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2009 Supreme(Mad) 3270
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
G.K. Chenthil Kannan
Versus
Sathyabama
O.P.No.584 of 2007 and A.No.5052 of 2007
Decided on : 21-08-2009
For the Petitioner:Ashok Menon, Advocate. For the Respondent:Ms. K. Sumathi, Advocate.
The welfare and well-being of the child are the paramount considerations in deciding custody matters under the Guardian and Wards Act, 1890.
Headnote:
Guardian and Wards Act - Custody Dispute - 1890 - Section 25, Section 7 - The court discussed the provisions of the Guardian and Wards Act, 1890, particularly Section 25, and the rights of the father and mother in custody disputes. The court also referred to relevant case laws and emphasized the paramount consideration of the welfare and well-being of the child in deciding custody matters.
Fact of the Case:
The petitioner sought custody of the minor child under Section 25 of the Guardian and Wards Act, 1890. The respondent, the mother, opposed the application, claiming to be fully responsible for the child's upbringing.
Finding of the Court:
The court granted visitation rights to the father, emphasizing the welfare of the child as the paramount consideration. The court also noted that the father had given up the right to permanent custody and was only seeking visitation rights.
Issues: Custody dispute between the parents under the Guardian and Wards Act, 1890.
Ratio Decidendi: The paramount consideration in deciding custody matters is the welfare and well-being of the child. The court emphasized the rights of both parents and granted visitation rights to the father, considering the best interest of the child.
Final Decision: The court granted visitation rights to the father and disposed of the Original Petition accordingly.
The main Original Petition was filed by the petitioner under Section 25 of the Guardian and Wards Act, 1890 for directing the entrustment of the custody of the minor child to the petitioner. A.No.5052 of 2007 is filed by the applicant/husband against the respondent/wife seeking for grant of interim custody of the minor son Aditya Abhishek, pending disposal of the Original Petition.
2. It was stated in the OP that the marriage between the petitioner and the respondent took place on 05.03.1999 at Hyderabad and the minor child was born out of the wedlock on 211. 1999. The petitioner and the respondent soon after their marriage had adopted a minor girl child Chandhini, who was the daughter of the petitioners sister G.K.Chithra with the consent of the respondent. The said adoption took place on August 1989.
3. It was submitted that the respondent had become a computer Engineer after her marriage, she had to make frequent trips abroad. The petitioner advised her not to go to USA since the child was too young required her constant attention. Notwithstanding the advise of the petitioner, the respondent proceeded to USA during 2003 and 2005 and it was the petitioner, who was taking care of the child. The respondent stayed in USA from March 2003 to May 2003 and from May 2005 to June 2006. At that time, the child was only four years old and was taken care of by the petitioner. On 28.02.2007, the respondent in the pretext of visiting her mother took away the minor child from the petitioner and refused to come back to live with him.
4. On 10.05.2007, a legal notice was sent by the respondent, to which the a suitable reply was given by the petitioner. Thereafter, the respondent issued a notice on the divorce application pending before the Family Court. It was stated that in the best interest of the minor child, the custody should be with the petitioner. He is also employed in the L & T company and drawing a good salary. The respondent, being a Software Engineer, having a heavy work schedule hardly finds time to take care of the minor child. Pending this OP, the interim application was also filed.
5. During the pendency of the OP, several interim orders were passed by this Court on 24.09.2007, 211. 2007, 08.01.2008 and 14.05.2008. The Court recognised petitioners right to have visitation.
6. Opposing the application for interim custody, the respondent had filed a detailed counter affidavit running to 30 pages. It was claimed that the respondent is fully responsible for bringing up the child and the minor child is now seven years old. She is completely attending to the requirements of the minor child.
7. When the matter came before this Court on 24.07.2009, it was adjourned to 30.07.2009. On 30.07.2009, the petitioner filed a memo stating that the custody of the minor child Aditya Abishek may be granted to the respondent and he may be given visitorial right. Paragraphs 1 to 8 of the memo reads as follows:
"1. As submitted to this Honble Court, the custody of the minor son Aditya Abishek may be granted to the Respondent/mother.
2. The petitioner/father may be permitted to bring the minor son to his residence every alternate Saturday and Sunday in the event of there being no school for the child on Saturday, and there being no examination for the child on the following Monday.
3.On such Saturdays, the Respondent/mother may be directed to drop the minor child at the residence of the Petitioner/father by 10 a.m., and the Petitioner/father shall return the child to the residence of the Respondent/mother by 6 p.m., on Sunday evening.
4.Until the child attains majority, the Petitioner/father may be permitted to take the minor child to his house on every alternate birthday of the minor child, which falls on 23rd November.
5.During the long school holidays like the summer vacation, Dasara vacation, Christmas Vacation and Pongal vacation, the Petitioner/father shall be permitted to bring the minor child to his residence, for half of
