Selvakumar Vs Vijayashanthi — Child Custody and Guardianship | Madras HC (2025)

Selvakumar Vs Vijayashanthi — Child Custody and Guardianship | Madras HC (2025)

What the court decided

AI extract

Outcome

CMA No.953 of 2020 (filed by the husband/petitioner) is dismissed; CMA No.961 of 2020 (filed by the wife/respondent) is allowed and G.O.P. No.4 of 2019 on the file of the Family Court is dismissed (the G.O.P. is referred to as G.O.P.No.4 of 2018 in the cause title and prayers); the one-day weekly custody clause in favour of the father does not survive and the child remains in the mother's custody; CMP No.18713 of 2022 (additional evidence) stands dismissed; parties shall bear their own costs.

Issue for consideration

Whether the child was in custody of the petitioner from 28.03.2015 to 11.10.2015 (Point No.1 framed by the Family Court). +3 more

Court's answer

On the evidence of R.W.5 (Dr.Anni Besant, General Hospital, Karaikal) that the child was admitted on June 23, 2015, July 5, 2015 and again on August 31, 2015 in the ICU, each time by the respondent side (corroborated by Exs-R.2 to R.8 and Ex-X.1), the contention that the child was in the petitioner's sole custody for seven months (March 28, 2015 to October 11, 2015) is belied; the minor child has never been in the sole custody of his father.

Ratio / Principle

The Order XLI Rule 27 CPC application (CMP No.18713 of 2022) for reception of additional evidence is dismissed: the Sale Deed and Gift Settlement Deed stand in the mother's name and the Income Tax Returns show gross income of only around Rs.4,00,000/-; sufficient documents were already marked, and the child's interest is paramount, not the financial status of the parties — financial status is only one factor and not decisive in custody cases.

Key takeaways

The interim weekend custody arrangement before the Child Welfare Committee failed: R.W.3, the Legal cum Probation Officer, deposed that despite trying on two occasions the minor refused custody of his father and held to his mother weeping, refusing to be with his father.ratio¶117
It is settled law that in matters of custody of children the welfare (both physical and mental) and wishes of the child hold paramount importance; the child refuses to be with his father even for two hours (mediation report after the Order dated September 18, 2024) and desires only the custody of his mother.ratio¶128

Detailed headnote1 paragraphs

Custody of minor son (born December 9, 2012) — Cross Civil Miscellaneous Appeals under Section 19 of the Family Court Act, 1984 against the Fair and Decretal Order dated December 17, 2019 of the Family Court, Karaikal in G.O.P.No.4 of 2018, which had granted the father one-day weekly custody (every Sunday, 09.00 a.m. to 04.00 p.m.) — Held, allowing the wife's appeal and dismissing the husband's appeal: in custody matters the welfare (physical and mental) and wishes of the child hold paramount importance; the child consistently refused to be with his father — R.W.3 (Legal cum Probation Officer) deposed the minor refused custody on two occasions, weeping and clinging to his mother, and the mediation report pursuant to the Order dated September 18, 2024 showed the child still refused his father's company even for two hours; hospital admissions proved by R.W.5 belied the claim that the child was ever in the father's sole custody (March 28, 2015 to October 11, 2015); the father, by his own deposition, was not involved in the child's life, education or expenses, while the mother (a school teacher in the child's school) single-handedly provided education and care; although the father is the natural guardian under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the welfare of the minor prevails and it is best for the child to be with his mother; financial status is only one factor and not decisive — additional evidence under Order XLI Rule 27 CPC (Sale Deed, Gift Settlement Deed, Income Tax Returns) rightly rejected and CMP No.18713 of 2022 dismissed; parties to bear their own costs.

CMA NOS.953 & 961 OF 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

JUDGMENT RESERVED ON: 12 / 11 / 2024

JUDGMENT DELIVERED ON: 29 / 04 / 2025

CORAM:

THE HONOURABLE MRS. JUSTICE J.NISHA BANU AND THE HONOURABLE MR. JUSTICE R.SAKTHIVEL

CMA NOS.953 AND 961 OF 2020 AND CMP NO.6020 OF 2020 IN CMA NO.953 OF 2020 AND CMP NO.6060 OF 2020 IN CMA NO.961 OF 2020 AND CMP NO.18713 OF 2022 IN CMA NO.953 OF 2020

CMA NO.953 OF 2020

Selvakumar ... Appellant / Petitioner Vs.

