Madras High Court
Mr.Srinivasan vs Mrs.T.Chandravandhana
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON DELIVERED ON 09-07-2018 31-07-2018 Coram: THE HONOURABLE MR. JUSTICE N.SATHISH KUMAR O.P.No.388 of 2011 Mr.Srinivasan ... Petitioner Versus Mrs.T.Chandravandhana ... Respondent Prayer: Original Petition has been filed under Section 25 of Guardian and Wards Actr 1890 and Order 21 Rule 12 of High Court Original Side Rules to grant permanent custody of the minor S.Krishnavareshini born on 25.09.2005 to the petitioner. For Petitioner : Mr.K. Mohanamurali For Respondent : Mr.T.S.Arthanareeswaran ORDER
The petition has been filed to grant permanent custody of the minor S.Krishnavareshini born on 25.09.2005 to the petitioner, who is the father of the minor. The brief facts of the petitioner's case is as follows:
2. The petitioner is in the field of natural medical practice and he has immovable properties worth about Rs.40 lakhs. The respondent and the petitioner had a love affair during 2002. They got married on 07.05.2003 at Cuddalore. In fact the respondents parents were against the marriage, however, the marriage was solemnized on 07.05.2003. They started their matrimonial life at Cuddalore in Bhuvanagiri. The petitioner is all along showing love and affection towards the respondent and met all her comforts providing luxury items. Due to their wedlock a female child was born on 25.09.2005. The petitioner has spent hugemoneyfor the betterment of the wife and his daughter. The child had lot of primary health ailments because of mal-nursing of the respondent. The petitioner also conducted "Naming Ceremony" of the child. Thereafter, in the year 2008-2009 he admitted the child in Pre-K.G. in Mangalam Matriculation Higher Secondary School. The child was given very good education in the very good school. When the matter stood thus, the respondent changed her attitude, started raising quarrel in the family and developed negative attitude. On 11.4.2011, the respondents father requested the petitioner and the respondent to come to Tiruchengode to see the ailing grandmother of the respondent. Accordingly, the respondent and petitioner went to Tiruchnengode and came back to their native place. Thereafter again at the request of the respondent's father, the petitioner and respondent went toTiruchnengode and the respondent's father requested the respondent to stay for a day or two till he leaves to Dubai. Thereafter, there was no response from the respondent despite repeated phone calls made by the petitioner.
3. When the petitioner went to Tiruchengode on 7.5.2011 he came to know that the respondent and her family got settled at Chennai. The respondent thereafter did not return back to the matrimonial home and the child also was not seen. The petitioner also sent a letter requesting the respondent to join him. However, the respondent sent a letter to the petitioner making scandalous and baseless allegations against him and the family members of the petitioner and she wanted to break up the marriage. The petitioner being the father and natural guardian, is entitled to take the custody of the minor child.
4. Denying the allegations in the petition, it is the contention of the respondent that ever since the date of marriage, her life became worse in the hands of the petitioner's elder sister and the unmarried sister who joined hands with his other two sisters along with their husbands. They used to torture the respondent by accusing that she was not capable of bringing any cash and valuables from her parental home. She suffered severe cruelty in the hands of the petitioner and the family members of the petitioner. Even for trivial things they used to beat the respondent in black and blue in the presence of minor child. When the respondent insisted to continue her study the petitioner and family members scolded her and stopped her BDS Course study. The allegation that the petitioner has spent huge money towards the child is also denied. The petitioner has not allowed the respondent to go out either for leaving the child into the school or bring the child from the school. Only when the petitioner and respondent visited the parental home of the respondent during 2011, she met her parents in the absence of the petitioner to explain her sufferings at the hands of the petitioner, his sister and his brother in law. Though several mediationwere effected between the parties, the respondent made it clear that unless and until the petitioner's sister and brother in laws are restrained and she is also allowed to continue her studies, she will not comeback to the petitioner's house. There are no possibilities of re-union. It is the further contention of the respondent that she is taking care of her daughter by providing good education out of her earnings, so the application is misconceived. It is alleged that the respondent was working in a school and earing some meager amount and she has means to provide education. It is the further contention of the respondent that the petitioner may visit his daughter at Family Court, if he is willing to see her.
5. On the side of the petitioner P.W.1 to 3 were examined and Ex.P.1 to P.17 marked. On the side of the respondent no evidence adduced. Court Witness C.W.1 and C .W.2 were also examined and Exs.C.1 and C.2 were also marked.
