[Cites 3, Cited by 0]
Madras High Court
K.Priyanka vs S.Kamesh on 13 March, 2026
Author: P.Velmurugan
Bench: P.Velmurugan
O.S.A.No.43 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 10 / 03 / 2026
PRONOUNCED ON : 13 / 03 / 2026
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
and
THE HONOURABLE MR. JUSTICE K.GOVINDARAJAN
THILAKAVADI
O.S.A.No.43 of 2026
K.Priyanka ... Appellant
Vs.
S.Kamesh ... Respondent
Prayer: This Original Side Appeal is filed under Order 36 Rule 11 of
O.S.Rules r/w Clause 15 of Letters Patent, to set aside the order and decree
dated 10.12.2025 made in Application No.4808 of 2025 in O.P.No.498 of
2025.
For Appellant : Mr.P.Rajkumar
For Respondent : Mr.P.Raja
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O.S.A.No.43 of 2026
JUDGMENT
P.VELMURUGAN, J.
This Original Side Appeal has been filed by the appellant/wife,
K.Priyanka, challenging the order dated 10.12.2025 passed in Application
No.4808 of 2025 in O.P.No.498 of 2025, whereby the learned Single Judge
restricted her visitation with the minor child to three hours every Saturday at
Vadivudaiamman Temple, Tiruvottiyur, instead of granting interim custody
from Friday 5.00 p.m. to Sunday 5.00 p.m., as sought for by her.
2. The marriage between the appellant/wife and the
respondent/husband was solemnized on 23.08.2018. A male child, Karvik
Krishna, was born on 14.08.2020. The child has been diagnosed with Autism
Spectrum Disorder and requires continuous therapies and structured care.
Disputes subsequently arose between the parties and they have been
separated, leading to multiple legal proceedings. The respondent/husband
filed HMOP No.2558 of 2024 before the II Additional Family Court,
Chennai, seeking divorce under Section 13(1)(i-a) and (iii) of the Hindu
Marriage Act. The appellant/wife, in turn, filed HMOP No.2600 of 2025
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before the III Additional Family Court, Chennai, seeking restitution of
conjugal rights. Pending those proceedings, the appellant filed O.P.No.498
of 2025 before this Court under the Guardians and Wards Act, seeking
permanent custody and guardianship of the minor child. In the course of that
petition, she filed Application No.4808 of 2025 for interim custody. By order
dated 10.12.2025, the learned Single Judge recorded that the appellant had
sought interim custody of her minor son from Friday 5.00 PM to Sunday
5.00 PM every week. However, as against the prayer so made, the learned
Judge restricted the appellant’s visitation rights to three hours every
Saturday at Vadivudaiamman Temple, Tiruvottiyur. Similarly, in the original
petition, the respondent/husband had filed Application No.5230 of 2025
seeking issuance of summons to the Superintendent/Medical Record Officer,
Rajiv Gandhi Government General Hospital, Chennai, to produce the
complete and original medical records bearing Outpatient Sheet
O.P.No.530/02/2024, including the psychometric notes and consultation
reports pertaining to Mrs.K.Priyanka, before the learned Single Judge on a
date fixed by the Court. The learned Judge dismissed the said application.
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3. Aggrieved by the restriction imposed on her access to the child, the
present appeal has been preferred by the wife/appellant. The
respondent/husband has not chosen to file any appeal against the dismissal
of his application in Application No.5230 of 2025 .
4. The learned counsel for the appellant submits that the impugned
order of the learned Single Judge dated 10.12.2025 is unsustainable in law
and facts. The appellant had sought interim custody of her minor son from
Friday 5.00 PM to Sunday 5.00 PM every week. However, the learned Judge
restricted visitation to three hours every Saturday at Vadivudaiamman
Temple, Tiruvottiyur. The temple environment is crowded and noisy, wholly
unsuitable for a child diagnosed with Autism Spectrum Disorder, who
requires a calm, structured, and familiar atmosphere. Therapies for the child
are conducted only on weekdays, and no evidence was produced to show
that weekend custody would disrupt treatment. The appellant is educated,
capable of administering the prescribed diet and medications, and has
expressed willingness to share schooling and medical expenses.
Photographs and records of the earlier interim visitation for a period of 71
days, as per the interim order, demonstrate the child’s affection towards the
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mother. During the said visitation period, the respondent neither raised any
objection nor sought revocation or modification of the visitation order.
