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The vs Varinder Kumar) on 30 April, 2010

Madras High Court
The vs Varinder Kumar) on 30 April, 2010
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30.04.2010

CORAM

THE HON'BLE MS. JUSTICE R.MALA

Application No.4741 of 2009 in O.P.No.522 of 2009




ORDER

The applicant has filed O.P.No.522 of 2009 for the custody of the minor child Vishvas Mady, born on 31.1.1999, aged about 10 years, who is in the custody of his mother, the respondent.

2. During the pendency of the main O.P.No.522 of 2009, the applicant has come forward with this application seeking for the interim custody of the minor child Vishvas Mady, by issuing suitable directions to the respondent to hand over the child during week-ends and all public and school holidays, pending disposal of the above O.P.

3. Heard both sides.

4. Both the parties, i.e. spouses have filed their pleadings by way of affidavit, counter affidavit, rejoinder and reply to the rejoinder and they have put forth their cases and have narrated as to what had happened from the date of engagement of marriage till the respondent-wife left the matrimonial home on 9.9.2009 and both of them have made a character assassination against each other. Those averments are not relevant for the purpose of deciding the application for interim custody of the child during the week-ends and all public and school holidays, pending disposal of the main O.P.

5. It is well settled principle of law that while granting interim custody of the child, the paramount consideration to be taken into account is the welfare of the child. So, this Court is not considering those allegations against each other, which are not materials to be considered in this interim custody application. So, the averments in the affidavit, counter affidavit, rejoinder and reply to rejoinder, are not incorporated in these applications. The arguments advanced by learned Senior Counsel appearing for both sides, are enough for considering the grant of interim custody of the child to the applicant-father of the child.

6. The admitted facts are as follows:

The marriage between the applicant and the respondent was performed on 5.12.1996. The child, minor Vishvas Mady, was born on 31.1.1999. The respondent abruptly left the matrimonial home on 9.9.2009. Hence, the applicant was forced to file this application for the custody of the minor child and also for restitution of conjugal rights before the Family Court. He has come forward with this present application for the interim custody of the minor child during the week-ends and also all public and school holidays.

7. Learned Senior Counsel for the applicant would submit that since the respondent-wife was doing her P.G. Course in field of medicine, at Mangalore, she was not able to give the enjoyment of the fatherhood of the child during the period. She returned to Chennai only in June 2004 and till she left the matrimonial home on 9.9.2009, she was with the applicant-husband under the same roof. Learned Senior Counsel appearing for the applicant would contend that even though both the applicant and the respondent were living in the same house, but the respondent has not permitted the applicant to enjoy the company of his minor son. The respondent alone has been taking care of the child and always she has been keeping away the child from the applicant.

8. Learned Senior Counsel appearing for the applicant would submit that since the child is with the respondent-mother of the child, only interim custody is now sought for. Learned Senior Counsel appearing for the applicant further submitted that the respondent has poisoned the mind of the child and the complaint was given by the respondent only after she left the matrimonial home, and after the filing of the present application, making allegation against the applicant that he has sexually abused the child and also shown some pornographic film in the laptop to the minor son and the respondent’s friend’s daughter, while they were playing carom-board. Learned Senior Counsel appearing for the applicant further stated that the respondent is a lesbian and she is having relationship with ladies and moreover, when the respondent was in young age, since both of her parents are medical practitioners, she was brought up by her grand-parents and at that time, her maternal uncle was also there and the respondent was subjected to sexual assault by her maternal uncle, and only because of that, the respondent made such serious allegations against the applicant. Learned Senior Counsel appearing for the applicant further submitted that the respondent is affected by Narcissistic Personality Disorder (NPD) and it is not conducive for the minor to be with the respondent and hence, learned Senior Counsel appearing for the applicant prayed for interim custody of the child with the applicant. Learned Senior Counsel appearing for the applicant further submitted that only because of the attitude of the respondent, the minor child expressed his views and so, the views of the minor child need not be taken into account while deciding the interim custody of the child, and hence, learned Senior Counsel for the applicant prayed for the interim custody of the child.

9. Per contra, learned Senior Counsel appearing for the respondent would submit that it is true that the child is with the respondent-mother, because of the serious allegations made against the applicant and if the child is given interim custody to the applicant-father, it will affect the mental faculty of the child and also the psyche of the child. Learned Senior Counsel appearing for the respondent would further submit that the applicant, having made sexual assault on the minor child, the minor child was afraid of seeing his father and to go with the applicant-father and that a complaint has also been given against the applicant. Learned Senior Counsel for the respondent further submitted that a case has been registered against the applicant and the same is pending, and the minor child is one of the witnesses and also the victim and no victim or witness may be handed over to the accused. He prayed for dismissal of the application.

10. During the arguments of the case, both parties made character assassination against each other. The allegations are to be decided only at the time of the disposal of the main O.P. To prove or disprove those allegations, oral and documentary evidence is necessary. At this stage, it has to be decided as to whether the applicant is entitled to interim custody of the child during week-ends and all public and school holidays. On the basis of the documents filed by both parties, and the list of dates and events filed by the applicant, this Court has to decide the factum as to whether the applicant is entitled for the interim custody of the child.

11. From the list of dates and events, dated 22.4.2010, filed by the applicant, it is seen that after the respondent gave birth to the child on 31.1.1999, the respondent joined the Post-Graduation Course in the medical field in Mangalore, during March 2000 and she completed her P.G. Course in June 2004 and returned to Chennai with son Vishvas Mady. Master Vishvas Mady joined school at Chinmaya Vidyalaya. From serial No.17 of the said list of dates and events, it is seen that on 24.12.2007, the respondent abruptly left the matrimonial home with son Vishvas Mady. In paragraphs 8 and 9 of the main O.P., the applicant himself stated that the respondent was keeping the child engaged outside the matrimonial home in the evening hours, which was solely for the purpose of the child being kept away from the companionship of the applicant. In paragraph 11 of the main O.P., the applicant has stated that the respondent left the matrimonial home abruptly along with the son.

