R. Shoba vs T. Saravanan

C.S. Karnan, J.—This petition has been filed by the Petitioner to set aside the order passed in I.A. No. 81 of 2011 in G.W.O.P. No. 202

of 2011 dated 18.07.2011 pending on the file of the District Judge, Kanyakumari District at Nagercoil.

The brief facts of the case are as follows:

(i) The revision Petitioner has stated that her husband had filed a divorce petition against her before the Subordinate Court, Padmanabhapuram in

H.M.O.P. No. 24 of 2011 on the ground of cruelty. While so, her husband filed G.W.O.P. No. 202 of 2011 along with interlocutory application

No. 81 of 2011 for custody of children.

(ii) The husband/respondent herein has filed the above interlocutory application in I.A. No. 81 of 2011 for interim custody of the children for the

purpose of providing good education. The minor boy, namely, master S. Minesh was born on 14.05.2002. Initially, he studied at Mylode Victory

Matriculation School at Thingalnagar. Subsequently, in order to provide good education, the boy was admitted in 4th standard at Montfort Anglo-

Indian higher secondary school, Yercard in Salem District, which is a residential school. Therefore, the above interlocutory application has been

filed for temporary custody of minor son, S. Minesh.

(iii) The wife/respondent has filed counter statement stating that she has married the Petitioner on 07.05.2001 as per Hindu Customs and rights.

Out of wedlock, the Respondent gave birth to a male and female child. The boy studies at Thingalnagar Victory Matriculation School. In order to

separate the children from the custody of the wife, the interim application has been filed for harassing the revision Petitioner.

(iv) After considering the averments of both the parties and after hearing the averments of the Learned Counsels, the interim custody of the boy

was allowed by the learned Judge. The learned Judge has assigned the reason that the boy was produced on 14.07.2004 and that he had

interviewed him. The boy had expressed his willingness to go with his father to continue his studies in Montfort Anglo-Indian higher secondary

school at Yercard. Hence the learned judge allowed the interlocutory application and granted interim custody to the father.

(v) Aggrieved by the said order and decretal order passed in I.A. No. 81 of 2011 in G.W.O.P. No. 22 of 2011 dated 18.07.2011, the above

civil revision petition was filed.

The Learned Counsel for the revision Petitioner argued that the Montfort Anglo-Indian higher secondary school at Yercard is far away from

Kanyakumar District. At the time of enquiry by the learned Judge, the mindset of the boy had been influenced by his father. Now, the boy is

studying at Victory Matriculation Higher Secondary School at Mylode, Kanyakumari District and the standard maintained in this school is very

high. In the last academic year, the school secured 100% pass result. Now, the academic year has started. Therefore, the studies of the boy should

not be disturbed in the middle of the academic year.

The Learned Counsel for the Respondent vehemently argued that the father of the child is a leading business man and has sufficient income

through his business. So, he wants to give good education to his children. The revision Petitioner/wife is a home maker. She does not have

sufficient income to maintain the children for providing good dress, rich food, comfortable shelter and good education. The Learned Counsel

further argued that the Respondent is a dutiful father to the children and he is very much interested in the welfare of his children. In order to prove

the same, the learned Advocate produced Life Insurance Corporation Policy which are standing in the name of his children. The Learned Counsel

further argued that the Respondent had spent more than Rs. 2,00,000/-towards the boy''s education for studying at Montfort school. The father''s

intention is to bring the minor boy to a high position in life. The Learned Counsel further submitted that the boy''s education should not be disturbed

as both the revision Petitioner and the Respondent are permitted to see the boy as and when they want. The Learned Counsel further argued that

there is absolutely no mala fide intention to disturb the revision Petitioner by way of separating the children from her.

In support of his arguments, the Learned Counsel for the Respondent cited a judgment in the case of Selvan.J v. N. Punidha reported in 2007

(4) CTC 566. The relevant portion of the said judgment reads as follows:

Guardians and Wards Act, 1890 (8 of 1890), Section 25 - Custody of Minor Children - Principles and Doctrines governing grant of custody -

Court would be concerned with right of children to have healthy environment and physical, emotional and financial support for development of their

integrated personality and would decide custody on above touch stone and would not decide on right of parents - Doctrine of ""best interest of

child"" which is prevailing legal test for pasing orders on custody in supplemented by Doctrine f ""Least detrimental alternative"" as alternative judicial

presumption -Issues that are common to all child custody disputes are: (a) continuity and quality of attachments (b) parental alienation (c) education

