S.Magesh vs Karunya Ganga
2023 Latest Caselaw 7436 Mad

                                                                             C.M.A.NO.1935 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 03.07.2023

                                                         CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN


                                                C.M.A.No.1935 of 2022
                                              and C.M.P.No.13309 of 2023



                    S.Magesh                                            ...Appellant/Petitioner
                                                          Versus

                    Karunya Ganga                                  ...Respondent/Respondent

                    PRAYER : Civil Miscellaneous Appeal filed under Section 47 of Guardians
                    and Wards Act, 1890               seeking to set aside the order passed in
                    G.W.O.P.No.78 of 2020 dated 01.06.2022 by the learned Principal District
                    Judge at Trippur.

                                     For Petitioner     : Mr.V.Ramamurthy
                                     For Respondent     : Mr.Arul Gnanaprakash



                                                       JUDGMENT

The appeal challenges the order passed by the learned Principal

District Judge, Tiruppur in G.W.O.P.No.78 of 2020 dated 01.06.2022.

https://www.mhc.tn.gov.in/judis

C.M.A.NO.1935 of 2022

2. The appellant/petitioner/husband had filed a petition praying for

custody of his minor son namely Viduran as he was the natural guardian on

the ground that the respondent/respondent/wife was incapable of taking care

of the minor child; that the character of the respondent was not above board;

and that the respondent was attempting to get remarried and hence she is not

entitled to the custody.

3. The respondent had filed a counter denying all the allegations and

also made allegations suggesting that the appellant’s character was

doubtful; and that in the interest of the minor child, the custody should not

be granted to the appellant.

4. The appellant examined himself and his parents as P.W.1 to P.W.3;

and marked Exhibits P.1 to P.4 on his side. The respondent examined

herself as R.W.1 and marked Exhibits R.1 to R.5 on her side.

5. The learned Principal District Judge, Tirupur, after considering the

facts and circumstances held that the appellant had not established the

allegations against the respondent. The learned Judge also found that since

the respondent had filed a divorce petition, the appellant had filed the instant https://www.mhc.tn.gov.in/judis

C.M.A.NO.1935 of 2022

petition; that even though the appellant had prayed for custody of the minor

child, he had not asked for any visitation right and hence, suspecting the

appellant's bonafides held that the appellant's petition is liable to be

dismissed.

6. Mr.V.Ramamurthy, learned counsel for the appellant, submitted

that the learned Judge had not taken into consideration the welfare of the

minor child; that the respondent’s parents are no more; that she is a working

lady; that on the other hand, the petitioner’s parents are alive and had been

taking care of the child since his birth; that it would be in the best interest of

the child, if the custody of child is handed over to the appellant.

7. Mr. Arul Gnana Prakash, the learned Counsel for the respondent,

per contra submitted that the appellant is ineligible for custody; that the

appellant has no source of income, whereas the respondent is working in a

Bank; that the appellant is guilty of several wrong doings and hence, he is

not a fit person; and that the welfare of the minor child demands that the

custody of the child is with the respondent.

https://www.mhc.tn.gov.in/judis

C.M.A.NO.1935 of 2022

8. This Court, on perusal of the pleadings, materials on record and the

order passed by the learned Principal Judge, Tiruppur, finds that the

appellant, though the natural guardian of the minor child had not been able

to show that he should have the custody of the minor child for the child's

welfare. Admittedly, the respondent is working in a Bank and has sufficient

means to maintain herself and the child. Further, it is also seen that the child

is in custody of the respondent for the past four years. It is well settled that

in a petition for custody, the paramount consideration for the Court is the

welfare and well being of the child. This Court is bound to give weight to the

child’s ordinary comforts, education and intellectual development. Since the

child is only five years, this Court has to decide for the child. The question as

to whether the father is fit to have custody or not is immaterial and it is the

welfare of the child that is important. This Court enquired with the

respondent as to how she would take care of the child as she was working.

The respondent replied that since the child is studying in a School she sends

off her child to school before she leaves for her job and the child is dropped

by the School Bus at her work place in the evening.

9. Having regard to the fact that the respondent is having custody of

her child for the past four years; that the respondent has been taking care of https://www.mhc.tn.gov.in/judis

C.M.A.NO.1935 of 2022

the child in spite of her employment and that she had made arrangements to

take care of him, this Court is of the view that in the interest and welfare of

the minor child, the custody has to be with the respondent.

10. Hence, this Court is of the view that the appellant cannot be

granted custody of the child. The order of the Principal District Judge,

Tirupur refusing to grant the custody to the Appellant cannot be faulted with

as it is well founded.

11. However, this Court is of the view that in the interest of the justice

the father/appellant should be allowed visitation rights.

Even though there is no specific prayer for the same, the father shall be

entitled to visit the child. This Court had asked the learned counsels on either

side to ascertain from the parties as to what time would be convenient for

both of them to allow the appellant to have the visitation rights. Both the

counsels submitted that the appellant can visit the child once in a fortnight at

a common place in Thiruppur. They suggested it could be at a Mall in

Thiruppur. Accordingly, this Court holds that the appellant along with his

parents can visit the minor child on the first and third Saturday of every

https://www.mhc.tn.gov.in/judis

C.M.A.NO.1935 of 2022

month between 6.30 P.M to 8.00 P.M at D Mart, Mall, Bharathi Nagar,

Ammapalayam, Tirupur,

12. In view of the submission of the learned counsel for the appellant

that the child’s birthday falls on 11.07.2023, the appellant is permitted to

meet the child along with his parents on that day between 6.30 P.M and 8.00

P.Mb at the same place (i.e.) D-Mart Mall, Bharathi Nagar,

Ammapalayam, Tirupur.

13. It is also made clear that if there is any difficulty in complying

above directions with regard to visitation for any reasons at a later stage,

it is open to the parties concerned to seek modification before the learned

Principal District Judge at Tiruppur and the learned Judge shall consider the

request and pass appropriate orders as deemed fit on merits.

14. With the above directions, this Civil Miscellaneous Appeal is

dismissed. Consequently, the connected Miscellaneous Petition is closed. No

Costs.

03.07.2023 dk Speaking Order / Non-Speaking Order Neutral Citation: Yes / No

https://www.mhc.tn.gov.in/judis

C.M.A.NO.1935 of 2022

To The Principal District Judge Trippur.

https://www.mhc.tn.gov.in/judis

C.M.A.NO.1935 of 2022

SUNDER MOHAN, J

dk

C.M.A.No.1935 of 2022 and C.M.P.No.13309 of 2023

Dated: 03.07.2023

https://www.mhc.tn.gov.in/judis