Madras High Court
Richa Sharma vs Ganesh Kasinathan on 26 September, 2022
O.S.A.No.206 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.09.2022
CORAM
THE HONOURABLE MR. JUSTICE PARESH UPADHYAY
and
THE HONOURABLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY
O.S.A.No.206 of 2022
and C.M.P.No.12450 of 2022
Richa Sharma .. Appellant
Vs
Ganesh Kasinathan .. Respondent
Appeal filed under Order XXXVI Rule 1 of OS Rules, 1994 and
clause 15 of Letters Patent against the order dated 13.07.2022 made
in Appl.No.3534 of 2021 in O.P.No.633 of 2021.
For Appellant : Mr.R.Harikrishnan
For Respondent : Ms.R.S.Akila
for Ms.Sudha Ramalingam
Page No.1 of 8
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O.S.A.No.206 of 2022
JUDGMENT
(Delivered by PARESH UPADHYAY, J.)
Challenge in this appeal is made to the order dated 13.07.2022
recorded on Application No.3534 of 2021 in O.P.No.633 of 2021.
2. The matter pertains to the claim of the father for the
custody of minor daughter and / or his visitation right. This appeal is
by the mother.
3. Notice was ordered on 29.07.2022.
4. Learned advocate for the appellant (mother) has made
serious grievance that, the observations in the order under challenge
more particularly from para : 10 onwards are less deciding rights of
the parties, more – what the wife needs to do to her husband. It is
submitted that, independent of the grievances against the order under
challenge, the mother has now got an employment at Gurugram /
Delhi and therefore she needs to stay there. Further, the admission of
the daughter is also secured in the school there. It is submitted that,
therefore it has become difficult for the mother to continue to stay at
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O.S.A.No.206 of 2022
Chennai and that factor be kept in view while moulding relief. It is
submitted that the impugned order be quashed and set aside.
5. On the other hand, learned advocate for the contesting
respondent / father has submitted that, the grievance by the
appellant/ mother is only to some observations made by learned
Single Judge and the visitation arrangement is neither under challenge
nor the same needs to be interfered with. It is further submitted that,
in the event the mother shifts from Chennai to Delhi / Gurugram, it
would be very difficult for the father to visit the child and that aspect
may be taken into consideration. It is submitted that this appeal be
dismissed.
6. Having heard learned advocates for the respective parties
and having considered the material on record this Court finds as
under:-
6.1 The marriage was solemnized in the year 2006.
6.2 The daughter was born on 13.11.2010.
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O.S.A.No.206 of 2022
6.3 Husband and wife are not staying together since the year
2017.
6.4 The daughter has been with the mother all throughout.
6.5 Father has visited the daughter periodically, sometimes
under the orders of Court, sometimes independent of that, as per
social arrangement. This arrangement has continued.
6.6 The litigation before the Court has seen more than one
orders, one of which is dated 13.07.2022 which is under challenge. We
have taken into consideration the contents of the said order, including
the observations made therein, including what hospitality the mother
(wife) should extend to the father (husband).
6.7 We find that, learned Single Judge, while attempting to
facilitate visitation, is swayed away by what should be the conduct of
the parties towards each other, including serving of snacks / tea to the
other side. We find that, prescribing such stipulations and many of the
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O.S.A.No.206 of 2022
observations are less relevant for deciding the rights of the parties, or
to address the grievances of the parties. The same therefore call for
interference.
7.1 The matter pertains to visitation right of the father qua her
minor daughter, who stays with her mother.
7.2 Since the husband and wife are not staying together, the
question of employment of the mother of the child may also be one of
the relevant factors. As pointed out by learned advocate for the
appellant / mother, parents of the mother are settled at Gurugram/
Delhi. The mother has got employment at Gurugram. Since there is
dispute between husband and wife, the mother would want to stay
with parents, and since she has also got employment at the place
where the parents are staying, necessarily the daughter has to be with
the mother at Gurugram. The study of the daughter also need to be
taken care of. As it is indicated, she (the daughter) has got admission
there (at Gurugram).
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O.S.A.No.206 of 2022
7.3 Conjoint consideration of the above circumstances would
require that, the mother and the daughter – both, need to stay at
Gurugram, which should not be permitted to be given the colour of
defiance of any of the orders of this Court. For these reasons, the
following order needs to be passed:-
8.1 The impugned order dated 13.07.2022 recorded on
Application No.3534 of 2021 in O.P.No.633 of 2021 is quashed and set
aside.
8.2 The intimation by the appellant mother, that she has got
employment at Gurugram is taken note of and acknowledged,
including to the extent that the daughter shall needs to stay with
mother.
8.3 So far visitation rights of the respondent father is
concerned, the father may explore the possibility of going to Gurugram
if he so wishes, with prior intimation. In case of any difficulty, it is
open to the respondent father, to approach appropriate forum.
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O.S.A.No.206 of 2022
8.4 This appeal is allowed in the above terms. No costs.
Connected civil miscellaneous petition would not survive.
(P.U., J) (D.B.C., J)
26.09.2022
Index:No
mmi/20
To
The Sub Assistant Registrar,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
O.S.A.No.206 of 2022
PARESH UPADHYAY, J.
and
D.BHARATHA CHAKRAVARTHY, J.
mmi
O.S.A.No.206 of 2022
26.09.2022
https://www.mhc.tn.gov.in/judis