Vijayashanthi ... Respondent / Respondent

PRAYER : Civil Miscellaneous Appeal filed under Section 19 of the Family Court Act, 1984, praying to set aside the Fair and Decretal Order dated December 17, 2019 passed in G.O.P.No.4 of 2018 by the learned Family Court Judge, Karaikal.

For Appellant : Mr.S.Selvanandan For Respondent : Mr.R.Natarajan

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CMA NO.961 OF 2020

Vijayashanthi ... Appellant / Respondent Vs. Selvakumar ... Respondent / Petitioner

PRAYER : Civil Miscellaneous Appeal filed under Section 19 of the Family Court Act, 1984, praying to modify Clause 2 of the Fair and Decretal Order dated December 17, 2019 passed in G.O.P.No.4 of 2018 by the learned Family Court Judge, Karaikal.

For Appellant : Mr.R.Natarajan For Respondent : Mr.S.Selvanandan

COMMON JUDGMENT

R.SAKTHIVEL, J.

Challenging the Fair and Decretal Order dated December 17, 2019 passed by the 'Family Court, Karaikal' ['the Family Court' for short] in G.O.P.No.4 of 2018, the petitioner therein / husband has preferred CMA No.953 of 2020.

2. Seeking to set aside Clause 2 of the Fair and Decretal Order

dated December 17, 2019 passed in G.O.P.No.4 of 2018 by the Family

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Court, the respondent therein / wife has preferred CMA No.961 of 2020.

3. For the sake of convenience, henceforth, the parties will be referred to as per their array in the Original Petition.

CASE OF THE PETITIONER (HUSBAND)

4. The petitioner and the respondent got married on January 30, 2012 as per Hindu Rights and Customs. Out of their wedlock, a male child was born on December 9, 2012. According to the petitioner, problems began when the respondent left the matrimonial home on March 28, 2015 along with the child and moved in with her father in Thirunallar.

4.1. Later, the respondent accused him of taking their son unlawfully, and she even filed a police complaint on August 31, 2015, based on which Thirunallar Police Station registered a criminal case against the petitioner in Crime No.99 of 2015. The petitioner, in turn, moved a pre-arrest bail petition before this Court under Section 438 of the Code of Criminal Procedure, 1973. While granting pre-arrest bail, this Court directed the petitioner to return the child to the respondent and granted the petitioner weekend custody for two days. Despite the order of

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this Court, the respondent and her family did not allow the petitioner to visit his child, even after the Court imposed a fine on the respondent for non-compliance with the order.

4.2. The petitioner claims that he can provide a better environment for his son. Hence, he filed the petition seeking direction to the respondent to restore the custody of the minor child to the petitioner.

CASE OF THE RESPONDENT (WIFE)

5. The respondent filed counter stating that while the petitioner worked abroad, she was mistreated by his family and faced physical and emotional abuse. She was denied proper care during her pregnancy and she was even assaulted. Although she brought a dowry of Rs.2,00,000/- and gold at the time of marriage, the petitioner's family kept demanding more money. She did not leave her matrimonial home willingly, but she was forced out by the petitioner and his family members. She filed a petition for divorce due to this cruelty. The respondent also denied blocking the petitioner's visitation rights. Further, the petitioner has criminal cases pending against him and hence, giving custody of the child, who is 5 ½ years old (at the time of petition), is not safe for the child.

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Moreover, the petitioner has an age old mother and giving custody of the child to the petitioner would not in any manner be in furtherance of the welfare and interest of the child. The respondent is a B.Sc. B.Ed. Graduate and is working as a school teacher. She has single-handedly been providing good education and proper care to the child since birth and hence, separating him from the mother / respondent will affect him emotionally. The minor son is also not willing to go with the petitioner. Accordingly, she prayed to dismiss the Original Petition.