6. Learned counsel appearing for the petitioner submitted that the petitioner and the respondent fell in love which culminated into their marriage on 17.05.2003, besides the objections from the parents. Ever since the date of marriage the petitioner and respondent started their married life and lived in Cuddalore District. Out of their wed-lock a female child was born on 25.09.2005. Thereafter, she was admitted in the school by the petitioner in the year 2008. The petitioner all along showing love and affection to the child and take utmost care in bringing up the child. When the matter stood thus, the respondent developed negative attitude and all of a sudden at the request of her father she went to Tiruchengode on 18.04.2011 along with minor child. Thereafter she did not return to the matrimonial home. On the contrary, she has filed an application for divorce which was dismissed by the trial Court. She has suddenly changed her address from Tiruchengode. The petitioner searched the respondent from various places and lastly came to know that the respondent and the minor child S.Krishnavareshini left to Chennai permanently. It is the contention of the learned counsel for the petitioner though application has been filed in the year 2001 the child was kept away from the petitioner on many occasions. Despite various orders passed by this Court, the orders have not been complied in respect of the interim custody, which forced this court even to appoint an advocate commissioner to facilitate meeting of the child with the petitioner.
7. It is the further contention of the learned counsel for the petitioner that the subsequent events after filing this petition would go to show that the respondent is not a fit person to have the custody of the child. She is moving with one another person by name Veeramani. In fact, she has gone into the extent of proclaiming that as he is her husband and also gave birthto another child through him. That apart, she has also gone to the extent of showing Veeramani as the father of the minor child in the school. All these facts would prove the fact that the petitioner is a fit person to take custody of his daughter. Though there is no pleadings in the original petition filed in the year 2001 with regard to these facts but the subsequent facts were put to the knowledge of the respondent during trial. The above facts have also not denied seriously.
8. On the other hand, the Court witness evidence C.W.1 and C.W.2 and Exs.C1 and C2 series clinchingly would establish the fact that the respondent has shown the third party as a father of the minor child in the school records. That apart, she has also lead an adulterous life with the said Veeramani. All these facts clearly show that if the minor child now aged about 12 years is left in the custody of the respondent which will affect the child's growth,not only physically, but also mentally. The child has not been given proper education and the child was shifted to various schools within a span a few years. These facts were clearly established on record. The respondent is also not working. She is depending on her parents. She is living in various places. Where as the petitioner has financial status, he has own income which is also spoken by P.W.2 and P.W.3, besides he has also filed income tax Returns. Hence, submitted that the petitioner who is a father has means and capacity to take care of the child and he is the best person to give good environment to the child both physically and mentally and also good financial support to the child for her education. It is the further contention that the petitioner's family is with him. All his family members are also available to take care of the minor child for the healthy development of the integrated personality of the child. Hence has prayed for allowing the application and appoint the petitioner as permanent guardian.
9. Learned counsel appearing for the respondent submitted that only due to the cruelty meted out by the respondent at the hands of the petitioner she was away from the house of the petitioner. The child is now at the age of 12 years. The child being female child, only the mother can give all comforts and take care of the child. Further the minor child is also most interested to live with the mother. Hence, the custody need not be granted. However, the learned counsel for the respondent submitted that the allegations of adultry and second marriage has been pressed into service for the purpose of this case and submitted that these allegations have not proved. Merely because the respondent has not tendered any evidence, such allegations cannot be taken as proved. Hence, prayed for dismissal of the application.
10. In the light of the above submissions, now the point for consideration is whether the petitioner is entitled to have the permanent custody of the Minor child Krishnavareshini?
Point:
11. While deciding the custody of the minor child, the Court has to see the welfare of the child which is the paramount consideration. Similarly, the Court has to consider the right of the child, to have the healthy environment, physical, mental and financial support for the development of integrity and personality. Only the best interest of the child to be taken note of by the court. The crucial test could be the ability on the part of the either party to provide the minor child healthy environment, good Parental guidance, physical, mental and financial support for the development of the child. The petitioner is in the field of natural medical practice, which is not in dispute. He has married the respondent against the wishes of her parents on 07.05.2003. It is also not in dispute. Till 2011 the petitioner and respondent have lived in the matrimonial home at Bhuvanagiri. A female child by name Krishnavareshni was born on 25.09.2005. This fact is also not in dispute.
