Madras High Court
C. Shamilakumari vs P. Chandrasekar on 19 May, 2022
O.S.A. No. 142 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.05.2022
CORAM
THE HON'BLE MR. JUSTICE S.M. SUBRAMANIAM
AND
THE HON'BLE MR. JUSTICE J. SATHYA NARAYANA PRASAD
O.S.A. No. 142 of 2022
&
C.M.P. No. 8712 of 2022
C. Shamilakumari ..Appellant
Vs.
P. Chandrasekar ..Respondent
Prayer: Original Side Appeal under Order XXXVI Rule 1 of O.S. Rules
read with Clause 15 of Letters Patent Act to set aside the order and decretal
order dated 08.04.2022 in O.P. No. 632 of 2022.
For Appellant :: Mr.A.D. Janarthanan
For Respondent :: Mr.G.V. Sridharan
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JUDGMENT
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(Judgment of the Court was delivered by S.M. SUBRAMANIAM,J.)
The Original Side Appeal has been instituted challenging the order
and decretal order dated 08.04.2022 passed in O.P. No. 632 of 2022. The
appellant was the petitioner in the said O.P.
2. The marriage between the appellant and the respondent was
solemnised on 11.12.2002 at Vadapalani Murugan Temple, Chennai in
accordance with Hindu rites and customs. Out of the wedlock between the
appellant and the respondent, two daughters were born. The elder daughter,
by name, C. Meenakumari @ Meena, was born on 06.05.2006 and the
younger daughter by name C. Neeraja @ Naveena was born on 21.07.2010.
The appellant is working as a Head Constable in Tamil Nadu Police
Department and presently, she is posted at All Women's Police Station,
Thousand Lights, Chennai. The respondent is employed as a Junior
Assistant in Tamil Nadu Electricity Board.
3. Due to misunderstanding and frequent quarrels between the
appellant and the respondent, they filed a consent divorce application in O.P.
No. 4376 of 2017 on the file of the Family Court and a decree of divorce by
way of mutual consent was granted by the competent court on 16.08.2018.
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4. The appellant states that the respondent is a person of adamant
nature and never considered her or her family members. He is a politically
influential person and gave several complaints against the appellant in the
Police Department itself with false allegations. With his personal influence,
the respondent took the appellant to Redhills and admitted her in Ocean
Rehabilitation Centre for mental treatment in July, 2014 without the
knowledge and consent of the appellant, who was very much working in the
Police Department. The appellant states that her hands and legs were kept
tied for two days by the staff of the Rehabilitation Centre. Thereafter, with
the help of her mother and uncle, the appellant was released from the
Rehabilitation Centre. Even after that, the appellant was continuously
harassed by the respondent.
5. The appellant, being a working woman, was initially, not in a
position to look after her children and her mother assisted her to maintain
the children properly. However, the respondent had forcibly taken the
children to his sister's house and the appellant, at one point of time, was not
even permitted to see her children. The appellant was forced to leave her
residence and the minor children were taken to the residence of the sister of
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the respondent. Initially, the appellant was visiting the minor children in the
house of the respondent's sister till the year 2016 and thereafter, the
respondent prevented the appellant from visiting the children and therefore,
the appellant was constrained to file O.P. No. 632 of 2016 seeking custody
of her minor daughters.
6. In the said O.P., an application in A.No. 4676 of 2016 was filed
seeking interim custody of the minor children for two days in a month and
an interim order was passed granting custody of the children to the appellant
during weekends. However, the said order was not honoured by the
respondent. Contrarily, the respondent continued to be adamant and had
not allowed the appellant to see the children. The O.P. was taken up for
final adjudication on 08.04.2022 and was dismissed by the impugned order.
Hence, the present Original Side Appeal has been filed.
7. The appeal was filed mainly on the ground that the appellant is
the mother of the minor children and she was not even permitted to visit her
children. Both the minor children are female children and the care and
assistance of mother is essential. It is further contended that the respondent
is not looking after the minor children and he had left the children in his
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sister's house and they are now under the custody of the sister of the
respondent, who is a third party.
8. The appellant has raised several allegations against the
respondent. According to the appellant, the respondent is not leading a
moral life and he has committed an act of cruelty both against the appellant
as well as against the minor children. The minor children are residing in the
residence of the sister of the respondent and the appellant has not been
allowed to visit the children. Though the interim custody application in
Application No. 4676 of 2016 was allowed by this Court, the said order was
not complied with, by the respondent and he did not produce the children for
more than three years as per the orders of this Court.
9. The learned counsel for the respondent objected the said
contentions by stating that the children are happy with the
respondent/father. The interest of the children is being looked after by the
sister of the respondent as the respondent is employed as Junior Assistant in
Tamil Nadu Electricity Board. The learned counsel for the respondent
further states that the respondent is also a dutiful father and taking care of
the children and education is also provided in a better manner to the children
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and therefore, the contentions of the appellant are incorrect.
