The well-being and wishes of the children are paramount in custody disputes, and the court may grant visitation right instead of custody to protect the children's interests.

JUDGMENT :

[Prayer : Civil Miscellaneous Appeal filed under Section 47 of the Guardians and Wards Act, 1890, against the order passed by the Hon'ble District Judge-II, District Court, Kanchipuram in G.W.O.P.No.49 of 2013 on 14.06.2018.]

This civil miscellaneous appeal is filed against the order passed by the Hon'ble District Judge-II, District Court, Kanchipuram in G.W.O.P.No.49 of 2013 on 14.06.2018.

2. The appellant is the father of the minor children and the respondents are the maternal grand parents of the minor children. The two children are R.Balasubramani (now attained the age of majority) and R.Kuzhalarasi. The marriage between the appellant and the mother of the minor children Poonguzhali was solemnized on 22.10.2001 as per the Hindu Rites and Customs. The mother of the children died and the respondents registered a complaint on the ground that the death was suspicious. A criminal case registered is still pending without any progress in Crime No.589 of 2013 on the file of the B2, Vishnu Kanchi Police Station, Kanchipuram.

3. The learned counsel for the respondents reiterated that inspite of efforts, the criminal case is yet to be disposed of and the police is also not initiating proper investigation till today. Several representations were sent and the efforts taken by the respondents went in vein. The death of the mother of the minor children is yet to be ascertained. The appellant father of the minor children filed an application in G.W.O.P.No.49 of 2013 under Section 25 of Guardianship and Wards Act, seeking the custody of two children by declaring him as a natural guardian of the children.

4. The District Court, Kanchipuram adjudicated the issues with reference to the facts and circumstances as well as the evidences. The Trial Court made a finding that the appellant as a natural guardian under the Act, is having every right to see the children. However, the Trial Court found that the appellant has not cared about the children after the death of his wife. More specifically, he remarried a woman and now, residing at Mumbai. The minor children are in grown up stage and they have clearly stated even before the Trial Court that they are not willing to go along with their father. It was found that the appellant has not provided any financial assistance to the children and therefore, the father is not entitled for the relief as such sought for. The Trial Court found that the children have not made any complaint against the respondents/maternal grand parents and they are studying peacefully with the assistance of the respondents/maternal grand parents. Based on these findings, the Trial Court formed an opinion that the interest of the minor children are to be protected and accordingly, rejected the petition for custody by granting visitation right. However, it is contended by the appellant that the visitation right is not exercised due to the restriction of the respondents.

5. The learned counsel for the respondents states that the appellant had not made any attempt for such visitation right. The fact remains that the appellant father is residing at Mumbai along with his second wife and has got one child and practically it may not be possible to him to come over to Kanchipuram once in a week to exercise the visitation right as ordered by the Trial Court. Subsequently, the children are also not interested to see the appellant father.

6. With a view of ascertaining the choice of the minors, this Court directed the parties to be present before this Court. Both the appellant as well as the respondents along with the children are present before this Court. The appellant is interested in seeing his children. However, the boy attained the age of majority and now studying first year B.Com Course in an Arts College. The boy in clear terms stated that he is not at all interested to see his father. He made a complaint that his father has not taken care of their needs and he has not taken efforts even to see them during the previous years a