed Application No.4568 of 2007, whereby they sought for a direction to the respondent to
hand over the custody of minor child to petitioners 1 to 3 or in alternative appointing the petitioners 2 and 3 as guardians for the minor or in
alternative, to direct the respondent to hand over the custody of the minor child to petitioners 1 to 3 for such time and on such terms as the court
deems it fit and proper. A detailed counter was filed to the original O.P. and also for the amendment application.
The appellants sought for the said reliefs in the said O.P. inter-alia, stating that the marriage between the first petitioner and the respondent took
place in the year 1999 as per the Hindu rites and a male child was born on 20.05.2000 in the U.S.A. and the child was named as Vishal Balaji.
Due to disturbance in matrimony and strained relationship, the marriage between the spouses was dissolved by an order of the Court, dated
03.10.2001 in F.C.O.P. No. 407 of 2001 by mutual consent u/s 13-B of the Hindu Marriage Act. Pursuant to the order of the Court, the child
was in the custody of the respondent. The first petitioner, who was in the United States remarried in the year 2002. The respondent also remarried
in the year 2004. The first petitioner sent a letter to the respondent that his parents, namely the second and third petitioners, were anxious to see
the child and made a request to the respondent to permit them. The same was replied by the respondent through the counsel, stating that they
could not see the child, since permanent custody of the child was allowed to be with the respondent and that since the visiting right is not available
to the first petitioner, it could not be extended to his parents. Under these circumstances, the petitioners filed O.P. No. 145 of 2005, originally,
asking the reliefs stated above.
The petition was countered by the respondent, inter-alia, stating that the petition was neither maintainable nor the petitioners can have the reliefs
either custody or the appointment of guardianship and hence the petition was to be dismissed.
Pending O.P., interim order came to be passed in Application No.792 of 2005 on 21.12.2005, wherein the respondent was directed to
produce the minor child at the residence of the Senior Counsel for the respondent, where the petitioners 2 and 3, who are the parents of the first
petitioner, were allowed to visit the child on every Friday by 5.00 p.m. till 7.00 p.m. This order was challenged by the respondent in O.S.A. No.
331 of 2005, wherein the respondent challenged the very maintainability of the original petition. When the matter was taken up for consideration,
the O.S.A. was withdrawn by an order, dated 18.10.2006. The Division Bench of this Court granted liberty to the respondent to raise
maintainability as preliminary issue before the learned Single Judge. Accordingly, an application, questioning the maintainability of the petition was
also filed and the application was also countered by the petitioners. An application for appointment of Advocate Commissioner was filed by the
petitioners seeking implementation of the order of the learned Single Judge, dated 21.12.2005 and the same was countered by the respondent.
While the matter stood thus, the petitioners filed the above amendment application, seeking amendment of the original petition. The same was also
countered by the respondent. All those applications came up for hearing before the learned Single Judge and on enquiry, the learned Single Judge,
sustaining the preliminary objections, dismissed the original petition itself. The interim order in Application No.792 of 2005, dated 21.12.2005 was
vacated and both the application Nos.4573 and 4568 of 2007 were also dismissed. Aggrieved over the same, all these four appeals were brought
forth at the instance of the petitioners.
Advancing arguments on behalf of the petitioners/appellants, the learned Senior Counsel made the following submissions:
a) O.P. No. 145 of 2005 should not have been dismissed for the simple reason that at the stage of dismissal, it was part heard stage and the
evidence of P.W.I was in progress. The respondent in the original petition has fully disobeyed the order of the court made in Application No.792
of 2005. The said order has become final, since she has withdrawn O.S.A. No. 331 of 2005. After withdrawal of O.S.A. No. 331 of 2005, the
respondent has willfully disobeyed the order of this court made in Application No.792 of 2005. When a letter was sent to her after she has
withdrawn the O.S.A. on 18.10.2006, calling upon her to obey the order of the court, she has gone to an extent by sending a reply through her
counsel that the interim order in Application No.792 of 2005 has been vacated by implications and the 0,P, has been remanded and hence there
was no act of contempt. When the appellants filed application No.4573 of 2006 for appointment of Advocate Commissioner to implement the
order, dated 21.12.2005 made in application No.792 of 2005, the respondent has been dragging on the matter, taking several adjournments and
subsequently, she has filed application Nos.4602 and 4603 of 2006, one seeking permission to raise the question of maintainability as preliminary
issue and the other for suspension of the order made in Application No.792 of 2005, which was thoroughly an after thought.
b) The learned Single Judge should have allowed Application No.4573 of 2006 and directed the respondent to obey the order passed in
Application No.792 of 2005. The respondent was the contemnor and she was not entitled to be heard unless and until she obeyed the order of the
court. What actually transpired in the Chambers of the learned Single Judge for arriving at a settlement between the parties is without prejudice to
the rights of the parties and it cannot be used as evidence and the conduct on the part of the respondent in putting in the affidavit what transpired in
the Chamber of the learned Single Judge in the counter affidavit and trying to use it as an evidence was not correct. The application to try the
question of maintainability as a preliminary issue was purely an after thought and it was nothing, but an abuse of process of law. When the matter
stood as part heard and P.W.I was in box, the respondent could not file an application for maintainability. The learned Single Judge should have
rejected the same. But, the learned Single Judge even without enquiry, dismissed O.P. No. 145 of 2005 itself.
