Madras High Court
J.Sakthi Devi @ Christi vs Joseph Charles on 24 October, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
2024:MHC:3746
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
AND
THE HON'BLE MR.JUSTICE K.K.RAMAKRISHNAN
C.M.A(MD)No.17 of 2019
and
C.M.P(MD)No.7405 of 2023
J.Sakthi Devi @ Christi ... Appellant/Respondent
.Vs.
Joseph Charles ... Respondent/Petitioner
PRAYER: Civil Miscellaneous Appeal filed under Section 47 of the Guardian
and Wards Act, praying this Court to set aside the fair and decretal order made in
G.W.O.P.No.36 of 2015, dated 19.11.2018, on the file of Family Court, Madurai.
For Appellant : Mr.S.Venkatesh
For Respondent : Mr.G.Prabhu Rajadurai
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JUDGMENT
(Order of the Court was made by P.VELMURUGAN,J)
The Civil Miscellaneous Appeal is directed against the fair and decretal
order made in G.W.O.P.No.36 of 2015, dated 19.11.2018, on the file of Family
Court, Madurai.
2.The respondent/husband filed G.W.OP.No.36 of 2015 under Sections 25
and 43 of the Guardian and Wards Act, 1980, for custody of their minor children
Gabriel Marianova and Issac, on the file of Family Court, Madurai. The Judge,
Family Court, Madurai, after enquiry, allowed the Petition and granted an order of
interim custody of the children to the appellant. Challenging the said order, the
respondent therein filed the present Civil Miscellaneous Appeal.
3.The appellant is the mother of the children by name, Gabriel Marianova
and Issac and the respondent herein is the father of the children. According to the
respondent, their marriage was solemnized on 23.08.2009 at Fathima Church
according to Christian rites and customs and thereafter, there was
misunderstanding arose between them and hence, the appellant left the
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matrimonial home and and they are not allowing him to see the children and the
children are with the appellant and therefore, they filed petition under Sections
25 and 43 of the Guardian and Wards Act.
4.The case of the appellant is that the marriage is admitted. The
relationship is admitted and on the ill-advise of their parents, brother and sister,
the respondent caused cruelty both mentally and physically. The respondent also
demanded dowry and driven her out from the matrimonial home. Even on the
advise of the well wishers, the respondent did not take her back to the
matrimonial home. He also caused mental as well as physical cruelties and not
taking care of the children. If the children are handed over to the respondent,
there is life threat to the children and therefore, the learned Judge, Family Court,
Madurai failed to consider the same and granted interim custody to the
respondent. Therefore the present appeal came to be filed.
5.The learned counsel for the appellant would further submit that after
marriage, the appellant was with the respondent in the matrimonial home. Their
parents and in-laws harassed her and they also demanded dowry. Even during the
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pregnancy period, they compelled her to do all the household works and even
they did not provide her with proper food at the time of pregnancy and since the
sister-in-law of the appellant was in the family way and therefore the respondent
and their parents forcibly sent the appellant to the parental home stating that it is
not advisable to reside two pregnant women to have in the same house.
Thereafter, she gave birth to the child. They did not take her back and
subsequently on the advise of the well wishers came back to the matrimonial
home and after that she became pregnant for the second baby. At that time, they
did not take care of the appellant and she was physically and mentally harassed
by the respondent and she was driven back to the parental home and they also
demanded dowry and caused cruelty and therefore the appellant preferred police
complaint, as the harassment of the family members of the respondent is on
extreme end and thereafter, she was forced to go to her parental home and the
respondent did not take any care of the appellant or their children. The
respondent is a mentally ill person. If the respondent is allowed to have the
custody of the children, there is no guarantee for the life of the children.
6.The learned Single Judge failed to consider the facts and simply allowed
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the custody considering the fact that the respondent is the biological father.
Except the qualification of biological father of the children, he has no other
quality and therefore, the appeal has to be allowed.
