Madras High Court
S.Naachammai vs K.Balaji on 28 October, 2022
C.M.A.No.2112 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.2112 of 2022
and C.M.P.No.16383 of 2022
S.Naachammai ... Appellant
Vs.
K.Balaji ... Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 19 of Family
Courts Act, 1984, read with Section 28 of the Hindu Marriage Act, 1955,
against the order dated 15.07.2022 made in I.A.No.1 of 2021 in
H.M.O.P.No.2588 of 2021 on the file of the III Additional Principal Family
Court, Chennai.
For Appellant : Mrs.Thenmozhi
for Mr.S.Jayaraj
For Respondent : Mr.S.Francis Ashok
JUDGMENT
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C.M.A.No.2112 of 2022
(Judgment of the Court was delivered by V.M.VELUMANI,J.)
This Civil Miscellaneous Appeal has been filed by the appellant/wife
against the order dated 15.07.2022 made in I.A.No.1 of 2021 in
H.M.O.P.No.2588 of 2021 on the file of the III Additional Principal Family
Court, Chennai.
2.The appellant is the petitioner in H.M.O.P.No.2588 of 2021 filed
against the respondent for dissolution of marriage conducted between the
appellant and respondent on 09.12.2010. In the said O.P., the
respondent/husband filed I.A.No.1 of 2021 under Section 26 of Hindu
Marriage Act, for a direction to the appellant to give the custody of minor
child viz., Selvi. Shanmuga Priya, to the respondent every Sunday between
10.00 a.m. and 12.00 noon at Old No.143, New No.14, 5 th street, AVM
Colony, Virugambakkam, Chennai-92, where the appellant resides with her
minor child. The appellant resisted the said I.A. alleging that the respondent is
a gold smuggler, money launderer, Hawala agent and illegal cab driver.
Before the III Additional Principal Family Court, Chennai, both the appellant
and respondent did not let in any oral and documentary evidence. The learned
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C.M.A.No.2112 of 2022
Judge considering the materials on record placed before her, granted only
visitation right to the respondent to see the minor child Selvi. Shanmuga
Priya, twice in a month on the first and third Saturday of every month from
10.00 a.m. to 12.00 p.m. at Child Care Centre, attached to Family Court,
Chennai, till the disposal of the main O.P. Challenging the said order, the
appellant has come out with the present appeal.
3.The learned counsel appearing for the appellant made submissions
that minor child is only three years old suffering from speech impairment and
cannot talk fluently. In view of bad character of respondent, it is not advisable
to give custody of the minor child to the respondent. Even the respondent is
not entitled to visitation right. The learned Judge failed to consider the
paramount interest and welfare of the minor child, who is only three years old
and prayed for setting aside the order of the Tribunal and allowing the appeal.
4.The respondent filed counter affidavit denied all the allegations made
by the appellant and submitted that the respondent is father of minor child
and he is entitled to custody of the minor child. But the learned Judge granted
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C.M.A.No.2112 of 2022
only visitation right that too only twice in a month. The learned Judge has
given reason for granting visitation right, there is no reason to interfere with
the said order and prayed for dismissal of the appeal.
5.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondent and perused the entire materials
on record.
6.From the materials on record, it is seen that the appellant has filed
O.P. for dissolution of marriage, which is pending for disposal. It is not in
dispute that the respondent is father of minor child. Various allegations made
by the appellant against the respondent and denial of the respondent are to be
proved only at the time of final hearing of the O.P. As rightly pointed out by
the learned Judge that minor child require love of father also. At the same
time, considering the submissions of learned counsel appearing for the
appellant that age of the minor child is three years and having some speech
impairment, it is very difficult to retain three years old child in one place for
two hours and therefore, it will be in the interest of justice, order of the
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C.M.A.No.2112 of 2022
learned Judge is modified granting visitation right to the respondent to see the
child only for half an hour on first and third Saturday of every month from
11.30 a.m. to 12.00 p.m. at Child Care Centre, attached to Family Court,
Chennai, till the disposal of the main O.P.
7.With the above directions, this Civil Miscellaneous Appeal is partly
allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
(V.M.V., J) (S.M., J)
28.10.2022
Index : Yes / No
kj
To
1. III Additional Principal Judge
Family Court, Chennai.
2.The Section Officer
VR Section
High Court
Madras.
V.M.VELUMANI,J.
and
SUNDER MOHAN,J.
https://www.mhc.tn.gov.in/judis
C.M.A.No.2112 of 2022
kj
C.M.A.No.2112 of 2022
and C.M.P.No.16383 of 2022
28.10.2022
https://www.mhc.tn.gov.in/judis
