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2009 DIGILAW 2183 (MAD)

R. Muruga Perumal v. J. Radhamani

2009-07-07

S.PALANIVELU

body2009
Judgment :- The petition filed in H.M.O.P.No.131 of 2008 against the respondent/husband for divorce on the ground of cruelty. Out of the lawful wedlock, a female child was born on 30.4.2003 at Kasthuri Hospital, Tambaram, Chennai. The petitioner got admission at R.St.Marys Matriculation School, Nandivaram, Guduvancheri in 2006. The respondent/husband was not present at the time of admission in the school. The petitioner was working as a teacher in that school. On 16.03.2008 the respondent took the child and now she is with the parents of the respondent. The petitioner is willing to educate her in the same school. If she is allowed with the respondent, her life and education will be spoiled. Hence the petitioner is seeking interim custody of the child. 2. In the counter filed by the respondent, it is stated that on 12.03.2008 the petitioner had handed over the child to him by saying that Suwaashas life will be prosperous in future only under the custody of himself and after that she left the family and went to her parents house. Now the child is aged about 6 years, she is going to school regularly. The present petition is not maintainable and the petition has to be filed under Section 6 of the Hindu Minority and Guardianship Act 1956. In the main petition for divorce, the petitioner has not whispered anything regarding the custody of her daughter. Only to harass him and the child, the petition has been filed. Hence, the petition has to be dismissed. 3. The Principal Subordinate Judge, Chengleput, after hearing the parties and examining personally the child Suwaasha, daughter of both the parties, aged about 6 years, directed this petitioner to hand over the child Swaasha to the respondent within a week, granting visitation right to him to visit the child on the school holidays. Aggrieved against the order the petitioner is before this court. 4. Mr. Aggrieved against the order the petitioner is before this court. 4. Mr. Mathivanan, learned counsel for the petitioner would submit that the petition is not maintainable under Section 26 of the Hindu Marriage Act 1955; that there is no allegation against the petitioner that he had any immoral habits nor unfit to be a guardian; that the court below has not taken into consideration that better choices will be the father in this case; that he would take care of the childs health, education and intellectual development and that the reasons adduced by the Court below are not enough to pass the order for interim custody. 5. Repelling the arguments, Mr. C. Ravichandran learned counsel for the respondent would state while the welfare of the child is considered, since it is a female child, it must be with the mother and that the respondent is a teacher who would be more concerned with the welfare of her daughter and that nothing warrants interference with the order challenged. 6. It transpires from the order of the Court below that the child Swaasha is with the parents of the petitioner in Kariapatti village in Virudhunagar District and is studying in St. Marys Matriculation School, Kariapatti, Virudunagar District. A copy of the school marks card has been produced, which shows that the child is studying first standard during the year 2008-2009. The petitioner is admittedly residing in Chennai and he is in military service and he is likely to be transferred to anywhere across the country and hence the Court below is of the view that since he could not be always available at Chennai, he let the child with his parents at Kariapatty. It is stated that the respondent has secured teacher post in the same school viz., R.St. Marys Matriculation School, Nandivaram, Guduvancheri, where the child was studying earlier. It is well settled principles of law that the paramount consideration is in the interest of the child rather than the rights of the parents, the court has to weigh the circumstances in which both the parents are placed, thoroughly scrutinise them and then to reach a conclusion with whose custody will be more safe for the custody of the child. 7. 7. In this context, the learned counsel for the respondent draws attention of this Court to a decision of this Court reported in 1991 (2) MLJ 231 [Mary Vanitha v. Babu Royan] held by A.R. Lakshmanan,J. (as then His Lordship was). The operative portion of the judgment is as follows: "Human nature is much the same all the world over, and in the opinion of the court if the mother is a suitable person to take charge of the child, it is quite impossible to find any adequate substitute for her for the custody of a child of tender years. Applying the above test on the facts and circumstances of the present case, the best way to serve the welfare and interest of the minors, who are aged about 5 years and 3 years respectively would be to remove the child from the custody of the father. The mother had a steady income, out of which she was in a position to meet all the expenses of her children." 