R.G. Bhuwanesh vs G. Usha Rani

P. Sathasivam, J.—Against the dismissal of O.P.No.124 of 1998 filed u/s 25 of the Guardians and Wards Act, 1890, the petitioner has

preferred the above Original Side Appeal.

For convenience we shall refer the parties as arrayed before the learned Single Judge. It is seen that the petitioner and the respondent were

married at Chennai on 5.9.1988 in accordance with the Hindu rites and two children were born from the wedlock viz., a daughter Divyalakshmi

born on 29.5.1989 and a son Muralikrishnan born on 30.5.1990. Thereafter, due to misunderstanding both the petitioner and the respondent were

living separately. It is alleged in the petition that since the respondent is not taking sufficient care and interest in the welfare of the children, has filed

a petition praying for declaration that the petitioner is the guardian for both the minor children.

The said petition was resisted by the respondent by filing counter. In the counter affidavit the respondent-wife has stated that the petitioner is

leading wavered life and not spending time with the family, particularly with the children. The petitioner was not earning much and her children

prefers to live with her. It is the respondent who is maintaining both the children by putting them in a well established school and spending money

for them.

The petitioner was examined as PW1 and also produced and marked Exs.P1 to P19 in support of his claim. On the other hand, the respondent

examined herself as RW1 and also filed documents Exs.R1 to R9.

After framing necessary points for consideration and after considering the claim of both parties, taking note of the interest and welfare of the

minors, learned Single Judge rejected the claim of the petitioner and dismissed the said petition. However the learned Judge permitted the

petitioner to visit the minor children once in a week and the same shall be done during holidays for minors without causing inconvenience to them

and to their mother viz., the respondent. Aggrieved by the said order of the learned Single Judge, the petitioner has filed the present appeal.

Heard the learned counsel for the appellant as well as the respondent.

The only point for consideration in this appeal is whether the petitioner has made out a case to appoint him as guardian for the minor children

and whether the learned Judge is right in dismissing his petition for guardianship.

There is no dispute regarding the marriage between the petitioner and the respondent, which took place on 5.9.1988 and the children were born

to them on 29.5.1989 and 30.5.1990. Thereafter, it is seen that due to misunderstanding, the respondent-wife has chosen to live along with her

parents and it was she, who is taking care and interest of the minor children. Though the petitioner has claimed custody of both the minor children,

in his evidence as PW1, has admitted that the respondent-wife is employed and getting an income. On the other hand, it is evident from the

materials placed that the petitioner was not having sufficient income to meet the entire family including the minor children. From the materials

placed, the learned Judge has arrived at a factual conclusion to the effect that (1) the petitioner was not having sufficient income; (2) he was not

interested in doing hard work; and (3) he was sitting idle in the home; thereby indulging in alcoholic drinks without any sufficient earning. It cannot

be claimed that these findings of the learned Judge are not based on material or supported by any evidence. On the other hand, on going through

the evidence of PW1, RW1 and other documents, we are in agreement with the said factual conclusion and there is no material to take a different

view.

It is also seen from the evidence of RW1 that at the relevant time, she was earning a sum of Rs.1350/- per month. It is also her claim that apart

from the said income, she was getting some more income by way of tailoring. At the time of filing of the petition, minor daughter is aged about 10

and minor son is aged about 9 and both of them were studying in IV and III standard respectively in a good school, which is being run by the staff

of Reserve Bank of India, which is located adjacent to the residence of the respondent.

In a matter like this, though the father is entitled to preference, as rightly observed by the learned Judge, interest and welfare of the minors is

paramount consideration in the matter of guardianship. It is further seen that keeping the above view, the learned Judge enquired both the children

in his Chambers and ascertained the wishes of the minors. It is seen that both the minors emphatically stated that they want to live with their mother

and they also expressed happiness and comforts in the company of their mother. After ascertaining the wishes and comforts of the minors, their

studies, progress reports, etc, the learned Judge has arrived at a conclusion that the children are looked after very well by the respondent-mother.

As rightly pointed out by the learned counsel for the respondent, there is no material to differ from the said factual conclusion.

It is also brought to our notice that though the learned Judge permitted the petitioner-father to visit the minor children once in a week, learned

counsel for the respondent asserts that except one or two occasions, the petitioner has not availed and utilised the said opportunity by moving with

their children as ordered by this Court. No doubt, learned counsel for the petitioner points out that the petitioner was not comfortable in all times to

visit the minor children as directed by this Court. In the light of the factual conclusion arrived at by the learned Judge, taking note of the fact that the

respondent is getting income to take care of the minor children and also considering the wishes of the minor children, we are of the view that there

is no valid ground for interference. On the other hand, we are in agreement with the conclusion arrived at by the learned Judge.

In the result, the appeal fails and the same is dismissed. No costs.