Madras High Court

Mr.M.S.Prakash vs Mrs.M.Aiswarya on 14 July, 2023

                                                                                 C.M.A.No.929 of 2022




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated: 14.07.2023

                                                 CORAM:
                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN
                                                C.M.A.No.929 of 2022

                     Mr.M.S.Prakash
                     S/o.M.Sellamuthu                                        ...Appellant


                                                            Vs.
                     Mrs.M.Aiswarya                                          ...Respondent


                     PRAYER : The Civil Miscellaneous Appeal is filed under Section 47(a)
                     of Guardianship and Wards Act, 1890, to set aside the order passed by the
                     Principal District Judge, Tirupur dated 31.01.2022 in GWOP.No.79 of
                     2018 and permit the petitioner/appellant to have visitation right of the
                     minor child as well as to declare the petitioner/appellant as the guardian
                     of the minor child Meegan Mithun, S/o.M.S.Prakash aged about 6 years.


                                     For Appellant      : Ms.S.Pooja Shree
                                     For Respondents : Ms.R.Rebecca Vasanthini Percy
                                                         for Mr.D.R.Arun Kumar




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                                                                                 C.M.A.No.929 of 2022



                                                          JUDGMENT

This Civil Miscellaneous Appeal has been filed challenging the

dismissal of the petition filed by the appellant seeking custody of the

minor child.

2. The appellant filed a petition seeking custody of the minor child

on the ground that the marriage between the appellant and the respondent

was solemnized on 29.08.2014; that out of the wedlock a male child by

name S.P.Meegan Mithun was born on 12.09.2015; that the respondent

after birth of the child started picking up frequent quarrels; that on

14.07.2016, the respondent left the matrimonial home without informing

the appellant; that the appellant therefore filed a petition seeking for

restitution of conjugal rights in H.M.O.P.No.110 of 2017; that the

respondent never allowed the appellant to visit the child; that the

appellant was willing to take care of the child and that it would be the

best interest of the child if the appellant has the custody of the child.

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C.M.A.No.929 of 2022

3. The respondent resisted the said petition on the ground that the

child was only 3 years old; that she had been taking care of the child ever

since the birth of the child and; that considering the welfare of the child,

the custody of the child may be retained by the respondent.

4. The appellant examined himself as P.W.1 and marked Exs. P1 to

P5. The respondent examined herself as R.W.1 and marked Exs.R1 to R5.

The Lower Court, after considering the oral and documentary evidence

had held that the financial capacity to maintain the child cannot be the

sole reason to order either the guardianship or the custody. Considering

the welfare of the minor child, the Trial Court observed that the petition

of the appellant deserved to be dismissed.

5. The learned counsel for the appellant submitted that the

respondent had never allowed the appellant to visit the child. The

appellant had filed a petition for restitution of conjugal rights and the

respondent as a counter blast had filed a petition for divorce. The

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C.M.A.No.929 of 2022

respondent did not appear regularly before the Trial Court in the petition

filed for custody by the appellant and she was set ex-parte thrice.

6. The learned counsel further submitted that the appellant is well

placed in life and it would be in the best interest of the child, if the

custody of the child is handed over to the appellant. The finding of the

Lower Court that the respondent is entitled to the custody is erroneous

and therefore, the same has to be set aside.

7. Per contra, the learned counsel for the respondent submitted

that the child is in the custody of the mother ever since he was born. The

child is studying in a school at Udumalpet, where the respondent is

residing. The respondent is taking care of the education of the minor

child. The learned counsel further submitted that in custody matters, the

only consideration for the Court is, the welfare and the interest of the

minor, that the Court would not consider the rights of the parties to claim

custody in such petitions; and that the children cannot be treated as

objects by disturbing their custody. Therefore, the learned counsel

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C.M.A.No.929 of 2022

submitted that the order passed by the Principal District Court, Tiruppur

does not suffer from any infirmity and hence, the appeal may be

dismissed.

