Father advertised himself as “divorced with no children”; Madras High Court grants mother custody and permission to move daughter to Canada

The petitioner, the mother of Aathirai (born 22 August 2018), sought appointment as the child’s sole guardian, permanent custody, and permission to take the child to Canada.

The parents’ marriage had been dissolved by an order dated 14 March 2024.

The mother was employed in Canada and had left the child in the care of the maternal grandparents, with whom the child continued to live.

The father had exercised visitation on two occasions in June and July 2024 but, according to the petitioner’s evidence, had not visited thereafter.

He was served but did not appear and was set ex parte.

The mother filed the petition through her father, acting under a power of attorney, and her father gave evidence as P.W.1.

Whether the mother should be appointed permanent guardian of the minor and granted permanent custody.

Whether the mother should be permitted to take the minor to Canada, where she resided and worked.

The petition was brought under Sections 3, 7, 10, 25 and 26 of the Guardians and Wards Act, 1890, read with Order XXI Rules 2, 3 and 11 of the Original Side Rules and Clause 17 of the Letters Patent.

The Court’s stated reasoning focused on the child’s welfare and the mother’s capacity to provide for the child; it cited no precedent and did not set out a separate statutory test or detailed interpretation of these provisions.

The Court considered the mother’s demonstrated financial stability and employment in Canada, her ability to meet the child’s maintenance and educational expenses, and the existing care provided by the maternal grandparents.

It also took account of the father’s failure to contest the petition or maintain visitation, and evidence that he had described himself in a matrimonial advertisement as having no children.

On the evidence before it, the Court concluded that appointing the mother as guardian and granting her custody and permission to relocate the child would serve the child’s best interests.

No costs were ordered.