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2025 DIGILAW 112 (TS)

Pramod Yalamanchili v. Venkata Sujana Aluri

2025-03-12

NAMAVARAPU RAJESHWAR RAO, P.SAM KOSHY

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JUDGMENT : Namavarapu Rajeshwar Rao, J. Heard Sri Pramod Yalamanchili, Party-in-person, appellant and Sri Usakoyeela Chandrashekar, counsel for the respondent. Perused the record. 2. The present appeal is filed by the appellant/petitioner/husband assailing the order dated 03.10.2023 passed by the learned Principal District & Sessions Judge-cum-Family Court, Medchal-Malkajgiri District at Malkajgiri, in I.A.No.102 of 2022 in F.C.O.P.No.420 of 2021, filed under Section 43 of Indian Divorce Act 1869 for grant of child custody of his son namely Yelamanchili Asher. 3. For convenience, the parties are hereinafter referred as they are arrayed in the said petition. 4. Vide the said impugned order, the Trial Court had directed the respondent to bring the ward Yalamanchili Asher on every Second Saturday at 11.00 a.m. to the Family Court at Malkajgiri and that the petitioner is permitted to spend time with his son on the above said day and place from 11.00 a.m. to 2.00 p.m. till disposal of the main O.P. 5. Initially, the petitioner filed main O.P.No.420 of 2021 under section 10(1)(i)(ix)(x) of Divorce Act, 1869 for grant of divorce on the ground of adultery, desertion and cruelty. His marriage with the respondent was performed on 04.06.2018. On 10.03.2019, respondent gave birth to a male child Yalamanchili Asher. It is stated that the respondent left the baby at her parents when he was about one month old, and lived in a room separately pursuing adultery near Vijayawada. She is attempting to keep a husband and son on the standby as a source of money, and fancy item. The petitioner came to know that the respondent has not been residing at her residence in Guntur for more than a year and she left the child with her parents who reside in Guntur. The respondent and her parents are only using the child as a source for extorting money, they do not have any love towards the child and they are harassing the petitioner to extort money from him by filing false cases. 6. It is the further case of the petitioner that he saw his son only 3 times, the first time in August 2021 at Kuchipudi Police Station, AP, the second time at Guntur court on 30 th October 2021 when the petitioner had a hearing date for 498-A case, and the third time on 30th December 2021 when the petitioner had a hearing date for 498-A case with CC. No. 466 of 2021. All the three times, the child was seen with respondent parents only, and the respondent was neither available with the kid nor available in the city. At Kuchipudi police station respondent parents informed Kuchipudi police that they came on behalf of their daughter who is in Hyderabad. Respondent parents did not even allow the petitioner to touch the kid at Kuchipudi Police Station. Since the birth of his child, he has been subjected to parental alienation. He has been deprive of love from father. Mother is not living with the child. He is left to respondent’s parents. 7. Further, the petitioner contended that he resides in Hyderabad and the child will soon turn 3 years old and will need to begin schooling. He submitted that Hyderabad has many world class international schools which would provide an excellent education environment for the child. Moreover, he also submitted that Hyderabad is being a prosperous metropolitan city which offers numerous opportunities for the child's holistic developments through music, sports and language learning. Therefore, the petitioner humbly seeks custody of the child to ensure their optimal growth and development. 8. On the other hand, it is the contention of respondent that the petitioner used to be suspicion on respondent and tortured her mentally and physically. Sometimes, the petitioner used to hit the respondent, lock her in a room and take videos of her without her knowledge. On 18.09.2018 night, the petitioner forced the respondent to commit suicide and they have taken all her gold jewellery and passport. Since 10.03.2019, when she gave birth to the child and she tried to call the petitioner, but there was no response from him. She unable to bear the harassment of the petitioner, lodged a complaint on 13.05.2020 at Guntur Police Station under section 498-A of IPC. Since 10.03.2019, the child is in her custody and the petitioner is not entitled for child custody. 9. The Trial Court observed that since the child is aged about 3½ years and not mature enough to speak to the facts and to take his preferential choice of guardianship with respect to his stay, it had not called the child to interact with him. 9. The Trial Court observed that since the child is aged about 3½ years and not mature enough to speak to the facts and to take his preferential choice of guardianship with respect to his stay, it had not called the child to interact with him. The Trial Court further observed that since the birth of the child, the child is residing with his mother and grandparents, and at this stage, it is not proper to give custody of the child to the petitioner. However, it is further observed that the petitioner, being the natural father, he cannot be deprived of his love and affection towards his son and keeping in view the facts and circumstances of the case, the Trial Court ordered the respondent/wife to bring the minor child on every Second Saturday at 11:00 a.m. to the Family Court at Malkajgiri and that the petitioner is permitted to spend time with his son on the above said day and place from 11:00 a.m. to 02:00 p.m. till disposal of the main O.P. 10. The appellant/husband vehemently argued that the Trial Court had overlooked several crucial factors where the respondent was inhibiting the child's welfare due to her inability to maintain herself and the child and her failure to rebut allegations of adultery and using the child as a financial source and her decision to leave the child with her parents in Guntur. Further, the appellant/husband submitted if the respondent/wife genuinely wished to resume marital life, she could have filed for Restitution of Conjugal Rights, which was absent in the present case. Moreover, the petitioner submitted that he had sacrificed his 15 years career in the USA and return to India to seek child custody where the respondent/wife abandoned the child to her parents in Guntur. Lastly, he contended that the Trial Court failed to properly evaluate the admissibility and relevancy of the evidence presented by the appellant. Accordingly, prayed to allow the appeal. 