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2012 DIGILAW 2927 (MAD)

R. Sivakumar v. Sasikala

2012-07-10

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the judgment and decree dated 09.01.2012 passed by the learned Principal Judge, Family Court, Chennai in I.a.No.2121 of 2011 in FCOP No.2375 of 2011, this civil revision petition is focussed. 2. Heard the learned counsel for the petitioner. 3. At the hearing, it is found that the respondent-Sasikala is absent despite she having been served in person. Earlier, it appears one Advocate's name M/s.M.Rajendran and others for the respondent, was printed in the cause list; but no Advocate appears to have filed any vakalat. Today, the name of such advocates viz., M/s.M.Rajendran and Venkatesan representing the respondent, by way of abundant caution have been printed as the ones appearing for the respondent along with the name of the party-Sasikala in the cause list and she is absent and the Advocates also are absent. Hence, as requested by the learned counsel for the petitioner, the matter has been taken up for hearing. 4. A thumbnail sketch of the germane facts, absolutely necessary and germane for the disposal of this civil revision petition would run thus: (i) The revision petitioner herein-viz., R.Sivakumar filed FCOP No.2375 of 2011 as against his wife the respondent-Sasikala seeking divorce. Richard Reegan aged about 9 years and Renold Reegan aged about 7 years are the children of Sivakumar and Sasikala. However, both the children are with Sasikala as of now. During the pendency of the FCOP, the I.A.No.2121 of 2007 was filed seeking the following relief: " - To direct the respondent to permit the petitioner to visit the children 1) Richard Reegan, aged about 9 years and 2) Renold Reegan, aged about 7 years twice a day without unnecessary interfering by the respondent." (extracted as such) (ii) After hearing both sides, the learned Family Court Judge, passed the order dismissing the application. (iii) Being aggrieved by and dissatisfied with the said order of dismissal, this revision has been focussed on various grounds. 5. Placing reliance on those grounds, the learned counsel for the revision petitioner would submit that his client-Sivakumar would be satisfied if an order is passed by this court to the effect permitting the petitioner-Sivakumar, the father of the children to meet his children and move with them for about two hours on every Sunday during day time in the Family Court Children Centre between 10.30 hrs and 12.30 hrs. 6. 6. The point for consideration is as to whether such a prayer of the petitioner could be granted? 7. A perusal of the order passed by the court below would reveal that the learned Family Court Judge assumed and presumed as though temporary custody of the children was sought for by the petitioner/father and he also went to the extent of observing that the children cannot be forced to meet the father against their wish for the present when the custody of the children remained with the mother. Accordingly, the prayer for the visitation right of the father was rejected by the lower court. 8. I am of the considered view that ex facie and prima facie such an order passed by the learned Judge is having no legs to stand. The father of the children, so to say, the petitioner does not seek custody of the children. Now, he only wants to meet his children for two hours on every Sunday in the Family Court Children Centre and at that time, the mother also could be present and by no stretch of imagination, it could be taken that the custody of the children would get diverted from the mother Sasikala and get vested with the father-Sivakumar. 9. Trite the proposition of law is that custody is different from visitation. The legal custody would remain with the mother only and the father will have the right to talk with his children and move with them for about two hours. It appears the learned Judge failed to distinguish between legal custody of the mother over the children from that of the father's right to temporarily coddle with the children or moving with the children even exclusively for some time. 10. There is no knowing of the fact as to why such genuine prayer of the petitioner-Sivakumar for having the opportunity of seeing his own children and move with them for a short period, should be rejected. 10. There is no knowing of the fact as to why such genuine prayer of the petitioner-Sivakumar for having the opportunity of seeing his own children and move with them for a short period, should be rejected. Hence, I would like to set aside the order passed by the court below and pass the following order: Sasikala- the respondent herein shall produce the two children, viz., 1) Richard Reegan, aged about 9 years and 2) Renold Reegan, aged about 7 years before the learned Judge concerned, who is in charge of the Family Court Children Centre on every Sunday during day time and between 10.30 a.m and 12.30 p.m; the father shall have the right to move with the children as aforesaid and thereafter the mother is entitled to take back the children. The father has to bear whatever expenses incurred by the mother towards to and fro charges, which shall be paid immediately on the children being produced every time to her and the learned Judge concerned shall monitor the same. 11. With the above direction, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.