CRP(MD)/2548/2026 of K.Karthikeyan Vs D.Kavitha on 17 September 2026

ORDER

The Civil Revision Petition is filed against the order dated 17.03.2026 in I.A.No.1 of 2024 in OS.No.24 of 2021 on the file of the Sub Court, Vedasandur.

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C.R.P(MD)No.2548 of 2026

2. He filed a petition in I.A.No.1 of 2024 under Sections 25, 10 and Section 151 of CPC, for Guardianship and to remove the respondent from the guardianship and to hand over the child to his custody.

3. The revision petitioner/defendant/husband states that the marriage between the petitioner and the respondent was solemnized on 16.06.2016 at Eriod village, Vedachandur Taluk. Thereafter, a male child was born on 12.09.2017. Thereafter, differences arose between the husband and the respondent. The husband filed a petition in HMOP No. 80 of 2018 seeking restitution of conjugal rights, while the respondent filed a petition in HMOP No. 1674 of 2018 seeking divorce. Subsequently, both parties obtained a divorce from the trial court.

4. According to the petitioner/husband, the respondent/wife allegedly had an illicit relationship with one Rajkumar and, after obtaining a divorce, married him and has been living with him. He further contended that the child, who is presently in the custody of the respondent, is not in safe custody and that, if the child continues to remain in her custody, there would be danger to the child’s life. Therefore, he seeks custody of the child and removal of the respondent from the guardianship of the child. Accordingly, he filed I.A. No. 1 of 2024 seeking to remove the respondent from the guardianship and to hand over custody of the

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C.R.P(MD)No.2548 of 2026 child to him.

5. After hearing both parties, the trial Court dismissed the petition on the ground that a petition filed under Sections 25 and 10 of the Guardians and Wards Act, along with Section 151 of the C.P.C., is not maintainable before the Sub- Court. The trial Court held that only the District Court having jurisdiction over the place where the minor ordinarily resides is competent to entertain such a petition. Accordingly, the petition was dismissed as not maintainable. Aggrieved by the said order, the present petition has been filed.

6. The petitioner, in his submissions, contended that Order XXXII Rule 9 of the C.P.C. provides for the removal of a next friend where the interest of the next friend of a minor is adverse to that of the minor, or where the next friend is so connected with the defendant that his interest may be adverse to that of the minor. Therefore, the petitioner contended that he has every right to file a petition under Order XXXII Rule 9 of the C.P.C. before the trial Court. The petitioner further contended that the respondent, after remarriage, has been living with a third person and, at her instance, the present suit for partition was filed, claiming a 1/9th share in the ancestral property. He further submitted that the property originally belonged to the father of the revision petitioner and that he is the only

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C.R.P(MD)No.2548 of 2026 son, and therefore, the said property would devolve upon the child only after his lifetime.

7. Therefore, the respondent, who is now living with a third person, cannot claim to be acting as the representative or next friend of the child. Since she is allegedly having an interest adverse to that of the child, the petitioner contended that he ought to have filed a petition under Order XXXII Rule 9 of the C.P.C. However, instead of specifically invoking Order XXXII Rule 9 of the C.P.C., he filed the petition under Sections 25 and 10 of the Guardians and Wards Act, read with Section 151 of the C.P.C. The petitioner further contended that the defect, if any, is only a curable defect, and that mere non-mentioning or incorrect mention of the relevant provision of law cannot be a ground for dismissal of the petition. The Court could have permitted the petitioner to rectify the defect or directed him to approach the appropriate Court. Instead, the trial Court dismissed the petition solely on the ground of maintainability. Hence, the petitioner contended that the trial Court ought to have permitted the petitioner to cure the defect or otherwise directed him to file the petition before the appropriate Court, rather than dismissing it on the ground of maintainability.

8. Heard the learned counsel for the petitioner and perused the material

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C.R.P(MD)No.2548 of 2026 available on record.

9. It is true that, when a suit is filed by a next friend, any person who has a grievance against the next friend, on the ground that the next friend representing the minor has an interest adverse to that of the minor, may file a petition under Order XXXII Rule 9 of the C.P.C. seeking the removal of the next friend from such representation. In the present case, however, the petitioner has not filed any petition seeking the removal of the respondent from the guardianship of the minor. Instead, he has filed a petition under Sections 25 and 10 of the Guardians and Wards Act, read with Section 151 of the C.P.C., seeking custody of the child and praying that he be declared as the guardian of the minor.

10. However, the petitioner has not stated or established the circumstances showing how or in what manner the respondent is having an interest adverse to that of the minor. He has not even referred to any specific incident or circumstance to show that the respondent had acted in any manner prejudicial to the welfare or well-being of the minor. On the contrary, he himself admitted that the child has been continuously living with the respondent for the past six years and that the respondent remarried only after obtaining a divorce from the petitioner. The petitioner has also not stated that he had previously taken any steps

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C.R.P(MD)No.2548 of 2026 to obtain custody of the minor from the respondent. Therefore, no valid ground has been made out for seeking the removal of the respondent from the guardianship of the minor. Moreover, the relief sought by the petitioner, namely, removal of the respondent from guardianship and handing over custody of the minor to him, is not within the jurisdiction of the Sub-Court. For such relief, the petitioner has to approach the competent jurisdictional Court.

11. The trial Court has rightly dismissed the petition. Even if the petitioner had filed a petition under Order XXXII Rule 9 of the C.P.C., he could have obtained appropriate relief if the Court was satisfied with the grounds urged therein. However, the petition filed by the petitioner was not for such a relief. Therefore, the trial Court was justified in dismissing the petition. This Court finds no reason to interfere with the order passed by the trial Court. Accordingly, the Civil Revision Petition stands dismissed, with liberty to the petitioner to file an appropriate petition before the competent Court seeking appropriate relief. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. 17.09.2026 NCC : Yes / No

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C.R.P(MD)No.2548 of 2026 Index : Yes / No Ns To

1. The Sub Court, Vedasandur

2. The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

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C.R.P(MD)No.2548 of 2026 R.POORNIMA

, J. Ns CRP(MD) NO. 2548 of 2026 and C.M.P(MD)No.12694 of 2026 17.09.2026

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