Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 4512 (MAD)

R. Manivasakan v. M. Vimala

2012-10-31

K.CHANDRU

body2012
Judgment The original petitioner is the father. This O.P is filed by the petitioner seeking for the grant of the custody of the minor child M. Niranjan from the respondent. The O.P was admitted on 08.03.2010. On notice, the respondent has entered appearance and has filed a counter affidavit dated 14.12.2010. 2. During the pendency of the proceedings, several applications were filed claiming visitorial rights for the father. Subsequently, the matter was directed to be posted before the learned Master. Accordingly, the evidence of the petitioner was recorded as P.W.1 on 22.03.2011, 06.04.2011, 20.04.2011 and 27.04.2011. The respondent examined herself as R.W.1 and she was examined on 02.08.2011 and 18.08.2011. Subsequently, when the matter came up before this court, the petitioner filed a memo dated 04.10.2012 and the respondent filed a memo dated 05.10.2012. 3. Heard the arguments of Ms. Y. Kavitha, learned counsel appearing for the petitioner and Mrs. Hema Sampath, learned Senior Counsel leading Ms. R. Meenal, learned counsel for the respondent. 4. The case of the petitioner was that he got married to the respondent on 16.03.2000. After marriage, he took the respondent to Hong Kong, where he was working. Out of the wedlock, a minor son Niranjan was born on 18.12.2001 in Hong Kong. Subsequently, they returned to Chennai on 03.02.2002. He got faculty position in I.I.T. Madras and they were living in the I.I.T. Campus. With effect from 27.12.2003 they started living at Velacherry. The respondent was highly adamant and arrogant. She was keen that the petitioner should sever his ties with his blood relations. The respondent separated the child from him and removed the 'thali' (mangal sutra) before third persons. She threatened to commit suicide and instigated her father, brother and uncle Purushothaman to threaten him. There were email communications between the petitioner and his brother-in-law, the respondent and her family members. She had also deserted him and threatened him that she will file FIR against him. She took away the minor son and all her belongings apart from the birth certificate and passport of the child. All his efforts to bring her to matrimonial home had failed. Unable to bear her torture and cruelty, he filed a petition for divorce in FCOP No.421 of 2004 before the Family Court at Chennai. Since then, the child was living with her only. All his efforts to bring her to matrimonial home had failed. Unable to bear her torture and cruelty, he filed a petition for divorce in FCOP No.421 of 2004 before the Family Court at Chennai. Since then, the child was living with her only. Because of the welfare and the age of the child, he did not oppose the move of the respondent to take the child along with her. Since desertion, the petitioner has seen his son only on few occasions with the intercession of his lawyer. 5. The petitioner wanted to establish a sustained bond between himself and the child, so that the child does not feel any lacuna in his life. He wanted custody of the child being the person of good standing in the community, well educated and also having faculty position in the I.I.T. He and his family members are living as a joint family which will be an excellent psychological background for the healthy growth of the child. His family is steeped in culture and tradition. If the child is brought up with the respondent, it will lead to a disaster of the child picking up her bad traits. Due to bad behaviour of the respondent, the child is likely to develop emotional and psychological problem, which may result in low self esteem and poor performance . The respondent is a cerebral AVM patient which often causes her to be irritable, angry and moody, which results in feat and anxiety in the minor son. The respondent is unfit to bring up the child. She is a fanatic of superstitions. The respondent's decision to move his son permanently to the U.S. will be contrary to the interest of the child. When he had visitation right, he found the child showing affection to him. Therefore, being the natural guardian under Section 6(a) of the Hindu Minorities Guardianship Act, 1956 and the child is also aged 9 years, he prayed for custody of the child to be restored to him. 6. But in the memo filed before this court on 04.10.2012, the petitioner changed his prayer that he may have weekend custody, so that he will have sustained bond between him and the child. 7. The respondent, to counter to the same, alleged that the relationship between them got severed only when they returned to India. 6. But in the memo filed before this court on 04.10.2012, the petitioner changed his prayer that he may have weekend custody, so that he will have sustained bond between him and the child. 7. The respondent, to counter to the same, alleged that the relationship between them got severed only when they returned to India. In fact, they were jointly sending Rs.20,000/- per month to the petitioner's parents, which helped the petitioner's brother to complete his Ph.D. The averment that the petitioner is fond of children is denied. He had no compunction about breaking a family and abaondoning her and the child. After depriving her and her child the love and affection, he would claim that he was sponsoring for the deprived children through NGO. He threw tantrums and abused her in the presence of the child. She never malign the petitioner. The allegation that her family members have interceded and warned the petitioner was denied. The petitioner during divorce proceedings was assisted by the counsel and inflicted an elaborate trial on the respondent. In the pleadings filed before the family court, nothing was mentioned about the child and his custody. On the other hand, she stated that she wanted to rejoin him and did not want to bring up her son in a broken home. Whereas the petitioner had categorically stated that he did not want the respondent and that it was his stand even during the counselling before the family court. She was brought up in a cultured and civilized family. When she had to go to work, the child was taken care of by her mother. She is a stable person and never threatened to commit suicide. She borne all ill-treatments meted out to her stoically. It was the petitioner who never showed any interest in visiting the child in the school. She had excellent academic career and was working to the satisfaction of her employer. She had Ph.D degree. The AVM problem manifested only after three years after the marriage and now she is completely cured. The petitioner had sent emails indiscriminately to all and sundry to spread false story. She had made repeated phone calls to the petitioner at the time of admitting the child to the school. But he never cared to take the calls and never replied. The petitioner never contacted her regarding the child's school admission. 8. The petitioner had sent emails indiscriminately to all and sundry to spread false story. She had made repeated phone calls to the petitioner at the time of admitting the child to the school. But he never cared to take the calls and never replied. The petitioner never contacted her regarding the child's school admission. 