IMPORTANT POINT
Custody of minor child – Welfare and happiness of child are decisive factors.

JUDGMENT

This Civil Miscellaneous Appeal has been preferred against the fair and decreetal order dated 20.03.2014 made in Guardian and Wards Original Petition No.53 of 2012 on the file of the II Additional District Judge, Tiruchirappalli, wherein the appellant herein filed the Guardian and Wards Original Petition No.53 of 2012 on the file of the II Additional District Judge, Tiruchirappalli, for custody of the minor child to the appellant / petitioner.

2. The brief facts of the petition before the trial Court are as follows:-

(i) The marriage between the appellant / petitioner husband and the respondent / respondent wife was solemnized on 21.06.2004 at Papaneri village at Sivagangai Taluk. Due to the wedlock, a minor child, namely, Yokesh Ram was born on 16.11.2006. Without any valid reasons, the respondent / respondent wife left from the matrimonial home and resided with her parents along with her minor child. The respondent / respondent wife has not shown any interest in the welfare of the child. The appellant / petitioner husband alone attended the needs of the minor child.

(ii) While that being so, on 03.01.2011, the respondent / respondent wife suddenly disappeared from the matrimonial home and did not return and could not be traced out. On 04.01.2011, a police complaint was lodged by the appellant / petitioner husband. Thereafter, it was known that the respondent / respondent wife was staying in Ashram at Tanjore and thereafter, the parents of the respondent / respondent wife took her to their house. Thereafter, the respondent / respondent wife filed a petition in HMOP No.45 of 2012 before the Principal Subordinate Court, Tiruchirappalli for restitution of conjugal rights under Section 9 of the Hindu Marriage Act and sought for interim custody of the child. Thereafter, the petition in HMOP No.45 of 2012 was withdrawn on 29.02.2012. The respondent / respondent wife and her parents are not sending the child to the school. On 13.04.2012, a lawyer notice was also sent to the respondent / respondent wife. Hence, the appellant / petitioner husband filed a petition to return the minor child to his custody.

3. The respondent / respondent husband filed a counter stating that the relationship between the parties has been admitted. The appellant / petitioner husband for the reasons known to him, prevented the love and affection towards the child. The appellant / petitioner husband caused harassment to the respondent / respondent wife. After dismissal of HMOP and after reunion, the appellant / petitioner husband has not shown any interest and caused mental torture to the respondent / respondent wife. The minor child is under the care and custody of the respondent / respondent wife and he needs proper care and protection, which is being provided by the respondent / respondent wife. The respondent / respondent wife being the mother is the only person opt to show love and affection towards the minor child. Now, the minor child is given education in Trichy Mount Litera Zee School and he has been properly maintained by the respondent / respondent wife with love and affection.

4. Before the trial Court, the appellant / petitioner husband himself examined as PW1 and marked Exs.P1 to P11. On the side of the respondent / respondent wife, she herself examined as RW1 and marked Ex.R1.

5. After evaluating the oral and documentary evidence adduced on either side, the trial Court has dismissed the petition, however, granted visitation rights for two occasions in a week. Aggrieved by the said order of the trial Court, the appellant / petitioner husband, who is the father of the minor child preferred this civil miscellaneous appeal on various grounds. The main ground is that the respondent / respondent wife is suffering from psychiatric problems and she is not providing healthy environment, good parental care and guidance and only the appellant / petitioner husband could provide good education to the minor child.

6. The learned counsel appearin