Madras High Court
Mr.T.L.Sivakumar vs Mrs.Sumithra @ Sumithra Sree on 7 February, 2014
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 07.02.2014
Coram
THE HONOURABLE Mr.JUSTICE R.SUDHAKAR
Original Petition No.306 of 2010
Mr.T.L.Sivakumar. ... Petitioner
vs.
Mrs.Sumithra @ Sumithra Sree ... Respondent
The Original Petition is filed under Section 25 of Guardians and Wards Act, 1890 read with Order XXI Rules 2 and 3 of Original Side Rules praying to grant permanent custody of the person of the minor child namely Arun Gowtham born on 5.3.2000 from the respondent to the petitioner and pass such other order as deemed fit based on the facts and circumstances of the case.
For petitioner : Mrs.P.V.Rajeswari,
For respondent : Mr.G.Ethirajulu,
for Mr.K.Chandru.
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O R D E R
The Original Petition is filed under Section 25 of Guardians and Wards Act, 1890 read with Order XXI Rules 2 and 3 of Original Side Rules praying to grant permanent custody of the person of the minor child namely Arun Gowtham born on 5.3.2000 from the respondent to the petitioner and pass such other order as deemed fit based on the facts and circumstances of the case.
2. Heard Mrs.P.V.Rajeswari, learned counsel appearing for the petitioner, Mr.G.Ethirajulu, learned counsel representing Mr.K.Chandru, learned counsel appearing for the respondent.
3.1. In the Original Petition it is stated as follows:- The marriage between the petitioner and the respondent was solemnised as per Hindu Rites, Traditions and Customs on 21.11.1996 at Kovilpatti and reception was held at Chennai. At the time of marriage, the respondent was undergoing her studies in B.Sc. Computer Science in Chennai. On the request made by the respondent, petitioner agreed for the respondent to join the matrimonial home at Coimbatore after completing her education.
3.2. Petitioner's plea is that he is a partner at K.J. Engineering, a firm engaged in the business of manufacturing Textile Machineries and Spares and other Pre Bale Open and Cleaning machine which are used in the Textile Machinery. Petitioner apart from a share in the profits also drew a monthly salary of Rs.4,000/-. He states that all his earnings had been literally spent on his family. He travelled almost 15-20 days in a month to market his goods all over India and to expand the market share. Due to his hard work, he was able to establish his business.
3.3. Petitioner states that from the date of marriage with the respondent, he had been showering love and affection on her and visiting her very frequently and taking care of all her expenses including her education.
3.4. The respondent completed her education at the end of academic year 1998. In April, the petitioner requested the respondent to join him at their matrimonial house at Coimbatore. Respondent agreed to join the petitioner in September, 1998. Respondent joined him at the matrimonial house and during her short stay with the petitioner, the respondent became pregnant in June 1999. During pregnancy, the respondent returned to Chennai to her parent's house. On 5.3.2000 a child named Gowtam born to the respondent. Petitioner's parents gave chain and dollar weighing about 24 grams as a birthday gift to the child. Respondent informed the petitioner that she would stay at her parents house in Chennai for over a year to bring up the child which was agreed to and accepted by the petitioner.
3.5. On the request made by the respondent to study MCA Course through correspondence in Chennai, petitioner due to affection for her, agreed to let the respondent to stay at Chennai and the petitioner paid the entire fees for the MCA Course undertaken by respondent. Petitioner was in fond hope that the respondent will come to Coimbatore after completing the MCA Course. Instead, the respondent admitted their son in a School in Chennai. The petitioner, however, spent money towards education of his child at Chennai. The respondent after finishing her MCA course instead of returning to Coimbatore, commenced employment at Chennai.
3.6. Petitioner states that every year on his son's birthday, he gifted gold chain weighing 2 sovereign. Petitioner took various insurance policies in the name of his son appointing the respondent as nominee. Petitioner also subscribed insurance policy in the name of the respondent and had been paying the premium till date. Petitioner is also subscribing to a monthly deposit scheme for several years at the post office in the name of his minor son. Petitioner states that all his life earnings and savings had been spent only for his wife and his minor son.
3.7. According to the petitioner, the main reason for the respondent wife to stay at Chennai and continue her life independently away from the petitioner is primarily not for the development of the child as stated by her, but, only at the instigation of the parents of the respondent to extract money from the petitioner due to their financial crisis.
3.8. Further, petitioner parted with more than Rs.22 lakhs for the benefit of respondent's parents as and when they required money. Petitioner was under the hope that his in-laws will repay the loan that was taken from him. Petitioner hoped that the respondent would return to her matrimonial home and live with him along with the minor son. However, the respondent wife started treating the petitioner cruelly and used to report all activities between them to her parents. Petitioner made many request to the respondent to come and live with him but the respondent refused to quit her job and refused to live with him. The nature of respondent's employment required her to travel abroad at frequent intervals and she gave away all her earnings to her parents and brother. Her salary, increments on three occasions had been used only by her parents. In spite of having taken huge amounts from the petitioner and also from the respondent, the respondent's parents are still in constant financial crisis and have not yet settled their debts. In such circumstances, the minor child would be affected and the upbringing of the child in such an atmosphere will not be proper.
3.9. In January, 2004, the petitioner requested the respondent's father to return the money which he borrowed so as to enable him to purchase a property at Avarampalayam, Coimbatore. Respondent's father bluntly refused to pay the money and also abuse the petitioner. Petitioner states that neither the respondent nor her parents are taking care of the child in all the financial matters right from his birth and towards his educational expenses as well. The minor son was admitted in Jaigopal Garodia School at Kolathur until 2007, when all the expenses including those of the minor's son's education and personal needs were taken care by the petitioner. After 2007, for no reason and without informing the petitioner, the respondent at the instigation of her parents changed the school and admitted their minor son at the St.John International Residential School and since then the minor child had to live without the care of the parents in a residential school.
3.10. When such be the case, the respondent issued a legal notice and filed a petition for divorce citing various incidents which had never happened. Petitioner had filed a detailed counter opposing the petition for divorce. It is only from the legal notice that the petitioner learnt that the respondent has changed the name of their minor son from Gowtham to Arun Gowtham. Even during petitioner's father's death, the respondent's father had ensured that the child was not sent to attend the last funeral rights. This has caused tremendous mental agony to the petitioner and his mother.
3.11. Petitioner states that the best of everything should be given to the child. The child should be brought up in a secure and stable atmosphere and not in an atmosphere with a lot of financial debts and financial constrains. The child should secure the love of the petitioner, who is the father and the natural guardian as well. The minor son does not know the existence of the petitioner in the past two years and the petitioner was not allowed to visit the child once in more than two years.
3.12. Petitioner is financial independent and is very capable of taking care of his child, as he has been spending on the child since birth. He had spent on the minor child since birth and he would be better equipped to take care of the child if permanent custody is granted to him as he is the natural guardian of the minor son. The child will continue to have a stable and healthy upbringing and overall development under the care and love of the petitioner.