8. He also placed much reliance of a Division Bench of this Court in 2005 (1) CTC 536 [Asha Varghese v. Leelama Pailo and others] in which it is held thus: "5. It is the law, that till the completion of the year of five of any child the child whether male or female must be with the custody of the mother and even thereafter, if the child is a female child, till such time, that the child attains puberty or the mental make up, so as to withstand and take care of herself without anybody,s help, only then, the question as to with whom the child has to be left, that would also arise only between the father and mother of the child." 9. This Court is following guidelines contained in some of the decisions of the Supreme Court and the relevant portions are being incorporated in this order: 9.(i) In (2008) 7 SCC 673 [Mausami Moitra Ganguli v. Jayant Ganguli] the Apex Court has held that a heavy duty is cast on the court to exercise its judicial discretion judiously in the background of all relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration. 9.(ii) In (1998) 1 Supreme Court Cases 112 [Dhanwanti Joshi v. Madhav Unde] the Supreme Court held as follows: "Orders relating to custody of children are by their very nature not final, but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interests of the child. There must be proof of substantial change in the circumstances presenting a new case before the court. It must be established that the previous arangement was not conducive to the childs welfare or that it has produced unsatisfactory results." 9. (iii) The Supreme Court in another case reported in (2008) 9 SCC 413 [Nil Ratan Kundu and another v. Abhijit Kundu] has observed that in determining the question as to who should be given the custody of a minor child, the paramount consideration is the "welfare of the child" and not the rights of the parents under a statute for the time being in force. It is further held as follows: "In deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a childs ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or, even more important, essential and indispensable considerations. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a childs ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor." 9.(iv) The Supreme Court in (2009) 1 SCC 42 [Gaurav Nagpal v. Sumedha Nagpal] has also formulated principles to be followed by the courts in the matter of custody of child while both the parents are at loggerheads and those are as follows: "The principles in relation to the custody of a minor child are well settled. The paramount consideration of the court in determining the question as to who should be given custody of a minor child, is the "welfare of the child" and not rights of the parents under a statute for the time being in force or what the parties say. The court has to give due weightage to the childs 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. Mature thinking is indeed necessary in such a situation. 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 also relevant for deciding the issues. The object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of wards health, maintenance and education. The power and duty of the court under the Act is the welfare of minor." 10. This court takes into consideration of the fact that the child is female and the stay of the child with the parents of this petitioner at Kariapatti, which is far away from Chennai, where both the parents are living, of course separately. The power and duty of the court under the Act is the welfare of minor." 10. This court takes into consideration of the fact that the child is female and the stay of the child with the parents of this petitioner at Kariapatti, which is far away from Chennai, where both the parents are living, of course separately. It is not out of place to mention that leaving the child in a far off place is not at all good for the welfare of the child while the positions of the spouses are concerned. This court is of the considered view that the custody of the child with the mother would be more advantageous to the childs welfare, since she is able to maintain herself besides she is working in the same school where the child was studying already. It is also learnt from the order of the court below that on representation by this respondent to the school authorities, they are willing to admit the child at once to pursue her studies without any break. 11. Keeping in mind the principles and guidelines contained in the decisions of the Supreme Court and this Court aforementioned, this Court is of the opinion that the custody of the child with the mother would be more advantageous to the welfare of the child and there is no valid ground made out interfere with the well considered order passed by the Court below. The observations and findings of the learned Principal Subordinate Judge are more appropriate, which are pertinent to the point in issue and he has personally seen the child on two occasions in the court and reached a conclusion that the child is not in a position to farm a definite idea. He has also aptly provided visitation rights to the petitioner. If both parties intend to have any clarification in the order challenged before this court as to the visitation rights, with reference to time and place, where the child has to be visited by the petitioner, they may very well approach the Court below by filing separate application and get orders. The Civil Revision Petition is devoid of merits which suffers dismissal. 12. In fine, the Civil Revision Petition is dismissed. No costs. Connected M.P. is also dismissed.