23.11.12

A Mother can be a Guardian too


Rejecting the argument that a mother can only be a custodian and not guardian of a child, the Madras high court has rejected an India-born US citizen’s claim that his right to be the guardian of his nine-year-old daughter could not be disturbed.
Justice K Chandru, permitting the mother, a fitness specialist, to be guardian of her daughter, said, “The child has been with the mother for the last eight years and she is already nine years old. Even during the pendency of the case, the child was only with the mother. The minor child also expressed her desire to be with the mother. Considering the crucial age of the child, this court is of the view that it is just and proper that the child should grow in the custody of the mother.”
The couple, after their marriage in November 2000, settled in the US. The child was born in November 2004. In 2005, the man filed for divorce in a US court, and despite the wife’s objection, divorce was granted in 2007. After the divorce, the woman took back her articles and money, settled in Chennai and started working in a fitness firm. In 2009, she obtained a separate divorce order from a sub-court in Devakottai.
Meanwhile, in 2007 she moved the high court seeking to be appointed guardian of the child. Though the court ruled in her favour, the case was reopened in 2009 after her divorced husband, who had returned and settled in Chennai by then, demanded his guardianship rights. In 2009 he also married again.
His counsel, citing the provisions of the Guardians and Wards Act, said he was the natural guardian under law and that he cannot be prevented from being the guardian. He wanted visitation rights every week and custody of the child during one half of summer vacation and Christmas holidays.
The mother’s counsel, however, said the father did not show any interest in the welfare of the child and that the mother was taking care of the child from her own earnings. Referring to the man’s remarriage, she said it was not safe for the child to be with him.
Justice Chandru, noting that in the matter of child custody what is of paramount importance is the child’s welfare, said: “The hyper-technical argument of the father that there is a distinction between custody and guardianship does not stand to reason. Even in evidence, the father has admitted that he is not contributing to the growth and maintenance of the child all these years, and it is the mother who has contributed for everything.”
However, he said the father must first develop a bond with the child and initially interact with her through telephone. If the child desires, she can be meet the father on Saturdays for a period of two hours but without disturbing her school schedule, the judge said.

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