Allowed

R. Indirani v. R.A. Sadasivam

Madras HC6 Feb 2018REV.APPL/20/2018

Case brief

AI extract

What is this about?

The Madras High Court set aside a compromise decree in a custody appeal, ruled that it was obtained via suppression of facts regarding actual custody, and dismissed the underlying appeal, leaving custody disputes open for fresh proceedings.

What did the court decide?

Review application allowed; compromise decree set aside; Civil Miscellaneous Appeal dismissed; parties free to initiate appropriate proceedings for custody.

R. Indirani Vs R.A. Sadasivam — Child Custody and Guardianship | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 06.02.2018

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CORAM

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THE HON'BLE MR. JUSTICE R.SUBRAMANIAN

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Review Application No.20 of 2018
and CMP No.15039 of 2017
R.Indirani ... Petitioner
vs.
1. R.A.Sadasivam
2. Sarojini
3. K.Ramu
4. R.Chandra ... Respondents

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Review Application has been filed under Order XLVII Rule 1 r/w Section 114 of the Civil Procedure Code, against the judgment and decree passed in C.M.A 393 of 2012 dated 28.07.2017 on the file of the High Court.

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For Review Petitioner : Mr.A.Edwin Prabakar For Respondent : Mr.T.Muruganandam

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J U D G M E N T

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This Review Application has been filed for seeking review of the judgment dated 28.07.2017, rendered in C.M.A 393 of 2012.

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http://www.judis.nic.in

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The dispute between the parties relate to the custody of two minor children of M/s. Nagaraj and Dhanalakshmi, who died in a fire accident. The daughter Jeevita was born on 27.08.2004 and son Santhosh was born on 24.12.2007. The original proceeding in GWOP No.183 of 2009 was filed by the respondents 1 and 2 herein, who are the parents of deceased Dhanalakshmi, mother of the minor children against the parents of deceased Nagaraj, the father of the minor children. The Trial Court after considering the evidence on record dismissed the original petition.

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Aggrieved, the respondents 1 and 2 herein have filed CMA

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No.393 of 2012. Pending the CMA, the father of Nagaraj, viz. Ramu, who was the 3^rd respondent herein died. Subsequently, it was reported that the custody of the minor children was handed over to the 4^th respondent herein (mother of the deceased Nagaraj) and a Compromise Memo was also produced. The Compromise Memo states that both the minor children have been handed over to the respondents 1 and 2 herein. The 4^th respondent viz. mother of Nagaraj

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was also present in Court and she accepted the said compromise. Therefore the compromise was recorded by this Court on 28.07.2017. Based on the compromise, the Appeal was closed since the custody of

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http://www.judis.nic.in

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the children was handed over to the appellants in the Appeal, who are respondents 1 and 2 herein.

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The applicant who is the paternal Aunt of the minors has now

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come forward with the present application seeking Review of the order claiming that the custody of the minor son, viz Santhosh who was always with her and he was never with the respondents 1 and 2 herein. It is also contended in the Review Petition that Chandra (mother of Nagaraj) has colluded with the respondents 1 and 2/appellants in the appeal and brought about the compromise. It is now claimed that taking advantage of compromise decree, the respondents 1 and 2 attempted to forcibly take away the custody of the child. It is also stated that the child is studying in the School at Karur and a Certificate issued by a Kaveri Matriculation School, Sengal, Karur has been

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produced to show that the minor child is studying in 5^th standard in the

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said School.

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Mr.Edwin Prabakar, learned counsel appearing for the review

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petitioner would contend that the welfare of the minor child should be taken into account and ever since the death of his parents, the minor boy viz. Santhosh has been living with the applicant and she has been

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taking care of him.

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When the application for condonation of delay of 33 days in filing the Review came up before me, I directed the minor boy to be produced in Court. I had interacted with him. The minor boy, who is 11 years old, expressed his desire to continue to stay with the Aunt, viz. the applicant in the Review Application Mrs.Indirani, whom he refers to as his mother. Despite my persuasion, he refuses to go with his grant parents, viz. the respondents 1 and 2. He is also alive to the fact that his sister is living with respondents 1 and 2.

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Mr.T.Muruganatham, learned counsel appearing for the respondents 1 and 2, would contend that the parents of the father deceased Nagaraj, viz. the respondents in the CMA as well as the GWOP, Ramu and Chandra had always maintained that they had the custody of the child and hence the present application made by Indirani is only an afterthought to retain the custody of the child.

