Madras High Court
R.Sudha vs N.Balasubramani on 7 August, 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.08.2023
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A.(MD)No.627 of 2023
and
C.M.P.(MD)No.8112 of 2023
R.Sudha ...Appellant
/Vs./
N.Balasubramani ...Respondent
PRAYER:- Civil Miscellaneous Appeal- filed under Section 19(1) of the
Family Courts Act, 1984 to call for the records and set aside the fair and
decreetal order passed in I.A.No.2 of 2022 in H.M.O.P.No.167 of 2021,
dated 20.05.2023 on the file of the Family Court, Dindigul.
For Appellant : Mr.S.Sarvagan Prabhu
For Respondent : Mr.N.Balasubramani
party-in-person
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JUDGMENT
(Judgment of the Court was delivered by DR.ANITA SUMANTH, J.)
This Civil Miscellaneous Appeal is filed by the petitioner
challenging order passed on 20.05.2023 in I.A.No.2 of 2022 in
H.M.O.P.No.167 of 2021 pending on the file of the Family Court,
Dindigul.
2.The hearing of the above HMOP is stated to be in progress
now. Pending such hearing, the respondent had filed an interim
application in terms of Section 26 of Hindu Marriage Act seeking grant
of visitation rights qua his minor child, Pradeesh, aged 10 years (approx.)
(in short 'child').
3.Seeing as the HMOP is yet to be decided by the Family
Court, Dindigul, we restrict ourselves to the basic facts touching upon
and as relevant to decide this Civil Miscellaneous Appeal only. The
parties to HMOP were married on 16.02.2011 and the child was born on
06.03.2013.
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4.The Appellant had sought visitation rights on the ground that
the family has been living together till 12.07.2021 when the respondent
filed for divorce and claimed that he was fully committed to the family.
He claimed that the separation from the family, particularly the child, is
causing him mental agony.
5.The defence of the appellant (wife)/respondent in the
interlocutory application, was to the effect that the father had no
connection whatsoever with the child from the time of his birth. All
expenses with regard to upkeep of the child, including his education are
being met only by her. The respondent denied all the averments in the
petition and further alleged that she herself, and her child had been
deserted by the petitioner.
6.Having heard the rival contentions, the lower Court was of
the view that since there was no denial of paternity and the question of
desertion was a matter to be considered in HMOP after taking note of
evidence on either side, the father must be granted visitation rights. In
arriving at this conclusion, the Court had conversed with the child and
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taken note of his sentiments as well. An order thus came to be passed
permitting the petitioner to see the child in the Family Court, Dindigul on
case hearing days between 4.30 pm and 5.30 p.m.
7.There is some controversy as to whether the appellant has, in
fact, complied with this order. Learned counsel for the appellant submits
that there has been full compliance. The impugned order has been passed
on 20.05.2023. Subsequent thereto, there have been seven hearings that
have transpired, on 03.06.2023, 15.06.2023, 30.06.2023, 07.07.2023,
20.07.2023, 28.07.2023 and 05.08.2023. This appeal had first come up
for admission on 11.07.2023.
8.Even assuming that the appellant had not complied with the
order of the lower Court on the ground of pendency of the present Civil
Miscellaneous Appeal, there should have been compliance on
03.06.2023, 15.06.2023, 30.06.2023 and 07.07.2023.
9.The respondent would however state that the avowed
compliance was only a farce, taking advantage of the fact that no specific
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meeting place has been mentioned in order dated 20.03.2023. The parties
were directed to meet in the District Court. The respondent would allege
that the child would merely be brought to Court ensuring that there was
no opportunity for him to meet or spend time with the child. The
appellant has also filed a Contempt Petition before the Family Court in
this regard.
10.Though not part of the pleadings and neither has it been
recorded by the Family Court Judge, there was an oral submission by the
appellant before us that the child was not co-operating in meeting his
father. We have ascertained this fact ourselves from the child. He does
evince disinclination to meet the father. Be that as it may and though the
child's sentiments are important, there is nothing on record that would
militate against the appellant being permitted to meet the child for an
hour, once a month.
11.No prejudice would be caused by such an order, particularly
in light of the direction given in conclusion for expeditious disposal of
the HMOP. Since the impugned order is silent as to a specific place
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where the parties could meet and to avoid any possibility of the
Appellant taking undue advantage of this ambiguity, we clarify that the
Respondent and the child will meet in the office of the Legal Services
Authority, in the Dindigul District Court Complex. The meeting shall be
on the first saturday of every month. The impugned order is modified to
this extent alone.
12.Learned Family Court Judge, Dindigul is directed to
complete the hearing of H.M.O.P.No.167 of 2021 expeditiously, and in
any event within a period of three months from the date of receipt of a
copy of this order.
13.With the above directions, this Civil Miscellaneous Appeal
is disposed. No costs. Consequently, connected miscellaneous petition
is closed.
[A.S.M.J.,] & [R.V.J.,]
07.08.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes
ta
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To
1.The Family Court, Dindigul.
2.The Section Officer,
Vernacular Section,
Madurai Bench Of Madras High Court,
Madurai.
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DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
ta
Order made in
C.M.A.(MD)No.627 of 2023
Dated:
07.08.2023
https://www.mhc.tn.gov.in/judis
