N. Punidha vs J. Selvan

M. Chockalingam, J.—This appeal challenges an order of the learned Single Judge of this Court made in OP No. 659 of 2003 appointing

the respondent herein as guardian for minors Kishore Kumar and Praveen Kumar.

The respondent father filed OP 659 of 2003 with the following averments:

The marriage between the respondent and the appellant was solemnized on 9.11.1987. Both the minors Kishore Kumar and Praveen Kumar were

born on 19.4.1990 and 20.5.1994 respectively. The respondent was employed as Manager in State Bank of India at different places. The

appellant wife remained unemployed. Though they were living separately due to strained relationship, they did not seek dissolution of the marriage.

From the time of marriage, the appellant was moving and acting with an absolute inactive attitude. She always suspected the conduct and fidelity of

the respondent. When they were living together at Krishnagiri, Dharmapuri, Coimbatore, Tirunelveli and Tenkasi, many an occasion, the

respondent husband suffered embarrassing situation. She was always complaining that he was having illicit intimacy with women. Due to the mental

aberrations, she was not only talking ill of the respondent, but also others. In April 2002, the appellant forcibly took the children away, and they

were living together at Tenkasi. The respondent was not informed of the whereabouts of the children. Only after exercising great efforts, the

respondent came to know that the children were admitted in Don Bosco School, Peravallur. In view of the education of the children, the

respondent opened a bank account in the State Bank of India, Perambur Branch, and asked the elder son to operate the account. She effectively

prevented the respondent even from having access to the children. Even the phone calls were disconnected. From the time onwards, the appellant

was brain washing the children, and he was not allowed to meet the children. Under such circumstances, the respondent had no option than to file

the OP for custody of children.

The said OP was countered by the appellant wife stating that she had cruel treatment in the past; that the respondent used to come home in the

night hours in a drunken mood; that he was a womaniser; that she had occasion to see the respondent in the company of other woman at

Tirunelveli; that on one occasion, the Assistant Manager of the State Bank of India, Tirunelveli Branch, came and insisted the respondent to marry

his daughter on the ground that he had closely moved with her for a long time; that when questioned, the appellant was attacked; that in April

2002, the appellant went to Tenkasi and was staying alone in the house; that on enquiry, she came to know that the respondent had gone to

Tirunelveli leaving the children in lurch; that under the circumstances, she was compelled to take the children to Chennai and admitted them in Don

Bosco Matriculation School, Peravallur; that herself and her parents were taking care of the children; that she also suffered an operation during the

course of her pregnancy; that the same was due to the physical cruelty on the part of the respondent; that once he was attempted to kill her by

throttling; that she was running a computer centre and has fixed deposits; that under the circumstances, there would not be any difficulty in bringing

up the children by her, and hence the petition was to be dismissed.

Pending the OP, the respondent took out an application in A. No. 1858/2006 for interim custody of the minor children during the vacation in

May 2006 since the earlier order giving her visitation rights were disobeyed by her. An interim order came to be passed permitting the respondent

to take the interim custody of the minor children on 20.4.2007 and the children were to be returned on 26.4.2007. Since the said order was

disobeyed, the respondent took out a contempt petition in C.P. No. 447 of 2007. Both the applications were taken up together along with the OP

for enquiry by the learned Single Judge. The respondent has examined himself as P.W.1., and he has also examined three witnesses on his side.

Equally the appellant who examined herself as R.W.1, has examined her parents as R.Ws.2 and 3 respectively. Both sides relied on documents.

The learned Single Judge by an elaborate order has held that the respondent was entitled to permanent custody of the minor children, and it was

also open to the appellant to visit the children whenever she wanted, and the respondent should not resist the same.

Pending this appeal, it was reported that the first minor Kishore Kumar has attained majority, and hence the proceeding insofar as the

appointment of the respondent as guardian comes to an end, and he has got to be discharged. Thus, the scope of the proceeding before this Court

is only in respect of the second minor Praveen Kumar.

The Court heard the learned Senior Counsel Mr. S. Silambanan for the petitioner and also the learned Counsel for the respondent and looked

into the materials and in particular the order under challenge.

