The biological father is entitled to custody of children unless proven unfit, with the children's welfare being the paramount consideration.

ORDER :

Prayer: Civil Miscellaneous Appeal filed under Section 47 of the Guardian and Wards Act, praying this Court to set aside the fair and decretal order made in G.W.O.P. No. 36 of 2015, dated 19.11.2018, on the file of Family Court, Madurai.

1. The Civil Miscellaneous Appeal is directed against the fair and decretal order made in G.W.O.P. No. 36 of 2015, dated 19.11.2018, on the file of Family Court, Madurai.

2. The respondent/husband filed G.W.O.P. No. 36 of 2015 under Sections 25 and 43 of the Guardian and Wards Act, 1980, for custody of their minor children Gabriel Marianova and Issac, on the file of Family Court, Madurai. The Judge, Family Court, Madurai, after enquiry, allowed the Petition and granted an order of interim custody of the children to the appellant. Challenging the said order, the respondent therein filed the present Civil Miscellaneous Appeal.

3. The appellant is the mother of the children by name, Gabriel Marianova and Issac and the respondent herein is the father of the children. According to the respondent, their marriage was solemnized on 23.08.2009 at Fathima Church according to Christian rites and customs and thereafter, there was misunderstanding arose between them and hence, the appellant left the matrimonial home and they are not allowing him to see the children and the children are with the appellant and therefore, they filed petition under Sections 25 and 43 of the Guardian and Wards Act.

4. The case of the appellant is that the marriage is admitted. The relationship is admitted and on the ill-advise of their parents, brother and sister, the respondent caused cruelty both mentally and physically. The respondent also demanded dowry and driven her out from the matrimonial home. Even on the advise of the well wishers, the respondent did not take her back to the matrimonial home. He also caused mental as well as physical cruelties and not taking care of the children. If the children are handed over to the respondent, there is life threat to the children and therefore, the learned Judge, Family Court, Madurai failed to consider the same and granted interim custody to the respondent. Therefore the present appeal came to be filed.

5. The learned counsel for the appellant would further submit that after marriage, the appellant was with the respondent in the matrimonial home. Their parents and in-laws harassed her and they also demanded dowry. Even during the pregnancy period, they compelled her to do all the household works and even they did not provide her with proper food at the time of pregnancy and since the sister-in-law of the appellant was in the family way and therefore the respondent and their parents forcibly sent the appellant to the parental home stating that it is not advisable to reside two pregnant women to have in the same house. Thereafter, she gave birth to the child. They did not take her back and subsequently on the advise of the well wishers came back to the matrimonial home and after that she became pregnant for the second baby. At that time, they did not take care of the appellant and she was physically and mentally harassed by the respondent and she was driven back to the parental home and they also demanded dowry and caused cruelty and therefore the appellant preferred police complaint, as the harassment of the family members of the respondent is on extreme end and thereafter, she was forced to go to her parental home and the respondent did not take any care of the appellant or their children. The respondent is a mentally ill person. If the respondent is allowed to have the custody of the children, there is no guarantee for the life of the children.

6. The learned Single Judge failed to consider the facts and simply allowed the custody considering the fact that the respondent is the biological father. Except the qualification of biological father of the children, he has no other quality and therefore, the appeal has to be allowed.

7. The learned counsel for the respondent would submit