High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN
J. Selvan
Versus
N. Punidha
O.P.No.659 of 2003, Contempt Petition No.447 of 2007 and Appn.No.1858 of 2006
Decided On : 26-07-2007
Guardians and Wards Act - Custody Dispute - Section 25 - Summary of Acts and Sections: Guardians and Wards Act, 1890, Section 25 - The court considered the interest and welfare of the minor children as paramount, postulating the 'best interests of the child' test and the 'least detrimental alternative' as an alternative judicial presumption. The court also referred to the parameters summarized by the AMERICAN ACADEMY OF CHILD AND ADOLESCENT PSYCHIATRY, including attachments, parental alienation, education, parents' physical and psychiatric health, work schedules, finances, styles of parenting and discipline, and social support systems. The court found that the petitioner satisfied these parameters more than the respondent, leading to the decision to grant permanent custody to the petitioner.
Fact of the Case:
The petitioner, father of two minor children, filed a petition under Section 25 of the Guardians and Wards Act, 1890, seeking permanent custody of the children. The mother of the children, the respondent, alleged cruelty against the petitioner and claimed to be running a Computer Centre and having fixed deposits to support the children. Both parties adduced evidence, and the court directed them to file written arguments for final disposal of the petition.
Finding of the Court:
The court found that the petitioner was in a better position to provide financial support, a healthy environment, and emotional support to the children. It noted that the respondent refused financial support from the father but accepted support from her brothers. The court also found that the respondent's suspecting nature and abnormal behavioral pattern would cast a cloud upon the children's development, while the petitioner had made continuous efforts towards the welfare of the children despite the failed marriage.
Issues: The court considered whether the petitioner was entitled to permanent custody of the minor children and whether it would be in the interest and welfare of the children to be with the petitioner-father rather than the respondent-mother.
Ratio Decidendi: The court emphasized the paramount importance of the interest and welfare of the minor children, postulating the 'best interests of the child' test and the 'least detrimental alternative' as an alternative judicial presumption. It considered the ability and willingness of the parties to provide a healthy environment, good parental care and guidance, and physical, emotional, and financial support for the children's integrated personality development.
Final Decision: The court granted permanent custody of the minor children to the petitioner, with the option for the respondent to visit the children whenever she wants, and ordered the pending applications closed.
V. Ramasubramanian, J.
This is a petition filed under Section 25 of the Guardians and Wards Act, 1890, by the father of two minor children by name S. Kishore Kumar and S. Praveen Kumar. The mother of the minor children is the respondent herein.
2. The petitioner took out an application in A. No. 1858 of 2006 for interim custody of the minor children, for the vacation in May 2006, on the ground that the orders passed in earlier applications for visitation rights and for interim custody in A.No.4773 of 2003 and A.No.4641 of 2005 were actually frustrated. In the said application A.No.1858 of 2006. I passed an interim order, permitting the petitioner to take interim custody of the minor children on 20.4.2007 and return the children on 24. 2007. On the ground that the said order was disobeyed, the petitioner took out a contempt petition in Contempt Petition No.447 of 2007.
3. However, upon finding that both parties have already adduced evidence and the Original Petition itself was ripe for final disposal, I directed the learned counsel appearing for both sides to file written arguments, so that the Original Petition itself could be disposed of. Accordingly, Ms. lima Ramanathan, learned counsel appearing for the petitioner and Ms. Nalini Chidambaram, learned senior counsel appearing for the respondent filed their written submissions. Hence, the Original Petition itself is disposed of by this order.
4. From the averments contained in the Original Petition and the counter filed by the respondent, it is seen that the following facts are not disputed:-
.(a) The marriage between the petitioner and the respondent was solemnised at Vellore on 11. 1987. The minor S. Kishore Kumar was born on 14. 1990 and the minor S. Praveen Kumar was horn on 20.5.1994.
.(b) The petitioner is employed in the Managerial Cadre in the State Bank of India. The respondent is not employed anywhere, though she claims to be running a Computer Centre at Nanganallur.
.(c) The marriage between the petitioner and the respondent has not so far been dissolved by a decree of divorce, though it appears from the allegations traded by them against each other, that the marriage is irretrievably broken.
5. In brief, the averments contained in the petition are that the respondent suffered from an absolute negative attitude from the date of the marriage, leading to unpredictable behavioural pattern, which included abuses. It is alleged by the petitioner that the respondent always suspected his fidelity and caused many embarrassing situations when they lived together at Krishnagiri, Dharmapuri, Coimbatore, Tirunelveii and Tenkasi. According to the petitioner, the respondent suffered from delusions and hallucinations and always charged the petitioner of having illicit intimacy with any women whom he came across. The petitioner has narrated a few incidents in paragraph-10 of the petition, to highlight the mental aberrations that, the respondent had. In April 2002, the respondent forcibly took the children away from the matrimonial home at Tenkasi. After great efforts, the petitioner found the children in Don Bosco School, Peravallur. Since he did not want to disturb the children, the petitioner opened a bank account in State Bank of India, Perambur Branch and asked the elder son to operate the account. But the respondent started effectively preventing the petitioner even from having access to the children. Even phone calls were disconnected and the respondent started brain washing the children, forcing the petitioner to come up with the present original petition.
6. The respondent has filed a counter, alleging cruelty against the petitioner. She has stated that the petitioner used to come home late in the night in an inebriated mood and that lie was womaniser. The respondent claims to have seen the petitioner in the company of other woman at Tirunelveli. According to the respondent, an Assistant Manager of the State Bank of India, Tirunelveli Branch, insisted on the
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