12. It is the main contention of the petitioner that the respondent/wife has developed negative attitude despite the fact that he has given utmost care and affection to both the minor child as well as the respondent. She started quarrelling for trivial issues. When the matter stood thus, on 18.04.2011 under the pretext of meeting her father she left to her native place along with the minor girl and she was not interested to come back to the matrimonial home and retained the child with her and shifted the house to various places and also shifted the school of the minor child frequently. Though the respondent in the counter has taken a stand that she has to leave the matrimonial home due to the harassment at the hands of the petitioner she has not chosen herself to prove the above allegations. Be that as it may. The petitioner has given evidence with regard to the subsequent events after this petition has been filed for custody. It is the main contention of the petitioner that the respondent only to avoid the petitioner meeting the child, shifted the residence address to various places and also shifted school, which affected the education of the minor child besides she has also developed relationship with one Veeramani and gave birth of another child born through him. That apart she has also gone to the extent of changing the school of the minor regularly to the effect that the said Veeramani is the father of the minor. All these facts have brought on record by way of evidence. The parties are also aware of the facts that they are brought onrecord by way of evidence which was also confronted in the cross examination of P.W.1 by the respondent counsel. When these facts are brought on record and the respondent also aware of the fact, this Court is of the view that mere absence of pleadings with regard to the above facts will not affect the case of the petitioner. Since the respondent is very much aware of the new facts brought on record that too after filing of this petition.
13. With the above back ground, the evidence of P.W.1 and the documents filed on his behalf when carefully perused, the evidence of P.W.1, he has narrated the manner in which the child was shifted to various schools and also the addresses have been changed frequently and the above aspects were not denied in the cross examination, this specific evidence of P.W.1 that the minor daughter was shifted 4 schools in the last 5 years only in order to lead her illegal relationship with the said Veeramani. The evidence of the petitioner that the child was shifted to KSR Vidhyalaya, Tiruchengode, Viruksha Global International School, Tiruchengode, Valtragate School, Tiruchengode and VelalarVidhyalaya Erode has not been denied. Similarly, the evidence that the respondent was living in a slum area along with her paramour and with her minor child at Rail Nagar is also not denied. It is also not disputed that the respondent filed application for divorce before the Sub Court, Cuddalore in HMOP No.152 of 2012 wherein the petitioner has claimed restitution of conjugal rights by way of counter claim. The divorce petition was dismissed, however, restitution of conjugal rights was ordered . Of course the above judgment was challenged in appellate Court. Therefore, the result of the judgment is not relevant to decide the issue in this case.
14. It is also the specific evidence of P.W.1 that the respondent has been leading adulterous life with one Mr.Veeramani and she has also delivered a baby through him in the hospital. Ex.P.31 Birth Certificate shows that the respondent has got another child through Mr.Veeramani. Ex.C.1 is the letter of respondent sent to the Indian Public School for applying maternity leave. Ex.C,1 series shows that the respondent has worked as an English Lab Instructor in the year 2016-2017 wherein she has addressed a letter to the school authority that since her pregnancy is confirmed she required maternity leave from 1st March 2017 to 30th June 2017. Ex.P.C.1. Series produced before this Court on the basis of Subpoena issued to summon the records from the Indian Public School. This document is marked through the concerned officer from the school. Ex.C.1 application form filled by the respondent herself, wherein she has declared one Veeramani as her husband and he is also father of the minor child. Thereafter, she has resigned from school on 06.02.2017 that could be seen from Ex.C.1 series. Similarly, she has also shown one Veeramani as her husband in the data form she furnished while joining in the Indian Public School. Similarly, hospital record from Thangam Hospital pertaining to the child birth of the respondent was also summoned. The hospital P.R.O.was examined as C.W.2. The record clearly shows that the respondent her husband name is shown as Veeramani. The birth certificate of the child also shows that the child was born to respondent through Veeramani in the Thangam Hospital. C.W.1 and C.W.2 examined before this Court would substantiate the documents available in the School and the hospital. Their evidence clearly shows that while she was working in the school she was pregnant. C.W.1 evidence also clearly shows that the respondent was resigned from the school.