8. The allegation that she planned to move with the child to US was denied. But she wanted to take the child to Florida for presenting a research article in an International Conference. The petitioner has no control over his temper. The petitioner's family wanted the savings of both of them earned during their stay in Hong Kong. Their aim was also to get the Velacherry plot in their favour. They were harsh and avaricious. They have broken a happy marriage. The petitioner's sister and brother also has been thriving on their income. There was no ground to shift the custody of the minor. Though he claimed to be the guardian, he never bothered about the child during divorce proceedings were pending. But he started showing interest only during December, 2009. She is working as an Assistant Professor in Anna University and capable of providing suitable and comfort home atmosphere to he child. The child is at present studying in AMM Matriculation Higher Secondary School at Kotturpuram and is brought up with proper moral values. She has no intention to migrate to U.S. with her son. She had never raised any objection for the visit of the petitioner. But of late his behaviour turned from bad to worst. If the custody is given to the petitioner, it will only spoil the minor child's health and mental backup. The sudden interest shown by the petitioner on the child is only as a counter blast to the dismissal of his petition for divorce. 9. But, however, in reply to the memo filed by the petitioner, the respondent filed a memo on 05.10.2012 as noted already. It was stated that the petitioner had volunteered to pay the educational expenses of the child and so far he had paid to the respondent Rs.70,000/- and a sum of Rs.75,000/-was deposited in the fixed deposit in the name of the minor. The divorce was granted in an appeal in C.M.A.No.2083 of 2009 by this court on 20.5.2009. It was stated that the petitioner had volunteered to pay the educational expenses of the child and so far he had paid to the respondent Rs.70,000/- and a sum of Rs.75,000/-was deposited in the fixed deposit in the name of the minor. The divorce was granted in an appeal in C.M.A.No.2083 of 2009 by this court on 20.5.2009. It was also stated that the petitioner again got married in March 2012 and his wife is now expecting the child. The petitioner used to visit the child on and off. During the year 2011, he saw the child once or twice in a month and it continued in 2012. However, it was stated that the respondent has no objection in continuing with this practice. The petitioner must be directed to pay educational expenses of the minor which was voluntarily offered by him in A.No.1558 of 2010. 10. In the light of these facts, this court is of the view that the request made by the petitioner for the grant of the custody of the minor child cannot be granted only because he is the natural guardian of the child. In this context, it is necessary to refer to a judgment of the Supreme Court in Githa Hariharan v. Reserve Bank of India reported in (1999) 2 SCC 228 and in paragraphs 7 to 10, the Supreme Court had observed as follows : "7. The expression natural guardian is defined in Section 4(c) of the HMG Act as any of the guardians mentioned in Section 6 (supra). The term guardian is defined in Section 4 (b) of the HMG Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of guardian and natural guardian do not make any discrimination against mother and she being one of the guardians mentioned in Section 6 would undoubtedly be a natural guardian as defined in Section 4(c). The only provision to which exception is taken is found in Section 6(a) which reads the father, and after him, the mother. (emphasis ours) That phrase, on a cursory reading, does give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime of the father. The only provision to which exception is taken is found in Section 6(a) which reads the father, and after him, the mother. (emphasis ours) That phrase, on a cursory reading, does give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime of the father. In fact, that appears to be the basis of the stand taken by the Reserve Bank of India also. It is not in dispute and is otherwise well settled also that the welfare of the minor in the widest sense is the paramount consideration and even during the lifetime of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of the court, where to do so would be in the interest of the welfare of the minor. 8. Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a court of law, the word after in the section would have no significance, as the court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as the guardian of the minor during the lifetime of the father, without the matter going to the court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of Section 6(a) (supra). In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the lifetime of the father and not during his lifetime. 9. Is that the correct way of understanding the section and does the word after in the section mean only after the lifetime ? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. Did Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on the grounds of sex? In our opinion No. It is well settled that if on one construction a given statute will become unconstitutional, whereas on another construction which may be open, the statute remains within the constitutional limits, the court will prefer the latter on the ground that the legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions. 10. We are of the view that Section 6(a) (supra) is capable of such construction as would retain it within the constitutional limits. The word after need not necessarily mean after the lifetime. In the context in which it appears in Section 6(a) (supra), it means in the absence of, the word absence therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of a harmonious construction of Section 4 and Section 6 of the HMG Act, without causing any violence to the language of Section 6(a) (supra)." In view of the above, the assertion of the petitioner being the natural guardian should be appointed as the guardian and should be granted the permanent custody of the minor cannot be countenanced by this court. 11. 11. Ultimately, it has been held in more than one judgment that what is best interest of the child is the only criteria that will be the determining factor. Even as per the admission of the petitioner, subsequent to the success in the appeal for divorce, he is now married. In the counter memo filed, it was stated that his newly married wife is also expecting. The minor child is in the custody of the respondent since the year 2004 and nearly for a period of 10 years. Therefore, the original petitioner's seeking for the custody of the minor child cannot be granted. However, the petitioner is entitled for visitation right. If he wants to see the minor child, he can make a prior appointment on any week end once in a month and spend two hours with the minor son. As already admitted by him in A.No.1558 of 2010, he is bound to pay the educational expenses of the minor child till the child becomes a major. With these directions, this original petition will stand dismissed. No costs.