8. This Court, on perusal of the order passed by the District Court

finds that the District Court had taken into consideration the fact that the

child was in custody of the respondent since his birth and after referring

to the law on the subject held on facts that in the interest of the minor

child, the custody should be with the respondent. This Court finds that

the child is aged about 7 years. It is well settled that the primary

consideration is welfare of the minor child. While dealing with the

custody petition, this Court also can consider the preference of the minor

child, however since the minor child is not old enough to form a

judgment, this Court has to take a decision in the best interest of the

minor child. The child is in the custody of the respondent for a long time

and the child is also pursuing education, in the place where the

respondent is residing. In such circumstances, it is highly undesirable to

grant custody of the minor child to the appellant. This would affect the

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C.M.A.No.929 of 2022

intellectual, moral physical development of the child. Considering all the

above facts, this court is of the view that the order passed by the Trial

Court does not suffer from any infirmity and has to be confirmed.

9. This Court while admitting the above appeal had passed a series

of orders as regards the visitation rights of the appellant/father. This

Court is of the view that the visitation rights of the father/appellant

cannot be denied. This Court after interacting with the child had passed

the following orders on 25.07.2022:

“It was informed that on 23.07.2022 at 05.00 p.m., the father had met his child and the interaction had proceeded well.

2. The child shall once again meet his father on 29.07.2022 and 30.07.2022 at 05.00 p.m at the residence of Mr.Muruganandham, S.S. Colony, Udumalpet.”

10. Subsequently the following order was passed on 08.08.2022:

“At the request of learned counsel for the appellant, the day of visiting is revised to every Friday and Saturday.

This arrangement shall continue till 03.09.2022. Post the

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C.M.A.No.929 of 2022

matter on 05.09.2022 under the caption “For Reporting Compliance.”

11. On 31.10.2022 on the complaint given by the appellant that the

maternal aunt and the maternal grand mother were preventing the

appellant from freely interacting with the child, this Court had passed the

following order:

“It is informed by the learned counsel for the appellant/father that the interaction between the father and son is going on smoothly. It is the maternal aunt and maternal grand mother who appear to be putting spokes to the father's free interaction with the child. It is made clear that in any of the further meeting of the child with his father, the maternal aunt and maternal grand mother of the chill shall not be present or in any way interfere with the father and the son's interaction. In case, it is reported that there is an interference, this Court will be constrained to pass restraint order.”

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12. In the same order i.e., order dated 31.10.2022, this Court also

had recorded an affidavit of undertaking filed by the appellant in

paragraph 2 of the said order, which reads as follows:

“2....

3. I beg to submit that I wholeheartedly accept, assure and undertake to borne the entire educational expenses of my son namely S.P.Meegan Mithun as a dutiful father for the welfare of my son. Further, I am intended to open a post office savings in the name of my son for his future welfare.

4. I beg to submit that there is no force or coercion or undue influence involved and wholeheartedly I undertake to borne the educational expenses of my son.

It is therefore most humbly prayed that the Honourable Court may kindly be pleased to direct the respondent to furnish the school details and a copy of the Aadhar Card of the minor child namely S.P.Meegan Mithun to me so as to enable me to borne the educational expenses of my son as well as to open a post office saving account in my son's name.”

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It is submitted by the learned counsel on either side that the

appellant had since borne the educational expenses of the child, the said

fact is recorded.

13. It is submitted that originally the father visited the child at a

relative's house of the respondent and subsequently, he visited the child

every Friday and Saturday at the residence of the respondent at

Udumalpet. The learned counsel appearing for the appellant further prays

that the appellant may be permitted to visit the child on his birthdays.

Hence there shall be a direction as follows:

(a) The appellant shall continue to visit the child at the residence of

the respondent every Friday and Saturday at 5.00 p.m.

(b) The appellant shall be entitled to visit the child on his birthday

on the 12th September of every year.

interact with the child freely without anybody's interference on all the

days of his visit.