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For Appellant(s): Mr.J.Franklin

Judgment

(Judgment of the Court was delivered by P.T.Asha J.)

Rumi, the 13th century, Persian poet and Sufi mytic, describes a mother’s love as follows:

“I love you neither with my heart nor with my mind, just in case my heart might stop and my mind might forget.

I love you with my soul.

The soul never stops or forgets.”

The children in the instant case have not been blessed with this love and the narration herein below will justify this observation.

Challenging the dismissal of her request for custody of her minor children, a son, Tharun Kumar now aged about 9 years and da ughter Thanya Kumari now aged about 7 years by the learned Judge, Family Court-cum-Additional District and Sessions Court, Udhagamandalam in O.P.No.54 of 2024 that the appellant/mother is before us.

2. The facts of the case as set out in the respective pleadings are herein below set out.

Case of the appellant/petitioner (i) The appellant and the respondent had got married on 23.03.2015 at The Nilgiris as per Hindu rites and the customs prevalent in their community. It is out of this wedlock that the minor children, who are the subject matter of the guardian petition were born. The appellant would contend that she was a woman of a “sterling character”, educated and with a gentle disposition. It is her case that she had treated her husband and his family with affection and care. She would submit that due to a misunderstanding with her husband she has been sent out of the matrimonial home and the children are with the respondent.

(ii) She would submit that they are at an age when they require maternal care. After she had been sent out of her matrimonial home she is living with her parents and as on the date of the petition, it was nearly 6 months since she had seen her children. She would submit that moral values are absolutely necessary and keeping the children with the respondent who is deficient in this regard is not conducive for the welfare of the minors and therefore she has come forward with the present petition.

3. Case of the respondent (i) The respondent would submit that the appellant is of loose moral character and was caught indulging in immoral and illicit relationships. The respondent would contend that the appellant had scant regard for the well being of her children and the children were fed junk food and made to sleep early to facilitate the petitioner's phone calls with other men. The respondent, her husband, would contend that late night phone calls were the norm and the excuse given was that it was a cousin with whom the appellant was chatting. Later, it was found that it was a person called Lokesh from Kuruthukulli Village. When warned, she promised to mend her ways however this assurance has been observed in the breach. She had taken away a gold chain weighing 44.70 gms belonging to the respondent to give it one Guruprasad who had pledged the same with the cooperative Bank. The parents of the appellant and the respondent with very great difficulty managed to recover the same from the said Guruprasad.

(ii) On 14.02.2023 her whatsapp message had reflected the words “I love you” and thereafter when the respondent, who entertained a suspicion, had gone through the whatsapp chats he noticed that the appellant had shared her nude and semi nude photos to third persons and that she had video called several persons during the late hours. The respondent unable to accept the above conduct of the appellant had dropped her at her parents' place on 20.02.2023 and apprised them of the situation. On 04.03.2023 when their son was hospitalized the appellant and her mother had visited the child like any other third party. When the child underwent a blood transfusion she was not present. The respondent in his counter has given details of the phone numbers belonging to the appellant and stated that a perusal of the same will prove the late night calls / video calls and sharing of intim