c) The application No.4568 of 2007 for amendment was necessitated by circumstances and it was only for effective adjudication of the matter and
the issue and to do justice between the parties. It is a settled law that the application for amendment could be filed if any technical objection was
raised by the opposite party. The application for amendment should have been allowed. The reasons adduced by the learned Single Judge was not
at all reason, which could be adduced in the eye of law. A perusal of the affidavit filed by the petitioners would clearly show that they have valid
reasons in support of the amendment application and the amendment application was necessary and the first petitioner has also filed his supporting
affidavit.
d) Regarding the custody of minor child and visiting rights, the Court always passes orders keeping in mind the interest and welfare of the minor
child. The consent order before the Family Court between the first petitioner and the respondent was only taking into account the then prevailing
circumstances, in which the first petitioner was placed. The observations of the learned Single Judge that the petitioners never cared for the welfare
of the minor child for 4 years was factually incorrect and the petitioners have pleaded in the petition as to how they were trying to have a glimpse of
the child which has been refused by the respondent and her parents. The contention raised by the respondent that the O.P. has been filed by the
petitioners with ulterior motive was contrary to the facts. Only in the grounds of appeal in OSA No.331 of 2005, the respondent has come
forward with a specific plea as if she has given the minor child in adoption to her second husband and thus, she has spoken of severance in status
between the minor child and the paternal grand parents which was not permissible in law. Under these circumstances, the same has necessitated
the petitioners to seek for amendment of the original petition.
e) It is an admitted position that the respondent has married again and that she has also stated that she would hand over the minor child to the
second husband and his mother and would sever the relationship with the petitioners, which was adverse to the interest and welfare of the minor
child. The respondent could not suppress the facts from the minor child and she could not also prevent the minor child to visit the petitioners. If
suppression is allowed to take place and when the minor child comes of age, it will mentally affect the minor child and it would be adverse to the
interest and welfare of the minor child.
f) If the matter was taken up for trial and if the parties are permitted to let in evidence, the truth would come to light. Even if the court was not
inclined to appoint the petitioners 2 and 3 as guardians and further was not inclined to hand over the custody of the minor child to the petitioners,
the court can always pass orders regarding visiting right. In support of his contention, the learned Senior Counsel has relied on the judgment of the
Apex Court reported in 2007 (2) MLJ 298 = 2006-4-L.W. 768 (SC) (Lekha vs. P. Anil Kumar). The learned Senior Counsel would further
submit that it is quite clear from the judgment of the Apex Court that the remarriage of the wife was not the ground and at the same time, the Apex
Court was pleased to pass orders regarding visiting right of minor. It is a settled law that at the time of considering the case for amendment, the
merits of the matter should not be taken into account.
g) From the available materials, it would be quite clear that the petitioners were making all attempts in contacting the respondent and her parents
and have also requested them to see the minor child, but it was only the respondent and her parents who were adamant and dragged on the matter
for more than two years, which resulted in the petitioners approaching the court and that it would be quite clear that the respondent is acting against
the interest of the minor. It is pertinent to point out that the first petitioner has clearly stated that he was forced to agree for joint memo before the
Family Court under the then given circumstance. Thus, the reasons given by the learned Single Judge are erroneous. Under these circumstances,
the order of the learned Single Judge has got to be set aside and the O.P. has got to be restored to file, by setting aside the order and the
amendment has got to be ordered.
The learned Senior counsel, advancing arguments on behalf of the respondent, in her sincere attempt of sustaining the order would submit that a
reading of the order, whereby the marriage of spouses was dissolved, would clearly indicate that he has given up all his rights, including visitation
right till the child attains majority and having accepted so and being a party in the order, now the first appellant is estopped from stating that he
continues to have the right of visitation; that while the father and mother of the child are alive, there is no question of the second and third
petitioners seeking for guardianship; that the first petitioner cannot ask for custody of the child in view of the order passed by the family court; that
admittedly, the first petitioner remarried in the year 2002, but he did not come forward to seek any relief; that when the respondent remarried in
the year 2004, he has come forward with the original petition with all false and untenable allegations; that when the original petition itself is pot
maintainable, they have filed amendment application; that the affidavit was filed by three petitioners and not by the first petitioner, who is admittedly
staying in U.S.A.; that the first petitioner, who is in U.S.A., cannot ask for the custody or for guardianship and that the original petition itself was
not maintainable, since neither the relief originally asked for or now sought for in the amendment application could be ordered and hence all the
applications have been rightly dismissed by the learned Single Judge and therefore, the order of the learned Single Judge has got to be sustained.
The Court has paid its anxious consideration on the submissions made. As could be seen, all the above four appeals have arisen, one challenging
me dismissal of O.P. No. 145 of 2005, whereby the petitioners 2 and 3 sought for appointment as Guardians of minor child and also custody of
minor. Concededly, a consent order of divorce u/s 13-B of the Hindu Marriage Act was passed in F.C.O.P. No. 407 of 2001 on 03.10.2001.
