The welfare of the child is the paramount consideration in custody disputes, and allegations must be proven with substantial evidence.

JUDGMENT :

1. The Original Petition has been filed under Sections 3, 7 to 10 and 25 of the Guardian & Wards Act, 1890 r/w Order XXI Rule 2 & 3 of the Original Side Rules, seeking the relief to appoint the petitioner as the guardian of the minor child by name S.S.Sana born on 31.03.2012 and for the permanent custody of the said minor female child.

2. The case of the petitioner in brief is as follows:

(i) After fell in love with the respondent right from their school days, the petitioner sacrificing his parents and foregoing his religion married the respondent on 24.10.2010, under the Special Marriage Act. Due to the wedlock, a girl baby by name Sana was born on 31.03.2012. After some time from the date of marriage, from the month of June 2015, the respondent regularly visited on Dr.Sudheer, practicing at Kottakkal Arya Vaidyasalai, Thiruvanmiyur, Chennai. Later, the attitude of the respondent changed and thereafter, she started to dessert the petitioner, without performing the basic and fundamental duties of a muslim wife. When the petitioner reprimanded the respondent about her uncouth and uncivilized behaviour, the respondent deliberately degraded not only the petitioner, but also his parents.

(ii) Thereafter, the respondent started to go for a job at State Bank of Hyderabad, Sholinganallur Branch, on and from 20.05.2013, without taking care of the child. On 25.11.2016, after attending a training camp at Coimbatore, the respondent did not turn up for two days. When the same was enquired by the petitioner, he came to know that the respondent had spent entire night with Dr.Sudheer. The petitioner caught hold of the respondent, who confessed having had an extra marital affair with her paramour, who is also married and with two children. When at the time, petitioner approached the said paramour during January 2017, he also confessed for having indulged in such betraying activities. Consequently, from 06.01.2017, the respondent left the matrimonial home. The attempt made by the petitioner for reunion ended in vain.

(iii) In the interregnum period the respondent shot out a lawyer’s notice dated 30.01.2017, levelling unwanted and unnecessary allegations against the petitioner apart from demanding ‘KULAH’. In the meanwhile, the school authorities, noticed a drastic change in the behaviour of the child and summoned both the parties. Even after giving sufficient advice, the respondent filed the petition before the I Additional Family Court, in O.P.No.884 of 2017, to dissolve the marriage. Now the petitioner’s daughter is being deprived of her right to grow up in a safe and morally sound atmosphere. Therefore, the petitioner is before this Court for the relief stated supra.

3. Denying the allegations levelled against her, the respondent who is the wife of the petitioner filed her counter affidavit wherein she has stated that in view of the order passed in A.No.1563 of 2018 dated 20.06.2018, the minor child Sanah has to go to her father’s house on every Friday at 7.00pm to Sunday 3.00pm. On 07.06.2019, Friday, he did not take Sanah to his house citing some reasons. On 14.06.2019, Sanah left to his house and came back on Sunday on 16.06.2019 mid night with high fever and vomitting. When the minor child was enquired by the respondent, it was informed by the child that the petitioner gave a prawn curry for dinner, which was taken out from the refrigerator. Further, the child had complained of stomach ache to the petitioner on Saturday evening itself. Subsequent to that due to fever, the child was admitted in Fortis Malar Hospital from 22.06.2019 to 24.06.2019. Thereafter, the child is not willing to go to her father’s house every Friday. Due to the said incident, the child was mentally disturbed.

4. Further, on 26.01.2018 morning, the petitioner sent his aunt’s daughter Ms.Priya and thereafter, the said Priya had only taken the minor child from the respondent’s house and later on 27.01.2018 at about 6.30pm, only his aunt’s son dropped the minor c