FAMILY COURT

6. The Family Court framed the following points for

consideration:

“1.Whether the child was in custody of petitioner from 28.03.2015 to 11.10.2015?

2.Whether the petitioner is entitled for custody of the child?”

7. On the side of the petitioner, petitioner was examined as

P.W.1 and one Matharaman was examined as P.W.2 and Ex-P.1 to Ex-P.39

were marked. On the side of the respondent, respondent was examined as

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R.W.1 and four other witnesses were examined as R.W.2 to R.W.5 and ExR.1 to Ex-R.30 were marked. Copy of OPD Register was marked as ExX.1.

8. The Family Court, after analyzing the oral and documentary evidences available on record, concluded that the child was not in custody of the petitioner till August 31, 2015 and accordingly, answered Point No.(i). As regards Point No.(ii), it held that the child is well settled and accommodated with his mother, at the same time, the petitioner being the child’s father would also have love and affection towards the child. Accordingly, it allowed the petition in part and held that the petitioner is entitled for the custody of the child for one day in a week i.e., on every Sunday from 09.00 a.m., to 04.00 p.m., and the petitioner was also directed not to take the child out of Karaikal, not to provide any unhygienic foods, beverages, snacks and not to use unparliamentary words to him.

9. Feeling aggrieved, the petitioner has preferred CMA No.953 of 2020 seeking to set aside the Fair and Decretal Order passed by the Family Court.

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10. Likewise, seeking modification in Clause 2 of the Fair and Decretal Order dated December 17, 2019 passed in G.O.P.No.4 of 2018 by the Family Court, the respondent / wife has preferred CMA No.961 of 2020. For convenience sake, Clause 2 of Fair and Decretal Order is extracted hereunder:

“The relief is molded as the petitioner is entitled for the custody of child Ravivarman for one day in a week i.e. on every Sunday from 9.00 a.m. to 4.00 p.m.”

ARGUMENTS

11. The learned Counsel for the appellant / petitioner / husband submitted that the respondent, without any sufficient cause, left the matrimonial home on March 28, 2015 leaving behind the minor with the petitioner. Subsequently, she filed a police complaint before Thirunallar Police Station as if the petitioner unlawfully took custody of the minor child. The petitioner moved anticipatory bail in Crl.O.P.No.23336 of 2015, wherein this Court directed the petitioner to handover the minor child to the respondent permitting the petitioner to have legal custody of the child during the weekends. As per the direction, the petitioner handed over the minor child to the respondent on October 11, 2015. On October 17, 2015

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(weekend), when the petitioner visited the respondent’s house for custody of the minor child, the respondent refused to allow the petitioner to see this child, and thus, disobeyed the order of this Court. His various attempts to see the child went in vain. Hence, he filed Contempt.O.P.No.2714 of 2015 wherein this Court directed the respondent to handover custody of the child. The respondent failed to comply with the said Order as well. In the meantime, the respondent filed M.O.P.No.44 of 2016 seeking dissolution of marriage on the ground of cruelty. Further, the respondent filed false complaint against the petitioner, as if the petitioner abducted the child and got a criminal case registered against him. Thereafter, the petitioner filed the Original Petition seeking custody of the child which the Family Court partly allowed without appreciating the evidence available on record in the right perspective. It failed to note that the minor son was tutored to avoid his father / petitioner.

11.1. The learned Counsel further submitted that the

petitioner’s mother owns house building and that the petitioner has sufficient income to provide good education as well as to take care of the needs of the child. The petitioner filed Sale Deed dated June 13, 2013 and Gift Settlement Deed dated February 23, 2017, both standing in the name

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of petitioner’s mother as well as his Income Tax Return for the Assessment Years from 2019-2020 to 2022-2023, as additional evidence to substantiate that he has sufficient means to support the child. It is further submitted that the said documents were inadvertently omitted to be filed before the Family Court. Accordingly, he prayed to allow CMA No.953 of 2020 as well as the Order XLI Rule 27 of Code of Civil Procedure, 1908 Application in CMP No.18713 of 2022 and accept the additional evidence.