3.13. The environment at the respondent's house would not be conducive for the over all emotional, psychological growth of the minor child. Petitioner is always available for the minor child and is better fit to be the guardian of the minor. Since the interest and welfare of the minor child is paramount and the petitioner has the capacity, capability and wherewithal to look after the minor son and the petitioner being the natural guardian, permanent custody may be given to the petitioner. Hence, this petition is filed.
4.1. In the counter-affidavit, the respondent has stated as follows:- It is admitted that the marriage between the petitioner and the respondent was solemnized as per the Hindu Rites and Customs as stated by the petitioner. At the time of marriage 125 sovereigns of gold jewels along with other silver articles, household utensils have been given as Sridhana for respondent. Respondent stayed for about 5 days at the matrimonial home at Kovilpatti and thereafter the petitioner and the respondent came down to Chennai on 26.11.2007 (wrongly mentioned. It should be 27.11.1996) for the reception arranged by the respondent's parents. After the performance of the reception, the petitioner left the respondent at her parents house, whereupon she requested the petitioner to take her to Coimbatore where the petitioner was residing. The petitioner had turned back after 2 months. When the respondent and her parents requested the petitioner to take the wife to the matrimonial home to Coimbatore, petitioner refused to take stating that he is not in a position to take her to the petitioner's place as his job involves travelling and presently he has no proper residence and it would take him one and half years. Hence, her parents agreed and waited for the petitioner to take the respondent to the matrimonial house.
4.2. Petitioner's nature of business is travelling to many place and so right from the date of marriage he did not show any interest or any care to take the respondent to the matrimonial house. Even in the early days of marriage when the respondent was in her parents house the petitioner did not show any interest and care to speak with the respondent over phone. When the petitioner was contacted over phone during February/March 1997 by the respondent with a request to the petitioner to take her to the matrimonial home, the petitioner shouted harshly and disconnected the phone. This will clearly show that the petitioner has not shown any interest right from the date of marriage towards the respondent and was not interested to lead a happy married life. There was no consummation of marriage even in the initial days of marriage. The petitioner did not show any interest towards the respondent and to have the matrimonial home for themselves.
4.3. There was no continuous cohabitation for the past 3= years immediately after marriage. On the request made by the respondent and her parents, during the month of September, 1998, the petitioner took the respondent to Coimbatore and kept her in an outhouse of his sister's house without any proper ventilation and she stayed there for a period of one week. When the respondent reached the matrimonial home on 9.9.1998 accompanied by her parents with a hope of leading happy married life, but everything was destroyed as the petitioner did not behaved properly. He did not show any interest or love or care towards the respondent and behaved like a stranger towards her. He did not even buy a thing for the home including provisions for cooking.
4.4. The petitioner was always in his sister's house in the upstairs of the same compound and will eat well there. He did not even bother about the respondent who used to wait for him thinking that the petitioner would buy something for cooking. The respondent was kept in dark room without any proper facility. There was no TV, Radio or telephone connection. When the respondent asked anything the petitioner used to quarrel day and night, hit his head to the wall. He tore his dress and he would threaten her that he will commit suicide if the respondent asks any question. He did not even allow her to sleep in the night. The petitioner's behaviour was indifferent and inconsistent. He was doubtful towards the respondent due to the age difference. He used to behave like a psycho and treat the respondent in a very bad manner. The short span of stay in the matrimonial home was very miserable and she suffered torture and harassment by the petitioner. This is primarily due to petitioner's inferiority complex. He suffered from ego. The 11 years' age difference between the petitioner and the respondent was hurting the marriage.
4.5. It was the respondent who forced the petitioner to have a child. The petitioner would evade saying that he does not want any child because his sister's son is his son. It is only after advise by the petitioner's father petitioner had intercourse with the respondent. After conceiving, and at request of the petitioner, the respondent was staying in her parents house till 5th month of pregnancy. Thereafter, as per the petitioner's advise, the respondent herself reached Coimbatore in her 6th month of pregnancy accompanied by her brother to complete the 7th month formalities.
4.6. During one month stay in the matrimonial home in Coimbatore the petitioner treated her in a worse manner. Knowing that she was pregnant, the petitioner compelled her to travel to Kovilpatti, the very next week of her arrival and again asked to travel from Kovilpatti to Coimbatore. Petitioner not even provided proper food as he was always spending time in his sister house. Everyday it was a hell for the respondent to live with the petitioner and he would curse her that the child would die in the womb before it is delivered. But the respondent was tolerating all this conduct and controlled herself in the interest of the child in the womb and hoping that everything will be solved if a child is born.
4.7. Even during the delivery period the petitioner was not with the respondent to give her moral support. The respondent is a chain smoker and used to smoke 3 to 4 cigarettes at a time and blow the smoke on the face of the respondent without even thinking that she was pregnant. At that time when the petitioner saw the new born baby he commented and compared the child with his sister's child for complexion and hurt her by words and also created a problem at the naming ceremony of the child. Thereafter for seven months petitioner did not contact or show any interest to know the welfare of the child and mother.
4.8. Petitioner attended respondent's brother's marriage and created problems. The photograph submitted in the family court and marked as R-10 is the marriage photograph and not the birthday photograph as stated by the petitioner. This shows that nothing is true from the petitioner that he is every year attending the child's birthday.
4.9. The petitioner had not shown any care or visited the respondent and child since birth. He did not even turn up on the first birthday of the baby. It is due to numerology that the respondent changed the name of the child from Guatam to Arun Gautam. After many rounds of mediation made by relatives of either side, respondent came to the matrimonial home with the child accompanied by her sister. But the petitioner insulted her sister and showed his anger towards the child and beat the child. The respondent is bearing all her expenses even for her daily needs, foods with the money given by her father.
4.10. Right from the day of marriage from 1996 to 2001 there was no good or happy cohabitation between the petitioner and the respondent. Petitioner did not even care to find out and know how the respondent and child were surviving. Hence, the respondent decided and made her mind that it is totally impossible to continue her matrimonial life and expressed her view to continue her education and did MCA for her future and child's future. After the child completed 1 year she started continuing her studies and joined MCA only after 2 years back. It is only because of the petitioner's rude behaviour, mental harassment and the in-secure feeling that forced the respondent to join and continue her studies. It is false to state that only because of her education she did not show any interest towards the petitioner or the matrimonial life. Before completing her MCA in December, 2003 she got a job in INSAT MEDIA SOLUTIONS, Perambur in February 2003 and worked there till August, 2004. In October 2004 she joined in another company 'SHAREKHAN CHETPET, Chennai till April 2005 and in June 2005 to February 2009 the respondent was working in COVANSYS (INDIA) PVT. LTD., Madras Export Processing Zone, Chennai. All her educational expenses were borne by her parents and not by the petitioner. Right from the day of marriage the respondent and the minor child was under the care and custody of the maternal parents.