Admittedly, the marriage between the spouses had taken place in the year 1987, and both the minors were born in the year 1990 and 1994

respectively. The respondent father has been working in the managerial capacity in State Bank of India at Krishnagiri, Dharmapuri, Coimbatore,

Tirunelveli and Tenkasi. The spouses at the time of marriage in the year 1987 and also after the birth of the children were living at different places.

It is alleged by the respondent father that in April 2002, when they were living at Tenkasi, she took the children forcibly even without informing

him, and they were actually put in Don Bosco Matriculation School, Peravallur at Madras; that she has also shifted her residence and was staying

at Madras from the time onwards along with her parents. In support of the averments made, the respondent and the appellant examined themselves

on their side apart from other witnesses. From the documents filed by the respondent, it could be seen that he had sent letters and money orders;

that he had come to Chennai to meet the children; that there was exchange of letters and notices; and that a complaint was lodged by the

respondent to the police. That apart, a life insurance policy was taken by the respondent jointly in the name of himself and the appellant in the year

1995. The appellant has issued a notice to the respondent as found under Ex.P22 which brought forth a reply by the respondent as found under

Ex.P23.

It is pertinent to point out that even in the averments in the petition and also the evidence before the Court, the respondent has stated that the

appellant was suspecting his conduct and character and was accusing him that he had got illicit intimacy with other women, and they were all due to

the mental aberrations. But it is pertinent to point out that he had not complained of her conduct or character. On the contrary, the appellant as

RW1 has categorically deposed that she has seen the respondent in the company of other woman, and he was in the habit of coming home in the

night hours in the drunken mood. By branding him as a womaniser and drug addict, she has actually made character assassination of the

respondent. She has also narrated a few instances which impelled her to think and express so. According to her, the Assistant Manager of the

State Bank of India, Tirunelveli Branch, examined as P.W.2, came to the house and asked the respondent to marry his daughter since he was

closely moving with her for a long time. From the evidence of P.W.2, it would be quite clear that the appellant phoned over to P.W.2 and informed

about the conduct of his daughter stating that the respondent was found in the company of his daughter and they were found together in a public

place; that P.W.2 replied in the negative; and that she has not only stopped with that, but also informed to P.W.2''s wife, and it was also

thoroughly discouraged. At this juncture, it is pertinent to point out that ever since the marriage in the year 1987 and after the two children were

born in the year 1990 and 1994 respectively, something was available to pass in the mind of the appellant to suspect the fidelity of the respondent.

On the contrary, except complaining of mental aberrations on the part of the appellant, the respondent husband had nothing further to add. While

both these spouses were leading a happy matrimony, the respondent is unable to adduce one reason which made her to keep her company away

from him from 2002 onwards.

It is also evident that when they were living at Tenkasi, she took the opposite house on lease and was living separately, and thereafter she came

down to Madras and was living with her parents. She has categorically admitted that she took both the children to Madras, and they were put in

Don Bosco Matriculation School for education. According to her, she had sufficient reason to live apart. It remains to be stated that in view of the

apprehension in her mind that the future of the young children should not be spoiled, she could have taken both the children away from the

company of her husband who, according to her, was embodiment of vices. Hence the act of the appellant taking the children from the matrimonial

home at that juncture can be justified. It could be easily inferred that the welfare and future interest of the minors should have been all the more

working in her mind.

This Court is of the considered opinion that the testimony of P.Ws.2 to 4 cannot be attached with any evidentiary value since the respondent

husband and the appellant wife are the competent persons to speak about the happenings in their matrimonial life. From the evidence of R.Ws.2

and 3, it would be quite clear that complaints were made to them, and despite their knowledge as to the strained relationship between the spouses,

they have not attempted to pacify and patch up the situation. As could be seen from the averments and materials, the respondent and appellant are

making complaints against each other. Needless to say, the interest and welfare of the parties cannot be given much weight or importance since it is

not a matter between them; but, the interest and welfare of the minor children are paramount importance. While considering the interest and

welfare of the minor children, the Court must take into consideration the nature of attachment, the preference of the minor, parental alienation, the

special needs of the children and in particular, education, gender issues at the time of the consideration of the issue, physical and mental health and

also the work schedules of the parents, financial capacity of the parents and discipline apart from ethics, values and religion.