10. We have carefully considered the contentions raised on behalf
of the appellant and the respondent.
11. Admittedly, a decree of divorce was granted to the appellant
and the respondent by way of mutual consent. It is not in dispute that the
children are now living with the sister of the respondent. Further, the
appellant has not been permitted to visit her children in the house of the
sister of the respondent. The O.P. was dismissed mainly on the ground that
the appellant has not raised any acceptable grounds for the purpose of
granting the relief of custody of minor children. The O.P. Court observed
that both father and mother are guardians as far as minor children are
concerned till they attain majority. The allegation that the minor daughters
are residing in the sister's house of the respondent was not seriously taken
note of by the O.P. court. The Court formed an opinion that there are no
other adverse allegations against the respondent, and the appellant has not
made out any case that the respondent/father is acting against the interest
and welfare of the children and that the respondent/father, who is working
as Junior Assistant in Tamil Nadu Electricity Board, is an earning member
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and therefore, the appellant/mother is not entitled for the relief of custody.
12. It is well-settled proposition of law that while deciding a petition
filed under Section 25 of The Guardians and Wards Act, the Court has to
consider the interest and welfare of the minor child, which is of paramount
consideration. The question that arises is what are the parameters to be
taken into account to ascertain the interest of the minor children, more
specifically, for the purpose of considering the relief of custody. In the
present case, the first minor child namely, C. Meenakumari @ Meena was
born on 06.05.2006 and she is aged about 16 years. She is doing her Plus
One course. The second daughter namely, C. Neeraja @ Naveena was born
on 21.07.2010 and she is aged about 10 years. She is in VII standard. Both
of them are studying in a school in Chennai City and capable of
understanding the facts and circumstances in a proper manner. They are
city bred girls and know what is good and bad for them. The elder one,
aged about 16 years, is capable of making an assessment with reference to
the conduct of her mother and father in an independent manner. This being
the factum, Courts are expected to ascertain the genuinity of interest
involved in matters of custody. A deeper enquiry with reference to the state
of mind of the children is required. Children at a tender age may have their
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own views and ideas. A girl child aged about 16 years would definitely have
a better vision and she would be in a position to place the facts, her wishes
and the conduct of her mother as well as the father. Thus, the interest of the
minor children has to be ascertained by enquiry. Courts are not expected to
grant custody of minor children in a routine manner, merely based on
allegations and counter allegations set out in the petition and counter
affidavit. Beyond such pleadings, the psychological aspect of the children,
the real interest involved and what would be better for their future have to be
necessarily considered as the children are the backbone of our great nation.
They are the nation builders. A good family alone can create a good nation.
Every child has got a right to get better life as enunciated in the Indian
Constitution. Right to life includes a decent life and not mere animal life.
The life of minor children has to be protected by all concerned. It is the duty
of Courts to ensure that minor children are protected and their interests,
vision and wishes are preserved to the extent possible to provide them a
better future as it is the mandate of the State under the Constitution.
13. The Courts, while dealing with custody petitions under the
Guardians and Wards Act, are not expected to decide the matters unlike
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other issues. The issue regarding custody involves sentiments and
psychological aspects of children, which have to be dealt with care and
caution for providing a better atmosphere, good education and a decent life
to minor children. In the present case, we do not find that such examination
was done by the O.P. court. Contrarily, the O.P. Court has formed an
opinion that the appellant has not made out a valid ground for the purpose
providing custody. Probably, the Court formed an opinion that both father
and mother are employed and father is also capable of looking after the
children. However, the O.P. Court failed to consider the fact that the
respondent is not looking after the children, but had left the children in his
sister's house and the attention given by father's sister can never be
compared and equated to the attention given by either father or mother. The
minor children in the present case, undoubtedly, cannot have a good
atmosphere in the house of the sister of the respondent/father. When the
mother of the minor children is also capable of providing a better and decent
living to the children as she is working as a Head Constable in Police
Department and drawing a decent salary, there is no reason, whatsoever, to
allow the children to be brought up by the sister of the respondent/father.
14. Taking note of these facts and circumstances, we formed an
opinion that the children have to be examined. When this Court directed the
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respondent to produce the children before this Court, the respondent was
reluctant to produce the children and with great hesitation, he produced the
children before this Court. The attitude of the respondent and the manner in
which the respondent responded to the Court proceedings are absolutely not
upto the mark.
15. The two minor children were produced before us and when they
came over to us, they started crying spontaneously. They are grown up city
girls and capable of understanding the Court proceedings and they are very
well aware of the happenings. They are matured enough to know the
conduct of the people around them and decide what is good for their future.
