CMA(MD)/1074/2026 of B.Yogaraj Vs R.Veera Alagu on 4 November 2026

JUDGMENT

The appellant/father filed a petition under sections 7, 9 and 10 of the Guardians and Wards Act, 1890 against the respondent/mother of the two minor children, namely, Devdharshan and Kirudharshan, seeking to appoint him as their guardian, along with such other reliefs as the Court may deem fit and proper.

2. In the present appeal, the appellant is the father and the respondent is the mother of the minor children. The Trial Court dismissed the said petition by the impugned order. Aggrieved by the same, the appellant/father has preferred the present appeal.

3. The brief facts from the petition before the trial Court is as that the appellant married the respondent on 21.08.2015 at Arulmigu Murugan Temple situated on the Madurai Road, Srivilliputhur, as per Hindu Rites and Customs. Out of their wedlock, two male children born, namely, Devdharshan and Kirudharshan, on 27.09.2016 and 28.04.2019 respectively.

4. Though the marital life of the parties was initially happy, one Mr.Muthuraj, the son of the petitioner's maternal aunt, allegedly developed an illicit relationship with the respondent. The petitioner objected to the same. However, the respondent allegedly continued her relationship with him despite the petitioner's objections. The petitioner further advised the respondent to discontinue the said relationship, keeping in mind the welfare of their children. However, the respondent allegedly failed to heed his advice and continued the relationship. Thereafter, the respondent removed her thali (mangalsutra) and left the matrimonial home on 14.10.2022. Since then she has been living with the said Muthuraj and subsequently gave birth to a female child out of their relationship. The petitioner’s two minor sons were studying at P.M.M. Marimuthu Nadar Nursery and Primary School, Thalavaipuram. On 27.02.2023, the respondent, with the assistance of the said Muthuraj, allegedly took the both minor children from the school, and they have been since remained in her custody. The petitioner lodged a police complaint on 20.06.2023. During the enquiry, the respondent stated that she was unwilling to resume her matrimonial life with the petitioner and refused to hand over the children to him. The continued custody of the minor children with the respondent would adversely affect their future and upbringing, in view of her alleged relationship with the said Muthuraj, the petitioner approached the Trial Court seeking to be appointed him as the guardian of the minor children.

5. The brief counter filed by the respondent is that the marriage between the petitioner and the respondent and the birth of their two sons out of the wedlock are not in dispute. However, she denied the allegation of illicit intimacy with Muthuraj and contended that the said allegation was falsely concocted by the petitioner due to disputes between the parties concerning the fidelity of the wife. She further contended that the petitioner had filed the application before the Court on false and baseless allegations.

6. The respondent further contended that, when she attended the birthday function of one Anbuselvi on 01.01.2023 and returned to the matrimonial home, the petitioner suspected her and subjected her to mental and physical harassment. Though the respondent attempted to lodge a police complaint, the petitioner assured her that he would not harass her in future, and consequently, no complaint was lodged. She further submitted that, owing to the repeated harassment inflicted upon her by the petitioner, she lodged a complaint before the Superintendent of Police, Virudhunagar District. During the enquiry, the petitioner allegedly stated that the respondent should pay him a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) and that the custody of the minor children should be handed over to him. The respondent contended that, as the minor children are below 14 years of age, their education, upbringing and welfare would be better taken care of by the mother and that the children are happy in her custody. On these grounds, the respondent sought dismissal of the petition.

7. In order to establish his case, the petitioner examined himself as P.W.1 and marked Exs.P.1 to P.11. Though P.W.1 was cross-examined by the respondent after she filed her counter, the respondent did not adduce any evidence and thereafter she was set exparte. Upon hearing the submissions made on behalf of the petitioner, the trial Court dismissed the petition by the impugned order. Aggrieved by the same, the petitioner/father has preferred the present appeal.

8. Before this Court, the respondent was represented by her learned counsel, Mr. A. Balakrishnan. Both the learned counsel appearing for the petitioner and the respondent advanced their respective arguments.

9. Heard the learned counsel appearing on either side and perused the materials available on record. The rival submissions made by both sides have also been duly considered?

10. The points for consideration is as to:-

(i) Whether the Trial Court was justified in dismissing the petition filed by the father seeking appointment as guardian of the minor children, particularly when the respondent/ mother failed to adduce any evidence in support of her contentions?

(ii) Whether an adverse inference can be drawn against the respondent/mother, who failed to comply with the order dated 02.01.2026

passed in I.A.No.2 of 2025, directing her to subject herself to a DNA test, in the interim application filed by the petitioner/father and the petitioner/father filed I.A.No.1 of 2024 seeking visitation rights, which was allowed on 27.03.2026 and despite the said order, the respondent/mother allegedly failed to permit the petitioner/father to visit his two minor sons?

