M.K. Hari Govindan vs A.R. Rajaram

S. Jagadeesan, J.—The appeal is against the order of the Family Court, Madurai dated 9.10.2001 in G.W.O.P.12 of 1998. The respondent

herein filed the said O.P for appointing himself as the guardian of the person of his grand daughter minor Adharsha. The respondent is the maternal

grand father of the said minor who was born on 20.11.1992. The appellant herein is none other than the paternal grand father of the minor. It is an

admitted case that both the parents of the minor are no more. The mother died on 7.8.1995 due to the fire accident occurred on 17.6.1995. The

father of the minor died on 11.5.1997.

2.It is the case of the respondent that the minor was all along under the custody of the respondent and he is seeking the relief of appointing himself

as the guardian of the person and not in respect of the properties of the minor. The minor is being taken care of by himself and if the minor is

separated at this stage, it may be adverse to the interest and welfare of the minor. His further case is that both the mother and father of the minor

died under suspicious circumstances and as such the custody of the minor may be retained with himself by appointing himself as the guardian.

3.On the contrary, the case of the appellant is that till the death of the father of the minor the minor was under the custody of the appellant along

with his son. After the death of the father, the minor was in the custody of the appellant. The wife of the appellant being a retired Teacher, she took

care of the grand children and the minor was taken proper care both in education as well as otherwise. In May, 1998 when the minor was taken

by the respondent to his house for holidays, the minor was kept under the custody of the respondent. The respondent also obtained the transfer

certificate from the school in which the minor was studying and he admitted the minor child in a school of his choice without the consent of the

appellant. As the appellant has sufficient means to provide good education to the minor and also to have her custody, the custody should be given

to him.

4.Both the appellant and the respondent examined themselves as R.W.1 and P.W.1 respectively. After considering the evidence let in by both the

parties, the Family Court Judge allowed the O.P filed by the respondent and appointed him as the guardian of the person of the minor. Aggrieved

by the same, the present appeal is preferred by the appellant.

5.Though the matter was adjourned on more than three occasions to enable the parties to arrive at some settlement, their respective counsels

reported to the court that they are helpless in bringing out some amicable settlement between the parties as both the appellant and the respondent

are very adamant and not agreeable for any terms.

6.In our view, this kind of cases cannot be decided by going through the documents or oral evidence or the precedents, without reference to the

human touch. Apart from the evidence, the human touch is the primary one for the welfare of the minor, since the other materials may be created

either by the parties themselves or on the advice of the counsel to suit their convenience.

7.The minor being hardly 10 years old and if the rivalry or the ill feeling between the two families are allowed to develop further, then there is no

doubt that both the grand parents would infuse some ill feeling, which they are entertaining in their mind, into the minor child. In our view, this

would naturally harm the child''s mind and we are afraid that the child at one stage or the other would find it difficult to concentrate on the studies.

But, however, the child must be left in the custody of either one. In such case, whose custody will be better at this tender age is the question to be

decided. Keeping in mind the above observations, we proceed to discuss the issue.

8.It is an unfortunate case that the child at this tender age lost both the parents, though at different point of time. Both the parents lost their life due

to unnatural death. When some reconciliation is necessary between the two families and the minor''s interest is to be taken care of jointly, it is

rather unfortunate that both have decided to spend their time in the lawyers'' office and in the court.

9.Now admittedly the child is in the custody of the respondent since 1998. The manner in which the parties to the litigation are fighting, definitely

the custody of the child might not have been shared by both. As already said, even if the child is given the custody temporarily to one of the parties

and permanently to the other, it will develop poisonous mind for the child. It is high time both the grand parents should realise their responsibility in

bringing up the minor child especially when the minor being a female. When the minor child is with the respondent for the past more than four

years, as rightly pointed out by the Family Court Judge, the custody of the minor can remain with the respondent. We are of the view that it will be

in the interest and welfare of the minor.

10.From the order under appeal it appears that the Family Court Judge also invited the parties and ascertained the willingness of the minor child

and the minor child expressed her willingness to be with the respondent. Of course the willingness of the minor can be an infused one at the time of

enquiry. But at the same time such expression also cannot be totally neglected. Keeping all these in mind and considering the interest and welfare of

the minor child at this tender age, we are of the view that the minor child can be permitted to stay with the respondent herein.

11.As in the petition the respondent restricted his claim for the guardianship of the person of the minor and the documentary evidence produced by

the parties reveals that the bank deposits and the minor''s share of the immovable property are in the custody of the appellant herein, the appellant

is directed to maintain an account for the income of the minor''s share and deposit the same in a Nationalised Bank in the fixed deposit. He is

directed to hand over the minor''s share of the cash certificates and the properties of the minor''s share after she attains majority.

12.We are also very conscious that the appellant cannot be deprived of either visit to the minor or the custody of the minor during some intervals.

Though we are afraid that both the grand parents may try to infuse poisonous feeling in the mind of the minor, definitely one cannot be permitted to

have the exclusive custody of the person of the minor, when legally both are entitled to share the love and affection for the minor child.

Keeping this in our mind and with a fond hope that the grand parents would realise the sentiments expressed by the court, since both the grand

parents are living in the same town, we permit the appellant to visit the minor during the week ends and also take the custody of the minor on every

second Saturday and Sunday and the last Saturday and Sunday every month. Apart from that the appellant is also permitted to have the custody of

the minor during holidays like Dhasara, Christmas and Summer. During these holidays both the appellant and the respondent must have the custody

of the minor child each 50% of the holidays. Apart from this, every year during Pongal and Deepavali both the appellant and the respondent are

directed to have the custody of the child for any one of the festival and in the alternative every successive years till the minor attains majority. Both

the appellant and the respondent are also directed to take care that they should not infuse ill feeling in the mind of the minor about other. With the

above direction the appeal is disposed of. No cost.