The expression of the minor children before this Court was shocking and
painful. The elder daughter C. Meenakumari @ Meena, aged about 16
years, studying in 11th standard, deposed before us, "Please, donot send us
along with our father". The second child, who was also in tears, expressed
the same opinion. Throughout the conversation, the children had spoken
with tears and the Court comforted them by stating that their interest would
be protected and taken care of and encouraged them to come out with their
grievance. The elder daughter further deposed that the respondent/father
used to pick up quarrels without any reason and they were beaten up till the
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mopsticks were broken. They informed us with tears that frequently, they
were beaten up in the house of the respondent's sister. The enquiries made
by us revealed that the children are not happy with the respondent and they
are not at all willing to reside with the respondent/father. In fact, they are
not residing with him, but residing in the house of his sister. The children
also made it clear that they are not inclined to go along with the
respondent/father. Contrarily, they have expressed their willingness to join
with the mother. When the minor children were asked to go to their mother
inside the court hall, we could see the happiness and the smile on their faces
and also the affection shown by them towards their mother even inside the
court hall. Thus, this Court is convinced that the minor children are
interested to live with their mother. Moreover, both the children are girl
children and being girls, they need certain protection and assistance at the
hands of the mother, which may not be possible for the respondent/father.
This Court is of the clear opinion that the mother, who is working as a Head
Constable in Police Department, is also capable of bringing up the children
in a better manner.
16. This Court would prefer to record that the O.P. filed in the year
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2016 was decided in the year 2022, after a lapse of 6 years. In custody
petitions, if the minor children are made to suffer for 6 years and if these
petitions are prolonged for another 2 years, by which time the minors would
attain majority, there is no point in deciding such original petitions under the
provisions of Guardians and Wards Act. The custody of the minor children
should be decided as expeditiously as possible by the Courts. Keeping these
petitions pending for a longer period would definitely cause great prejudice
to the interest of the minor children. The delay in deciding such petitions
may probably prolong the harassment or trouble, which the minor children
are subjected to. Thus, the Courts are bound to decide the custody petitions
as early as possible, by ascertaining the interest of the children. The
younger generation is wise and they are doubly intelligent. They are capable
of assessing human behaviour and conduct. Therefore, decisions cannot be
taken by the Courts merely based on certain pleadings, which may be
correct or incorrect under certain circumstances. The minor children are left
in the lurch and made to suffer in silence due to the indifferent attitude of the
parents. When the minor children are left in the lurch by the father and the
mother, the minor children have to be enquired and the veracity of the
statement made by them has to be assessed in a proper manner to arrive at a
conclusion in the interest of the children.
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17. Besides, either of the parties to the Guardian O.P. petitions seek
adjournments to suit their convenience and to achieve their goal. Such
adjournments only go to show the conduct of the parties and under no
circumstances, such conduct is to be appreciated by the Court. The issue
has to be decided taking note of the interest and welfare of the children. The
rights of the children have to be protected under all circumstances and the
Courts are expected to act swiftly in such cases.
18. In the present case, as stated already, the O.P. was kept pending
for 6 years and during these years, the children had to suffer as they were
brought up by the respondent's sister. Moreover, all the aspects and issues
involved in custody matters were not considered by the O.P. Court and
therefore, it necessitated us to examine the children, which we have done
and ascertained that the minor children have expressed their willingness
spontaneously to join with the mother and on joining with the mother, they
were happy and we could ascertain such happiness from the faces of the
minor children.
19. Therefore, the custody of two minor children namely, C.
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Meenakumari @ Meena and C. Neeraja @ Naveena is handed over to the
appellant/mother with immediate effect. The appellant and the respondent
and the two minor children are present before this Court. As we have
ascertained the willingness of the minor children, the appellant is directed to
take the minor children along with her from this Court itself.
20. The appellant undertakes before us that she will take care of the
children in a proper manner and protect their interest and welfare.
Therefore, the respondent father is directed to hand over all the certificates,
documents and belongings of the children to the appellant/mother today
itself. The respondent/father has no right of visitation of the minor children
and he shall not interfere with their life or with their activities. In the event
of any violation in this regard by the respondent, the appellant/mother is at
liberty to approach the jurisdictional Police for all necessary action in the
manner known to law.
21. In the result, the order and decretal order dated 08.04.2022
passed in O.P. No. 632 of 2016 is set aside. The Original Side Appeal
stands allowed with the above directions. No costs. Connected C.M.P. is
closed.
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(S.M.S.J.) (J.S.N.P.J.)
nv/arr 19.05.2022
Index: Yes/No
Internet: Yes/No
Speaking Order/
Non-speaking order:
S.M. SUBRAMANIAM,J.
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AND
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O.S.A. No. 142 of 2022
J. SATHYA NARAYANA PRASAD,J.
nv/arr
O.S.A. No. 142 of 2022
19.05.2022
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