7.The learned counsel for the respondent would submit that even after the
order passed by the Court, the appellant did not hand over the children and the
children are still with the appellant and only due to the harassment of the
appellant, he was mentally disturbed and also took treatment and subsequently he
has become all-right. The appellant has on her own voluntarily left the
matrimonial home due to the ill advise of her parents and brothers and the
respondent never caused any cruelty and also even the appellant is not taking
care of the children and she has no means to maintain the children. They stated
one thing in the maintenance petition filed under Section 125 of Cr.P.C and other
things in the counter statement and she has not proved the averments made in the
counter statement and the allegations in the counter statement have to be
substantiated by the appellant. Considering the above facts, the Family Court,
Madurai ordered for interim custody of the children to the appellant. The
appellant taking advantage of the pending appeal, they are not allowing the
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respondent to see the minor children and even on the ill advise of the appellant
and their parents, they have not even see the appellant. Therefore the appeal is
liable to be dismissed.
8.Heard the submissions made on either side and perused the materials
placed before this Court.
9.Admittedly, the marriage of the Petitioner and respondent was
solemnized according to Christian rites and customs. Through their wedlock,
they begotten two male children by name Gabriel Marianova and Issac
Admittedly, now the children are with the appellant. Though the appellant has
levelled certain allegations against the respondent, who is the father of the
children, a reading of the entire materials except the fact that the respondent has
not examined any independent witness. Though they claim that the respondent
husband was mentally ill person and that the appellant has also given so many
complaints and cases against the respondent and the same are pending, the
appellant has not produced any materials to substantiate her allegations and no
document was produced. However, on the other hand, the respondent has
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examined himself as P.W.1 and one Arokiasamy as P.W.2.
10.The only question that arose for consideration in this appeal is as to
whether the custody order with condition granted by the Family Court, Madurai
is liable to be set aside?
11.The relationship of the parties are admitted. Admittedly, the respondent
is the father of the children and admittedly, the children are with the appellant.
The appellant /wife is living separately and she is not with the respondent. They
also stated that the respondent is a mentally retarded person and no materials
whatsoever was produced to prove the same. The respondent himself has stated
that due to mental torture given by the appellant, he was suffering with some
mental depression. For the same, he took treatment But the entire materials show
that the father is not disqualified for having the custody of the children. As far
as the custody is concerned, interest of the children is of paramount
consideration. Admittedly, the appellant is the mother and the respondent is the
father of the children. The respondent has filed petition for custody of his
children. The appellant has not proved that the respondent is acting against the
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interest of the children. Except certain allegations as already stated, the appellant
has not proved the same in the manner known to law, by examining any
independent oral evidence or by production of documentary evidence. Since the
petition for custody is summary in nature, the Court has to see the interest of the
children as a paramount consideration. The respondent is the biological father,
who is the natural guardian. Unless some reason is given that the biological
father is acting against the interest of the children, he cannot be disqualified and
otherwise also, the appellant has not proved any disqualification with the
respondent for having the custody of the children. Admittedly, the appellant also
admitted that the respondent is an earning member, earning a sum of Rs.1 lakh
per month and also having other properties. Therefore, the financial capacity of
the respondent is also not in dispute. Since there is no material to show that the
respondent is a mentally retarded person and he is acting against the interest of
the children, the respondent is entitled for the interim custody to see the minor
children. The Judge, Family Court, Madurai after considering all the facts,
ordered for interim custody and interim custody was given to the respondent only
for the limited period. Therefore under these circumstances, on a perusal of the
entire materials produced before this Court, this Court finds no merit in the
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appeal. Even after the Family Court passed an order and even advised the
appellant, the appellant has adamantly not permitted the respondent to see the
minor children and not stopped with that, on ill-advise of her parents, brothers
and sisters, the appellant has not allowed the respondent to see the children,
despite getting orders from the Court. Further the appellant also not interested
in prosecuting the appeal taking advantage of the interim order. Therefore, under
these circumstances, this Court finds no merit in the appeal and the appeal is
liable to be dismissed. Considering the attitude of the appellant, the appeal
deserves to be dismissed with costs.
12.Accordingly, the Civil Miscellaneous Appeal is dismissed with costs.
Consequently, connected Miscellaneous Petition is closed.
(P.V.,J.) (K.K.R.K.,J.)
24.10.2024
NCS : Yes/No
Index : Yes / No
Internet : Yes / No
vsn
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To
The Judge,
Family Court,
Madurai.
Copy to
The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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P.VELMURUGAN,J.
and
K.K.RAMAKRISHNAN,J.
vsn
JUDGMENT MADE IN
and
24.10.2024
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