Madras High Court
C.Srinivasan vs Sivasankari on 26 March, 2021
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
C.M.A.No.3177 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.03.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.M.A.No.3177 of 2019
and C.M.P.No.18087 of 2019
C.Srinivasan
S/o.Chinnappan
40, Arulvelavan Nagar
Vanavil Nagar
Soolai, Erode .. Appellant
Vs.
Sivasankari
D/o.Subbaiah
10/33/3, Old Thiru.Vi.Ka.Nagar
S.S.V.G.Illam
Harur Taluk
Dharmapuri District .. Respondent
Civil Miscellaneous Appeal filed under Section 47 of the Guardian
and Wards Act, 1890, against the fair and decretal order dated 26.03.2019
passed in G.O.P.No.6 of 2016 on the file of the Principal District Court,
Dharmapuri.
For Appellant : Mr.I.C.Vasudevan
For Respondent : Mrs.C.Uma
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https://www.mhc.tn.gov.in/judis/
C.M.A.No.3177 of 2019
JUDGMENT
The fair and decretal order dated 26.03.2019 passed in G.O.P.No.6 of 2016 on the file of the Principal District Court, Dharmapuri, is under challenge in the present civil miscellaneous appeal.
2. The appellant/husband filed a petition under the provisions of the Guardian and Wards Act, 1890, seeking a relief of appointing him as a guardian for his minor child Saishivesh and direct the respondent/wife to hand over the minor child to the custody of the appellant/husband. The case was defended by the respondent/wife, mother of the minor child and the trial Court adjudicated the issues with reference to the documents and evidences produced by the respective parties.
3. The trial Court found that the allegations raised by the appellant/husband regarding the illegal contact of the respondent/wife with one Mubarak was baseless. Even during the cross-examination, the appellant/husband had deposed that he has not known as to who Mubarak was. In the absence of any proof regarding such allegations, the 2/7 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3177 of 2019 appellant/husband has raised such allegations in an irresponsible manner. It is easy to make such allegations of character assassination. However, the parties to the matrimonial dispute are expected to produce certain proof, while raising such allegations involving moral value or character of the person.
4. In the present case, though such allegations was raised by the petitioner/husband against the respondent/wife, the trial Court found that such allegations are baseless and no details are furnished by the appellant/husband nor any instances are established. The respondent/wife, is taking care of the minor child for the past so many years. The appellant/wife is working at Wipro Company, Chennai and getting sufficient income. However, the respondent is also capable to provide good education to the minor child with support of her parents.
5. As far as the custody of the minor child is concerned, the interest of the minor child is of paramount importance. Welfare of the child is to be considered and certainly not the rights of the parents. Thus, the 3/7 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3177 of 2019 Courts are bound to ascertain the wishes as well as the welfare of the minor child, so as to consider the appellant/husband for custody. As of now, the minor child is aged about ten years and is capable of understanding situations. All along the minor child is living with the respondent/wife and she is able to provide good education and look after the welfare of the child for the past many years. Even now, the respondent/wife is ready and willing for reunion with the appellant/husband and the appellant/husband is not inclined to consider the proposal of the respondent/wife for resuming the matrimonial home.
6. Considering the interest and welfare of the minor child, the trial Court arrived at a finding that the petitioner/husband is not entitled for the relief of custody.
7. This Court is of the consideration opinion that the appellant/husband and the respondent/wife, who were present before this Court could able to submit their positions. The appellant/husband seeks the custody of the minor child at this length of time by stating that he is having 4/7 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3177 of 2019 love and affection towards the minor child. Contrarily, the respondent/wife states that she is ready for resuming the matrimonial home along with the minor child and she said in clear terms in front of the appellant/husband before this Court. However, the appellant/husband took time and today, when the matter is called, the learned counsel appearing on behalf of the appellant/husband made a submission that the appellant/husband is not interested for resuming the matrimonial home.
8. Under these circumstances, the custody of the minor child Saishivesh, cannot be handed over to the appellant/husband after this length of time in view of the fact that the minor child is with the respondent/wife (mother), for the past many years and he is happy and the respondent/wife is able to provide good education to the minor child.
In such view of the matter, this Court is of the considered opinion that the appellant/husband has not established any acceptable ground for the purpose of considering the relief and therefore, the fair and decretal order dated 26.03.2019 passed in G.O.P.No.6 of 2016 on the file of the Principal 5/7 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3177 of 2019 District Court, Dharmapuri, stands confirmed. As a sequel, this civil miscellaneous appeal is dismissed. No costs. Connected C.M.P. is closed.
26.03.2021 Index: Yes/No nsd To The Principal District Judge, Dharmapuri.
6/7 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3177 of 2019 S.M.SUBRAMANIAM, J.
nsd C.M.A.No.3177 of 2019 26.03.2021 7/7 https://www.mhc.tn.gov.in/judis/