G. Ramasubramanian vs K. Gurulakshmi and another

V.S. Sirpurkar, J.—This is an unfortunate case of a three year old child whose mother has died in an accident. The mother has died of burning. It seems that this accident took place somewhere in the month of July, 1999.

It seems that presently, the child Indu is with her grand parents i.e. her mother''s mother and father who are respondents 1 and 2 herein. The father now claims the custody of the child on the ground that he is a natural father and that the grand parents of the child have no right to keep the child in their custody against his own desire to have the custody of the child. The petitioner says that he was married to Malathy the mother of the child, in the year 1994 and led a happy and peaceful life for 5 years. The child Indu is born out of that marriage. He further says in his affidavit that in the accident where the said Malathy expired, he also suffered 40% burn while the said Malathy suffered 90% burn and died on the third day of the accident. He points out that he was an in-patient in the Apollo Hospital right from August 1998. He pointed out that during that time the child was left in the custody of the respondents and after getting discharged from the hospital, though he tried to take the custody of the child he was not allowed to see his daughter even for a few minutes. He claim that he wrote about 5 letters to the respondents to handover his daughter, but in vain, He also claims to have paid the treatment expenditure for himself and his wife amounting to Rs.35.000/- to Apollo Hospital where he and his wife were inpatients. He then points out that the grand parents who are the present respondents filed one Civil Suite in O.S. No. 6513/99 before the City Civil Court, Chennai. for permanent injunction restraining him from receiving any service benefits arising out of the death of Malathy and further restraining the said husband from interfering with his daughter''s peaceful living with the first respondent. He therefore, claims that in the wake of his demand for custody of his own daughter. Indu and in the wake of the refusal on the part of the respondents, to part with the custody, such custody of the child. Indu has become illegal, He therefore, seeks the intervention of this court.

A long counter has been filed by the respondents, wherein they claim that the child is more attached to the grand parents than to the father and that the death of their daughter, mother of the child has taken place under suspicious circumstances. They also claim that there were misunderstanding between the late daughter, Malathy and the sister and brother-in-law of the petitioner with whom the petitioner is now staying. They also claim that the petitioner suffered from inferiority complex as Malathy had acquired higher qualification after the marriage. It is thus submitted that the child was happy and was not illegally detained and since the petitioner''s parents and sister were not on good terms with grand parents of the child that the life of the child would be miserable, if she were to be given into the custody of the petitioner. The charge made by the petitioner that all the articles of the household were removed by the respondents has also been refuted in the counter and the charge that the petitioner was prevented from seeing his daughter is also refuted. Instead, it is suggested that the minor child was not willing to go along with the father. An offer has been made by the parents that they would not claim any money from the monies left by the deceased Malathy. It is then suggested that since the petitioner was interested in marrying for the second time, the custody should rather remain with the grandparents than with the father.

At the bar, learned counsel for the petitioner very earnestly argued that the petitioner is a natural guardian and as such he got the first right over the minor child who is barely 3 years old. It is pointed out in the affidavit that there is no allegation against him that he was in any way given to any vice or that he was unfit to look after the child. The only defence which was raised was that the child was more attached to the grand parents compared to himself. About this also learned counsel pointed out that he was not against the grandparents meeting the child whenever they wish. He further points out that he was not at all interested in the monies of the deceased and in fact it was after the marriage with him the deceased had improved her qualification by doing research and visiting the foreign countries also. He therefore, points out that there was no question of his suffering from inferiority complex or his relationship being strained with the deceased. He further points out that he also suffered with 40% bum and had almost lost his life, no doubt, in saving the life of the deceased. In that view he pointed out that when he sought the custody of the child and when such custody was refused the custody by the grand-parents would at this stage become an illegal custody, as he is the best person to have the custody.

Learned counsel appearing on behalf of respondent however, fervently argued that in these matters, the welfare of the child should be the first consideration of the court. He pointed out that the child was extremely attached to her grand-parents because even prior to the accident the grand-parents as well as the parents of the child used to stay in neighbourhood. Since both the parents of the child were working parents, the child was looked after by the grand-parents. In that view, they said that in fact they were constantly looking after the child even prior to the death of the child''s mother. Learned counsel therefore, contended that the child has to undergo psychological trauma if the child were to be given for the custody of her father by making her part with the company of her grand-parents to whom the child is extremely attached.

There is no doubt that the situation is extremely unfortunate. It is really unfortunate that after the death of Malathy, instead of maintaining good relationship with each other, the parties should have insisted in taking the matter to the court. There can be no doubt that the child would be attached to her grand-parents for the simple reasons that the grand-parents have been in the constant company of the child even prior to the death of the child''s mother. However, it is equally true that the father would have the first right to the custody, as the father is the natural guardian. At least, till today, there are no allegations that the father has lost his right because of any vice or because of any other factor which would disentitle him to rear the child. The only possibility which is tried to be aimed was that he might marry second time, that action by itself would not be a reason to divesting of his right to have the custody of his child, in law. Therefore, presently, the custody of child with the grand-parents against the wishes of the natural father would tend to become illegal, in view of the disapproval by natural father.

Learned counsel appearing on behalf of the respondents points out that it would be better in the interest of the child, if she remains with her grand-parents. It will not be proper for this Court to go into that aspect and in fact, a litigation is pending in the city civil court, Chennai on that issue. It would be for the Civil Court to go into that question. The conclusion, however, is that the present custody, in our opinion, must be with her natural father as compared to her grand parents.

We therefore, allow this petition and direct the respondents to handover the custody of the child within two weeks from today.

Learned counsel for the respondent, fairly agrees that the child will be brought to the chambers of the learned counsel appearing on behalf of the petitioner and the petitioner would obtain custody of the child. The child will be brought to the said premises with prior notice to the petitioner.

We have dealt with the legal issue, however, we cannot forget the humanitarian issued involved in this matter. We are confident that the petitioner will not take unreasonable attitude in refusing access of the grand-parents to the child. Learned counsel for the respondents consequently fairly agrees that the respondents will not take unreasonable attitude in their option.