Custody of minor children must prioritize their welfare, incorporating their wishes, with emphasis on shared access rights for both parents.

Devan Ramachandran , J.

The appellant seeks the permanent custody of his children, who are stated to be now 15 and 12 years in age respectively. He alleges that the findings of the learned Family Court, in OP No.284/2021 ― which he had filed seeking the afore relief, are contrary to law, entered without analysing the evidence properly; and thus assails it on various grounds.

2. Sri.Joseph Sebastian Purayidam – learned counsel for the appellant, argued that the learned Family Court has erred egregiously in giving permanent custody of the children to the respondent - their mother, reserving only visitation rights for his client and that too on the second, third and fourth Sundays between 9 a.m. and 5 p.m. He argued that, even in the worst case scenario for his client, namely that permanent custody of the children be affirmed in favour of the mother, he ought to have been granted much greater access to them, since he is their father.

3. Sri.P.Venogopal - appearing for the respondent–

mother, however, submitted that the learned Court has evaluated the evidence clearly to find that the interests of the children will be best subserved by them continuing with their mother. He argued that, in fact, the desire of the children have also been taken into account by the learned Court; and hence that the findings in the impugned judgment cannot be found to be in error. He then alleged that the appellant has not been contributing any amounts for the children and that he has taken away his client's gold and patrimony, to hand it over to his earlier wife, so as to settle her claim against him. He conceded that these issues are, however, engaging this Court in another appeal, namely MA No.717/2022; but argued that the attitude of the appellant would render it ineluctable that the children will not be safe with him in permanent custody.

4. We see from the records that the Original Petition we are concerned with before the learned Family Court, was tried in common with OP No.887/2019 - which is the one filed by the wife seeking return of her gold and patrimony. The evidence is thus in common; and we have taken care to only analyse those which are relevant to this case.

5. The appellant testified as RW3, with two more witnesses on his side as RW1 and RW2; while, the respondent deposed as PW3, along with five other witnesses, namely PW1, PW2 and PW4 to PW6, on her side. The respondent marked Exts.A1 to A11 series in documentary evidence; while the appellant marked Exts.B1 to B11. The Court, in addition, accepted Ext.X1 as a third party exhibit.

6. As said above, most of the evidence in this case revolve around the controversy between the parties qua the claim of the wife for return of her gold.

7. As far as the custody of the children is concerned, it is merely the oral testimony of each other that becomes relevant.

8. The respondent—wife, as PW3 narrated several instances of alleged torture and abuse she allegedly endured from the appellant; while the latter, as RW3, contested each of them, saying that he had never behaved in the manner as imputed. The learned Family Court is recorded to have interacted with the children, to record that they said they want to be with their mother. It thus allowed the Original Petition, granting visitation rights to the father.

9. Before we move forward, we must state that there has been an intervening situation in this case, namely, that the respondent is admittedly now working abroad, explaining that she was forced to do so because, she has not been maintained by the appellant, though he is obligated in law, and by orders of Courts, to do so. This, of course, is not an issue that we are directly concerned about; but the factum of the mother now bein