The paramount consideration in custody disputes is the welfare of the child, requiring a holistic assessment beyond mere economic factors.

JUDGMENT :

G.R.SWAMINATHAN, J.

This appeal is directed against the order dated 07.06.2022 made in G.W.O.P.No.81 of 2020 on the file of the Court of Family Judge, Tirunelveli. By the impugned order, the Court below declared that D.Arunkumar, the father of the minor child is the natural guardian of the minor A.Gian Nathen. It also directed the appellant herein to hand over the custody of the minor child to him.

2. The appellant Helan Janani and the respondent D.Arunkumar got married as per the Christian rites and customs on 30.06.2014. A male child Gian Nathen was born through the wedlock on 15.03.2015. Arunkumar was then working in USA. He took the appellant as well as the child to USA. It turned out that the child was suffering from mild Autism. The respondent herein Arunkumar decided came down to India and settled at Chennai. Differences arose between the parties and the appellant left the matrimonial home. According to Arun Kumar, the child was originally living with him and subsequently, through police intervention, he was compelled to hand over the custody of the child to the appellant. He therefore filed G.W.O.P.No.81 of 2020 seeking declaration of guardianship as well as the custody of the child. Arunkumar examined himself as P.W.1. His mother was examined as P.W.2. The speech therapist who had given treatment to the minor child was examined as P.W.3. P.W.4 is working in National Institute for Empowerment of persons with multiple Disabilities and he had psychologically assessed the minor child. Ex.P.1 to Ex.P.30 were marked on the side of D.Arunkumar / petitioner in GWOP. The appellant who was the respondent in GWOP examined herself as R.W.1. Her father was examined as R.W.2. Ex.R.1 to Ex.R.18 were marked on her side. After considering the evidence on record, the Court below allowed G.W.O.P.No.81 of 2020 in the following terms:-

“17. In the result, this petition is allowed and it is declared that the petitioner is the natural guardian of Minor A.Gian Nathen and the respondent is hereby directed to hand over the custody of the minor child to the petitioner within one month from the date of this order. ...”

Questioning the same, this civil miscellaneous appeal has been filed.

3. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds of appeal and called upon this Court to set aside the impugned order and grant relief as prayed for.

4. Per contra, the learned counsel appearing for the respondent submitted that the impugned order is well reasoned and that it does not call for interference. His particular stress was on the fact that the interest of the child will be better served if the custody is handed over to the father who is in Chennai. He harped on the fact that facilities available in Chennai are far superior compared to what is available in Tirunelveli. The learned counsel lamented that even though the child is suffering from mild Autism, he is being educated only in a regular school and that specialised treatment is not being given. He called upon this Court to sustain the impugned order and dismiss the appeal.

5. We carefully considered the rival contentions and went through the materials on record.

6. Since the matter concerns the interest of a child, more so, a special child, we directed both the parties to be present before us on more than one occasion. We had a close interaction with the parties as well as the child. We are happy to note that the respondent has immense affection for the child and that he is extremely anxious to provide the best possible treatment and therapy for the child.

7. The law on the subject is fairly well settled. The Hon'ble Supreme Court of India in the decision reported in (2023) 12 SCC 472 (Rajeswari Chandrasekar Ganesh V. The State Of Tamil Nadu) held that the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. The question of custody will not be determined by weighing t