BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on 19/11/2025 Pronounced on /12/2025

CORAM

THE HONOURABLE MR. JUSTICE P.VELMURUGAN

and

THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI

C.M.A(MD)No.1158 of 2023

and

C.M.P(MD)No.15489 of 2023

R.Karthika : Appellant/Petitioner

Vs.

S.Vimalan : Respondent/Respondent

Prayer:-This Civil Miscellaneous Appeal is filed under Section 19 of the Family Court Act, 1984, to set aside the Fair and Decreetal order dated 20.05.2023 passed in G.W.O.P.No.91 of 2022, on the file of the Family Court, Thoothukudi and allow the present Civil Miscellaneous Appeal,

giving custody of the minor child to the petitioner / mother.

For Appellant : M/s.K.Shawthini for

for Mr.G.Prabhu Rajadurai

For Respondent : Mr.H.Arumugam for

Mr.S.Kumar

J U D G M E N T

(Judgment of the Court was made by the Hon'ble P.VELMURUGAN J.)

This Civil Miscellaneous Appeal is filed against the fair and decreetal order, dated 20.05.2023 passed in G.W.O.P.No.91 of 2022 by the Family Court, Thoothukudi.

2.The appellant/wife has filed a petition under Section 7, 8 and 25 of Guardians and Wards Act, 1890, seeking custody of the child in G.W.O.P.No.91 of 2022, on the file of the Family Court, Thoothukudi. The learned Judge, Family Court, Thoothukudi dismissed the said petition on the ground that at the time of filing the petition, the child was ordinarily residing in the U.S.A, therefore, the Family Court, Thoothukudi did not have jurisdiction over the matter.

3.Challenging the dismissal order made in G.W.O.P.No.91 of 2022, the appellant/wife has filed the present Civil Miscellaneous Appeal.

4.The learned counsel appearing for the appellant would submit that ever since the date of birth of the child, the respondent's mother dominated the appellant and she refused to give the child to her. When she informed the same to her husband, he replied that if she wanted to continue in the matrimonial home, she should follow the directions of his mother. During June 2014, the appellant left for America along with her son and in-laws and after a period of four months, the parents of the respondent returned to India. In November 2017, the respondent's mother returned to India with her child in spite of her earnest effort not to send her child with mother-in- law. She was not even allowed to speak with her son through phone. In August 2018, the appellant and the respondent returned to Thoothukudi and within a week thereafter, the respondent returned to America with the son leaving the appellant at Thoothukudi. Though the respondent denied the allegations by filing counter, he did not deny that the child ever came to India. The main contention of the appellant is that though the parents of the child are the only natural guardian, the respondent ought to allow the child to be with the mother. The child was sent to India and was allowed to reside with the mother of the respondent and when the mother came to India, the respondent took the child to USA and this is the tactic adopted by the respondent. Therefore, dismissing the petition on the ground that the child was ordinarily residing in USA cannot be made applicable to the facts of the present case. The learned Judge of the Family Court failed to consider the matter on its merits and merely held that the Court lacked territorial jurisdiction, as the child was in the USA at the time of filing the petition. The learned counsel for the appellant further submitted that the learned Judge has failed to appreciate the fact that the respondent has also filed a petition for divorce and the same is pending. Hence, he prays for allowing this appeal and for handing over the custody of the child to the mother as she is the natural guardian.

5. The learned counsel for the respondent would submit that in the GWOP petition itself the appellant admitted that the child is residing in USA with his father and therefore, the Family Court, Thoothukudi did not have any territorial jurisdiction. Therefore, the learned Judge, Family Court, Thoothuku