T. Kochappi vs R. Sadasivam Pillai

A.C. Arumugaperumal Adityan, J.—This appeal has been preferred against the order passed in G.W.O.P. No. 189 of 2001, dated 8-3-

2002, on the file of the Additional District Judge, Nagercoil, Kanyakumari District. This appeal has been preferred by the grand-father of the

children by name, Raghul and Gokul who are admittedly in the custody of the appellant/the petitioner in G.W.O.P. No. 189 of 2001.

The appellant is a retired State Government employee. According to the appellant/the petitioner, the respondent who is none other than the

father of the children, Raghul and Gokul, had married for second time after the death of the first wife. Only on that ground, the appellant herein had

filed G.W.O.P. No. 189 of 2001 before the Additional District Judge, Nagercoil, Kanyakumari District, for appointing him as a guardian for the

minors.

The respondents remained ex-parte.

After going through the affidavit to the petition and the documentary evidence let in by the petitioner, the learned Additional District Judge has

come to a conclusion that the petitioner is not entitled to the relief asked for in the petition and consequently dismissed the petition.

Aggrieved by the orders of the learned Additional District Judge, Kanyakumari at Nagercoil, the petitioner in G.W.O.P. No. 189 of 2001, has

preferred this appeal.

Now, the point for determination in this appeal is whether the order passed in G.W.O.P. No. 189 of 2001, dated 8-3-2002, on the file of the

Additional District Judge, Nagarcoil, Kanyakumari District, is liable to be set aside for the reasons stated in the Memorandum of appeal in C.M.A.

No. 1679 of 2002?

The Point:

While entrusting the custody of the minor children, either to one of the parents or to the petitioners who seek custody, the paramount importance

to be considered is the welfare of the children. Here, admittedly, both the children Raghul and Gokul are with the appellant/the petitioner and that

the respondent is none other than the father of the minor children Raghul and Gokul. There is no averment in the affidavit to the petition in

G.W.O.P. No. 189 of 2001, preferred by this appellant/the petitioner to the effect that the respondent is acting against the interest of the minor

children.

Under law, the natural guardian of the minor children is the respondent. The fact that the respondent had married for the second time, will not

absolve the right to ask for the custody of the children or for appointing him as the guardian of the children. The learned Additional District Judge in

his order has categorically stated that except the averment that the respondent had married for the second time, there is nothing in the affidavit to

draw an inference of the respondent that he had acted against the interest of the minors warranting removal of the respondent from his

guardianship. The learned Counsel for the appellant fairly concedes that the respondent is not acting against the interest of the children.

Under such circumstances, I find no reason to interfere with the order passed by the learned Additional District Judge, Nagercoil, Kanyakumari

District in G.W.O.P. No. 189 of 2001, which is neither illegal nor infirm.

Hence, I hold on the point that the order passed in G.W.O.P. No. 189 of 2001, dated 8-3-2002, on the file of the Additional District Judge,

Nagercoil, Kanyakumari District need not be set aside for the reasons stated in the Memorandum of appeal in C.M.A. No. 1679 of 2002. The

point is answered accordingly.

The learned Counsel for the appellant would contend that in C.M.P. No. 12911 of 2002, the Honourable Division Bench of this Court has

ordered, giving permission to the respondent to visit the minors once in a fortnight on a holiday and that he has no objection for the said order to

continue. The said request of the learned Counsel for the appellant is acceded and the respondent is permitted to visit the minors once in a fortnight

on a holiday as directed by the Division Bench of this Court in C.M.P. No. 12911 of 2002.

In the result, the appeal is dismissed. No costs.