4.11. Petitioner totally neglected the respondent and the child. Neither he nor his family visited the respondent or her son from November, 2000 to 2003. In 2007 when petitioner came to attend the respondent's sister's marriage, he created a big scene before all the relations stating that he spent for the respondent's brother and sister's marriage. This caused total darkness in the life of the respondent and she waited for so many years thinking that the petitioner will change. He did not change and therefore, the respondent finally issued a legal notice in the year 2007 expressing her intention not to continue her matrimonial life with the petitioner. The petitioner replied to the same with concocted stories and allegations against the respondent.
4.12. Hence, the respondent filed HMOP No.1101 of 2008 before the II Additional Family Court for divorce. Petitioner filed a petition HMOP 1019 of 2010 for restitution of conjugal rights after lapse of 2= years of filing a petition for divorce. Respondent also filed I.A.No.2873 of 2010 for permanent custody of the minor child.
4.13. At this time, the petitioner filed the present O.P.No.306 of 2010 for permanent custody of the child before this Court. This Court permitted petitioner to have interim visitation of the child on any one Sunday for 3 months. Even at that time, the child expressed his view that he is not willing to opt for visitation with his father. Thereafter, because of the conduct of the father, the visitation right was cancelled by this Court. This Court once again ordered visitation on 23.12.2010 in the family court child care centre. But on that day also when the child was accompanied with the maternal grandfather, the minor child hesitated to meet the father. The advocate who accompanied the petitioner threatened the minor child Arun Gautam that if he does not go with the petitioner they would see that the minor child will be permanently taken from the custody of the mother. This caused the child lot of mental agony and fear and not able to concentrate on his studies.
4.14. As stated by the petitioner himself, the petitioner was travelling 15 to 20 days in a month to market his goods all over India and abroad. His aged widow mother of 60 years residing in Kovilpatti is not in a position to take care of the minor child. Whereas the respondent is taking care of the minor child since birth with the assistance of her parents, brother and sister. Right from the birth (i.e.) from 5.3.2000 the minor child was under the care, custody of her mother along with the maternal grandparents, uncle and aunt till date. The petitioner did not even visit a single day, to see the child and know the welfare of the child, and the respondent now filing this O.P.No.306 of 2010 at the fag end and ripen stage of HMOP No.1101 of 2008 shows that he has approached this court only to harass the respondent and drag on the HMOP No.1101 of 2008 proceedings. From his tender age to till date respondent is taking care of the child and is giving him all requirement for good standard of life and education.
4.15. There is no necessity for the respondent's parents to seek financial support as the respondent's father is successfully doing prawns Hatchery Farm, which is undertaking exports to foreign countries. The parents have lot of properties in and around Chennai. The respondent is trying to come out of this matrimonial problem and to get the self-confidence in her life, secure herself and her child. For the well being of the child, she is working from 2003 to 2009. Since October, 2009, she got a job in U.K., which will be beneficial for her and the child.
4.16. It is false to state that the petitioner used to pick up and drop the respondent at the practical classes and the child at the school. There was no cohabitation at all since 2000.
4.17. Respondent went to U.K. She decided to take her child with herself to U.K. and educate the child as per international standard, keeping in mind the welfare of the child. Hence the respondent educated the child in St. John's International School having Cambridge Syllabus by increasing 3 lakhs to equip the child for international standard of education for a period of one year. Since 2009 when St. Johns International School closed the Cambridge Syllabus, the respondent joined the child in Don Bosco School, Kolathur and presently the child is studying there.
4.18. Respondent has no knowledge of the LIC policies that she is not interested in taking a single pie from the petitioner. Till date she has not claimed even a single pie as maintenance for herself or for child's up bringing. She is capable of satisfying the entire needs and requirements of the child higher than the petitioner. Petitioner's bank balance and insurance policies show that her financial status is higher than that of the petitioner who is drawing only Rs.4,000/- as salary apart from the so called profits of business. Petitioner has not produced the financial status in proper document even though the petitioner is also financially unsound for upbringing of the child. The insurance policies were opened only to show to the society that he is having love and affection towards his wife and child and that he has genuine interest which according to the respondent is bad.
4.19. Respondent has no knowledge that money was lent to the respondent's father and brother in the year 1997. It is stated that the petitioner deposited the money in the respondent's father's account for the educational expenses of his brother T.L.Sasikumar who was studying and residing in Chennai. The amount said to have been deposited in the respondent's brother's account for some payments that he had to make payment in Chennai due to his business purpose. Respondent's father or her brother did not have any need for the money said to be given by the petitioner. They have all the details for the money deposited and the respondent has the details of all the money deposited back to the petitioner's account amounting to Rs.3 lakhs.
4.20. Petitioner is suffering from stone in the kidney for past several years and was admitted in the hospital for the past several years. Hence, the petitioner is also physically unfit for grant of custody of the child. Petitioner has no proper residential accommodation. Respondent states that if the child is willing to reside with his father she has no objection. Hence, the respondent prays this court to have personnel counselling with the minor child who is 11 years old and capable of making his own decision. The respondent will abide by the wish of the child.
5. From these narration of facts, according to the petitioner/husband and the respondent/wife it is evident that the marriage between the two has soured. Therefore, on 19.3.2008, the respondent/wife issued a legal notice Ex.P-27 to her husband to give consent for divorce. The petitioner/husband issued a reply Ex.P-28 dated 10.4.2008 denying the allegations. However, even before the reply could reach, the respondent/wife filed HMOP No.1101 of 2008 for dissolution of marriage on 2.4.2008, before the II Additional Family Court, Chennai vide Ex.P-32. Thereafter, near about two years from the date of filing the petition for divorce, in March, 2010, the petitioner/husband filed HMOP No.1019 of 2010 for restitution of conjugal rights before the Family Court, Chennai. Thereafter, in March, 2010 itself the present Original Petition for custody of child was filed before this Court by the husband.
6. Along with the O.P.No.306 of 2010, the petitioner/husband filed an Original Application No.403 of 2010 before this Court for grant of an order of interim injunction restraining the respondent/wife or any one claiming through her from taking minor child Arun Gowtham away to any foreign country or any other place outside the jurisdiction of this Court.
7. The petitioner/husband who wanted to restrain the wife from taking away the child outside the jurisdiction of this Court has filed another Application No.2043 of 2010 praying for interim custody of the minor child to the petitioner. By order dated 29.10.2010, interim order was passed permitting the petitioner/husband to visit the child for 3 hours between 10.00 am to 1.00 pm on Sunday for three months commencing from November, 2010. It is stated that the case was listed before this Court on 2.12.2010 and the child was examined and the earlier order dated 29.10.2010 was suspended temporarily. Thereafter, this matter was listed before this court on 23.12.2010. On that day the petitioner/husband was granted visitation rights at the Child Care Centre, located at the Family Court Campus, High Court Buildings on 27.12.2010 and 28.12.2010. Thereafter, the matter was adjourned from time to time at the behest of one or other party.