Restricting the appellant to three hours weekly reduces her role to a mere
observer, depriving the child of maternal love and care, and violating the
child’s right to receive emotional security from both parents.
5. The learned counsel would further point out that three hours per
week is grossly insufficient for a five-year-old child to bond with his mother
and for the mother to perform her maternal duties of feeding, bathing,
playing, and putting the child to sleep. There is no travel burden since the
appellant resides in Ennore and the respondent in Tondiarpet, a distance of
barely 10 kilometres. By contrast, the temple is crowded during weekends
and festive months, creating sensory overload for the child. Moreover, being
a woman, the appellant faces menstrual difficulties during specific periods,
making temple attendance uncomfortable due to religious sentiments. In
these circumstances, the learned counsel submits that the paramount interest
of the child requires modification of the impugned order by granting
weekend custody with the mother from Friday 5.00 PM to Sunday 5.00 PM
every week, in a safe, quiet, and familiar environment conducive to the
child’s wellbeing.
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6. Learned counsel for the respondent submits that the respondent has
been the primary caregiver of the autistic child for the past two and a half
years and has ensured that the child receives the required therapies and
medical treatment. It is also stated that, as noted in the psychometric
evaluation report, the appellant faces certain difficulties in handling a child
with autism. It is further submitted that the child requires regular and
structured therapies and medical care, which may be disturbed if weekend
custody is granted. Granting overnight custody to the appellant, when her
ability to manage the child’s special needs has not been clearly established,
may not be in the best interests and welfare of the child.
7. In reply, learned counsel appearing for the appellant submits that
Application No.5230 of 2025 filed by the respondent/husband, wherein
allegations were made regarding the mental instability of the appellant and a
prayer was made to summon her medical records, was dismissed by the
learned Single Judge. The learned Single Judge held that, at that stage, the
mental stability of the appellant could not be determined. Learned counsel
further submits that the appellant is capable of taking care of the child and
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that there is no legal impediment for the appellant to exercise custody or
visitation rights. It is also pointed out that the respondent has not chosen to
challenge the said order of dismissal. It is further submitted that the
appellant, being the mother, has been separated from the child for a
considerable period and has deeply missed the child’s presence. According
to the learned counsel, the care, affection and companionship of the mother
are essential for the emotional well-being and proper development of the
child. It is therefore urged that the presence of the mother in the life of the
child is of utmost importance and that she may be permitted to spend
adequate time with the child in the interest of the child’s welfare.
8. Heard the learned counsel on either side and perused the materials
available on record.
9. The admitted facts are that the appellant and the respondent are the
parents of the minor child, Karvik Krishna, aged about five years, who has
been diagnosed with Autism Spectrum Disorder and requires special care
and continuous therapies. Due to matrimonial disputes, the parties are living
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separately and the minor child is presently in the custody of the
respondent/father. The respondent has filed H.M.O.P.No.2558 of 2024
before the II Additional Family Court, Chennai, seeking divorce, while the
appellant has filed H.M.O.P. No.2600 of 2025 before the III Additional
Family Court, Chennai, seeking restitution of conjugal rights. The appellant
has also filed O.P.No.498 of 2025 before this Court seeking permanent
custody and guardianship of the minor child. Pending the said proceedings,
she filed Application No.4808 of 2025 seeking interim custody of the child
from Friday 5.00 p.m. to Sunday 5.00 p.m. every week.
10. The main contention of the respondent is that the minor child has
been diagnosed with Autism Spectrum Disorder and requires continuous
therapies, structured care and medical supervision. According to the
respondent, he has been taking care of the child and ensuring that the child
attends all required therapies. It is further contended that the appellant may
not presently be in a position to handle a child with such special needs and
therefore granting overnight custody may not be in the best interest of the
child.
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11. It is also relevant to note that the respondent had filed Application
No.5230 of 2025 seeking to summon certain medical records relating to the
appellant. The learned Single Judge dismissed the said application observing
that the question regarding the mental stability or otherwise of the appellant
cannot be determined at that stage. Therefore, the allegations made by the
respondent regarding the health condition of the appellant can be examined
only during the course of trial in the main Original Petition upon production
of evidence.
