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2025 DIGILAW 425 (MAD)

Helan Janani v. Arunkumar

2025-01-22

G.R.SWAMINATHAN, R.POORNIMA

body2025
JUDGMENT : G.R.SWAMINATHAN, J. This appeal is directed against the order dated 07.06.2022 made in G.W.O.P.No.81 of 2020 on the file of the Court of Family Judge, Tirunelveli. By the impugned order, the Court below declared that D.Arunkumar, the father of the minor child is the natural guardian of the minor A.Gian Nathen. It also directed the appellant herein to hand over the custody of the minor child to him. 2. The appellant Helan Janani and the respondent D.Arunkumar got married as per the Christian rites and customs on 30.06.2014. A male child Gian Nathen was born through the wedlock on 15.03.2015. Arunkumar was then working in USA. He took the appellant as well as the child to USA. It turned out that the child was suffering from mild Autism. The respondent herein Arunkumar decided came down to India and settled at Chennai. Differences arose between the parties and the appellant left the matrimonial home. According to Arun Kumar, the child was originally living with him and subsequently, through police intervention, he was compelled to hand over the custody of the child to the appellant. He therefore filed G.W.O.P.No.81 of 2020 seeking declaration of guardianship as well as the custody of the child. Arunkumar examined himself as P.W.1. His mother was examined as P.W.2. The speech therapist who had given treatment to the minor child was examined as P.W.3. P.W.4 is working in National Institute for Empowerment of persons with multiple Disabilities and he had psychologically assessed the minor child. Ex.P.1 to Ex.P.30 were marked on the side of D.Arunkumar / petitioner in GWOP. The appellant who was the respondent in GWOP examined herself as R.W.1. Her father was examined as R.W.2. Ex.R.1 to Ex.R.18 were marked on her side. After considering the evidence on record, the Court below allowed G.W.O.P.No.81 of 2020 in the following terms:- “17. In the result, this petition is allowed and it is declared that the petitioner is the natural guardian of Minor A.Gian Nathen and the respondent is hereby directed to hand over the custody of the minor child to the petitioner within one month from the date of this order. ...” Questioning the same, this civil miscellaneous appeal has been filed. 3. ...” Questioning the same, this civil miscellaneous appeal has been filed. 3. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds of appeal and called upon this Court to set aside the impugned order and grant relief as prayed for. 4. Per contra, the learned counsel appearing for the respondent submitted that the impugned order is well reasoned and that it does not call for interference. His particular stress was on the fact that the interest of the child will be better served if the custody is handed over to the father who is in Chennai. He harped on the fact that facilities available in Chennai are far superior compared to what is available in Tirunelveli. The learned counsel lamented that even though the child is suffering from mild Autism, he is being educated only in a regular school and that specialised treatment is not being given. He called upon this Court to sustain the impugned order and dismiss the appeal. 5. We carefully considered the rival contentions and went through the materials on record. 6. Since the matter concerns the interest of a child, more so, a special child, we directed both the parties to be present before us on more than one occasion. We had a close interaction with the parties as well as the child. We are happy to note that the respondent has immense affection for the child and that he is extremely anxious to provide the best possible treatment and therapy for the child. 7. The law on the subject is fairly well settled. The Hon'ble Supreme Court of India in the decision reported in (2023) 12 SCC 472 (Rajeswari Chandrasekar Ganesh V. The State Of Tamil Nadu) held that the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. The question of custody will not be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on the consideration of these and all other relevant factors including the general psychological, spiritual and emotional welfare of the child. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on the consideration of these and all other relevant factors including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court when resolving the disputes between the rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he or she will be equipped to face the problems of life as a mature adult. 8. During the interaction sessions we had, we found that the minor child Gian Nathen was attached equally to both the mother as well as the father. It is a fact that as on date, there is no cure for Autism. The object is always to maximise the abilities of the child by providing functional as well as occupational therapies. It is not as if, Tirunelveli is a remote village. It is also a flourishing city with all facilities. The appellant had adduced evidence to show that the child is being given appropriate therapy. 9. The child was born on 15.03.2015. The appellant left the matrimonial home in December 2019. GWOP was filed in June 2020. It was allowed on 07.06.2022. This appeal was filed in October 2022 and on 10.01.2023, the following interim order was passed:- “ Challenging the order passed by the Family Court, Tirunelveli in G.W.O.P.No.81 of 2020, dated 07.06.2022, the appellant has filed this Writ Appeal. 