12. Per Contra, the learned Counsel for the respondent / wife submitted that all along, the minor child is under the care and custody of the respondent. Due to the torture given by the petitioner, his parents and brother, the respondent was forced to leave her matrimonial house along with her minor child. On August 31, 2015, the petitioner assaulted the respondent and his minor child, and snatched the minor from the respondent’s hands. Hence, the respondent preferred a complaint with police, and a criminal case was registered against the petitioner. The petitioner moved anticipatory bail before this Court in Crl.O.P.No.23336 of 2015 and this Court passed Order, whereby the custody of the minor was restored and the petitioner was given two days weekend custody of the child. However, the minor son felt scared to go alone with the petitioner

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and hence, said Order of this Court could not be complied with. There is no willful disobedience of the Order. Further, the respondent is working as

a school teacher in the same school where the minor child is studying. The respondent / mother alone can give good education and bring up the child in a proper manner. The Family Court failed to note the evidence of R.W.3 (legal cum probation officer) who clearly deposed that, despite attempting on two different days, the child refused to go with the petitioner. In these circumstances, the Family Court ought not to have ordered one day custody every week in favour of the petitioner. Further the learned Counsel drew the attention of this Court to the Mediator’s Report dated September 18, 2024 and argued that even in the recent year 2024, the child is not willing to go with his father / petitioner. In these circumstances, for the best interest and welfare of the child, Clause 2 of the Fair and Decretal Order providing one day custody to the child during every weekend must be set aside.

12.1. As regards the Order XLI Rule 27 Application, the learned Counsel would contend that the reason stated in the affidavit is not satisfactory and nor it is believable and moreover, the Sale Deed and the Gift Settlement Deed standing in the name of the petitioner’s mother will

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not in anyway help to decide the case. The Income Tax Returns show that the petitioner’s gross income is ranging between Rs.3,00,000/- and Rs.4,00,000/- and it would also not help in deciding the case. Accordingly, he prayed to dismiss CMA No.953 of 2020 and CMP No.18713 of 2022 while allowing CMA No.961 of 2020.

DISCUSSION

13. This Court has heard the submissions made on either side and perused the materials available on record.

14. As regards the Order XLI Rule 27 Application, the Sale Deed and the Gift Settlement Deed sought to be received are standing in the name of the petitioner’s mother. The Income Tax Returns would show that the petitioner’s gross income is around Rs.4,00,000/-. In this case, already sufficient documents have been marked. The documents sought to be received would not help the petitioner in any manner as the child’s interest is paramount here and not the financial status of the parties seeking custody. The question to be decided is with whom the child would be happy and who can provide good education and bring up the child in the proper and right manner. It is true that financial status is one of the factor

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for consideration in custody cases, but that alone should not be given significance, especially in the facts and circumstances of this case. Hence, this Court is not inclined to allow the Order XLI Rule 27 Application.

CMP No.18713 of 2022 is accordingly dismissed.

15. As stated supra , the question is with whose custody the child would be happy and his welfare and interests would be furthered. The child was born on December 9, 2012. On the date of petition, the child was 5 ½ years old. Admittedly, the parties are Hindus and hence, the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956 are the applicable laws. Even according to the petitioner, the child was under the care and custody of the respondent from birth till March 28, 2015 and thereafter, from October 11, 2015 till date. That is to say, the child was under the sole custody of the petitioner only for the in-between period of seven months. P.W.1 / petitioner in his evidence has deposed that he does not know about the education and achievements of the child in various arenas. While he has said that he was not let to know where his son is studying, cumulative reading of his deposition show that he has not taken steps nor has he been keen on knowing about his son. It is inferred that the petitioner has not been involved much in his child’s life. Further,

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there is no evidence available on record to show that he spent for the minor’s education. His deposition is silent in this aspect. Relevant portions of his deposition reads as hereunder:

“Foe;ij jw;NghJ vd;d gbf;fpwJ vd;why; Foe;ij jw;NghJ 2-tJ gbg;gjhf ePjpkd;wj;jpy; njuptpj;Js;shu;fs;. 4 tajpy;> Foe;ij vd;d gs;spapy; Nru;j;Js;shu;fs; vd;gij mwpa Kaw;rp nra;jPu;fsh vd;why;. Kaw;rp nra;Njd;. Mdhy; me;j tpguj;ij nrhy;y kWj;Jtpl;lhHfs;. jpUes;shupy;> vjpu;kDjhuu; rk;ke;jg;gl;ltuplk; tpguj;ij Nfl;Nld;. mtu; ngau; njupahJ> Ms; njupAk;. jpUes;shupy; cs;s gs;spfSf;Fr; nrd;W Foe;ij ve;j gs;spapy; gbf;fpwJ vd;W njupe;J nfhz;Bu;fsh vd;why; ,y;iy. Foe;ijia 3 tajpy; LKG-y;

Nru;j;Js;shu;fs; vd;Wk; ,e;j tpguk; njupAkh vd;why; njupahJ. 2017-k; Mz;L Foe;ijia Mz;ltH Mq;fpy cau;epiyg;gs;spapy; LKG-y; Nru;j;J> tpisahl;by; rpwe;j khztu; vd;why; mJ gw;wp vdf;F njupahJ. Mz;ltu; Mq;fpy cau;epiy gs;spapy; Foe;ij tFg;gpy; Kjy; khztu; vd;W rhd;W ngw;Ws;shu; vd;why; mJ gw;wp vdf;F njupahJ> jw;NghJ Foe;ij ve;j gs;spapy; gbj;J tUfpwhu; vd;W vdf;F njupahJ. vjpu;kDjhuu; B.Sc., B.Ed., Kbj;Js;shu;. vjpu;kDjhuu; jw;NghJ tpdpj; Mq;fpy gs;spapy; Mrpupauhf gzp Gupe;J &.10>000/- khj tUkhd

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ngw;W tUfpwhH vd;why; vjpu;kDjhuu; &.5>000/ngw;W tUtjhf ,ilepiy kDtpy; Fwpg;gpl;Ls;shu;. jw;nghOJ Foe;ij tpdpj; gs;spapy; 2-k; tFg;G gbj;J tUfpwhu; vd;w tpguk; njupAkh vd;why; njupahJ. Foe;ij vd;d gbf;fpwhu; vd;Wk; Foe;ijapd; capacity vd;dntd;Wk;> Foe;ij kPJ mf;fiu vLj;Jf;nfhs;stpy;iy vd;why; rupay;y. ... ... ...

24.03.2018-y; jpUes;shW Nghyprhu; vd; kPJ> Foe;ijia flj;jpajhfTk;. nfhiy Kaw;rp nra;jjhfTk;> fhaq;fs; cz;lhf;fpajhftk;> mtu;fSf;F mr;rj;ij cz;lhf;fpajhfTk;> Kjy; jfty; mwpf;if gjpT nra;ag;gl;lJ vd;why; rup> Mdhy; mJ ngha; tof;fhFk; Foe;ijia flj;jpr; nrd;W fhupy; nrd;wNghJ> Nrj;J}upy; top kwpj;J Nghyprhu; vd;id ifJ nra;jhu;fs; vd;why; rup. Mdhy; ehd; Foe;ijia flj;jpr; nry;ytpy;iy. Nghyprhu; vd;id mioj;J nrd;whu;fs;. me;j tof;F epYitapy; cs;sJ vd;Wk; Fw;wthsp ,y;iy vd;W ePjpkd;wk; jPu;g;G toq;ftpy;iy vd;why; nrd;id cau;ePjpkd;wj;jpy; quash petition jhf;fy; nra;J> mjpy; jilahiz toq;fpAs;shu;fs;. nrd;id cau;ePjpkd;wj;jpy; me;j tof;fpy; Fw;wthsp vd nrhy;ytpy;iy Mdhy; quash petition epYitapy; cs;sJ. ... ... ...