(d) parents'' physical and psychiatric health (d) parents'' work schedules (f) parents'' finances (g) styles of parenting and discipline (h) Social

support systems (i) conflict resolutions (j) cultural and ethnic issues (k) ethics and values and religion - Crucial test would be ability and willingness

on part of either parties to provide to minor children (a) healthy environment (b) good parental care and guidance (c) physical, emotional and

financial support for development of their integrated personality - Father employed as Chief Manager in State Bank of India and custody related to

two minor sons aged 17 and 13 - Eldest son is due for entry into higher studies and education requires strong financial support - Father willing to

spend money and evidence adduced supported such plea - Mother in whose custody children were had no means of employment and had

received support from her siblings and father-Mother refused to accept financial support given by Father - Mother refused to give access to father

to minor children while father agreed to give unlimited and unrestricted access to children to mother if children were to be in his custody - Such

offer of father would remedy ""parental alienation syndrome"" that minor children suffer from when one of parents is not permitted access to children

- Evidence adduced established that father would be in position to provide good education and has good physical and psychiatric health and his

work schedules would not affect interest of children - Mother was not willing to give any access to father to see children and had no financial

support to provide good education to children - Custody granted to father and mother given permission to visit children at any time with direction

to father not to resist same -Parameters summarized by American Academy of Child and Adolescent Psychiatry followed.

In another judgment in the case of Nil Ratan Kundu v. Abhijit Kundu reported in 2008 (4) CTC 425. The relevant portion of this judgment

reads as follows:

Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 and 13 - Hindu Marriage Act, 1955 (25 of 1955), Section 26 - Guardian

and Wards Act, 1890 (8 of 1890), Sections 7 and 17 - Custody of minor - Power of Court to make orders as to guardianship of minors - Factors

to be considered in appointment of guardian by Courts - Held: In deciding difficult and complex question as to custody of minor, Court of law

should keep in mind relevant statutes - But such cases cannot be decided solely by interpreting legal provisions - A Court while dealing with

custody cases, is neither bound by statues nor by strict rules of evidence or procedure nor by precedents - In selecting proper guardian of minor,

paramount consideration is welfare and well being of minor.

In another judgment in the case of N. John v. V. Narasaiah reported in (2010) 2 MLJ 5. The relevant portion of this judgment reads as follows:

(A) Guardian and Wards Act (8 of 1890), Sections 3, 7, 10 and 29 - Custody of minor children - One of the Minors attained majority due to long

pending of the Original Petition - Another preferred to be under the custody of Petitioner - Petitioner proved himself as good guardian - Petition

allowed.

In another judgment in the case of Radha v. N. Rangappa reported in AIR 2004 Kar 299. The relevant portion of this judgment reads as

follows:

Guardians and Wards Act (8 of 1890), Section 25 - Hindu Minority and Guardianship Act (32 of 1956), Section 6 - Custody of minor - Father of

child was employed in Insurance Company and had regular income to support him - He was employed at place where good academic institutions

were available - As against this, mother was housewife - She had no independent source of income to support herself of minor - Her claim that her

parents were having financial resources to support them seemed to be incorrect -Father being natural and lawful guardian and welfare of minor

being paramount consideration his custody should be entrusted to father.

Further, this Court interviewed the boy, master S. Minish, in the presence of his parents. During interview, the boy stated that he wants to

become an I.P.S. Officer and is willing to study at Montfort Anglo-Indian higher secondary school, if his parents reunite and effect a compromise.

this Court on considering the other facts and circumstances of the case and after hearing the arguments advanced by the Learned Counsels on

either side and on perusing the impugned order of the learned Judge, is of the considered opinion that at present, the boy''s studied should not be

disturbed. As such, this Court holds that the boy should stay with his mother. Therefore, the impugned order passed by the learned Judge in I.A.

No. 81 of 2011 in G.W.O.P. No. 202 of 2011 dated 18.07.2011 on the file of the District Judge, Kanyakumari District at Nagercoil is set aside,

as this is found to be fair and justifiable in the circumstances of the case. this Court directs the learned Judge to dispose the main case within a

period of three months from the date of receipt of this order, after giving sufficient opportunities to the parties concerned, without being influenced

by the discussions of this Court. Accordingly ordered.

Resultantly, the above civil revision petition is disposed of with the above observation. Consequently, the order and decretal order passed in

I.A. No. 81 of 2011 in G.W.O.P. No. 202 of 2011 dated 18.07.2011 on the file of District Judge, Kanyakumari District at Nagercoil is set aside.

Connected miscellaneous petition is closed. There is no order as to costs.