8. On 26.7.2011, the respondent/wife filed Application No.3365 of 2011 praying an order to take the minor child Arun Gautham to stay with the respondent mother at United Kingdom. On 8.8.2011 the Application No.3365 of 2011 was dismissed and the relevant portion, paras 7 to 11 of the order which will have a bearing on the present Original Petition is extracted as such:
"7. Now, the application has been filed by the mother seeking permission to go to U.K. along with the child in order to admit him in a School viz., King's Norton Boy's School, Birmingham for continuing his studies. The applicant has also produced the prospectus/brochure of the said school. I could see that number of intended admission for the year commencing, 1st September, 2011, is 120 pupils and the pupils will be admitted at the age of 11. Admittedly the boy, Arun Gautham is now studying in Don Bosco School, Kolathur. No doubt, the future of the child will be bright if he is permitted to continue his studies at U.K., provided the admission is obtained for him and a secured guardianship is provided with financial support. It is also not disputed that the admission should have been obtained in the said School on or before 1st September 2011, that too, among 120 students. The draw back in this case would be that the present application filed by the applicant was only in the month of July, 2011 and it was brought to Court on 26.7.2011. The arguments were heard on 03.08.2011 and the case was again posted to 05.08.2011 and written arguments were submitted and it is posted for orders on 08.08.2011. Even if permission is granted, whether it is feasible for the applicant to get visa in favour of the child and to go over to U.K. For getting admission in the said School, is really doubtful. Moreover, the boy is now running 12 years. The requisite for admission of the boy in the said school at U.K. Is 11 years. In case, this court permits the boy to go to U.K. And if admission is rejected on this ground, it would be much difficult for the boy to come once again to India to continue his studies. The applicant has not suggested any other School which would give admission to the child, aged 12 years. It has been categorically submitted by the learned counsel for the applicant that the child was already granted passport. However, he being a minor, the passport of a minor child will be granted only if the passport of both parents are submitted. The copy of the passport of the child has not been produced by the applicant so as to win the confidence of the Court. Even if passport is produced, the time for applying visa and for grant of visa is also to be considered and whether the time available till 1st September 2011 would be sufficient for such procedure, is a question.
8. When I interviewed the boy, he would reply that he is willing to go abroad with his mother and continue his studies in the School what his mother has submitted. He would also stated that he would return to India to continue his studies if he is not admitted in the said School. In the said circumstances, this Court would normally permit the child to go abroad for continuing his studies. As far as this case is concerned, the parents of the boy have themselves indulged in disputes, both in Family Court as well as this Court and are not in good terms. The injunction application filed by the father in O.A.No.403 of 2010 against the other, not to take the child outside the jurisdiction of this Court is yet to be adjudicated and it is still pending. In the said circumstances, the mother, the applicant in this application has not disclosed the pendency of the injunction application. Moreover, the assurance of getting admission for the boy in the said school at U.K. Is not given by the applicant before this Court. It has been fairly submitted by the learned counsel for the applicant that they have to apply for admission in the said school only after getting permission from this Court.
9. Whatever the case may be, the welfare of the child is the paramount consideration for deciding any dispute in this proceedings. I am also very much concerned about the welfare of the minor child, Arun Gautham and his future. When there is no assurance of getting an admission in the said school at U.K. And if the child is permitted to go to U.K. For the said purpose and if he is not given admission, he has to once again return to India for continuing his studies in the same school. The minor child, Arun Gautham is now studying in a very good School, namely, Don Basco School, at Kolathur with the care and custody of the family members of the applicant. When there is a very good education available for the minor child in India, is it necessary to ask him to go to U.K. Leaving the School in India to get admission which is not an assured one.
10. Considering the welfare of the child, it is better to have the education of the child at the present School, i.e., Don Bosco School at Kolathur and to continue the status quo of the orders passed by this Court in Application No.3365 of 2011. Let the application for injunction made in A.No.403 of 2010 in O.P.No.306 of 2010 be disposed of, to decide the claim of the respondent/father in that application, in an expeditious manner.
11. For the foregoing discussion, I am not inclined to grant permission as sought for by the applicant. Accordingly, the application is dismissed."
9. Against this order, the wife filed O.S.A.No.293 of 2011. By order dated 28.3.2012, the Division Bench of this Court dismissed the Appeal and directed the Original Petition to be disposed of on merits. As such, the parties are before this Court.
10. In the meanwhile, the learned III Additional Family Court, Chennai by a common order dated 19.3.2012 allowed the HMOP No.1101 of 2008 filed by the wife for dissolving the marriage and dismissed the HMOP No.1019 of 2010 filed by the husband for restitution of conjugal rights.
11.1. Thereafter, this matter relating to custody of child was listed before the learned Master for recording evidence. In this case, the petitioner/husband was examined as P.W.1. He has filed proof affidavit on 26.7.2012 and marked the Exs.P-1 to P-30. He has marked Exs.P-31 to P-33 through the cross examination of R.W.1.
11.2. The respondent/wife was examined as R.W.1. She has filed proof affidavit on 4.10.2012 and marked Exs.R-2 to R-38. She has filed Ex.R-1 through the cross examination of P.W.1.
11.3 The details of Exs.P-1 to P-33 are as follows:-
Ex.P-1 (series) is the certified copies of the photographs with the respondent and minor son.
Ex.P-2 (series) is the original greeting cards sent by the respondent to the petitioner.
Ex.P-3 is the certified copy of petitioner's Polytechnic certificate issued by State Board of Technical Education and Training.
Ex.P-4 is the certified copy of the statement of Accounts from Central Bank of India, Siddapudhur in respect of petitioner's business.
Ex.P-5 is the certified copy of the deposit receipt in the name of respondent.
Ex.P-6 (series) is the certified copies of the LIC renewal premium receipts in respect of petitioner, respondent and minor child.
Ex.P-7 is the certified copy of the recurring deposit pass book bearing account No.400098 in the name of petitioner's minor son.
Ex.P-8 is the certified copy of the marriage invitation card dated 25.6.2007 in respect of respondent's sister, wherein petitioner's name was printed.
Ex.P-9 is the certified copy of petitioner's company's product profile.
Ex.P-10 is the certified copy of the certificate of registration issued by the commercial tax department to petitioner and his sister in respect of K.J. Engineering.
Ex.P-11 is the certified copy of the statement of accounts in respect of petitioner's company M/s.K.J.Engineering for the period from 31.7.2002 to 17.3.2003 Ex.P-12 is the certified copy of the turn over details in respect of petitioner's company M/s.K.J.Engineerings.
Ex.P-13 is the original LIC Policy bond bearing policy No.321178169 dated 22.3.2002 in the name of petitioner's son.
Ex.P-14 is the original LIP Policy bond bearing Policy No.763430162 dated 20.8.2001 in petitioner's name wherein the respondent S.Sumithra is appointed as nominee.
Ex.P-15 is the original LIC Policy Bond bearing No.321549260 dated 28.9.2003 in the petitioner's name wherein the respondent S.Sumithra is appointed as nominee.
