B.Yogaraj, vs R.Veera Alagu
- Court
- Madras High Court
CMA(MD) No. 1074 of 2026
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 29.10.2026
Pronounced on 04.11.2026
CORAM
THE HON'BLE DR. JUSTICE P. MURUGAN
CMA(MD) No. 1074 of 2026
CNR:{HCMD011111292026}
and
CMP(MD) No. 14812 of 2026
B.Yogaraj,
S/o Balasubramaniyan,
No.55K/28A,
Naidu South Street,
Ayankolankondan, Chettiyarpatti,
Rajapalayam Taluk,
Virudhunagar District - 626 122.
… Appellant/Petitioner
Vs
R.Veera Alagu,
D/o Ramar,
No.33, Keelatheru, Kosavapatti,
Viraganur, Thirumangalam Taluk,
Madurai District.
..Respondent/Respondent
PRAYER: Civil Miscellaneous Appeal filed under section 47 of the
Guardian and Wards Act, 1890, to call for the records and to set aside the
order dated 10.06.2026 passed in G.W.O.P.No.15 of 2024 by the
Principal District Court, Virudhunagar District at Srivilliputtur and allow
the Civil Miscellaneous Appeal and to pass such other further orders as
may be deem fit.
For Appellant : Mr.V.Om Prakash
For Respondent : Mr.A.Balakrishnan
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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
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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
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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
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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
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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
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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.
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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 .
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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
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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
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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.
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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,
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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,
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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.
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DR. P. MURUGAN J.
EBSI/Ls
CMA(MD) No. 1074 of 2026
and
CMP(MD) No. 14812 of 2026
04.11.2026
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