IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 783 of 2010()
1. P.REGHUVARAN, S/O.PONNU,
... Petitioner
Vs
1. C.PADMAKSHY, W/O.P.RAGHUVARAN,
... Respondent
2. PANKAJAKSHY, PUTHUVAL POTTAVILA VEEDU
For Petitioner :SRI.K.B.PRADEEP
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :25/11/2010
O R D E R
R.BASANT & K.SURENDRA MOHAN, JJ.
***********************
Mat.Appeal No.783 of 2010
*****************************
Dated this the 25th day of November, 2010
JUDGMENT
BASANT, J.
The appellant/husband has come to this Court with this
appeal to assail the order passed by the Family Court appointing
his wife, the 1st respondent herein, as the guardian of a child
born to the 2nd respondent.
2. Marriage between the appellant and the 1st
respondent stands admitted by all concerned. Admittedly the
spouses are residing separately. The appellant herein had filed
an application for divorce and the same stands dismissed. Of
course, an appeal is pending. Suffice it to say that it is admitted
at all hands that the spouses are leading a separate life though
the marital tie has not been dissolved.
3. In this context, the wife/1st respondent wanted her to
be appointed as the guardian of the minor female child by name,
Ariya Devi, who is the daughter of the 2nd respondent. That
minor was born on 15.11.1991 and it is not disputed that the
minor has now attained majority.
Mat.Appeal No.783 of 2010 2
4. The 1st respondent claimed before the Family Court
that she had adopted the minor child. She wanted herself to be
recognised as the legal guardian of the child. O.P(G&W) No.525
of 2006 was filed with that prayer. The appellant was arrayed as
the 2nd respondent.
5. The court below by the impugned order came to the
conclusion that there is no valid adoption, as contended by the
1st respondent. However, the court below held that the
application is maintainable as an application for appointment of
guardian. Notwithstanding the opposition of the appellant, the
husband of the 1st respondent, the court below took the view that
the 1st respondent can be appointed as guardian of the minor
child. It was accordingly that the court below proceeded to pass
the impugned order appointing the 1st respondent as guardian of
the minor child.
6. When this appeal came up for admission hearing, this
Court wanted the learned counsel for the appellant to explain the
grounds on which he wants to challenge the impugned order.
The learned counsel for the appellant asserted that as rightly
found by the court below, the theory of adoption cannot be
Mat.Appeal No.783 of 2010 3
accepted. The same has not been accepted and that question is
not before the appellate court.
7. The counsel initially contended that, as the spouse of
the 1st respondent, the appellant is entitled to raise objection
against the appointment of his wife as guardian of a minor child
without his consent and will. We were not satisfied that the said
contention is prima facie sustainable. The learned counsel for
the appellant was hence requested to work up the position in law
and explain to the Court whether the spouse of a petitioner, who
does not consent to the appointment of his spouse as guardian,
can have any legal right to object against the proposed
appointment as guardian. We do not intend to lay down any
rigid principle that the spouse in any situation cannot raise any
valid objection. It may depend upon the facts of each case.
Where the spouses are living together and one spouse wants to
get appointed as guardian, in the teeth of objections of other
spouse, it may have to be considered by the court whether the
proposed appointment is in the interest of the child and would
advance the welfare of the child. We do not want to express any
final opinion on that question.
Mat.Appeal No.783 of 2010 4
8. Coming back to the facts of the case. Admittedly the
spouse are residing separately. The appellant had moved for
divorce and that petition for divorce stands dismissed. He has
pursued the matter further and an appeal is pending before this
Court against the rejection of the claim for divorce. In these
circumstances, the wife on the showing of both cases, is leading
virtually a single life. In the facts and circumstances of this case,
we do not hence find any worth in the objection raised by the
appellant against appointment of his estranged wife as guardian
of a minor child.
9. The learned counsel for the appellant after working
up the position concedes that the appellant/husband has no legal
right to object and the consent of the spouse cannot be insisted
legally in all cases. But the learned counsel points out another
legal defect in the petition filed before the Family Court.
Counsel points out that as per the law “parents” of the child for
whom guardian is to be appointed, must be arrayed as parties in
the petition in the light of Section 11 (a) of the Guardians and
Wards Act. In the instant case, only one of the parents has been
arrayed as parties. The counsel submits that this is a legal
defect.
Mat.Appeal No.783 of 2010 5
10. It is conceded that the issue of non jointer of
necessary parties has not been raised before the court below.
Further we do not find any merit in that contention raised by the
appellant; more so, because it has not been raised before the
court below. In these circumstances, we are not persuaded to
agree that the appeal merits admission on that score also.
11. The learned counsel for the appellant fairly points out
that the child, for whom the 1st respondent has been appointed
guardian, has already attained majority. That further exposes
the irrelevance of the present contest.
12. This appeal is, in these circumstances, dismissed in
limine.
(R.BASANT, JUDGE)
(K.SURENDRA MOHAN, JUDGE)
rtr/