Ex.P-16 is the original LIC Policy bearing bond No.321999672 dated 27.3.2006 in the petitioner's name wherein the respondent S.Sumithra is appointed as nominee.
Ex.P-17 (series-5 numbers) is the LIC policy renewal premium receipts.
Ex.P-18 is the original partnership deed dated 1.4.1996 between the petitioner and his sister Mrs.L.Karpagajothi.
Ex.P-19 is the certified copy of the application for opening current account dated 7.12.1996 in Central Bank of India.
Ex.P-20 is the original certificate dated 4.9.2012 issued by Central Bank of India stating that the said account is in still in operation from the date 7.12.1996.
Ex.P-21 (series - 2 numbers) is the original letters dated 8.3.2006 from the agency Vijay Tex Corporation addressed to petitioner's firm (i.e.) M/s.K.J.Engineers, Coimbatore along with purchase order.
Ex.P-22 (series - 5 numbers) is the letters dated 5.9.2006 and 12.10.2006 from Sivam Marketing and services addressed to petitioner's firm (i.e.) M/s.K.J.Engineers, Coimbatore along with orders.
Ex.P-23 (series 2 numbers) is the original letters dated 9.4.2007 from Excel Syndicate addressed to petitioner's firm (i.e.) M/s.K.J.Engineers, Coimbatore along with purchase order.
Ex.P-24 (series 2 numbers) is another original letter dated 27.12.2008 from Excel Syndicate along with payment receipts dated 26.12.2008 from Sri Srinivasa Spintex Pvt. Ltd., Ex.P-25 is the original letter dated 18.7.2009 from Machine Tex (India) Agencies addressed to petitioner firm M/s.K.J.Engineers, Coimbatore.
Ex.P-26 (series - 4 numbers) is another original letters dated 11.11.2009 comprising of order copy along with payment of receipt dated 5.12.2009 and 4.12.2009.
Ex.P-27 is the certified copy of legal notice dated 19.3.2008 issued by the respondent's counsel.
Ex.P-28 is the certified copy of the reply notice dated 10.4.2008 sent by the petitioner for Ex.P-27 through petitioner's counsel to the respondent counsel.
Ex.P-29 (series - 20 numbers) are the photo copies of petitioner's deposition in HMOP No.1101/2008 and 1019/2010 on the file of the II Additional Family Court, Chennai.
Ex.P-30 (series - 14 numbers) is the certified copies of deposition in HMOP No.1101/2008 and 1019/2010 on the file of the II Additional Family Court, Chennai.
Ex.P-31 is the photocopy of birth certificate extract of minor child Gowtham.
Ex.P-32 is the photocopy of petition in HMOP No.1101 of 2008 on the file of the II Additional Family Court, Chennai.
Ex.P-33 (series 3 numbers) is the photos with negatives taken at the time of marriage of the cousin sister of the petitioner.
11.4. The details of Exs.R-1 to R-38 are as follows:-
Ex.R-1 is photograph of minor child (marked during cross examination of P.W.1) Ex.R-2 is the original resignation letter dated 31.8.2004 given by the respondent to Insat Media Solutions. Ex.R-3 is the original appointment letter dated 19.10.2004 issued by S.S.K.I.Investors Services. Ex.R-4 is respondent's original appointment order dated 2.6.2005 issued by Covansys India Private Ltd., Ex.R-5 is the computed generated copy of petitioner's pay slip dated 6.6.2005 issued by Covansys India Private Ltd., which is now named as C.S.C. Ex.R-6 is respondent's confirmation letter dated 15.12.2005 issued by Covansys India Private Ltd., Ex.R-7 is the certified copy of respondent's City Bank Statement wherein D.D. issued to T.L.Sivakumar, the petitioner. Ex.R-8 is the computer generated copy of respondent's statement of accounts in ICICI Prudential Life Insurance for the period 1.4.2006 to 5.1.2011. Ex.R-9 is respondent's original income tax statement dated 24.7.2006.
Ex.R-10 is respondent's original income tax statement dated 26.7.2007.
Ex.R-11 is the respondent's original Birla Sun Life Mutual account statement dated 15.2.2011. Ex.R-12 is the computer generated copy of the ICICI Prudential Life Insurance Premium paid certificate for the years 2007-2008. Ex.R-13 is respondent's original income tax statement dated 31.7.2008.
Ex.R-14 is the original Public Provident Fund Statement Bank pass book bearing account No.30655160079 in the name of respondent's minor son. Ex.R-15 is respondent's original designation certificate dated 19.2.2009 given to Covansys India Private Ltd. Ex.R-16 is respondent's resignation letter dated 19.2.2009 given to Covansys India Private Ltd., Ex.R-17 is the computer generated copy of respondent full and final settlement statement issued by Covansys India Private Ltd (CSC) Ex.R-18 (series - 2 numbers) is respondent's minor son's school receipts paid by the respondent to St.John's Cambridge Section for the years 2008-2009 and 2009-2010. Ex.R-19 is respondent's minor son's final assessment progress report issued by St. John's Cambridge Section. Ex.R-20 is respondent's appointment letter dated 25.9.2009 issued by SSP, The Food and Travel Experts. Ex.R-21 is respondent's computer generated copy of Money transfers to respondent's parents for minor son's expenses. Ex.R-22 (series 2 numbers) is respondent's income tax statement for the year 2010-2011. Ex.R-23 (series - 2 numbers) is the certified copies of respondent's deposition in OP Nos.1101/2008 and 1019/2010 before the Family Court, Chennai. Ex.R-24 (series - 2 numbers) is the original Doctor certificates dated 4.5.2010 and 12.11.2010 respectively, who treated the respondent during the time of pregnancy. Ex.R-25 is respondents pay slip dated 1.10.2010.
Ex.R-26 is the certified copy of the cross examination of the petitioner in HMO.P.Nos.1101/2008 and 1019/2010. Ex.R-27 is respondent's original pay slip dated 1.11.2010.
Ex.R-28 is respondent's certified copy of photographs marked by the petitioner in HMOP No.1019/2010 before the Family Court. Ex.R-29 is respondent's original pay slip dated 1.12.2010 Ex.R-30 is respondent's original Halifax bank statement for 2 months from 3.11.2010 to 4.1.2011. Ex.R-31 is the computer generated copy of the savings account statement in ING Direct Savings feels good dated 1.5.2011. Ex.R-32 is the photographs along with CD Ex.R-33 is the computer generated copy of the ICICI Prudential Life Insurance premium paid certificate for the year 2008-2009. Ex.R-34 is the certified copy of common decree dated 19.3.2012 passed in O.P.Nos.1101/2008 and 1019/2010. Ex.R-35 is the certified copy of the common judgment passed in OP Nos.1101/2008 and 1019/2010 by the Family Court. Ex.R-36 is the British Gas bill dated 17.4.2012 in respondent's name along with the school particulars. Ex.R-37 is the certified copy of order dated 28.3.2012 passed in OSA No.293/2011.
Ex.R-38 is the certified copy of interim custody application in I.A.No.1518/2010 in O.P.No.1101/2008.
