Madras High Court
S.Sankara Narayanan vs T.Kamatchi Suganya on 5 January, 2024
C.M.A.(MD)No.1044 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.01.2024
CORAM:
THE HON'BLE MR.JUSTICE P. DHANABAL
C.M.A.(MD)No.1044 of 2014
S.Sankara Narayanan ...Appellant
Vs.
T.Kamatchi Suganya ...Respondent
PRAYER: This Civil Miscellaneous Appeal filed under Section 47 of the
Guardians and Wards Act, 1890, to set aside the fair and decreetal order
dated 20.03.2014 made in Guardian and Wards Original Petition No.53 of
2012 on the file of the II Additional District Judge, Tiruchirappalli.
For Appellant : Ms.J.Maria Roseline
For Respondent : Mr.V.Nagarajan
for Mr.G.Vidhya Maheswaran
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C.M.A.(MD)No.1044 of 2014
JUDGMENT
This Civil Miscellaneous Appeal has been preferred against the fair
and decreetal order dated 20.03.2014 made in Guardian and Wards
Original Petition No.53 of 2012 on the file of the II Additional District
Judge, Tiruchirappalli, wherein the appellant herein filed the Guardian and
Wards Original Petition No.53 of 2012 on the file of the II Additional
District Judge, Tiruchirappalli, for custody of the minor child to the
appellant / petitioner.
2. The brief facts of the petition before the trial Court are as
follows:-
(i) The marriage between the appellant / petitioner husband and the
respondent / respondent wife was solemnized on 21.06.2004 at Papaneri
village at Sivagangai Taluk. Due to the wedlock, a minor child, namely,
Yokesh Ram was born on 16.11.2006. Without any valid reasons, the
respondent / respondent wife left from the matrimonial home and resided
with her parents along with her minor child. The respondent / respondent
wife has not shown any interest in the welfare of the child. The appellant /
petitioner husband alone attended the needs of the minor child.
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(ii) While that being so, on 03.01.2011, the respondent / respondent
wife suddenly disappeared from the matrimonial home and did not return
and could not be traced out. On 04.01.2011, a police complaint was
lodged by the appellant / petitioner husband. Thereafter, it was known
that the respondent / respondent wife was staying in Ashram at Tanjore
and thereafter, the parents of the respondent / respondent wife took her to
their house. Thereafter, the respondent / respondent wife filed a petition in
HMOP No.45 of 2012 before the Principal Subordinate Court,
Tiruchirappalli for restitution of conjugal rights under Section 9 of the
Hindu Marriage Act and sought for interim custody of the child.
Thereafter, the petition in HMOP No.45 of 2012 was withdrawn on
29.02.2012. The respondent / respondent wife and her parents are not
sending the child to the school. On 13.04.2012, a lawyer notice was also
sent to the respondent / respondent wife. Hence, the appellant / petitioner
husband filed a petition to return the minor child to his custody.
3. The respondent / respondent husband filed a counter stating that
the relationship between the parties has been admitted. The appellant /
petitioner husband for the reasons known to him, prevented the love and
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affection towards the child. The appellant / petitioner husband caused
harassment to the respondent / respondent wife. After dismissal of HMOP
and after reunion, the appellant / petitioner husband has not shown any
interest and caused mental torture to the respondent / respondent wife.
The minor child is under the care and custody of the respondent /
respondent wife and he needs proper care and protection, which is being
provided by the respondent / respondent wife. The respondent /
respondent wife being the mother is the only person opt to show love and
affection towards the minor child. Now, the minor child is given
education in Trichy Mount Litera Zee School and he has been properly
maintained by the respondent / respondent wife with love and affection.
4. Before the trial Court, the appellant / petitioner husband himself
examined as PW1 and marked Exs.P1 to P11. On the side of the
respondent / respondent wife, she herself examined as RW1 and marked
Ex.R1.
5. After evaluating the oral and documentary evidence adduced on
either side, the trial Court has dismissed the petition, however, granted
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visitation rights for two occasions in a week. Aggrieved by the said order
of the trial Court, the appellant / petitioner husband, who is the father of
the minor child preferred this civil miscellaneous appeal on various
grounds. The main ground is that the respondent / respondent wife is
suffering from psychiatric problems and she is not providing healthy
environment, good parental care and guidance and only the appellant /
petitioner husband could provide good education to the minor child.
6. The learned counsel appearing for the appellant / petitioner
husband would contend that the minor child has been under the custody of
the respondent / respondent wife and the respondent / respondent wife is
not a fit person to take care of the minor child and she is suffering from
some illness and also the minor child was not admitted in a good school.
Only the appellant / petitioner husband could provide good education to
the minor child. But the respondent / respondent wife was not a fit person
to bring up the minor child in a good environment. These aspects have not
been considered by the trial Court and the trial Court erroneously
dismissed the petition. Hence, the appellant / petitioner husband filed this
appeal to set aside the order of the trial Court.
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7. The learned counsel appearing for the respondent would contend
that the respondent / respondent wife being the mother is taking care of the
minor child and the child is living happily with the mother and thereby, the
trial Court after taking consideration of all these aspects, rightly dismissed
the petition and hence, this appeal is liable to be dismissed.
8. Heard the learned counsel appearing for the appellant and the
learned counsel appearing for the respondent.
9. After hearing both sides and upon perusing the documents
including the order of the Tribunal by this Court, the point for
determination in this appeal is whether the appeal has to be allowed or not.
10. In this case, there is no dispute with regard to the relationship
between the parties and the contention of the appellant / petitioner
husband is that the appellant / petitioner husband being the father of the
child could provide good education and the respondent / respondent wife
is not a fit person to have the custody of the child. The main contention of
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the appellant / petitioner husband is that the respondent being the mother
of the minor child is not in a position to admit the minor child in a good
school and she is also having some illness and thereby she is unable to
maintain the minor child. It is admitted that the minor child has been
under the custody of the respondent / respondent mother for more than 13
years and now he is aged 17 years. According to the respondent /
respondent wife, the minor child was admitted in Trichy Mount Litera Zee
School and he is happily living with his mother. The minor child has been
under the custody of his mother for the past 17 years and he is going to
attain majority within ten months. It is admitted fact that the minor child
has been under the custody of the respondent / respondent mother for more
than 13 years and he is now aged 17 years.
11. Since the minor child has been under the custody of his mother
for the past 17 years and he is going to attain majority within ten months
and considering that there are no adverse materials to show that there is an
inconvenience to the minor child under the custody with his mother and
considering the welfare of the minor, it is appropriate to allow the minor
child to be in the custody with his mother. The trial Court has already
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granted visitation rights and thereby, the order passed by the trial Court is
in accordance with law and there is no infirmity found in the order of the
trial Court and this Court has no warrant to interfere with the order of the
trial Court.
12. In view of the aforesaid discussions, this Court is of the opinion
that the this appeal has no merits and deserves to be dismissed.
Accordingly, this civil miscellaneous appeal is dismissed. The order dated
20.03.2014 made in Guardian Wards Original Petition No.53 of 2012
passed by the II Additional District Judge, Tiruchirappalli. is confirmed.
No costs.
05.01.2024
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
sm
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TO:-
1.The II Additional District Judge, Tiruchirappalli.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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P. DHANABAL, J.
sm
Judgment made in
Dated:
05.01.2024
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