12. The learned Single Judge, while considering the materials placed
on record and the condition of the child, declined to grant interim custody to
the appellant as sought for and instead restricted her access to visitation
rights for three hours every Saturday between 3.00 p.m. and 6.00 p.m. at
Vadivudaiamman Temple, Tiruvottiyur.
13. The grievance of the appellant in the present appeal is twofold.
Firstly, she seeks modification of the impugned order by granting her interim
custody of the child from Friday 5.00 p.m. to Sunday 5.00 p.m. every week,
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as originally prayed for. Secondly, she contends that the temple premises are
usually crowded and not suitable for a child suffering from Autism Spectrum
Disorder, and therefore the place of visitation requires modification.
14. The question whether the appellant is capable of taking care of the
child, particularly a child with special needs, and the allegations raised by
the respondent regarding the appellant’s condition are matters which require
proper examination on evidence. Such issues can be decided only in the
main Original Petition for custody, after a full-fledged enquiry and upon
production of relevant medical records and other materials.
15. The learned counsel for the appellant contended that the minor
child is of tender age and therefore the custody should ordinarily be with the
mother in view of Section 6(a) of the Hindu Minority and Guardianship Act,
1956. The said provision reads as follows:
“The natural guardians of a Hindu minor, in respect of
the minor's person as well as in respect of the minor's property,
are—
(a) in the case of a boy or an unmarried girl—the father,
and after him, the mother; provided that the custody of a minor
who has not completed the age of five years shall ordinarily be
with the mother.”
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Though Section 6(a) of the Hindu Minority and Guardianship Act provides
that the custody of a minor who has not completed the age of five years shall
ordinarily be with the mother, the said provision cannot be applied
mechanically. The paramount consideration in matters relating to custody is
always the welfare of the child. In the present case, though the minor child
has crossed the age of five years, that by itself is not a decisive factor. The
child has been diagnosed with Autism Spectrum Disorder and requires
specialised care, structured therapy and continuous supervision. Therefore,
the welfare and special needs of the child must be given due importance
while considering the request for interim custody. The respondent has also
raised certain contentions regarding the appellant’s ability to take care of a
child with such special needs. These aspects, relating to the appellant’s
health condition and her capacity to care for the child, require proper
examination on the basis of evidence and can therefore be determined only
during the course of trial in the main Original Petition for custody.
16. It is also not the case of the appellant that the respondent/father is
acting against the welfare of the child or that he is not providing proper
treatment and care. In view of the above facts and circumstances of the case,
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this Court is not inclined, at this stage, to grant weekend custody from
Friday to Sunday as sought for by the appellant. Therefore, the arrangement
made by the learned Single Judge, restricting the appellant to visitation
rights instead of granting interim custody, does not warrant interference at
this stage.
17. However, the grievance of the appellant regarding the place of
visitation appears to be reasonable. The temple premises are generally
crowded, particularly during weekends and festival seasons, and such an
environment may not be conducive for a child with Autism Spectrum
Disorder. Though the appellant suggested that visitation may be permitted at
her residence, the respondent was not agreeable to the said proposal. In the
circumstances, this Court finds it appropriate to modify the place of
visitation so that the child may interact with the appellant in a comparatively
calm and open environment.
18. Accordingly, while declining to grant interim custody of the child
to the appellant at this stage, the place of visitation is modified from
Vadivudaiamman Temple, Tiruvottiyur to Arignar Anna Park,
Kathivakkam High School Road, Gandhi Nagar, Ennore, Chennai-
600057. The respondent shall bring and hand over the minor child to the
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appellant every Saturday between 3.00 p.m. and 6.00 p.m. at the said park,
and after completion of the visitation period, the appellant shall return the
child to the respondent at the same place.
19. It is made clear that the observations made in this order are only
for the purpose of deciding the present appeal relating to interim visitation
and shall not influence the learned Single Judge while deciding O.P.No.498
of 2025, which shall be decided independently on the basis of evidence and
materials produced by the parties.
20. With the above modification regarding the place of visitation, this
Original Side Appeal stands disposed of.
[P.V.J.,] [K.G.T.J.,]
13 / 03 / 2026
Speaking Order
Neutral Citation case: Yes
rns
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To
The Sub Assistant Registrar,
(Original Side)
Madras High Court,
Chennai.
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P.VELMURUGAN. J.
and
K.GOVINDARAJAN THILAKAVADI, J.
rns
Judgement in
13 / 03 / 2026
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