15. C.W.2 is the Public Relation Officer of Thangam Hospital, through him Ex.P.47 also marked. According to him, the child was born in the hospital on 03.03.2017. He has also identified the CD and photograph taken from the CCTV Camera in the hospital to show that the respondent was treated and gave birth in their hospital. It is also in the evidence of P.W.1 that the respondent is now residing with Veeramani and the minor child is also with them. The Said Veeramani is also in the habit of abusing the child. The above aspect has not denied in the cross examination. One of his sister was examined to show that the entire family members have affection to the child. The above evidence of P.W.2 that the family show their love and affection is not disputed in the cross examination. P.W.3 was examined to show that the minor child was taken along with one Veeramani. He has informed the same to the petitioner. Exs.P.44,45 and 46 Income Tax Returns of the petitioner also filed for the years 2014, 2015 and 2016 to show that his income is more than Rs.2 lakhs per annum. Similarly 2014-15, 2015-16, 2016-17 Returns have been filed to show that he has taxable income. From the above income tax documents and the evidence of P.Ws.1 and 2, it is clear that the petitioner alone is in a better position to provide financial support of the minor. The minor is admittedly 12 years. The specific allegation of the petitioner is that the minor child was shifted to various schools within a span of 5 years circumstances, is not controverted. That apart, the respondent living with one Veeramani and giving birth to another child is also established on record by way of evidence of CW2 and documents as discussed above. P.W.3 evidence also substantiated the evidence of P.W.1. Birth certificates and school certificates exhibited as discussed above, clearly goes to show that she has even gone to the extent of giving status to the third party as that of the father of the minor. These facts clearly show that the respondent even gone to the extent of showing a third party as father of the minor child. Such conduct of the respondent will certainly affect the minor child both mentally and psychologically and cause serious stigma on the child if such things are being allowed to continue.
16. The respondent admittedly, without any reason, is residing in Thiruchengode and various other places. It is also established on record that she is living with a third party viz.,Veeramani. The evidence of P.W.1 is that P.W.1 is consultant in natural medicine, that also not denied . The minor child is now 12 years of age. If she is allowed in the company of the respondent and third party, it may lead to serious consequences. When the petitioner has established that he has some status in the society and financial capacity and there are family members to look after the child with love and affection, this Court is of the view that the petitioner would be the most preferable person to have the custody than the respondent in the interest of minor child. The respondent conveniently remains away from giving evidence. She has not adduced any evidence on her side and not subjected herself for cross examination,even to show that the serious allegation made against her are baseless and false. The above conduct also gives rise to an inference that she has not come before the witness box only to avoid serious allegations. She kept herself away from the proceedings only in order to avoid certain facts being brought on record through orally as well as documentary evidence.
17. Ex.P.42 are various orders passed by this Court during the pendency of this Original Petition from 2011 shows that several orders were passed by this Court for granting interim custody to the petitioner. In one such occasion, this Court has appointed an Advocate Commissioner to go to Thiruchengode from Chennai for effecting the order of this court. Therefore, this Court is of the view that the petitioner has established his case both orally and documentarily. Hence,this Court has no other option except to hold that the petitioner is the fit person to be given the custody of the minor child. If the child is female child, aged of 12 years, is left in the company of the respondent, who is leading adultery life with third person and gave birth to a child through him and she has also pleaded in her counter that her father is winding up his activities at Dubai and is making arrangements to settle down at Tiruchengode permanently shows that she is entirely depending upon her father. Further, though the evidence of C.W.1 shows that the respondent had worked in the school at Erode, there is no evidence to show that she has income of her own. Therefore, this Court holds that the petitioner is entitled to permanent custody of the minor child. The respondent at the most should be given visitation right once in a week. The petitioner shall allow the mother to visit the child in any of the common place agreed by her or if the respondent is willing she can meet the child in the petitioner's house itself in every week.
18. It is also submitted by the learned counsel that the child is all along with the mother. During 2011 she was not willing to go with the father . It is to be noted that the child, because of long association of mother all these years would say that she is not willing to go with the father. Such conduct of the child is normal due to close association with one of the spouses, such advertence is the result of tutoring and poisoning of her mind that cannot be ignored by this court. Even during the vacation this Court granted interim custody of visitation right for 15 days to the father, it was informed to the Court that during that visit the child was comfortable with the father. Taking into consideration of the above facts, the petitioner is entitled for permanent custody of the minor child. It is also open to the respondent, to visit the child whenever she wants to see the child and the petitioner shall not resist the same. Both the petitioner and the respondent should not poison the mind of child accusing each other. This court hope that the petitioner and the respondent can keep aside their strained relations for the betterment of the child. The respondent shall handover the minor child to the petitioner within ten (10) days from the date of this order. The petitioner also make every endeavour to see that minor child education and continuity is affected. The point is answered accordingly.
19. With the above observation, this Original Petition is allowed.
31-07-2018 Index:Yes/No Internet:Yes/No ggs.
N. SATHISH KUMAR, J.
ggs Pre-delivery order in:
O.P.No.388 of 201131-07-2018