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2018 DIGILAW 2048 (MAD)

R. Devanand v. Rukmani @ Meera

2018-07-06

N.SATHISH KUMAR

body2018
ORDER : 1. This Original Petition has been originally filed to appoint the petitioner as the guardian of the minors, viz., Akshay Anand and Ashreya Anand. Subsequently the prayer in the Original Petition has been amended for grant permanent custody of the minors to the petitioner. 2. The brief facts leading to filing of this Original Petition is as follows : The petitioner and the respondent were married on 27.10.1997 at Chennai. Out of wedlock, two children were born to them viz. Akshay Anand, aged about 16 years and Ashreya Anand, aged about 10 years. It is the contention of the petitioner that even on the date of marriage, the respondent appeared drowsy. During the wedlock, the petitioner bought a car for respondent’s use. The petitioner is also supportive to her illness and had gone with the respondent for doctor's visits. When the matter stood thus, when the petitioner returned from United States, he was informed by the neighbours that the respondent is trying to flirt with her friend Neeru’s husband. It is also the case of the petitioner that his son has developmental issues and wanted attention of the respondent. However, the respondent used to leave the son with the petitioner to cry in the hotel and come back early in the morning. 3. In May 2008, the respondent suddenly went to get her uterus removed. Thereafter, she had stopped focusing on his son, going to his daughter's school, where she befriended with one Rajaraman. The respondent and the said Rajaraman would converse endlessly. During September 2008, the respondent went to her native place at Thenkasi. The petitioner realized that Mr.Rajaraman has also gone with his family to Thenkasi at the relevant point of time. The petitioner, however did not press the above matter further. The petitioner had taken his son to several doctors without his wife s knowledge because she would not accept that he was mildly autistic. At the same time, the petitioner was also asked to relocate to United States by his Company Satyam Computers. Accordingly, he went to United States on a short term visa in October 2008 and came back in December 2008. After his return to India, he found that his son s situation was turning worse and the respondent has not given proper care to his son. Accordingly, he went to United States on a short term visa in October 2008 and came back in December 2008. After his return to India, he found that his son s situation was turning worse and the respondent has not given proper care to his son. The petitioner was summoned to the school where he was studying and he was told hat his son had started beating the other children at school. Thereafter, the petitioner and the respondent went to Bangalore to have their son treated for his mental issues as he started hitting everyone at school because of delusionary images of other people beating him. The respondent has stopped involving the petitioner in the search for a school and insisting on him doing it alone. The petitioner s son was asked to leave many schools. When the matter stood thus, in the year 2009, when he had came from his office, he found that the respondent was chatting with someone and she hurriedly closed the chat window and went to the other room. The petitioner sat down for office work and noticed some conversations between her and Mr.Rajaraman addressing her as love. The petitioner also noticed some very cheap conversations between the respondent and her friend. The petitioner questioned the respondent and told her that she may have to go to the Court and at that time, she had apologised and said that she had a tendency to flirt because of her medication. 4. On March 29th, 2010, the petitioner has found the respondent had a cell phone and also found that she had made several calls to the said Rajaraman. However, the petitioner left the matter considering the best interest of the children. After some time, the respondent has also taken her profession as free lancer and made several visits to various cities including Hyderabad, Allepey, Chandigarh, Bangalore etc., while the kids were taken care of by the petitioner’s parents. The petitioner and the respondent along with their respective family members had performed a thread ceremony in February 2012 for their son, wherein she had brought in a person, whom she introduced as a co-worker called Syed. Besides, the respondent had also participated in a beauty contest for which she would hardly be at home, while the petitioner would take care of the kids. She also went to night parties, night shows, etc. Besides, the respondent had also participated in a beauty contest for which she would hardly be at home, while the petitioner would take care of the kids. She also went to night parties, night shows, etc. Many times she would take the daughter with her and the petitioner insisted that the daughter should not be taken to parties and A-rated movies in line with her age. During the end of 2012, the petitioner's company had provided growth opportunity to move to France and when the petitioner had spoken to the respondent, she was non-committal about her coming to France along with the children. However, she and her activities continued to be very strange. On first January 2013, she celebrated New Year and returned home around 2 a.m. totally drunk. 