2016-k; Mz;by; vjpHkDjhuH jpUes;shupy; cs;s Mz;ltu; Mq;fpy cau;epiy gs;spapy; Mrpupauhf gzp Gupe;jhu; vd;W vdf;F

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njupAk;. vjpu;kDjhuu; gzp GupAk; gs;spf;F “vjpu;kDjhuiu Ntiyia tpl;L> gzp ePf;fk; nra;ahtpl;lhy;> gs;sp epu;thfk; kPJ> rl;lg;G+u;tkhd eltbf;if vLg;Ngd; vd;gijAk;> rk;ke;jg;gl;l fy;tp cau; mjpfhupfSf;F mwptpg;G mDg;GNtd; vd;W Fwpg;gpl;L fbjk; mDg;gpNdd;" vd;why; rup. me;j fbjk;jhd; vd;dplk; fhl;lg;gLtJ> me;j fbjk; Ex.R1 MFk;. vjpu;kDjhuUf;F njhe;juT nfhLf;f Ntz;Lk; vd;Wk; vjpu;kDjhuUf;F MjuT mspg;gtu;fSf;F njhe;juT nfhLf;f Ntz;Lk; vd;gJjhd; vd;Dila Fzhjpark; vd;why; rupay;y.”

16. Further, R.W.5 – Dr.Anni Besant from General Hospital,

Karaikal has deposed that the child was admitted first on June 23, 2015 and then again on July 5, 2015 in the general ward. Further, she has deposed that the child was admitted once again on August 31, 2015 in the Intensive Care Unit (ICU). According to her, it was the respondent side who admitted the child every time and Exs-R.2 to R.8 – Prescriptions as well as Ex-X.1 – OPD Register corroborate the said facts. These belies the contention of the petitioner that the child was under his custody for seven months i.e., from March 28, 2015 to October 11, 2015. Thus, it can be said that the minor child has never been in the sole custody of his father /

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petitioner.

17. That apart, the Family Court passed an interim Order dated May 28, 2019 granting one day custody of the child every weekend to the petitioner in the premises of Child Welfare Committee Office. It further ordered that the respondent shall stay away from the child during the custody time enabling the child to move freely and interact with the petitioner. However, the efforts proved futile as evident from the deposition of R.W.3, Legal cum Probation Officer attached to the Child Welfare Committee Office. He has deposed that despite trying on two occasions, the minor refused the custody of his father / petitioner. He has further deposed that the child held to his mom weeping and refusing to be with his father.

18. Now, R.W.1 deposition draws the attention of this Court. It could inferred from her deposition that she has taken care of the child’s education from LKG and that the child has been performing well in academics, while under her sole custody. Relevant portion of her evidence reads thus:

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“tof;fpd; Nghf;Ffs; vg;gbapUe;jhYk; ,J Foe;ijapd; vjpu;fhyj;ijAk; fy;tpiaAk; ghjpj;J tplf;$lhJ vd;w vz;zj;jpy; Foe;ijaia Foe;ijf;F %d;wiw tajhfapUf;Fk;NghNj jpUes;shupy; cs;s rpwe;j gs;spfspd; xd;whd Mz;ltu; cau;epiyg;gs;spapy; L.K.G tFg;gpy; Nru;Njd;. ehDk; Mrpupau; gzpf;F gbj;jpUe;jjhy; mNjg;gs;spay; Mrpupauhf gzpapy; NrHe;Njd;. Foe;ijapd; fy;tp tsu;r;rpNahL mtd; cly; kw;Wk; kdeyj;ijAk; ftdpj;J nfhz;Nld;. L.K.G y; 2016-17 gbj;J ,Wjp Mz;by; tpisahl;by; ,uz;lhk; gupRg;ngw;whd;. mNj gs;spapy; Kjy; tFg;G gbf;Fk;NghJ 2018-2019 y; tFg;gpy; Kjy; khztdhf Nju;r;rp ngw;wjhy; mtDf;F gs;spapy; tFg;gpy; Kjy; khztd; vd;W rhd;wpjOk; toq;fg;gl;lJ.