12.1. From the proof affidavit filed by the petitioner/husband, it reveals that the marriage between the petitioner/husband and the respondent/wife took place in the year 1996. The respondent/wife since divorced was living with her parents for more period of time than at the place of the petitioner/husband. It is not disputed by the petitioner/husband that he had allowed her to stay with her parents in view of his business commitment which required him to go all over the country regularly. It is not in dispute that the petitioner/husband allowed the respondent/wife to pursue higher education at Chennai.
12.2. I am now dealing with the issue relating to custody of the minor child. The fact remains that the respondent/wife has been for a larger period living with her parents and she was taking care of the child till she completed her higher education at Chennai and left abroad for gainful employment.
12.3. Even as per the proof affidavit of the petitioner/husband, the child was studying at Jaigopal Garodia School at Kolathur, Chennai until 2007. For the child which was born in the year 2000, it is stated that the petitioner/husband has been paying the expenses for the education of the child and that without his knowledge, the respondent/wife changed the school and admitted the child in the St. John's International Residential School. The allegation is that the respondent/wife and her parents are trying to take away the child from the father and they did not take care of the interest and welfare of the child. It was pleaded by the petitioner/husband that the respondent's parents are in great financial crisis and have large debts and therefore, the child will not be able to grow up in a healthy atmosphere, whereas the petitioner/husband has got all wherewithal, sufficient bank balance, income, security, etc. He can take care of the child with love and affection in an homely atmosphere.
12.4. I find that the proof affidavit and the cross examination of the petitioner/husband mostly revolves around the matrimonial disputes between the petitioner/husband and the respondent/wife, their way of life, the monetary transaction, the misconduct alleged by each other. Unfortunately, these are materials which do not have any bearing for the purpose of deciding the main Original Petition relating to custody of the child. All that his reply in his cross examination is that he was taking care of the education of the minor child and that is refuted by the respondent/wife stating that the amounts which were sent are for the petitioner's own business transaction and nothing to do with the expenditure of the child or the mother.
12.5. The cross examination of the petitioner/husband conducted on 14.8.2012 reveals that even during the brief stay of the respondent/wife at Coimbatore, the petitioner/husband was not available at Coimbatore, as he had to go for his business trips to North India. Further, the fact remains that the respondent/wife and the child were not at Coimbatore for a long period of time at no point of time.
12.6. In the cross examination held on 23.8.2012, petitioner states that till 2007 he attended five birthday functions out of seven and he could not attend the first birthday function as he was at Madhya Pradesh. There are several questions posed to the petitioner/husband as to whether he will be able to show his love and affection to the child at least by giving gifts on his birthday. For that the petitioner/husband has stated that on two occasions he gifted gold chain and on one occasion he gifted a bicycle. The petitioner/husband is not able to show his regular attachment to the child. Apparently, he is unable to be with wife and child due to business preoccupation. The child, therefore, is more attached to the mother and her parents.
12.7. As regards the income, in the cross examination held on 3.9.2012, it is evident that though he states that he is a partner in K.J.Engineering, he is drawing salary by way of cheque. He states that he was earning about Rs.50,000/- to Rs.1,00,000/- per month. Besides, he was doing real estate business. In his cross examination he has stated that he was an income tax assessee. However, it reveals from cross examination that petitioner did not file any document to support income tax returns. There is also a suggestion put by the respondent/wife that documents of the partnership firm K.J.Engineering upto 2003, like, the ledgers, statement of account, showing his continuance in the partnership firm has not been filed. This is not disproved by the petitioner. Thereby, respondent has been able to establish a doubt as to his gainful employment or his earning capacity. This has a bearing on the welfare of the child.
12.8. On 26.9.2012, the petitioner/husband was re-examined and life life insurance policy bonds are submitted showing the name of the respondent/wife as nominee and it is stated that he has taken policies in the name of the respondent/wife. The original policy is with the respondent/wife and he is paying the premiums for all the policies. Copies of current account opened in various banks and recurring deposits are all filed to establish his financial stability.
12.9. In re-examination conducted on 27.9.2012, the details of business transactions upto 2007-08 have been marked. However, beyond that period there appears to be no documents to show his continuing business prospects.
13.1. In the proof affidavit filed by the respondent/wife it is stated that while reiterating the facts that the child was always with her from the date of birth and the petitioner/husband did not take care of the mother or the child ever since birth of the child, she would state that she pursued her higher education at Chennai, was gainfully employed and working at Chennai during 2003 to 2009 and taking care of herself and the child. With regard to the payment of Rs.3,00,000/- by the petitioner/husband, the respondent/wife accepted it, but on coming to know that it was made with malafide oblique motive, the respondent/wife states that she refunded the money to the petitioner's account under Ex.P-6 marked in HMOP No.1101 of 2008.
13.2. It is relevant to extract para 27 to 29 of the proof affidavit of the respondent/wife:-
27. I submit that I am taking care of my son from his tender age to till this date providing all the requirement for good standard of life, education for the child's future from his Pre.K.G. to VIII in a happy circumstances and pleasing environment for the health growth of my son and my son is also accustomed to it and wishes to be with me. My son himself has revealed the fact in his personnel conversation before this Hon'ble Court that he has not seen his father before. This statement of my son shows that the Petitioner has not taken any care. There is no necessity for my parents for financial support by me as my father is successfully running prawn hatchery and having sufficient prosperous financial status and lot of properties in and around Chennai. Also my elder brother is working abroad and my younger brother is running a chain of Take away Restaurants in Chennai. Hence it false to say that my family financially dependent on me. These averments are made by the petitioner only to mislead this Hon'ble Court. I only work to support my Son and for his welfare and to gain self-confidence in my life and to give my son a good and high standards of life. I was working from 2003 to 2009 in many Companies in Chennai. I got an opportunity to work in United Kingdom on September 2009, taking in account of my son's welfare and future I took this opportunity with the intention of taking my son along with me to UK in near future and provide him with international standards of education and good quality of life.
28. I submit that till this date I have not claimed any single pie of the maintenance for myself and for my son's upbringing. I am capable of affording all the requirements for my child higher than petitioner and the child also expressed his wishes to be with me and join me in UK and refused to go with the petitioner. I submit all the bank balances and insurance policies and my pay slips to prove my financial status. My bank statements and IT Return statements submitted before this Hon'ble Court will show that I am capable to accommodate my son with all the comforts and fulfil his entire requirement and educate him with international standard.
29. I submit that I took up a job in UK on Oct 2009. I took this opportunity only with the intention of taking my son along with me and to provide him an international standard of living. Even during all this period I have been visiting India every four months and staying here with my son on loss pay. Now I am in a reputed position in UK as a Senior Business Intelligence SQL Developer in a well-known company in UK and earning enough to support my son.