2.The learned counsel appearing for the appellant insisting for interim stay. 3.The learned Senior Counsel appearing for the respondent objected for granting interim stay, however, he submitted that in I.A.No.6 of 2020, the Family Court, Tirunelveli, by order dated 19.12.2020, granted interim custody of the child in favour of the respondent and therefore, the same may be continued in the present appeal also. 4. The order passed by the Family Court in I.A.No.6 of of2020, dated 19.12.2020, reads as follows: “1. That the petitioner shall be entitled to have the interim custody of the minor child during every 1st week end and 3rd week end of every month; 2. 4. The order passed by the Family Court in I.A.No.6 of of2020, dated 19.12.2020, reads as follows: “1. That the petitioner shall be entitled to have the interim custody of the minor child during every 1st week end and 3rd week end of every month; 2. That the respondents should hand over the minor child at 10.00 a.m. on every 1st Saturday and 3rd Saturday in the open Court to the petitioner, if this Court is not working on 1st and 3rd Saturday, the child should be handed over at Arasan Bakery, near VOC ground, Palayamkottai infront of the CCTV Coverage area and the petitioner shall return back the minor child at 7.00 P.M. on 1st and 3rd Sunday at Arasan Bakery, near VOC ground, Palayamkottai infront of the CCTV Coverage area. 3.That the petitioner is entitled to give treatment to the child at Tirunelveli and in extraordinary circumstances after obtaining permission from this Court, can take the child to the Chennai for treatment, after producing medical advice to the effect and in such circumstances, the respondent is entitled to accompany the child. 4.That both parties should have strictly adhered to the above conditions and in all circumstances welfare of the child alone should be foremost object of the parties. 5. Both parties are directed to bear their own costs.” 5. Both parties agreed that the aforesaid interim order to be maintained in the present Appeal, till the disposal of this appeal. 6. Accordingly, the aforesaid interim order passed by the Family Court, Tirunelveli in I.A.No.6 of 2020, dated 19.12.2020, shall be continued, till the disposal of the appeal. 7. Post this matter on 14.02.2023.” 10. It is thus seen that all along the minor child was only with the custody of the mother. We are therefore of the view that any alteration in the eco system and environment would be detrimental to the interest of the child. The appellant's parents also appeared before us and they expressed their deep commitment towards their grand-child. This is not a case in which the mother can be said to be suffering from any disqualification. Therefore, the claim of the mother to the custody of her own child will have to be given precedence over the competing claim of the father. We are satisfied that the appellant's parents have the financial wherewithal to support the child in every possible manner. 11. Therefore, the claim of the mother to the custody of her own child will have to be given precedence over the competing claim of the father. We are satisfied that the appellant's parents have the financial wherewithal to support the child in every possible manner. 11. While the declaration of the Court below regarding the guardianship over the child does not call for interference, we are constrained to interfere on the question of custody. The Court below has proceeded on the footing that the appellant who is the mother of the child has not cared about the need and necessity for giving special education and special therapy to the child. This finding is uncharitable and without any basis. The appellant who examined herself as R.W.1 had clearly stated in her evidence that she is a qualified special educator herself. She had also deposed that the child is being given training in Jehovik Speech and Hearing centre. The appellant and her parents hail from a well to do middle class family and it is outrageous to suggest that they would not give the requisite therapy to the child. 12. We are therefore inclined to modify the order regarding custody made by the Court below. 13. At the same time, considering the commitment exhibited by the respondent / father, we are of the view that this is a case in which rotational / cyclical custody can be ordered. While the appellant / mother can have the custody of the child in general, the respondent will be entitled to have him during weekends. We are not compelling the respondent to visit Tirunelveli from Chennai every weekend. We are granting him an option. The respondent can come to the house of the appellant every Saturday and take the child with him from 9.30 a.m. onwards. He shall hand over the child back to the appellant at 7.00 p.m. on Sunday. It is open to the respondent to come down to Tirunelveli and even take the child to Chennai once in a month to keep him during the weekend. On such occasions, the appellant shall hand over the custody of the child on Friday evening and the child will be brought back to the appellant on Monday morning. That apart, the respondent can take the child to Chennai or any other place of his choice during Puja holidays, Christmas and summer vacations. On such occasions, the appellant shall hand over the custody of the child on Friday evening and the child will be brought back to the appellant on Monday morning. That apart, the respondent can take the child to Chennai or any other place of his choice during Puja holidays, Christmas and summer vacations. During Puja holidays and Christmas vacation, the respondent can have the custody of the child for full 7 days. Likewise, during summer vacation, the respondent can have custody of the child for full 20 days. The order impugned in this appeal is modified. This civil miscellaneous appeal is disposed of. No costs. Consequently, connected miscellaneous petitions are closed.