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The evidence on record in the original proceedings would itself show that the child was in custody of Aunt Indirani even during the pendency of GWOP before the District Court, Coimbatore. During

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Cross-examination of R.W.1, Ramu, the following suggestions have been made by the respondents 1 and 2

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“vd; kidtp vd;Dld; jhd; ,Uf;fpwhh; vd;Wk; re;njhic& kl;Lk; vd; kfs; ,e;jpuhzp tPl;oy; fUhpy; ,Uf;fpwhd; vd;Wk; brhd;dhy; jtW/ ,e;jpuhzpf;F jpUkzk; Mfp mtUila fzth; ,we;J ngha; tpl;lhh;/ mtUf;F njhl;lk;. epyk; e";ir Mfpaitfs; ,Uf;fpwJ/ tPLk; ,Uf;fpwJ/

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ehd; jw;nghJ brd;idapy; jhd; ,Uf;fpnwd;/ FHe;ij ,uz;lhtJ kfs; tPl;oYk;. vd; tPl;oYk; ,Uf;fpwhh;/ FHe;ijf;fhd gP!; kw;Wk; cs;s bryt[fis ehd; bfhLf;fpnwd;/”

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at a later point in Cross-examination it is suggested as follows:

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“vd; ikdh; FHe;ijfs; ,uz;ila[k; ehd; itj;J guhkhpf;ftpy;iy vd;Wk;. xd;iw vd; bgz;zplKk;. xd;iw vd; kfdplKk; bfhLj;Jtpl;nld; vd;Wk;. Fhe;ijfis rhpahf vd;dhy; guhkhpf;f KoahJ vd;Wk; brhd;dhy; rhpay;y/”

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In the proof affidavit filed by P.W.1, it is stated that

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“ehd; jhH;ika[ld; rkh;g;gpg;gJ ahbjdpy;

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vjph;kDthjpfs; ,sth;fis mth;fSila kfs;fs;trk; xg;gilf;f vj;jzpj;J tUfpd;whh;fs;/ nkw;goahh;fSf;F Vw;fdnt FHe;ijfs; cs;sd/ mt;thW xg;gilg;g[

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bra;a[k; gl;rk; mJ ,sth;fspd; eyDf;Fk; mf;fiwf;Fk;

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tpnuhjkhd brayhf jhd; ,Uf;Fk;/”

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From the above evidence, it is clear that the respondents 1

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and 2 were aware that the minor son Santhosh is in the custody of the

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Review applicant, viz. Indirani even during the pendency of the proceedings. Despite the same, they have chosen to prosecute the proceeding against the parents of Nagaraj. It is also seen from the records, the father of Nagaraj, Ramu died pending the CMA and his mother has given consent for the custody of the minor children and stated that the custody had been handed over to the respondents 1

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and 2 herein, who were the appellants in the Appeal. This in my opinion, might not be proper. once it is accepted that the custody of minor child was always with the Aunt Indirani, she should have been made as a party to the proceedings and the welfare of the minor child should have been tested on the basis of the evidence that could have

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been let in by her.

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I am of the opinion that the compromise decree cannot be

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allowed to stand as the same has been obtained by suppression of facts. The judgment dated 28.07.2017 passed in CMA No.393 of 2012

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http://www.judis.nic.in

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based on the compromise is set aside and the CMA 393 of 2012 stands dismissed, though not on the grounds as decided by the Trial Court. I am not expressing any opinion on the right of the Review Application to retain the custody of the child. It is open to the respondents 1 and 2 to seek custody of the child against the Aunt Indirani, by way of appropriate proceedings. However it is made clear

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that the welfare of the minor child has to be taken note of while deciding the question of custody.

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In fine, the Review Application is allowed, the Compromise Decree is set aside. The Civil Miscellaneous Appeal is dismissed leaving it open to the respondents 1 and 2 to seek custody of the child by way of appropriate proceedings if they so desire. Consequently, the connected miscellaneous petition is closed.

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06.02.2018

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Index: Yes/No Internet: Yes/No Speaking order/Non Speaking order jv

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The Principal District Judge, Coimbatore.

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http://www.judis.nic.in

R.SUBRAMANIAN,J.

Review Application No.20 of 2018
and CMP No.15039 of 2017
06.02.2018

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http://www.judis.nic.in

R. Indirani v. R.A. Sadasivam

Case brief

What is this about?

What did the court decide?

R. Indirani v. R.A. Sadasivam

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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