While all the above have got to be taken into consideration, this Court is of the considered opinion that the appellant mother should continue

the care and maintenance of the second minor child till he attains majority. At the time when the applications were considered by the learned Single

Judge, the minors were aged 17 and 13 respectively. From the year 2002, they were under the care and custody of the appellant mother. At that

time, the first minor was doing his education in the high school and the second minor was doing his education in the elementary school. It is brought

to the notice of the Court that after the completion of the school education, he is put in engineering and doing his III Year Course in Velammal

Engineering College, and he has attained majority now. As far as the second minor is concerned, he is now aged 15 and is doing his XI Standard

in Don Bosco Matriculation School. It is pertinent to point out that both these children have been in the custody of the mother from 2002 till today.

No complaint is made by the father that they were not given any proper education or from the health point of view.

It was repeatedly contended by the husband''s side that he is in a better position to provide financial support to the children; that since the first

boy was to go for higher studies, high financial support was required; that since the father was employed as Chief Manager of State Bank of India

having a very good income, he alone could provide the financial support to the children; that even as per the evidence of the appellant wife she

remained unemployed; that she has also deposed that she along with the children is living under the support of her parents and brothers, and in

such circumstances, he would be the fit person to be appointed as guardian. This Court is unable to agree with this contention. It is true that he is in

a managerial capacity of a bank and getting a good salary. It is also true that he might be in a better position to provide financial support to the

children, and he could also provide a comfortable living to the children at present. It is also the evidence that the father is a tennis player, and during

a short period of stay of the children with him, they were sent for tennis and for swimming. But, all these, in the opinion of this Court, will not

suffice, and that might be one of the relevant considerations, but cannot be the sole determining factor for the custody of the minor child. Giving the

children a comfortable living alone cannot be taken as the welfare of the child. There can be flow of finance which can give only a comfort

physically, but not mentally. The welfare of the minor child has to be considered by the Court in the background of the relevant facts and

circumstances. Each case has got to be decided on the facts, and the Court should exercise its judicial discretion in the background of all relevant

factors. But at the same time, the welfare of the child must be the paramount consideration. Better financial resource of the father cannot be the

sole determining factor for the custody of the child in the considered opinion of the Court.

As far as the first child was concerned, he has attained majority, and hence there cannot be any impediment for the first child meeting the father

and the father meeting the first boy now a major. Insofar as the second minor child, he has been in the custody of the mother from 2002 onwards.

Now he is put in education in Don Bosco Matriculation School, Peravallur, and is doing XI Standard. He has to go for his +2 and higher

education. The Court made an enquiry to the second minor this day when he appeared. From the enquiry, it would be quite clear that he has

attained maturity of mind. According to him, he is 15 years old, and he is doing XI Standard in Don Bosco, and he has no complaints against his

mother, and he is now comfortably living with her, and he does not want to stay with his father. Considering the age of the boy namely 15 years,

the wish of the minor children must also be taken into consideration. This Court is unable to see any reason why an order compelling the minor to

be away from the company of his mother should be passed. It is true that she remained unemployed; but, she is being supported by her family

members by which she has not, in any way, found her financial position deficient. It is pertinent to point out that the respondent father is now

working at Villupuram. The second minor is put in education in Madras, and he has to proceed his further education. The second boy is also under

the care and maintenance of the mother. The learned Single Judge has given much and undue importance to the financial support stating that better

financial support could be given only by the father. But, as stated above, that cannot be the sole criteria. Taking into consideration all facts and

circumstances as narrated above, which are relevant to decide the issue, this Court is of the considered view that the second minor child Praveen

Kumar should be under the care and maintenance of the appellant mother till he attains majority.

Accordingly, the second minor child Praveen Kumar is directed to be under the care and custody of the appellant mother till he attains

majority. The respondent father is given visitation rights on the second minor child on the second and fourth Saturdays and Sundays of every month

between 10.00 A.M. and 5.00 P.M. The father could also have the custody of the second minor child during the first fifteen days in the month of

May namely Summer Vacation, and also the first half of Christmas Vacation. The appellant mother should not resist for both visitation and custody

by father.

In the result, this original side appeal is allowed in the above terms. The parties shall bear their own costs. Consequently, connected MP is also

closed.