G. RAMASUBRAMANIAN Vs. K. GURULAKSHMI AND ANOTHER

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.