(iii) . Whether the appeal is liable to be allowed by drawing an adverse inference against the respondent/mother?

11. The petitioner/father approached the trial Court seeking his appointment as guardian of the minor sons by invoking sections 7, 9 and 10 of the Guardians and Wards Act, 1890. Section 7 of the said Act deals with the power of the Court to make orders regarding the appointment of a guardian. Section 9 of the said Act deals with the jurisdiction of the Court to entertain such applications. Section 10 of the said Act deals with the procedure to be followed upon admission of the application.

12. The facts of the case reveal that the marriage between the appellant and the respondent, which was solemnised on 21.08.2015, is not in dispute. Out of the said wedlock, two male children, namely, Devdharshan and Kirudharshan, were born on 27.09.2016 and 28.04.2019, respectively. There is no dispute with regard to these facts. Accordingly, the documents marked as Exs.P.1 to P.8 before the trial

Court are also not in dispute.

13. The appellant/father has come forward with the case that the respondent/mother developed an illicit relationship with one Muthuraj, who is a relative of the appellant, and owing to the said relationship, the respondent left the matrimonial home on 14.10.2022 and has been living with him ever since. It is further contended that, out of the said relationship, the respondent gave birth to a female child, namely, Kiruthika Sri, on 24.10.2024, as evidenced by the birth certificate, wherein the names of Muthuraj and Veera Alagu are recorded as the father and mother of the child, respectively.

14. The appellant further contended that, when he questioned the respondent about her alleged relationship with Muthuraj, she left the matrimonial home and continued to reside with him. According to the appellant, the respondent has thereby abandoned her matrimonial life and is living separately with the said Muthuraj. The appellant apprehends that the continued custody of the two minor sons with the respondent may adversely affect their upbringing, education and overall welfare. On these grounds, the appellant approached the trial Court seeking his appointment as guardian of the two minor children, along with such other reliefs as the Court may deem fit and proper.

15. Though the respondent/mother denied the allegation of having an illicit relationship with Muthuraj, the birth certificate of the female child, filed along with I.A.No.2 of 2025 in the pending G.W.O.P., assumes significance. The appellant/father filed the said interlocutory application seeking a direction to subject the respondent/mother and the minor child, M. Kiruthika Sri, to a DNA test to determine the paternity of the child. The trial Court allowed the said application, particularly in the absence of any counter filed by the respondent/mother. However, even thereafter, the respondent/mother failed to subject herself and the child to the DNA test as directed by the trial Court. This is a peculiar circumstance that arises for consideration in the present case.

16. The appellant/father also filed an interlocutory application in I.A.No.1 of 2024 seeking visitation rights in respect of the minor children. The respondent/mother did not file any counter in the said application and was consequently she was set exparte. Ultimately, the application was allowed by the trial Court by an order dated 27.03.2026. Though the respondent had initially filed a counter in the main G.W.O.P. and cross-examined the appellant/father, but she did not participate in the subsequent proceedings and was ultimately set exparte.

17. It is pertinent to note that, during the pendency of the main G.W.O.P., the appellant/father filed two interlocutory applications, namely, I.A.No.1 of 2024 seeking visitation rights in respect of the minor children and I.A.No.2 of 2025 seeking a direction to subject the respondent/mother and the female child, namely, Kiruthika Sri, to a DNA test to determine the paternity of the child. The respondent/mother did not file any counter in either of the said applications. Both applications were allowed by the trial Court during the pendency of the main G.W.O.P. However, the respondent/mother allegedly failed to comply with any of the orders passed therein.

18. In such circumstances, the learned counsel for the appellant contended that the trial Court ought to have drawn an adverse inference against the respondent/mother for her failure to comply with the orders passed in the interlocutory applications. However, without drawing such an adverse inference and without properly appreciating the above circumstances, the trial Court proceeded to dismiss the main G.W.O.P. Hence, the learned counsel submitted that the impugned order is liable to be set aside.

19. The learned counsel appearing for the respondent/mother submitted that, though the birth certificate of the minor child, Kiruthika

Sri, was filed before the trial Court along with I.A.No.2 of 2025, the same was not marked as an exhibit in the main G.W.O.P. He further submitted that, as per the birth certificate produced along with the said interlocutory application, the name of Muthuraj is recorded as the father of the minor child, instead of the appellant, P. Yogaraj, while the name of R. Veera Alagu, the respondent herein, is recorded as the mother. Thus, the said birth certificate was relied upon by the appellant to substantiate his contentions regarding the paternity of the minor child, Kiruthika Sri, cannot be relied upon.

