ANANDAN Vs. NEELAKANDAN

JUDGEMENT

(1.) The appeal has been directed against the decree and judgment dtd. 13/6/2017 passed by the Principal District Judge, Thiruvannamalai in G.W.O.P. No.7 of 2016 refusing to accept the prayer of the appellant father to hand over him the custody of the child.

(2.) Mr.N.Manokaran, learned counsel appearing for the appellant, challenging the correctness of the impugned order, pleaded that after solemnisation of marriage on 15/2/2009 at K.K.S.Mandapam, Vinnamangalam, Arni Taluk, Thiruvannamalai District as per Hindu rites and customs between the appellant and his wife namely Dharani, who is the daughter of the respondent herein, a male child, viz. Nithish was born on 8/1/2013. At the time of marriage, the appellant was working in defence service at Lucknow. Thereafter, the wife of the appellant unfortunately passed away on 15/7/2014. After her death, the respondent got back all the jewels and Sridhana articles which were presented during the marriage and he has forcibly brought the appellant's minor child from his custody. Despite request made by him, the respondent has not come forward to hand over the custody of the minor child. Thereafter, the appellant, who is working in Ooty, got married and they were blessed with two children. However, taking note of the future of the son Nithish, when he has approached his in laws for getting the custody of his minor son, the respondent, who is the father in law of the appellant has filed a petition in G.W.O.P. No.7 of 2016 under Sec. 7(1)(a) of the Guardians and Wards Act 1890 before the Principal District Court, Thiruvannamalai seeking directions to appoint him as a fit and proper person to be the guardian of the minor son Nithish and to pay him the amount or to deposit the amount as per the promissory note executed by the appellant to the respondent as compensation and for maintenance of the minor child.

(3.) Opposing the above prayer, Mr.P.G.Thiyagu, learned counsel appearing for the respondent submitted that from the death of the mother of the minor child Nithish namely, on 15/7/2014, the minor child had been living with the maternal grand parents. Therefore, before the minor reached the age of maturity, considering the welfare of the child, he may not be separated forcibly against his will. Although Sec. 6(a) of the Hindu Minority and Guardian Ship Act 1956 mentions clearly that in the case of a boy or an unmarried girl, the father and after him, the mother provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother, Sec. 13 of the Hindu Minority and Guardianship Act, over riding the above Sec. 6(a) of the Act, vividly says that the welfare of the minor shall be the paramount consideration in the appointment of declaration of any person as guardian of a Hindu minor by a Court.