5. In January 2013, the respondent informed him that she will start an advertising business with her friend, who was the third place winner in the beauty contest. The respondent used to make several calls and hold conversations of cheap nature with the said Syed during night hours and it would be reciprocated by Syed at the same hours. The petitioner s son is not being taken care and he needs personal care. In the month of April 2014, the petitioner s son went to a shop alone and took biscuits because he was hungry and got beaten and the police had to intervene. In August 2013, the petitioner went out to a mall with his daughter and when he came back he called the respondent to say that his daughter was coming home while he would park the car and come up and respondent just said yes and without hanging up, she spoke on the other line and the petitioner overheard the conversation between the respondent and the Syed and he spoke about her physical and emotional intimacy between them. Despite the petitioner questioning the respondent and insisted her to come to France citing better education for kids, she has not joined the petitioner. 6. In the meanwhile, in January 14, the respondent has given a complaint to the office of the petitioner in order to spoil the reputation of the petitioner. When the petitioner returned back to India, he also asked for the kids to be sent during the summer holidays to Paris, but the respondent did not agree for it. She was after money only. When the petitioner returned back to India, he also asked for the kids to be sent during the summer holidays to Paris, but the respondent did not agree for it. She was after money only. The respondent left the children in her parents house and went out on her business trips without taking care of the kids. The petitioner is ready to take the respondent and the kids to Paris. On the contrary, the petitioner is worrying about the legality of the respondent's business and kind of activities that are going on. The respondent is refusing to join the petitioner in Paris with a wicked intention and in order to liver her life on her own style without any control from the petitioner and his family, thereby, ill-treating, harassing and torturing the petitioner and thereby caused mental agony and hardship to the petitioner. Despite several mediations requesting the respondent to accompany the petitioner to Paris, she declined to do so. The respondent is very particular in petitioner s earning and property. As the respondent has not taken care of the minor children properly, the petitioner being the father, is entitled for permanent custody of the minor children. 7. The brief contentions of the respondent is as follows : Except admitting the marriage and birth of the children, the other allegations of suspicious character of the respondent and the allegation that she has not taken care of the minor children are denied by the respondent. It is the further contention of the respondent that she has not removed her uterus and the same has been pressed into service only to malign the modesty of the respondent. It is also denied that she would converse endlessly with one Rajaraman. It is the further contention of the respondent that she only used to take her son to doctor for treatment. The petitioner had accompanied only on few occasions. She has also volunteered to join the school in which his son is studying, so that she would be with the child in the school as he is affected with autism. 8. The allegation that the petitioner noticed the conversation with the respondent and the said Rajaraman and between the respondent and her friend is also denied. The respondent worked as a free lancer as an insurance advisor on commission basis and not as a regular salaried employee without any fixed income. 8. The allegation that the petitioner noticed the conversation with the respondent and the said Rajaraman and between the respondent and her friend is also denied. The respondent worked as a free lancer as an insurance advisor on commission basis and not as a regular salaried employee without any fixed income. She had participated in a contest at Chennai only with the prior permission of the petitioner. The allegation that she would go to late night parties and cinema halls along with her daughter is also denied. The respondent was not willing to go to France because of the suspicious character, false allegations, maligning the character and modesty of the respondent right from the date of the marriage. It is further submitted that she has already informed the petitioner that she is doing business with one Syed and mother of Syed is a partner with the respondent. The allegation that she has moved with Syed is also denied. Further, the allegation that the respondent has not taken care of the children is also denied. But, in fact, the petitioner used to buy his son lot of violent, aggressive games CDs to which the son has become addicted and uncontrollable, inspite of the respondent's advice to her son in playing or watching such violent CDs and the petitioner used to replace those violent games CDs in bulk. The petitioner himself filed the Original Petition for restitution of conjugal rights in F.C.O.P.No.4642 of 2014 on the file of the Principal Judge, Family Court, Chennai and later, he had withdrawn the said petition. Hence, denying the entire allegations prayed for dismissal of the Original Petition. 