Father Gets Custody Of Two Sons After Mother Failed To Comply With Visitation Order And DNA Test Over Daughter’s Paternity: Madras HC

The appellant-father sought appointment as guardian of the parties’ two minor sons under Sections 7, 9 and 10 of the Guardians and Wards Act, 1890. The parents’ marriage and the children’s births were undisputed.

The father alleged that the mother had left the matrimonial home and was living with Muthuraj, and that she had taken the sons from school and refused to return them. The mother denied the alleged relationship and opposed the father’s application, but later did not adduce evidence and was set ex parte in subsequent proceedings.

During the proceedings, the trial court allowed the father’s applications for visitation and for DNA testing concerning a daughter born to the mother; the father alleged that the mother complied with neither order.

The trial court dismissed the guardianship petition, and the father appealed.

The Court referred to Sections 7, 9 and 10 of the Guardians and Wards Act, 1890: Section 7 concerns the court’s power to appoint a guardian, Section 9 addresses jurisdiction, and Section 10 prescribes the form and contents of an application.

The Court treated the mother’s alleged non-compliance with the trial court’s DNA-testing and visitation orders as a basis for drawing an adverse inference in the circumstances of this case.

No specific precedent or further statutory provision governing adverse inference or the welfare standard is identified in the judgment.

The appellate court relied on the mother’s failure to oppose the DNA-testing application, her alleged failure to comply with the resulting order, and her failure to comply with the visitation order, which she had not challenged.

It also considered the birth certificate filed with the DNA application, which recorded Muthuraj as the father of the mother’s daughter, and rejected the mother’s belated contention that the certificate might be forged.

The court further found that the trial court had placed undue reliance on the father’s cross-examination answer that he had not lodged a complaint, whereas the record included a police complaint and receipt.

On these circumstances, the Court concluded that the trial court should have drawn an adverse inference and that its dismissal of the petition was not justified.

The guardianship petition was allowed, the father was appointed guardian of the two minor sons, and the mother was directed to hand over their custody to him within one month of receiving a copy of the judgment.

No costs were awarded.