Madras High Court
A.Jayaraj @ Jayaraman vs Dorathy Bella on 16 August, 2023
C.M.A.No.1543 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.1543 of 2023
and
C.M.P.No.15635 of 2023
A.Jayaraj @ Jayaraman ... Appellant
Vs
Dorathy Bella ... Respondent
Prayer: Civil Miscellaneous Appeal is filed under Section 47 of Guardians
and Wards Act, 1890, to set aside the order dated 17.07.2020 in
G.O.P.No.271 of 2019 on the file of Principal District Judge, Salem.
For Appellant : Mr.R.Suryaprakash
For Respondent : Mr.C.Nihil Nandha
1/9
https://www.mhc.tn.gov.in/judis
C.M.A.No.1543 of 2023
JUDGMENT
This Civil Miscellaneous Appeal has been filed challenging the
judgment passed by the learned Principal District Judge, Salem directing the
appellant to handover custody of the two minor children to the respondent
herein.
2. The brief facts leading to the filing of the above appeal are as
follows:-
2.1 the appellant and the respondent got married on 23.05.2005
and the same was registered on 10.10.2006 under the Special Marriage Act,
1954. Out of the wedlock, a female child was born on 20.04.2006 and two
other female children were born on 28.05.2014 and 31.12.2015 respectively.
Difference of opinion arose between parties and they have been living
separately since 2018. Admittedly, their second and third minor daughters,
born out of the wedlock are with the custody of the appellant since 2018.
The first daughter is in the custody of the respondent herein.
2.2 The respondent filed G.O.P.No. 271 of 2019 before the
Principle District Judge, Salem to handover custody of the two minor
daughters to her. The learned Principal District Judge, Salem found that
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C.M.A.No.1543 of 2023
since the respondent herein is working as a Teacher in a Government
School, it would be in the best interest of the minor children to be in her
custody and hence, directed the appellant to handover custody of the minor
children to the respondent herein.
3. Aggrieved over the same, the appellant has preferred the above
appeal.
4. The learned counsel for the appellant submitted that the order
passed by the learned Principle District Judge, Salem is an ex parte order.
The learned Judge had not considered the fact that the children are in the
custody of the appellant for nearly five years and ought not to be disturbed
at this stage. The appellant herein is living along with his sister's family and
the children are taken care by the sister of the appellant. Therefore, there is
no necessity for handing over custody to the respondent. The learned
counsel submitted that the learned Judge had not taken into consideration
the welfare of the minor children; that the respondent had an affair and
therefore, she is likely to get married and therefore, it would not be in the
best interest for the minor children to handover custody to the respondent.
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C.M.A.No.1543 of 2023
5. The learned counsel for the respondent per contra submitted
that the eldest daughter is in the custody of the respondent and she is well
educated. The respondent is a Teacher and she is earning more than
Rs.80,000/- per month whereas the appellant has no permanent job and it
would not be in the interest of the minor children to be in the custody of the
appellant. Further, the allegations of the appellant is unfounded and in any
case, cannot be the basis to deny the custody of the minor children to the
respondent/mother. The children would get good education if they are in
the custody of the respondent. Hence, the respondent prayed for dismissal
of the appeal.
6. This Court had directed the parties to appear in-person and
interacted with the appellant, respondent and the eldest daughter of the
appellant and respondent. This Court on hearing the submissions made by
the learned counsel for the appellant and respondent, finds that admittedly,
the custody of two minor children who are the second and third daughters of
the appellant and respondent are with the appellant since 2018. The first
daughter is in the custody of the respondent ever since her birth. The
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C.M.A.No.1543 of 2023
respondent is a Teacher, earning Rs.80,000/- per month. The appellant is
working as a helper in a private hotel.
7. This Court is conscious of the fact that social and financial
status alone would not determine as to who should take custody of the
minor children. The paramount consideration for this court is to see the
welfare of the minor children. On interacting with the eldest daughter, this
court finds that she is well educated and brought up well by the respondent.
The respondent as stated earlier is also well educated. Therefore, this Court
is of the view that it would be in the best interest of the minor children to be
in the custody of the respondent. The other allegations made against each
other by the parties, in the facts and circumstances of the case are irrelevant
in the opinion of this court to determine as to who should be entitled to the
custody of the children. The respondent also assured that she would take
care of the children well and would not give room for any complaint against
her. It appears that the respondent is living with her mother and eldest
daughter separately.
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C.M.A.No.1543 of 2023
8. Hence, it will be in the best interest of the minor children, if
they are in the custody of the respondent. However, the appellant is entitled
to visitation rights. Since the two minor children were in the custody with
the appellant for nearly five years, the appellant would be entitled to visit
the children as and when required. The appellant shall also be entitled to
the interim custody of the children during holidays, without disturbing the
school timings and education of the two minor children. The appellant shall
be entitled to take the children every Saturday after the school hours and
have the custody till Sunday afternoon and the appellant shall also be
entitled to the custody of the children during vacations. Whenever there is a
vacation which exceeds one week, the appellant shall be entitled to custody
of the two children for a period which is half the number of holidays.
9. The parties shall be at liberty to move the Court concerned if
there is any difficulty in complying with the above direction issued for
visitation. Till such time, the parties shall comply with the above direction
as regards visitation. The appellant shall also be entitled to visit the eldest
daughter in the same manner. However, he is not entitled to take her in his
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C.M.A.No.1543 of 2023
custody either during weekends or during holidays.
10. The learned Counsel for the respondent on instructions
submitted that the respondent would be able to get admission for the two
children within ten days in a School by the name Sai Vihar at Salem.
Therefore, the appellant shall hand over the custody of the two minor
children to the respondent within a period of two weeks from the date of
receipt of a copy of this judgment.
11. Further, the respondent in order to comply with the direction
regarding the visitation, shall handover the custody of the minor children
every Saturday @ 4 p.m. to the appellant at Kottai Mariamman Temple near
old bus stand, Salem. The children shall be in the custody of the appellant
till 5.30 p.m. on Sunday. Thereafter, the children will be handed over by the
appellant to the respondent at the same place.
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C.M.A.No.1543 of 2023
12. Accordingly, this Civil Miscellaneous Appeal is dismissed
with the above direction. Consequently, connected miscellaneous petition is
closed. There shall be no order as to costs.
13. To ensure that the order has been complied with by the parties,
post the matter under the caption “For Reporting Compliance” on
11.09.2023.
16.08.2023
Index: Yes/No
Neutral Citation: Yes/No
AT
To
1.The Principal District Judge, Salem.
2.The Section Officer,
VR Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1543 of 2023
SUNDER MOHAN, J.
AT
C.M.A.No.1543 of 2023 and
C.M.P.No.15635 of 2023
16.08.2023
https://www.mhc.tn.gov.in/judis