9. Heard Ms. K. Nalinishree, learned counsel for the petitioner and Ms. Chitra Sampath, learned Senior Counsel for the respondent. 10. The main contention of the learned counsel appearing for the petitioner is that the male child, who has now attained majority is suffering from autism and he has not been given care and attention by the mother. The petitioner as a dutiful father has taken care of the children and had spent lots of money and when the petitioner was in foreign countries on his job, the respondent has withdrawn the amount of the husband and she started life on her own style. The second child is a girl child, who is aged about 14 years. 11. The petitioner as a dutiful father has taken care of the children and had spent lots of money and when the petitioner was in foreign countries on his job, the respondent has withdrawn the amount of the husband and she started life on her own style. The second child is a girl child, who is aged about 14 years. 11. From the beginning, the respondent has not shown any love and affection towards the children. On the other hand, she has started moving out on her own and developed company of others, particularly with one Rajaraman and one Syed. The proceedings initiated by the respondent in the domestic violence case clearly vouchsafe the fact that the respondent is living adulterous life. During her cross examination in the earlier proceedings, she has categorically admitted that she was in the company of her boy friend. The above evidence is also marked in this proceedings as Ex.R.7 and the documents namely Ex.R.5, Ex.R.6 and Ex.R.7, Ex.R.8, Ex.R.9, Ex.R.12 and Ex.R.15 filed in this proceedings collectively establish the fact that the respondent is leading adulterous life. Therefore, if the children are allowed to be in her custody, it will not be in the best interest of the children. 12. It is the further contention of the learned counsel that the respondent has not entered into box nor adduced any evidence. Therefore the allegations made by the petitioner are deemed to be admitted and no other proof is required. The petitioner's pleadings about the adulterous life is not denied by the respondent and she has not come before this Court to subject herself for cross examination, therefore, it has to be presumed that those allegations are true and proved. Further, she has also in her evidence admitted that she used to do various business and on the other hand the petitioner is well placed in life and is now residing in France and working in a reputed company and he is capable of maintaining the children and he is the best person to give proper education and utmost comfort to the children. 13. It is further submitted that the entire cross examination of the respondent in an earlier proceedings and her admission in her cross examination clearly establish that the petitioner is entitled to take the custody of the girl child, who is a minor, aged about 14 years. 13. It is further submitted that the entire cross examination of the respondent in an earlier proceedings and her admission in her cross examination clearly establish that the petitioner is entitled to take the custody of the girl child, who is a minor, aged about 14 years. The learned counsel also submitted that as far as the boy is concerned, he has now attained majority. Therefore, he would not press the custody of the boy. Though he is suffering from mild autism, he is now willing to go with his father and in view of the same no Orders is required in respect of the boy. The learned counsel further submitted that the girl child is in the custody of the respondent. The respondent is involved in adulterous life and the custody of the girl child at the hands of the respondent would not be in the best interest of the child. Hence, submitted that the petitioner is entitled to have the custody of the minor daughter and to take her to France for better education. In support of her contention, she also relied upon the judgment reported in 2012 (1) MWN (Civil) 496-P.Nirmala Vs. K.Muruguselvam. 14. On the other hand, the learned Senior Counsel Mrs. Chitra Sampath, appearing for the respondent has vehemently submitted that this petition has been filed only to tarnish the image of the wife with bald allegations. Admittedly the petitioner left India in the year 2013. His evidence itself demonstrate that from 2013, he did not know how both the children had been maintained by the mother. Having made such serious allegation of adultery, the petitioner himself has filed a petition for restitution of conjugal rights in the proceedings before the Family Court and subsequently he has withdrawn the petition. All these facts show that the allegations have been pressed into service only to malign the reputation of the respondent taking advantage of the matrimonial discard between the parties. 