Mz;ltu; cau;epiyg;gs;spapy; vdf;F khj Cjpak; Fiwthf ,Ue;jjhy; jpUes;shupy; cs;s tpdpj; ,q;fpyp; cau;epiyg;gs;spapy; khj Cjpak; mjpfkhf nfhLg;gjhf gs;sp epu;thfk; mwptpj;J jFe;j Mrpupau;fis epakpf;f ,Ug;gjhf mwpe;J ehd; tpdpj; Mq;fpy cau;epiyg;gs;spf;F tpz;zg;gpj;J 2019y; gzpapy; Nru;e;Njd;. ehd; gzpnra;Ak; gs;spapy; Foe;ij utptu;kDk; gbj;jhy; mtd; fy;tp rpwg;ghf ,Uf;Fk; vd;W vz;zp Foe;ij utptu;kidAk; tpdpj; Mq;fpy cau;epiyg;gs;spapy; ,uz;lhk; tFg;gpy; Nru;e;J jw;NghJ ed;whf gbj;Jf;nfhz;bUf;fpwhd;. mtd; xOf;fkhdthdfTk; ey;y mwpT jpwd; nfhz;ltdhfTk; tsu;e;J nfhz;bUf;fpwhd;. ... ... ... ”

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19. Further, during the pendency of these Civil Miscellaneous Appeals, this Court vide its Order dated September 18, 2024, referred the matter to mediation and directed that the child shall be under the father’s custody for two hours during the mediation. Perusal of the mediation report shows that, even after about 5 years, the child’s stand has not changed; he still refuses to be with his father (even for two hours). It has to be noted that the child would have become more mature now than he was in 2019 when he refused to interact with his father in the Child Welfare Committee Office.

20. From the narrative thus far, it is clear that the child refuses to be with his father even for a while, and desires only the custody of his mother. The wish of the child is to be with his mother. It is settled law that in matters related to custody of children, the welfare (both physical and mental) and wishes of the child holds paramount importance. Considering the facts that the minor is happy with his mother, that the minor is studying in the school where his mother is working and growing under her direct care and nurture, that the minor has been performing well in both academics and sports under her custody, that the mother is able to take care of his education and other needs, as well as the facts that the petitioner /

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CMA NOS.953 & 961 OF 2020

father has not been keen on the child’s life nor has he spent for the child’s education so far, that he has not looked after the child’s health, wellbeing and interest, also bearing in mind the best interest and welfare of the child, this Court is of the view that it is appropriate that the child grows under the custody of the respondent / mother. In general, father is the natural guardian as per Section 6 (a) Hindu Minority and Guardianship Act, 1956. However, considering the facts and circumstances as well as the fact that welfare of the minor is of paramount importance, it is best for the child to be with his mother.

RESULT:

21. Resultantly, the Civil Miscellaneous Appeal filed by the petitioner in CMA No.953 of 2020 is dismissed. The Civil Miscellaneous Appeal in CMA No.961 of 2020 filed by the respondent is allowed and G.O.P. No.4 of 2019 on the file of Family Court is dismissed. In view of

the facts and circumstances of this case, the parties shall bear their own costs.

[J.N.B., J.] [R.S.V., J.] 29 / 04 / 2025 Index : Yes / No

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CMA NOS.953 & 961 OF 2020

Internet : Yes / No Neutral Citation : Yes / No Speaking Order : Yes / No TK

To

1.The Family Court Karaikal.

2.The Section Officer, V.R.Section, Madras High Court, Chennai.

