2014 Supreme(Mad) 288

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R. SUDHAKAR, J.
T.L. Sivakumar
Versus
Sumithra @ Sumithra Sree
Original Petition No. 306 of 2010
Decided on: 07-02-2014

Headnote:

The court held that the welfare of the child is of paramount importance and the child's desire, interest, and welfare are the crucial and ultimate considerations in determining custody. The court found that the respondent mother had been showering love and affection on the child, was capable of providing the best facilities for the child, and had sufficient financial capacity. The court also found that the child was happy with the present schooling and the care and attention given by the grandparents and wanted to go to the U.K. to pursue higher studies and his goal of becoming a sportsperson. The court dismissed the father's petition for permanent custody and ordered that the child should remain in the custody of the mother. The court also ordered that the father should have access to the child over the telephone or any other electronic media and that the child should be permitted to visit the father if he indicates his wish to do so. The court further ordered that the father should not cause any harassment, disturbance, or pain to the child and should conduct himself in a manner that the relationship is healthy and friendly.

Fact of the Case:

The petitioner father filed a petition under Section 25 of the Guardians and Wards Act, 1890, seeking permanent custody of his minor child, Arun Gowtham, born on 5th March 2000, from the respondent mother. The marriage between the petitioner and the respondent was solemnized on 21st November 1996. The respondent completed her education at the end of the academic year 1998. In April, the petitioner requested the respondent to join him at their matrimonial home in Coimbatore. Respondent agreed to join the petitioner in September, 1998. Respondent joined him at the matrimonial home and during her short stay with the petitioner, the respondent became pregnant in June 1999. During pregnancy, the respondent returned to Chennai to her parent's house. On 5th March 2000 a child named Gowtam born to the respondent. Petitioner's parents gave chain and dollar weighing about 24 grams as a birthday gift to the child. Respondent informed the petitioner that she would stay at her parents house in Chennai for over a year to bring up the child which was agreed to and accepted by the petitioner. On the request made by the respondent to study MCA Course through correspondence in Chennai, petitioner due to affection for her, agreed to let the respondent to stay at Chennai and the petitioner paid the entire fees for the MCA Course undertaken by respondent. Petitioner was in fond hope that the respondent will come to Coimbatore after completing the MCA Course. Instead, the respondent admitted their son in a School in Chennai. The petitioner, however, spent money towards education of his child at Chennai. The respondent after finishing her MCA course instead of returning to Coimbatore, commenced employment at Chennai. Petitioner states that every year on his son's birthday, he gifted gold chain weighing 2 sovereign. Petitioner took various insurance policies in the name of his son appointing the respondent as nominee. Petitioner also subscribed insurance policy in the name of the respondent and had been paying the premium till date. Petitioner is also subscribing to a monthly deposit scheme for several years at the post office in the name of his minor son. Petitioner states that all his life earnings and savings had been spent only for his wife and his minor son. According to the petitioner, the main reason for the respondent wife to stay at Chennai and continue her life independently away from the petitioner is primarily not for the development of the child as stated by her, but, only at the instigation of the parents of the respondent to extract money from the petitioner due to their financial crisis. Further, petitioner parted with more than Rs.22 lakhs for the benefit of respondent's parents as and when they required money. Petitioner was under the hope that his in-laws will repay the loan that was taken from him. Petitioner hoped that the respondent would return to her matrimonial home and live with him along with the minor son. However, the respondent wife started treating the petitioner cruelly and used to report all activities between them to her parents. Petitioner made many request to the respondent to come and live with him but the respondent refused to quit her job and refused to live with him. The nature of respondent's employment required her to travel abroad at frequent intervals and she gave away all her earnings to her parents and brother. Her salary, increments on three occasions had been used only by her parents. In spite of having taken huge amounts from the petitioner and also from the respondent, the respondent's parents are still in constant financial crisis and have not yet settled their debts. In such circumstances, the minor child would be affected and the upbringing of the child in such an atmosphere will not be proper. In January, 2004, the petitioner requested the respondent's father to return the money which he borrowed so as to enable him to purchase a property at Avarampalayam, Coimbatore. Respondent's father bluntly refused to pay the money and also abuse the petitioner. Petitioner states that neither the respondent nor her parents are taking care of the child in all the financial matters right from his birth and towards his educational expenses as well. The minor son was admitted in Jaigopal Garodia School at Kolathur until 2007, when all the expenses including those of the minor's son's education and personal needs were taken care by the petitioner. After 2007, for no reason and without informing the petitioner, the respondent at the instigation of her parents changed the school and admitted their minor son at the St.John International Residential School and since then the minor child had to live without the care of the parents in a residential school. When such be the case, the respondent issued a legal notice and filed a petition for divorce citing various incidents which had never happened. Petitioner had filed a detailed counter opposing the petition for divorce. It is only from the legal notice that the petitioner learnt that the respondent has changed the name of their minor son from Gowtham to Arun Gowtham. Even during petitioner's father's death, the respondent's father had ensured that the child was not sent to attend the last funeral rights. This has caused tremendous mental agony to the petitioner and his mother. Petitioner states that the best of everything should be given to the child. The child should be brought up in a secure and stable atmosphere and not in an atmosphere with a lot of financial debts and financial constrains. The child should secure the love of the petitioner, who is the father and the natural guardian as well. The minor son does not know the existence of the petitioner in the past two years and the petitioner was not allowed to visit the child once in more than two years. Petitioner is financial independent and is very capable of taking care of his child, as he has been spending on the child since birth. He had spent on the minor child since birth and he would be better equipped to take care of the child if permanent custody is granted to him as he is the natural guardian of the minor son. The child will continue to have a stable and healthy upbringing and overall development under the care and love of the petitioner. The environment at the respondent's house would not be conducive for the over all emotional, psychological growth of the minor child. Petitioner is always available for the minor child and is better fit to be the guardian of the minor. Since the interest and welfare of the minor child is paramount and the petitioner has the capacity, capability and wherewithal to look after the minor son and the petitioner being the natural guardian, permanent custody may be given to the petitioner. Hence, this petition is filed.

Finding of the Court:

The court found that the petitioner father had not made out a case in his favour for grant of permanent custody of the minor child, Arun Gowtham. The court found that the respondent mother had been showering love and affection on the child, was capable of providing the best facilities for the child, and had sufficient financial capacity. The court also found that the child was happy with the present schooling and the care and attention given by the grandparents and wanted to go to the U.K. to pursue higher studies and his goal of becoming a sportsperson.

Issues: Whether the petitioner father is entitled to the permanent custody of the minor child, Arun Gowtham, born on 05.03.2000?

Ratio Decidendi: The welfare of the child is of paramount importance and the child's desire, interest, and welfare are the crucial and ultimate considerations in determining custody.

Final Decision: The court dismissed the father's petition for permanent custody and ordered that the child should remain in the custody of the mother. The court also ordered that the father should have access to the child over the telephone or any other electronic media and that the child should be permitted to visit the father if he indicates his wish to do so. The court further ordered that the father should not cause any harassment, disturbance, or pain to the child and should conduct himself in a manner that the relationship is healthy and friendly.