15. It is the further contention of the learned Senior Counsel that absolutely there is no material on record even to infer the allegation of the petitioner. A person who asserts or allege adultery, it must be established by positive evidence. Such allegations cannot be presumed merely on the basis of some bald allegations. Admittedly, the son of the petitioner and the respondent is suffering from autism. A person who asserts or allege adultery, it must be established by positive evidence. Such allegations cannot be presumed merely on the basis of some bald allegations. Admittedly, the son of the petitioner and the respondent is suffering from autism. The petitioner even did not known the nature of the treatment given to the son and the name of doctor who is giving treatment to his son for autism. These facts itself establish that the allegation of the petitioner is nothing but concocted and only to tarnish the image of the respondent. 16. It is the further contention of the learned Senior Counsel that the documents filed in this Original Petition, namely the finding given by the Metropolitan Magistrate in D.A.V.No.2464 of 2014, the domestic violence case filed by the respondent has no binding on this Court. At any event, the above finding is also now under challenge before the appellate Court. Therefore, no relevance can be placed on the Order of the Metropolitan Magistrate. 17. It is the further contention of the learned Senior Counsel that the so called call records and the copy of the photographs filed in this Original Petition as documents is not admissible in evidence. The call records exhibited as documents is not admissible in evidence, in view of the specific bar under section 65(b) of the Indian Evidence Act. Similarly, merely on the basis of the photographs filed, the adultery cannot be presumed. It is the further contention of the learned Senior Counsel that the evidence adduced in the Domestic Violence case filed by the respondent cannot be treated as an admissible evidence since any evidence recorded in a previous proceedings in between the living parties can be used utmost to contradict or corroborate the evidence and as such any deposition recorded in an earlier proceedings is not admissible in evidence and cannot be looked into. Hence, submitted that without any evidence to establish the alleged adultery, the petitioner is not entitled to the custody of the children, who were all along taken care by the respondent. The petitioner did not even know how the children are doing in the school, what is the nature of the treatment given to their son from the year 2013 and the petitioner has come before this Court as if he is the best person to have the custody of the children. The petitioner did not even know how the children are doing in the school, what is the nature of the treatment given to their son from the year 2013 and the petitioner has come before this Court as if he is the best person to have the custody of the children. Hence, submitted that this petition is liable to be dismissed. 18. In the light of the above submission, now it has to be seen whether the petitioner is entitled for permanent custody of the minor children. 19. Originally, this petition has been filed for appointment of the petitioner as the guardian for the children. Subsequently, the prayer has been amended and now the petitioner claims permanent custody of the children. The son of the petitioner and the respondent has now attained majority. This fact is not in dispute. It is also not in dispute that the son of the petitioner and the respondent is suffering from mild autism. This Court has also interacted with both the son and the daughter of the petitioner and the respondent, in the presence of the respondent and paternal grandfather of the children. During interaction, this Court found that though the boy, viz., Akshay Anand is suffering from autism, he is capable of understanding the nature of things and also able to comprehend the issue even between his parents. He has also expressed his desire to go to foreign country for higher studies with the help of his father. It is further to be noted that whenever, the petitioner used to visit India, the boy used to meet him in his house. He has openly admitted the same before this Court. Similarly he is also a frequent visitor to his paternal grandfather, who is residing in the same campus. These facts are not in dispute and in fact the boy has categorically informed this Court that he wish to continue his education with the aid of his father in foreign country. That being the position, I am of the view that it is for the petitioner to seek appointment of himself as a guardian for his son, who is suffering from autism under the National Trust Act 1999 by moving appropriate authorities, since the Act is enacted by the Parliament in respect of persons with certain disabilities and a person suffering from autism also comes under the Act called National Trust Act. Therefore, this Court does not propose to pass any order in this petition in respect of the boy viz., Akshay Anand, who has completed 18 years. 20. With regard to the other aspects, the main contention of the petitioner is that the wife is leading adulterous life, therefore, the minor girl child, viz., Ashreya Anand, should be removed from his wife for the betterment of the child. It is not in dispute that the marriage between the respondent and the petitioner took place in the year 1997. They were living together as husband and wife and thereafter, strained relationship started between them. It is also not in dispute the fact that during the pendency of this Original Petition, the petitioner filed a petition for restitution of conjugal rights in the year 2014 before the Principal Judge, Family Court, Chennai. Thereafter, it appears that the same has been withdrawn by the petitioner. 