14. By consent of both parties, by order dated 5.7.2013 the Original Application No.403 of 2010 has been closed. The relevant portion of the order reads thus:
2. Pursuant to the order dated 20.3.2012 passed in O.S.A.No.293 of 2011, both the parties have agreed to maintain status-quo of allowing the minor child to continue the study in Don Bosco School at Kolathur. The respondent/mother is also not pursuing the relief with regard to taking the child abroad for studies pending decision in the Original petition.
3. Since the Court has taken the main Original Petition itself for final disposal, there is no need for the Court to consider the present application for injunction at this point of time. Accordingly, this original application is closed.
15. The issue for consideration is whether the petitioner father will be entitled to the permanent custody of the minor child, Arun Gowtham, born on 05.03.2000?
16. In this dispute between the petitioner father and the respondent mother, the primary issue in which the petitioner father has been concentrating is that he has been taking care of the minor child right from his birth till the relationship soured, but he would further fairly concede that the child and the mother were in Chennai with the parents of the respondent mother.
17. It is his own admission that he was travelling to North India very frequently in relation to his business and therefore was not able to be with the mother and child. He, however, pleads that he has been giving articles of gold as gift during the child's birthdays. It is his plea that only at the request of the respondent mother that he allowed the child and the respondent mother to stay at Chennai so as to enable her to pursue higher education and that is now being misinterpreted by the respondent mother to her benefit to state that the petitioner has not shown keen interest in the welfare of the child.
18. The respondent mother dispels the plea that it is not at her behest that she was living in Chennai right from the date of marriage, but it is because, the petitioner did not provide proper home for the respondent mother and the child, after his birth, that made her to live at Chennai with her parents. The respondent pleads that she was not given proper house in Coimbatore and the house rented by the petitioner was on the backside of his sister's house which was not in good condition and there were no proper facilities and the respondent was kept in isolation and the petitioner was always with his sister who was living in the front house. He failed to take care of the spouse whereas his entire attention and affection was only towards his sister. For this allegation, she relies upon the cross-examination of the petitioner.
19. The respondent relies upon the cross-examination of the petitioner to emphasise the fact that he failed to show the details of expenses incurred for the benefit of the respondent and the child. It is the grievance of the respondent mother that even on the first birthday of the child, the petitioner did not attend and he was otherwise busy with business. From this, it is evident that the petitioner had not taken serious steps to establish the matrimonial home at the earliest point of time. The respondent's plea that she had to pursue her higher education to support herself, appears to be more plausible explanation in the facts of the given case.
20. Insofar as the financial support by the petitioner is concerned, he relies upon Exs.P.4, P.5, P.6, P.7, P.13, P.14, P.15, P.16 and P.17. The same is contradicted by the respondent stating that Ex.P.4 - Certified copy of the statement of Accounts from Central Bank of India, Siddapudhur, is not authenticated. In any event, the amounts were sent to her father in the year 2002-2003 and the total sum of Rs.2,55,000/- and 3,60,000/- were sent to the father of the respondent and the brother of the respondent in connection with the petitioner's business in Chennai for giving the same to third parties. All these amounts were given during a short period of time and it is not spread over the entire period, i.e., from 2002 to 2006 or 2007, when the relationship between the two got strained. If these amounts have been regularly paid from time to time, then I could consider his bona fides. It is one of the pleas of the petitioner that the money was given to the father and the brother of the respondent, who were in financial crisis. If that is the case, no attempt has been made by the petitioner to seek recovery of the said amounts subsequently. On the contrary, I find that there is no periodical payments to the spouse and the child, from the birth of the child from 2000 to 2006, till the relationship is soured. There are further payments of amounts between February 2005 and December 2005 totalling a sum of Rs.4,65,000/-. From all these amounts, the respondent claims that she returned a sum of Rs.3,00,000/- on 01.02.2006 realising that the petitioner has made the deposit with some ulterior motive. These are all amounts which are relied upon by the petitioner to plead that he has been financially supporting the respondent. To further the plea that the petitioner did not support the family and he did not have the financial capability to spend amounts as pleaded by him, she relies on the bank statements to state that it does not show the nature of business transaction. The plea is that he is the partner of K.J.Engineering. It is only in the name of Lakshmanaperumal, brother of the petitioner and that is accepted by the petitioner in his cross-examination. It is not clear who is the acutal owner.
21. It is further contended by the respondent that the petitioner produced Ex.P.18 - Original partnership deed dated 01.04.1996 and that relates only to April 1996. In any event, the petitioner admitted that he has not filed the income tax returns despite claiming Rs.4,000/- as salary and that he is doing real estate business and earning Rs.50,000/- to Rs.1,00,000/- per month. There are no documents to establish that he has received income from K.J.Engineering and there is not even a pleading relating to the real estate business. These are figments of his imaginations.
22. It is also further pointed out by the respondent that Ex.P.5 is a document stood in the name of P.Kanagaraj. Ex.P.6 - LIC policy and Ex.P.17 are one and the same and the earlier policy was taken on 28.06.1997 in the name of the respondent for a sum of Rs.25,000/-. The renewal premium was paid in the month of September 2011. There is nothing to show that policy is valid during the period from 1997 to 2013.
23. Another LIC policy dated 20.08.2001, is in the name of the petitioner. The other LIC policy (Ex.P.13) dated 22.03.2002 for a sum of Rs.1,00,000/- is in the name of the petitioner. The one another LIC policy dated 28.09.2003 (Ex.P.15) is in the name of the petitioner. Yet another LIC policy dated 27.03.2006 (Ex.P.16) is in the name of the petitioner. Ex.P.7 is the Recurring Deposit Passbook dated 26.03.2004 in the name of the minor child for a sum of Rs.500/- per month. Those amounts only remained in deposit and not put to use for the child.
24. On this plea, it is contended that there is nothing to show that he has made any payment for the welfare of the child except stating that he has kept sufficient funds. LIC policies and bank deposits, according to the respondent, do not in any way further the interest of the child or his education. Therefore, in the absence of proof of continuous financial support to the minor child leave alone the respondent, all that can be inferred is that the petitioner has been making some payments here and there, but there has been no regular and substantial payment for the welfare of the child, assuming that the child is with the parents of the respondent for some convenience.
25. On the contrary, I find that the respondent had filed series of documents, viz., Ex.R.18 - payments towards school fees of the year 2008-2009 and 2009-2010; Ex.R.19 - minor son's final assessment progress report issued by the school, to show that the child is being properly educated. The other documents filed by the respondent mother are, Ex.R.3 - her initial appointment in Chennai; Ex.R.4 - appointment order issued by Covansys India Private Limited; Ex.R.5 - Pay slip of the above said company; Ex.R.6 - confirmation letter; Ex.R.8 - statement of accounts in ICICI Prudential Life Insurance; Ex.R.9 - original income tax statement for July 2006; Ex.R.10 - original income tax statement for July 2007; Ex.R.13 - income tax statement for July 2008; Ex.R.22 - income tax statement for the year 2010-2011, to show that she is financially sound.