11. It is essential to reproduce the Section 17 in The Guardians And Wards Act, 1890, which reads as under: 17. Lastly, he contended that the Trial Court failed to properly evaluate the admissibility and relevancy of the evidence presented by the appellant. Accordingly, prayed to allow the appeal. 11. It is essential to reproduce the Section 17 in The Guardians And Wards Act, 1890, which reads as under: 17. Matters to be considered by the Court in appointing guardian: (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. 12. A perusal of the record goes to show that the Trial Court in I.A. No.543 of 2023 in O.P.No. 420 of 2021 observed that the respondent/wife filed F.C.O.P.(M.C.) No. 670 of 2021 praying the Court for grant of maintenance to her and her child from her husband. Her husband/appellant herein in the said case admitted that he is an unemployed professional in both the cases. The Trial Court further observed that from the above said admission of the husband, it clearly goes to prove that he is not capable of maintaining the minor son, as the minor son is suffering from Autism since his birth. It further observed that as the husband along with his family members caused lot of physical and mental agony and now the minor child required regular medical treatment and hence, having no other go, the respondent/wife was forced to work for taking care of the welfare of the minor son and the appellant/husband utterly failed to look after the welfare of the minor child since his birth and the respondent/wife who has been taking care of his medical, mental and physical needs with utmost love and affection, which resultantly brought good changes in the health condition of the minor child. 13. 13. According to established legal principles, custody of children under five years of age is generally granted to the mother regardless of caste or religion. However, the father may request the court for custody of child by showing that it serves the child's best interests and also he must prove maternal negligence, particularly in case where mother's care is inadequate, moreover no such allegations have been made in this case. The respondent/wife has disclosed that the minor son has autism, a condition present since birth. In the said circumstances, mother is the best person to take care of the minor child. Given that the minor son is only 3 years old in the present case and unable to express preferences, Trial Court had appropriately decided against examining the child. 14. The Trial Court had directed the respondent/wife to bring the ward Yalamanchili Asher on every Second Saturday at 11.00 a.m. to the Family Court at Malkajgiri and that the petitioner is permitted to spend time with his son on the above said day and place from 11.00 a.m. to 2.00 p.m. till disposal of the main O.P. The welfare of a child is of paramount importance and consideration. The breakdown of a marriage between spouses causes the child to be inevitably affected by such disintegration. Under Indian law, both parents have an equal right in seeking the custody of the child and it is left to the Courts to decide which parent would be in better position to take care of the child, while the other parent would gain visitation rights. Accordingly, the concept of shared parentage has grown, which is the new concept in the custody system where both the parents will participate in the growth of the child in all aspects. 15. While taking a decision regarding custody or other issues pertaining to a child, “welfare of the child” is of paramount consideration. It is not the welfare of the father, nor the welfare of the mother, rather it is the paramount consideration for the court. Father is also having right to take care of his child, but due to the circumstances stated supra, it is not advisable to give permanent custody to the father. However, this Court feels that permitting the father to visit his child once in a month is not proper. Father is also having right to take care of his child, but due to the circumstances stated supra, it is not advisable to give permanent custody to the father. However, this Court feels that permitting the father to visit his child once in a month is not proper. Apart from visitation rights on every Second Saturday at Family Court, Malkajgiri, the petitioner is also permitted to visit his minor son at his mother’s place on every succeeding 4th Saturday, and take his son to any Garden or any recreation place along with his mother/respondent and spend with them 2 to 3 hours. In view of the same, the order under appeal is liable to be modified. 16. In view of the above, the order, dated 03.10.2023 passed by the Trial Court in I.A.No.102 of 2022 in F.C.O.P.No.420 of 2021 is modified permitting the petitioner to visit his minor son at his mother’s place on every succeeding 4 th Saturday, and take his son to any Garden or any recreation place along with his mother/respondent and spend with them 2 to 3 hours, in addition to visiting his minor son on every Second Saturday at 11.00 a.m. at the Family Court at Malkajgiri and spend time with his son from 11.00 a.m. to 2.00 p.m. till disposal of the main O.P. 17. Accordingly, the appeal is disposed of. There shall be no order as to costs. Consequently, miscellaneous petitions pending, if any, shall stand closed.