21. The main grievance of the petitioner is that the mother has not given proper care to the autistic child which lead to further worsening of his misbehaviour. Further the girl was taken by the mother to late night parties which would not be in the best interest of the girl child. The further allegation of the petitioner is that the wife is leading adulterous life. Though various allegations running about 40 paragraphs have been alleged in the entire petition, the main allegations seem to be that the respondent has developed contact with one Rajaraman and used to converse with him frequently, even in the late night hours. Further, during his absence, she had developed friendship with one Syed. Further, it is also pleaded that the respondent also tried to flirt with her friend Neeru's husband. These three instances were primarily pleaded in the petition to contend that the respondent is leading an adulterous life. 22. It is well settled that mere making allegation of adultery is not sufficient. The allegations must be proved with relevant materials before the Court of law. Since the allegations affect the reputation of the wife, such allegations have to be proved and should be conclusive in nature. Mere inferences are not sufficient to prove such allegations. The petitioner has mainly relied upon Ex.P.2 to unearth the alleged adulterous life of the respondent. The allegations must be proved with relevant materials before the Court of law. Since the allegations affect the reputation of the wife, such allegations have to be proved and should be conclusive in nature. Mere inferences are not sufficient to prove such allegations. The petitioner has mainly relied upon Ex.P.2 to unearth the alleged adulterous life of the respondent. Ex.P.6 call details were filed in respect of the mobile No.9840661444 to show that the respondent frequently conversed with her boy friends. It is curious to note that having filed such documents, absolutely, there is no material even to infer that the phone No.98406 61444 is used by the respondent. That apart, the other phone to which the out going calls went, who is owning such number, have not been established. It must be established that the respondent was using the mobile phone number 98406 61444. Then it has to be established that the other phone is that of the person said to be the friend of the respondent. Only when such facts are proved before the Court, atleast a presumption that there were some conversation between the parties can be drawn. Without establishing the basic facts to prove the particular allegation, mere filing of the call register, the Court cannot assume or presume that the phone number mentioned in the call register are used only by the respondent and her friends. In the entire pleadings, it is not even pleaded by the petitioner that as to the phone number used by the wife. Be that it may. Ex.P.6 also cannot be given much importance for the simple reason that the call records are nothing but electronic record and print out taken from the computer. It has also not been certified by the person, who has taken the print out as mandated under section 65(b) of the Indian Evidence Act. None of the conditions stipulated under section 65(b) of the Indian Evidence Act is complied. Therefore, Ex.A.6 cannot be admitted in evidence. Further, as already discussed, to infer the very fundamental fact that these phones were used by the respondent and her friends, there is no evidence. Therefore, on the face of Ex.P.6, this Court cannot presume that there is illegal intimacy between the respondent and her friend. 23. Much emphasis was made to the Order of the Metropolitan Magistrate in a Domestic Violence case initiated by the respondent. Therefore, on the face of Ex.P.6, this Court cannot presume that there is illegal intimacy between the respondent and her friend. 23. Much emphasis was made to the Order of the Metropolitan Magistrate in a Domestic Violence case initiated by the respondent. It is to be noted that the judgment of the Criminal Court is not binding on the Civil Court. At any event, the Order passed by the Metropolitan Magistrate is under challenge in the appeal. Therefore, the same is also not relevant in this proceeding. Further, much emphasis has also been made to the cross examination of the respondent in the domestic violence case. A copy of the evidence of the respondent has been filed as a document in this petition as Ex.P.18. Such evidence of a living person given in any earlier judicial proceedings cannot be admitted as an evidence in a subsequent proceedings, unless the witness is dead or cannot be found or is incapable of giving evidence. Therefore, I am of the view that Ex.P.18 relied upon by the petitioner cannot be given any importance or relevance under the Evidence Act. Merely because, such previous deposition of one of the parties was exhibited, will not amount to the proof of the contents. When the law itself prescribe that such a deposition