26. She has also filed the documents, viz., Ex.R.11 - original Birla Sun Life Mutual account statement; Ex.R.12 - ICICI Prudential Life Insurance Premium paid certificate; Ex.R.14 - Public Provident Fund Statement Bank passbook in the name of the minor son; Ex.R.17 - settlement of salary by Covansys India Private Limited; Ex.R.20 - new appointment letter issued by SSP, The Food and Travel Experts. She has also filed a copy of money transfer documents (Ex.R.21) from abroad. Further documents filed are, Ex.R.25 - pay slip of the year 2010; Ex.R.27 - original pay slip for November 2010; Ex.R.29 - original pay slip for December 2010; Exs.R.30 and R.31 - bank statements, etc. All these are relied upon by the respondent to show her financial strength to support her minor child for education and she has been making payments of all expenses meted out for the education of the child in India and she is willing to provide him education in abroad as well.
27. Taking note of the rival stand, it is clear that the plea of the respondent mother that her financial capacity is much better than that of the petitioner father and that she is capable of taking care of the minor child, is irrefutably evident.
28. The relationship between the petitioner father and the respondent mother, is already over consequent to the proceedings for dissolution of their marriage. The allegations as stated are between the parties and it is the respondent who was shying away from the matrimonial home in the pretext of pursuing her higher education and the best efforts of the petitioner father to provide a matrimonial home was repulsed by the respondent, does not in any way further the case of the petitioner father, as overwhelming evidence in this case is that the petitioner father allowed the respondent mother to stay away in Chennai primarily on the ground that he has to travel all over India for his business. Further, the petitioner father and the respondent mother suffered soured relationship and his habits were found to be at fault with by the respondent mother and there was no matrimonial cordiality. It appears that the child despite this, is with the respondent's parents as one whole family. The child is more attached to the mother due to the above stated reasons. It may be that the respondent took avocation abroad, but she has been consistently ensuring that the emotional and education needs of the child are met. The grandparents are also taking care of him. She has been frequently visiting India. The child when examined by this Court, has clearly expressed his decision to pursue education in U.K., along with his mother. The child in no uncertain terms, stated that he has varied interest besides higher education, he wanted to pursue sports, more particularly, football and cricket. He also wanted to get the best of education through his mother. The academic reports also show that the child is being properly educated.
29. The attempts made by this Court from time to time, to promote cordiality between the child and the petitioner father did not have any response from the child and there were instances of strained relationship and the child was not willing to accept being with his father and that is recorded in various proceedings.
30. Though it is alleged by the petitioner father that the grandparents were tutoring the child, when the child was interviewed by this Court, he was very clear in his mind that he has wanted to pursue his education at Chennai with his mother's parents and also wanted to go abroad for his higher studies.
31. The paramount consideration for this Court is the welfare of the child. Mere physical fitness of the petitioner father, is no ground for custody of the child. It is the child's choice to take a decision either way.
32. The petitioner father for most part of his life, admits that he travelled all over India in the course of business. He is also living with his aged mother. It will be difficult for him to take care of the child as well.
33. Considering the age of the male child, who is now 13 years old and who is looking out for a bright future, there cannot be any doubt in the mind of this Court that the welfare of the child will be best suited if it is with the respondent mother.
34. In Gaurav Nagpal v. Sumedha Nagpal reported in (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1, the Honourable Apex Court, in paragraphs 50 and 51, held as follows:
"50. [T]hat when the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case [(2008) 7 SCC 673], the court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.
51. The word 'welfare' used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents and guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases." (emphasis supplied.)
35. It is also well settled that the interest and welfare of the minor should be treated as being of paramount importance. The Apex Court in Gaytri Bajaj v. Jiten Bhalla reported in (2012) 12 Supreme Court Cases 471, has laid down as follows:
"14. From the above it follows that an order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be made by the court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor. What must be emphasised is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the court."
(emphasis added.)
36. None of the above decisions were pointed out by the learned Counsel for the respondent mother, nor did the learned Counsel for the petitioner father point out any decision of the Honourable Apex Court to further his case. In fact, this case has been moving from one Court to another with a huge bundle of multiple typed sets filed by either side, thereby causing more confusion. It is only after this Court intervened that the respective Counsels filed their written submissions so as to get at the crux of the case, instead of hearing their long winding arguments referring to different typed sets taking them nowhere. Even after going through the written submissions, this Court found it lacked substance. Therefore, after analysing the pleadings and the evidence on record and also keeping in mind the ratio laid down in the decisions of the Honourable Apex Court, the matter has come to close much to the strain of this Court.
37. In the case on hand, the respondent mother has clearly established that she has been constantly showering love and affection and is capable of providing the best facilities for the child, showing enough materials to prove that she is gainfully employed abroad and that she has been remitting the amounts for the welfare of the child. She has also shown sufficient materials to cater to the needs of the child's future. She is an income tax assessee. The financial capacity of the respondent mother is on a higher pedestal than that of the petitioner father.
38. During the course of the interview of the child, the child was found to be happy with the present schooling and the care and attention given by the grandparents. The child stated that he is connecting with the respondent mother regularly on electronic media and the mother also is regularly in touch with the child. The child, in fact, clearly stated that it does not want to go with the petitioner father. On the contrary, the child's intention was to go to U.K., and pursue higher studies. The child also wanted to go to U.K., to pursue his goal to be a sportperson, more particularly, in football and cricket stating that facilities there are much better. The child appears to be well-informed rational in thought, sharp in response to the queries raised by this Court, clear and focussed. There was no material to doubt that the child was wavering in thoughts insofar as the custody is concerned. The child clearly stated that he wanted to be with the mother and pursue higher education in U.K. Repeated attempts at the Mediation Centre and Family Court to bring the child and the father together, did not improve the relationship which would in any way benefit the child. This Court felt that there was no point in forcing the child upon the father, the petitioner herein.
39. However, this Court is also alive to the situation that the child should be in touch with the father and should have some sort of contact with him. The relationship should not be severed totally and therefore, as long as the child is in India, the father will have access to the child over the telephone or any other electronic media which the child may choose to respond. If the child indicates his wish to go along with the father for any reason whatsoever, it shall be permitted. In the event of the child going abroad for higher studies in the future, till the child attains majority, when he visits India, the father should be duly intimated and arrangments should be made to enable him to visit the child at the residence where the child resides. The petitioner father on his part, should not cause any sort of scene harassment, disturbance or pain to the child at any given circumstances. The petitioner father should conduct himself in such a manner that the relationship is healthy and friendly and not otherwise.
40. This Court finds that the attachment of the minor child is with the respondent mother, both emotionally and financially. There is no doubt that it will provide a healthy platform for the growth of the child.
41. As a result, I hold that the petitioner father has not made out a case in his favour for grant of permanent custody of the minor child, Arun Gowtham. Accordingly, finding no merit, this Original Petition is dismissed.
07.02.2014
Index: No
Internet:Yes
ts/rsb
Office to note:-
R.SUDHAKAR,J.,
ts/rsb
Order in
O.P.No.306 of 2010
07.02.2014