In custody disputes, the child's welfare and expressed wishes are paramount considerations in determining custody arrangements.

JUDGMENT :

R. SAKTHIVEL, J.

Challenging the Fair and Decretal Order dated December 17, 2019 passed by the 'Family Court, Karaikal' ['the Family Court' for short] in G.O.P.No.4 of 2018, the petitioner therein / husband has preferred CMA No.953 of 2020.

2. Seeking to set aside Clause 2 of the Fair and Decretal Order dated December 17, 2019 passed in G.O.P.No.4 of 2018 by the Family Court, the respondent therein / wife has preferred CMA No.961 of 2020.

3. For the sake of convenience, henceforth, the parties will be referred to as per their array in the Original Petition.

CASE OF THE PETITIONER (HUSBAND)

4. The petitioner and the respondent got married on January 30, 2012 as per Hindu Rights and Customs. Out of their wedlock, a male child was born on December 9, 2012. According to the petitioner, problems began when the respondent left the matrimonial home on March 28, 2015 along with the child and moved in with her father in Thirunallar.

4.1. Later, the respondent accused him of taking their son unlawfully, and she even filed a police complaint on August 31, 2015, based on which Thirunallar Police Station registered a criminal case against the petitioner in Crime No.99 of 2015. The petitioner, in turn, moved a pre-arrest bail petition before this Court under Section 438 of the Code of Criminal Procedure , 1973. While granting pre-arrest bail, this Court directed the petitioner to return the child to the respondent and granted the petitioner weekend custody for two days. Despite the order of this Court, the respondent and her family did not allow the petitioner to visit his child, even after the Court imposed a fine on the respondent for non-compliance with the order.

4.2. The petitioner claims that he can provide a better environment for his son. Hence, he filed the petition seeking direction to the respondent to restore the custody of the minor child to the petitioner.

CASE OF THE RESPONDENT (WIFE)

5. The respondent filed counter stating that while the petitioner worked abroad, she was mistreated by his family and faced physical and emotional abuse. She was denied proper care during her pregnancy and she was even assaulted. Although she brought a dowry of Rs.2,00,000/- and gold at the time of marriage, the petitioner's family kept demanding more money. She did not leave her matrimonial home willingly, but she was forced out by the petitioner and his family members. She filed a petition for divorce due to this cruelty. The respondent also denied blocking the petitioner's visitation rights. Further, the petitioner has criminal cases pending against him and hence, giving custody of the child, who is 5 ½ years old (at the time of petition), is not safe for the child. Moreover, the petitioner has an age old mother and giving custody of the child to the petitioner would not in any manner be in furtherance of the welfare and interest of the child. The respondent is a B.Sc. B.Ed. Graduate and is working as a school teacher. She has single-handedly been providing good education and proper care to the child since birth and hence, separating him from the mother / respondent will affect him emotionally. The minor son is also not willing to go with the petitioner. Accordingly, she prayed to dismiss the Original Petition.

FAMILY COURT

6. The Family Court framed the following points for consideration:

“1.Whether the child was in custody of petitioner from 28.03.2015 to 11.10.2015?

2.Whether the petitioner is entitled for custody of the child?”

7. On the side of the petitioner, petitioner was examined as P.W.1 and one Matharaman was examined as P.W.2 and Ex-P.1 to Ex-P.39 were marked. On the side of the respondent, respondent was examined as R.W.1 and four other witnesses were examined as R.W.2 to R.W.5 and Ex-R.1 to Ex-R.30 were marked. Copy of OPD Register was marked as Ex-X.1.

8. The Family Court, after analyzing the oral and documentary evidences available on record, concluded that the child was not in custody of the petitioner till August 31, 2015 and acc