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CMA NOS.953 & 961 OF 2020

J. NISHA BANU, J. AND R.SAKTHIVEL, J.

TK

PRE-DELIVERY COMMON JUDGMENT MADE IN CMA NOS.953 AND 961 OF 2020

29 / 04 / 2025

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Issues for consideration

4 issues framed by the court

AI extract

1.
Whether the child was in custody of the petitioner from 28.03.2015 to 11.10.2015 (Point No.1 framed by the Family Court).¶47
The court held
On the evidence of R.W.5 (Dr.Anni Besant, General Hospital, Karaikal) that the child was admitted on June 23, 2015, July 5, 2015 and again on August 31, 2015 in the ICU, each time by the respondent side (corroborated by Exs-R.2 to R.8 and Ex-X.1), the contention that the child was in the petitioner's sole custody for seven months (March 28, 2015 to October 11, 2015) is belied; the minor child has never been in the sole custody of his father.ratio¶112
2.
Whether the petitioner (father) is entitled to custody of the child (Point No.2 framed by the Family Court).¶48
The court held
The interim weekend custody arrangement before the Child Welfare Committee failed: R.W.3, the Legal cum Probation Officer, deposed that despite trying on two occasions the minor refused custody of his father and held to his mother weeping, refusing to be with his father.ratio¶117
3.
Whether the application in CMP No.18713 of 2022 under Order XLI Rule 27 CPC to receive additional evidence (Sale Deed, Gift Settlement Deed and Income Tax Returns) should be allowed.¶92
The court held
The Order XLI Rule 27 CPC application (CMP No.18713 of 2022) for reception of additional evidence is dismissed: the Sale Deed and Gift Settlement Deed stand in the mother's name and the Income Tax Returns show gross income of only around Rs.4,00,000/-; sufficient documents were already marked, and the child's interest is paramount, not the financial status of the parties — financial status is only one factor and not decisive in custody cases.ratio¶88
4.
Whether Clause 2 of the Fair and Decretal Order granting the petitioner one-day weekly custody of the child should be modified/set aside in the best interest and welfare of the child (CMA No.961 of 2020).¶18
The court held
It is settled law that in matters of custody of children the welfare (both physical and mental) and wishes of the child hold paramount importance; the child refuses to be with his father even for two hours (mediation report after the Order dated September 18, 2024) and desires only the custody of his mother.ratio¶128

Procedural history

How this case reached the court

AI extract

Order under challenge
Fair and Decretal Order dated December 17, 2019 in G.O.P.No.4 of 2018: Family Court answered Point No.(ii) by allowing the husband's custody petition in part, granting him custody of the minor child one day a week (every Sunday, 09.00 a.m. to 04.00 p.m.) with conditions (Clause 2)¶56
Family Court, Karaikal · December 17, 2019
Prior proceeding
Marriage of the parties on January 30, 2012 as per Hindu rites and customs; male child born out of wedlock on December 9, 2012.¶31
Prior proceeding
Respondent left the matrimonial home on March 28, 2015 along with the child and moved in with her father in Thirunallar.¶31
Prior proceeding
Police complaint dated August 31, 2015 by the respondent; criminal case registered against the petitioner in Crime No.99 of 2015 by Thirunallar Police Station.¶32
Prior proceeding
Petitioner moved pre-arrest/anticipatory bail before the Madras High Court in Crl.O.P.No.23336 of 2015 under Section 438 CrPC; the Court directed return of the child to the respondent and gave the petitioner weekend custody.¶64
Prior proceeding
Petitioner filed Contempt.O.P.No.2714 of 2015 alleging non-compliance with the High Court's custody direction; the Court directed the respondent to hand over custody of the child.¶68
Prior proceeding
Respondent filed M.O.P.No.44 of 2016 seeking dissolution of marriage on the ground of cruelty.¶68
Prior proceeding
Trial before the Family Court: petitioner examined as P.W.1 with Matharaman as P.W.2 and Ex-P.1 to Ex-P.39 marked; respondent examined as R.W.1 with four other witnesses as R.W.2 to R.W.5 and ExR.1 to Ex-R.30 marked; Copy of OPD Register marked as ExX.1.¶50
Prior proceeding
Family Court interim Order dated May 28, 2019 granting the petitioner one day custody every weekend at the Child Welfare Committee Office premises, with the respondent to stay away during custody time; efforts proved futile.¶117
Prior proceeding
During pendency of the appeals, the High Court by Order dated September 18, 2024 referred the matter to mediation and directed that the child be under the father's custody for two hours during mediation; the mediation report showed the child still refused to be with his father.¶127