20. The learned counsel appearing for the respondent/mother further contended that the birth certificate of the minor child, Kiruthika Sri, might be a forged document. However, this submission cannot be accepted by this Court. The birth certificate was produced before the trial Court along with I.A.No.2 of 2025, and despite being aware of the nature and implications of the allegations raised therein, the respondent/mother did not file any counter opposing the said application. Consequently, the application was allowed by the trial Court. The respondent did not challenge the said order in the manner known to law. In such circumstances, the contention raised by the learned counsel for the respondent at this belated stage that the birth certificate, wherein Muthuraj is recorded as the father of the minor child, Kiruthika Sri, is a forged document, cannot be accepted.

21. With regard to the order granting visitation rights, the learned counsel appearing for the respondent/mother submitted that, though such an order was passed, the appellant/father did not initiate any further proceedings for its non-compliance and, therefore, the said order cannot be enforced against the respondent. The said contention cannot be accepted. The application seeking visitation rights was filed before the trial Court, and the respondent/mother, despite having an opportunity to contest the same, chose not to file a counter and was consequently set exparte. In such circumstances, the respondent/mother is bound to comply with the order passed by the trial Court or, in the alternative, challenge the same in the manner known to law. Admittedly, no such challenge has been made by the respondent. Therefore, she is precluded from questioning the validity of the said order in the present proceedings.

22. Though the trial Court recorded the cross examination of P.W.1 by the respondent side for kidnapping the children, no complaint has been filed and it was answered affirmatively by P.W.1. But the record reveals that when the child was taken away or kidnapped by the mother from the school the father filed a complaint in Ex.P.9, dated 20.06.2023, before the All Women Police Station, Rajapalayam.

23. A perusal of Ex.P.9, complaint copy shows that the father mentioned that the respondent is living with Muthuraj and thereafter the father filed a complaint dated 20.06.2023 mentioning that the mother is found in pregnancy with eight months for which the said Muthuraj is responsible. The police has given receipt in Ex.P.10, dated 21.06.2023 mentioning the reason for filing complaint. Therefore, there is a record of complaint and receipt issued by the police. But the answer given by P.W.1 during the cross that no such written complaint has been given as against the respondent is not correct so. Therefore, believing evidence let in during the cross examination of P.W.1 the trial Court dismissed the case as not acceptable one.

24. Though the trial Court has relied certain decisions of the Hon’ble Supreme Court and High Court, the character of the mother has to be seen, where when the marriage is subsisting with the appellant she sorted to live with a third party Muthuraj by illegal connection and out of which she delivered a female baby, namely, Kiruthika Sri and on filing two interim applications by the father one for visitation rights and the another one for a DNA test which were allowed and thereafter the mother did not cooperate to the trial Court for subjecting herself for DNA test and allow the father to visit the children thereby on adverse inference has to be taken against the mother, which was not done so, by the trial Court, thereby the order passed by the trial judge is not to the facts and circumstances of the case. When the facts and circumstances of the case warranted to take adverse inference but relying on the judgments principles in other cases is not the correct approach of the trial Court, thereby the impugned order rendered by the trial Court dismissing the G.W.O.P is not correct.

25. Therefore, this Court is of the considered view that the finding recorded by the trial Court is not in accordance with the case facts and circumstances, and the said findings are liable to be set aside and accordingly set aside.

26. In such view of the matter, this appeal is allowed and all the three points are answered in favour of the appellant against the respondent.

27. In the result:

(i) This Civil Miscellaneous Appeal is allowed;

(ii) The fair and decreetal order dated 10.06.2026 passed by the learned Principal District Court, Virudhunagar in G.W.O.P.No.15 of 2024 dismissing the petition is set aside, consequently, G.W.O.P.No.15 of 2024 stands allowed, and the appellant/father is appointed as the guardian of the two minor children, namely,

Devdharshan and Kirudharshan; and

(iii) The respondent/mother is directed to hand over the custody of the two minor children to the appellant/father within a period of one month from the date of receipt of a copy of this judgment. No costs. Consequently connected Miscellaneous Petition is closed. 04.11.2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No EBSI/Ls To. The Principal District Court, Virudhunagar. Copy To : The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

DR. P. MURUGAN J. EBSI/Ls CMA(MD) No. 1074 of 2026 and CMP(MD) No. 14812 of 2026 04.11.2026