Madras High Court
P.Nandhakumar vs S.Sathya on 23 March, 2021
Equivalent citations: AIR 2021 MADRAS 237, AIRONLINE 2021 MAD 1065
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
C.M.A.No.1605 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.03.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.No.1605 of 2019
C.M.P.No.4611 of 2019
P.Nandhakumar .. Appellant
vs.
S.Sathya ..
Respondent
PRAYER : Civil Miscellaneous Appeal filed under Section 47 of the
Guardian and Wards Act, 1890, against the order dated 05.06.2018 made in
G.W.O.P.No.75 of 2016 on the file of the Principal District Court,
Namakkal.
For Appellant : Mr.R.Sumithra Chakkaravarthi
For Respondent :Mr.T.L.Thirumalaisamy
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C.M.A.No.1605 of 2019
JUDGMENT
The judgment and decree dated 05.06.2018 passed in G.W.O.P.No.75 of 2016 is under challenge in the present Civil Miscellaneous Appeal.
2. The appellant is the father of the minor child and the respondent is the mother of the minor child. The marriage between the appellant and the respondent was solemnized on 28.10.2012 and they were living together happily. A female child born from and out of wedlock. Now, the child is aged about 8 years namely Yalini. Due to difference of opinion, the appellant and the respondent are living separately. The respondent/wife states that she was forced to leave the matrimonial home. Litigations are pending, more specifically, the divorce petition filed by the appellant in H.M.O.P.No.66 of 2005 was dismissed by the trial Court and the appellant preferred an appeal and the said appeal is pending. Admittedly, the appellant and the respondent are living separately for about 5 years. All along, the child right from the birth is with the respondent/mother. Being a girl child, the custody of the mother is preferable due to various reasons. The 2/6 http://www.judis.nic.in C.M.A.No.1605 of 2019 appellant filed an application under Section 25 of the Guardian and Wards Act directing the respondent/wife to produce the minor child/Yalini to the petitioner.
3. The trial Court adjudicated the issues with reference to the facts and circumstances as well as the evidence made available. The trial Court made a finding that on perusal of the evidence of P.W.1 and P.W.2, it is seen that nowhere the appellant has stated that he spent money for the welfare of the minor since her birth. From the evidence of R.W.1 to R.W.3, the child is under the custody of the respondent/mother. Thus, the Trial Court itself in clear terms held that “the appellant has not spent a single pie for the welfare of the minor Yalini”. Thus, the appellant as a father has not acted for the welfare of the minor child at any point of time. Thus, the trial Court considered Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and further, considered the fact that the matrimonial dispute between the appellant and the respondent is pending before the Appellate Court, dismissed the petition. Even thereafter, the respondent/mother continued to maintain the female child.
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4. The learned counsel appearing for the appellant sterroneously contended that the appellant/father has got love and affection towards his child and he is capable of maintaining the child.
5. In view of the findings of the trial Court, this Court also asked the question whether even during the pendency of the appeal, the appellant has contributed any money or any thing for the welfare of the minor child. The learned counsel for the appellant, after getting instruction, made a submission that the appellant has not contributed anything nor invested in the name of the minor child for her welfare.
6. Thus, this Court is of the opinion that as rightly found by the trial Court, even during the pendency of the present appeal, the appellant has not shown any interest for the welfare of the child. Right from the birth, the respondent/mother is taking care and providing all facilities to the child. When a father states that he is having love and affection towards his child, naturally he is expected to express in the manner known to law and his 4/6 http://www.judis.nic.in C.M.A.No.1605 of 2019 behavior and conduct should establish the love and affection if at all expressed. In the present case, the appellant has not established that he has shown any love and affection towards the minor child nor provided any welfare of the child so far. Absolutely, there is no contribution on the part of the side of the appellant/father.
7. This being the factum, this Court has no hesitation in arriving a conclusion that the father cannot be an appropriate person seeking custody of the child and even he is not entitled for any visitation rights. Accordingly, the judgment and decree dated 05.06.2018 passed in G.W.O.P.No.75 of 2016 stands confirmed and Civil Miscellaneous Appeal stands dismissed. No costs. Consequently, connected miscellaneous petition is also closed.
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ssb To Principal District Court, Namakkal.
C.M.A.No.1605 of 2019
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