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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. MANIKUMAR, M. VENUGOPAL, JJ.
Dr. V. Sridevi - Appellant
Versus
Dr. C.S. Mani - Respondent
C.M.A. No. 2249 of 2015 & M.P. No. 1 of 2015
Decided On : 29-04-2019
Guardians and Wards Act, 1890 - Hindu Minority and Guardianship Act, 1956 - Family Courts Act - Section 19 - Decree of divorce - Custody of male child - Respondent-father, mother had failed to adhere to terms of mutual consent - Since child was under her control, she has considerable influence on him - She got married onwards, she did not allow him to see his son - Hence, he was compelled to send a legal notice - Appellant-mother sent a reply, stating that father was not visiting child - Father had no other option, except to file I.A.No. to bring child, either to Child Care Centre or a common friends place -On, Family Court directed appellant-mother to bring child and on said date, she brought child to Family Court Child Care Centre - It was represented that she was not against the father, seeing child but it was child who was not willing to go with father - According to respondent-father, since behaviour of child was not natural, then Presiding Officer decided to refer parties to visit psychiatrist - Mother met Doctor with child - Psychiatrist filed her report - Respondent-father has filed his objections to report - Mother wanted long adjournment, as she was going to United States of America and hence, the case was adjourned and thus father could not see child - However, a direction was issued to bring child to the Child Care Centre -Held, appellant has remarried and that it would not be conducive to growth of child - In light of decisions of Honble Supreme Court referred to by Learned Senior Counsel for appellant, remarriage is not a bar, for the custody of child - Besides on facts and circumstances of this case, both children were grown up - One was in Australia and other outside Madras - Family Court ought to have seen that appellant’s remarriage has not affected or impaired the minor’s life or studies or comfort in any manner - Family Court ought to have seen that excepting for two months i.e, just after his birth (when he was an infant) minor boy had never lived with respondent/father. Family Court ought to have seen that minor boy has been in care not only of appellant but also of her family members viz., mother, brother and his family, who have brought up child from his birth with mutual love and affection - Sudden removal of child from present custody would be disadvantageous for growth of the boy - There is no concrete reason to consider appellant, as ineligible for custody of child - Having obtained custody of child, through an order, dated appellant has not neglected interest of minor child nor minor child has been unhappy - Civil Miscellaneous Appeal is allowed.
S. MANIKUMAR, J.
(Prayer: The Civil Miscellaneous Appeal is filed under Section 19 of the Family Courts Act, against the order passed by the IIIrd Additional Family Court at Chennai in I.A.No.3648 of 2011 in O.P.No.3499 of 2009, dated 20.07.2015.)
1. Aggrieved by order dated 20.07.2015 made in I.A.No.3648 of 2011 in O.P.No.3499 of 2009, on the file of the III Additional Family Court, Chennai, the present appeal has been filed.
2. For the sake of convenience, the parties are referred to as father and mother.
3. Facts leading to the appeal are as follows:
Marriage between the parties was solemnised on 23.06.2000, as per the Hindu Rites and Customs and it was registered in the Office of the Registrar, Erode. Out of the wedlock, a male child was born. Differences of opinion arose between them and they lived separately from 26.09.2004. Hence, finding that there is no chance of reunion, the Family Court in F.C.O.P.No.3499 of 2009, dated 10.11.2009, has granted a decree of divorce by mutual consent. Custody of the child was given to the appellant-mother. Visitation rights were given to the respondent-father, as follows:
“The first petitioner (mother) shall have the custody of male child Siddarth. The second petitioner (father) shall take the child Sidddarth from 1.11.2009 to March 2010 at 9 a.m and leave the child back with the first petitioner by 7 p.m on alternative Sundays.
From 1.4.2010 to 30.9.2010 the second petitioner shall take the child Siddarth on alternative Saturday evening at 7.p.m and leave the child back with the first petitioner by 7 p.m on Sunday i.e next day.
From 1.10.2010 the second petitioner shall take the child Siddarth on alternative Friday evening at 7 p.m and leave the child back with the first petitioner by 7 p.m on Sunday.
During summer vacation, the second petitioner shall take the child Siddarth for two weeks and have the custody of the child with him for that period and they are free to travel for an holiday.
During Dusshera vacation, the second petitioner shall take the child Siddarth for three days and have the custody of the child with him for that period.
During festival holidays Pongal and Deepavali, the second petitioner shall take the child Siddarth(Alternative year) on the previous day evening and leave the child with the first petitioner on the evening of the following day.
On the birth day of the child, the second petitioner shall take the child Siddarth on the previous day evening and leave the child with the first petitioner on the following day evening. If the birthday happens to be a school working day, the second petitioner should drop the child at the school in the morning itself.”
4. According to the respondent-father, mother had failed to adhere to the terms of mutual consent. Since the child was under her control, she has considerable influence on him. She got married in March' 2010 and from July' 2010 onwards, she did not allow him to see his son. Hence, he was compelled to send a legal notice on 9.8.2010.
5. On 18.09.2010, the appellant-mother sent a reply, stating that father was not visiting the child. Father had no other option, except to file I.A.No.2779/2010 to bring the child, either to Child Care Centre or a common friends place. On 31.01.2011, Family Court directed the appellant-mother to bring the child on 5.2.2011 and on the said date, she brought the child to the Family Court Child Care Centre. It was represented that she was not against the father, seeing the child, but it was the child, who was not willing to go with the father. According to the respondent-father, in an interview, the child expressed his willingness to meet him and hence, the court directed the respondent to bring the child Siddarth to the Family Court Child Care Centre, on every alternative Sundays.
6. Thereafter, on 29.3.2011 and 10.4.2011 the child was brought to the Child Care Centre. But on 24.4.2011, mother has failed to bring the child and therefore, the matter was adjourned to 25.6.2011. According to
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