of the living person is not admissible in evidence and mere marking of the documents will not make such an evidence relevant under the Indian Evidence Act. Such previous deposition utmost can be used for contradicting or corroborating the witness. Except that, it cannot be used as an evidence as it is. Therefore, the contention of the learned counsel that adulterous life has been established on the basis of Ex.P.18 cannot be countenanced. Mere glance of Ex.A.18 and the nature of the evidence recorded in the domestic violence case shows that except the admission with regard to some of the photographs shown to the respondent that she was found in the photograph with some of her friends in the photograph, no other incriminating admission is available in the entire evidence. Even assuming that the respondent has admitted having found in the photographs very closely, with one of her friend, that itself is not a ground to presume the adulterous life. 24. Even assuming that the respondent has admitted having found in the photographs very closely, with one of her friend, that itself is not a ground to presume the adulterous life. 24. Due to various developments, women are engaged in every field and they are doing business independently and they are well placed in many companies in this era. This fact cannot be disputed by anyone. Merely because woman moving out of the home for the business purpose and taking photograph with some of her friends in the business activities or in the financial capacity, that itself cannot be a determinative factor to presume that all such women have developed intimacy with such person and leading adulterous life. If such an approach is adopted, the image of the entire female community will be tarnished. Therefore, I am of the view that in the absence of any evidence to prove the adulterous life, mere allegation is not at all sufficient, even to infer such allegations. 25. The email correspondences of the parties have been marked as Ex.P.16 and Ex.P.17. From the above communications, this Court do not find any admission by the respondent with regard to the alleged allegations. The correspondences are mainly around the son of the parties. Therefore, those correspondences have no relevance for insisting the custody of the minor daughter. 26. Admittedly, the petitioner left India in the year 2013 is not in dispute. His cross examination shows that from the year 1998 onwards he kept on shifting his employment from one company to the other company. He left to United States of America under HI A ViSA from 2001 to 2004 and he has returned to India only December 2004. Thereafter, he appears to have stayed back till 2010. Again, he went to France in the year 2013 and his admission clearly shows that after he shifted to France, he stayed in Chennai about 20 days. Thereafter, he went back to France. His evidence also clearly show that he do not remember the name of the doctor who treated his son. His admission also clearly indicate that his wife also joined as a teacher in the school where the boy has joined. His admission further shows that the petitioner even did not know whether his son has completed XII Standard. His evidence also clearly show that he do not remember the name of the doctor who treated his son. His admission also clearly indicate that his wife also joined as a teacher in the school where the boy has joined. His admission further shows that the petitioner even did not know whether his son has completed XII Standard. The specific answer to the question that their son has not completed XII Standard, was that I do not have access to his papers or mark sheet . When his entire evidence is scanned, it is very clear that from 2013 onwards, he has no clear idea about the children and their education. Further his admission also clearly show that when he met his girl child in the school, she was very scared. Therefore, he did not pressured her and he did not go back again. He do not even know the nature of the activity of their daughter after school hours. It is also admitted that his wife removed her uterus is also not correct. 27. From the analysis of the entire evidence, it is very clear that after 2013, he has not given much attention to the children and the autism child was all along brought up by the respondent and now he is able to understand the nature of things and he is able to decide his future. The girl child is now aged about14 years. She is also studying in a school in Chennai. When this Court interacted with her, she has categorically stated that she is not interested to go with her father or go to further studies in France. Though she is a minor, she is all along brought up by the mother, the influence of the mother may be there on the daughter. This Court on interaction, found that the girl child is matured enough to understand things and she expressed her desire to continue her education in Chennai with her mother. 28. It is also not disputed by both the parties that the female child has attained puberty. In the situation, the role of the mother in the development of the female child cannot be doubted. The female child normally gets best protection through the mother. 