The order came to be passed by mutual consent. Admittedly, the said petition was filed by both the spouses u/s 13B of the Hindu Marriage Act. In
the said petition, the petitioners state that the first petitioner shall have custody of the minor son Vishal without any visitation rights to the second
petitioner Chandrasekaran V. Ramanathan until the minor child attains majority and without any obligation on the part of the second petitioner
Chandrasekaran V. Ramanathan to pay any maintenance allowance to the first petitioner Alur Lalithalakshmi Vinaya and the minor child Vishal
until he attains majority. It would be more apt and appropriate to reproduce the following part of the order made by the family court, which runs as
follows:
Both the petitioners have agreed that the permanent custody of the minor son Vishal will be with the First Petitioner. Further the Second petitioner
has stated that he has given up all his rights with the child. Both the petitioners have agreed that they will not make any claim including maintenance
against one another in future. Further the First petitioner has agreed not to claim any maintenance for her minor son Vishal. They have already
exchanged their articles.
The said order came to be passed by the Family Court on 03.10.2001. It remains to be stated that after filing such a consent affidavit, pursuant to
which an order came to be passed u/s 13B of the Hindu Marriage Act, dissolving the marriage, this Court is afraid whether it can accept the
contentions of the petitioners/appellants that the custody of the minor child has got to be given to them. It is pertinent to point out that in the course
of the affidavit, it has been stated that the first petitioner therein, who is the respondent herein, should have the custody of the minor child without
any visitation rights to the first appellant until the minor child attains majority and thus, it would be quite clear that when the first appellant filed the
consent affidavit along with the respondent, he has also agreed that he would not claim even visitation right till the minor child attains majority.
Needless to say that merely because the respondent has married again in the year 2004, it cannot be a reason to make any deviation from the
original stand, which was taken by him and recorded by way of an affidavit, pursuant to which an order of divorce came to be passed.
It is a well settled proposition of law that the remarriage by the mother was not a ground for denying the custody of minor to her. In the instant
case, it is pertinent to point out that the first appellant has also remarried in the year 2002 even before the remarriage of the respondent. Under
these circumstances, the first appellant cannot be permitted to say that the custody of the child either or visitation right has got to be given to him.
So far as the amendment application is concerned, this Court is unable to see any reason to disturb the order of the learned Single Judge. A
perusal of the petition, as originally stood, would indicate that the first petitioner sought the appointment of petitioners 2 and 3 as guardians of the
minor and also for handing over the custody of the minor to those petitioners. The court is of the considered opinion that while both the parents of
the child are alive, namely the respondent and the first petitioner/first appellant, no question of appointment of petitioners 2 and 3 as guardians
would arise. It is pertinent to point out in law that guardianship is one thing and to have the custody of minor is the other thing. At no stretch of
imagination, the petitioners 2 and 3 could be appointed as guardians for minor child, since both the parents are alive and the order of divorce, even
by consent, will not take away the status of the respondent and the first petitioner as the mother and father respectively.
In so far as the custody of the child, when it could not be claimed by the first petitioner/first appellant, the petitioners 2 and 3/the appellants 2
and 3 cannot also claim. When the custody of the child cannot be claimed by the first petitioner/first appellant himself, then all other appellants
cannot make any claim. Hence the original petition, as rightly pointed out by the learned Single Judge, was not maintainable. The learned Senior
Counsel appearing for the appellants laid emphasis that the first appellant/first petitioner was also a party in the original petition and hence he should
be permitted to prosecute the petition, though the reliefs could not be granted to the petitioners 2 and 3 and the original petition itself was in part
heard stage. The said contention though attractive at the first instance, does not stand the scrutiny of law. The amendment application and the
affidavit in support thereon are also perused. Even if the amendment is ordered as requested by the appellants, the reliefs sought for could not be
granted. What are all introduced by the amendment application are to direct the respondent to hand over the custody of the child to petitioners 2
and 3 or in alternative, appointment of petitioners 2 and 3 as guardians for the minor child or in alternative, directing the respondent to hand over
the custody of minor child to petitioners 1 to 3 for such time as the Court deems it fit. All the above reliefs for the reasons stated above, even after
the amendment, could not be granted. Under these circumstances, when the reliefs even after the amendment, as sought for, could not be granted,
there is no meaning in allowing the amendment application. Hence the learned Single Judge was perfectly correct in dismissing the amendment
application also. So far as the application for appointment of Advocate Commissioner for implementation of the interim order made in Application
No.792 of 2005 is concerned, when such an interim order was originally passed, wherefrom an appeal was made and thereafter the original
petition itself was dismissed as not maintainable, no question of implementation of that order, at this juncture, would arise. Hence the dismissal of
the application has got to be affirmed. Under these circumstances, the learned Single Judge was perfectly correct in dismissing the original petition
as not maintainable and dismissing the other applications also. Accordingly, all these appeals are dismissed. No costs. Consequently, the
connected MP is also dismissed.