28. It is also not disputed by both the parties that the female child has attained puberty. In the situation, the role of the mother in the development of the female child cannot be doubted. The female child normally gets best protection through the mother. It is a normal thing that any female child shall be kept in the company of the mother, unless there are compelling and justifiable reasons, and the child should not be deprived of the company of the mother. The mother has all along taken care of the female child all these years. The petitioner who left India to United States and to France now cannot contend that he is well placed and is able to take care of the education of the children. Hence, I am of the view that mere financial status of the parties alone is not the determining factor to hold that the welfare of the child will be taken care of. Other than the financial status, the overall healthy growth of the female child, love and affection and emotion are remarkably important for healthy growth of the child. The minor child was all along with her mother and pursuing education in Chennai in the company of her mother. She was also more comfortable when the Court interacted with the minor child. 29. In the above scenario, I am of the view that good education in foreign soil alone, would not be for the welfare of the minor child. The education and development of the child is not based on the place where the child was studied but how the child was all along taken care of by the mother. Hence, taking into consideration the entire aspects, the allegations which are primarily made in the petition have not been established and I do not find any other materials to deprive the custody of the minor child from the company of the mother. 30. The learned counsel for the petitioner placed much reliance on the judgment reported in 2012 (1) MWN (Civil) 496 and emphasized that since the respondent has not entered into the box and adduced evidence, the allegation of the petitioner has to be deemed to be proved. Such a contention has to fail for the simple reason that the judgment relied upon by the learned counsel deals with the facts which have not been specifically denied in the counter. Such a contention has to fail for the simple reason that the judgment relied upon by the learned counsel deals with the facts which have not been specifically denied in the counter. Only in that situation, the facts pleaded in the petition neither denied in the counter nor in the oral evidence, such allegations deemed to have been proved. But in the given case, the entire allegations of the petitioner have been denied in the counter. Merely because the respondent did not enter into the box, that would not amount to admission of any fact. It is for the petitioner to establish the allegation of adultery and the initial burden lies on him. Once the burden is discharged by the petitioner, then it can be said that the onus shifts on to the other side to disprove the facts. As already discussed, from the nature of the allegations with regard to adultery has not been established in convincing evidence. The petitioner mainly relied upon the deposition in the previous proceedings, which according to this Court is not admissible in view of the specific bar under the Indian Evidence Act. The evidence in a previous judicial proceedings cannot be admitted in evidence unless the conditions stipulated under Section 33 of the Indian Evidence Act suits to such repositions. 31. That apart, as already discussed, the above deposition also would not come into the aid of the petitioner to prove the serious allegation of adultery. Therefore, merely because the respondent has not adduced any oral evidence, no adverse inference can be drawn against her as the initial burden of proving the specific allegation of adultery itself has not been discharged by the petitioner. 32. In view of the above facts, the petitioner is not entitled to have the permanent custody of the minor female child. However, being the natural guardian of the minor, the petitioner can have the visitation right of the minor child whenever he come to India on proper intimation to the respondent and take the minor child to his home and return back the child to the respondent before 8 p.m. every day, as both the petitioner and the respondent are residing in the same locality. Taking into consideration that the minor has attained puberty, the Court is of the view that leaving the temporary custody of the minor child during the night hours will not be in the interest of the minor. 33. With the above observations, this Original Petition is dismissed. 34. With regard to the custody of the boy, viz., Akshay Anand, as already discussed, he has already attained majority. It is an admitted fact that he has mild autism problem. But this Court could notice that he is capable of comprehending things. Be that as it may. It is for the petitioner to take recourse as per the National Trust Act to get him appointed as the guardian for the autism child and for further course of action. It is also made clear that till such Order, from the concerned authority, is obtained, it does not mean that the petitioner has no right to take him to further studies. Being the father, he can take decision taking into consideration of the desire of his son for higher studies. Taking into consideration the nature of lis between the parties, there shall be no Order as to cost.