12. From the typed set of papers, filed on 22.4.2010, by the applicant, in page 2, a copy of the F.I.R., dated 8.10.2009, has been enclosed, based on the complaint given by the respondent after the present O.P. has been filed on 14.9.2009. In the said F.I.R., it is stated as follows:

” … I was residing in the residential block of the same address along with my son and my husband Dr.Vivek mady also resides in the same house. However we stayed in separate rooms since the last 2-1/2 years when to protested my shock and dismay I found my husband was sexually molesting and abusing my son who was about 7 years old then, when I protested my husband threatened that if I take any action he will harm my son and myself and take away my son from me. Not knowing what do I have been staying separately in the same house and ensuring that my son is not left alone in the company of my husband. For the last 2-1/2 years I have been living hell suffering the torture and abuses of my husband living in fear of losing my only child. During this time my husband abusing and physically assaulting me. Whenever I protested I was threatened and blackmailed and made to keep quiet for fear of my son’s future and also bringing shame to my family. …. ”

13. Learned Senior Counsel appearing for the applicant would submit that to get rid of the application, the respondent has come forward with such false and serious charges against the applicant.

14. From the list of dates and events, it is also seen that in January 2008, there was discussion at Mangalore by the families of the applicant and the respondent regarding the behaviour of the respondent towards the applicant and the child and then only, on 7.1.2008, the respondent returned to the matrimonial home at Chennai, which shows that there was a dispute during December 2007 and the respondent was forced to be away from the matrimonial home along with the child and there was discussion between the family members of the applicant and the respondent to resolve the dispute and subsequently, the respondent returned matrimonial home.

15. At this juncture, it is appropriate to consider the F.I.R., as quoted above, in which it is stated that for the last 2-1/2 years, the applicant has misbehaved with the child. These allegations have to be decided only on the basis of the oral evidence. The averments in paragraphs 7 to 11 of the main O.P., clearly show that even both the applicant and the respondent are residing in the same house, but the child is not with the father and the child was with her mother. The real reason for the respondent leaving the matrimonial home along with the minor child, has to be decided only during trial.

16. It is pertinent to note that as soon as the respondent left the matrimonial home on 9.9.2009, along with the minor child, immediately, the applicant gave a complaint to the Deputy Commissioner of Police, Kilpauk, on 10.9.2009, which is filed as Document No.4, at the time of filing the O.P., in which, it is stated as follows:

“From
Dr.Vivek Mady,
R.K.Gynaec & Maternity Hospital,
866, Poonamallee High Road, Kilpauk,
Chennai-600 010.

To
Deputy Commissioner of Police, Kilpauk.

Dear sir,
I reside at the above mentioned address and I have been married for the last twelve years to Dr.Akhila Bhat who lives with me. We have a son Vishvas Mady who studies in Chinmaya Vidyalaya in Kilpauk. In the last few months, I have noticed a lot of changes in my wife’s behaviour and she had been acting strangely, not sleeping, neglecting her own health. Yesterday she had gone out of our house with my son Vishvas and has not returned yet. I do not know the whereabouts of my family. I cannot find the Godrej keys and my bank locker key. I fear for her and my son’s safety.

I would request your intervention in finding them and counselling her to restore my family life.

Yours sincerely,
Sd/- Dr.Vivek Mady.”

17. Before that, even on 6.7.2009, the applicant has given a complaint to the DGP, Chennai, which is mentioned as Sl.No.26 in the list of dates and events filed by the applicant, and in the said complaint, dated 6.7.2009, which is at page 1 of the typed set of papers, dated 22.4.2010, filed by the applicant, it is stated as follows:

“I reside at the above mentioned address and I have been married for the last twelve years to Dr.Akhila Bhat who lives with me. I am concerned that my wife has been overworking and seems to be going through a lot of stress at work. I have noticed a lot of changes in her behaviour. She has been acting strangely, not sleeping, neglecting her own health, home and our child. She has become unpredictable and threatens to harm herself, me or our son. I’m worried because of this. She has also been threatening to make false allegations against me and complain falsely that I have been cruel to her and abuse her physically. I am concerned for her health and safety and also of mine and our son. I deeply love her and am trying my best to help her.

I would request your intervention and help if I ask for it if she threatens to cause any harm to herself or others in the household.”

18. The applicant has filed this application on 14.9.2009 seeking for interim custody of the child. It is also seen that on the basis of the complaint given by the respondent, the applicant obtained anticipatory bail on 3.11.2009, which is evident from Sl.No.35 of the list of dates and events.

19. It is also pertinent to note that when this application was posted for enquiry on 23.12.2009, the child was produced before Court and while passing orders, S.Rajeswaran,J, made the following observations:

” …… On the direction issued by me, minor son Master Vishvas Mady (aged 10 years) was also brought. I had intimate and personal talk with him, the minor son individually in my chamber. I find that Master Vishvas Mady is articulate, understanding and he is able to express himself freely. From the discussion and the personal talk I had with the Master Vishvas Mady, I am of the opinion that the interim custody of the minor boy sought for by the petitioner/father cannot be granted now. …”

20. Further, for celebrating the birth day of the minor child, when this application was taken up for hearing on 28.1.2010, V.Ramasubramanian,J, has passed orders, permitting the applicant to celebrate the birth day of the child in the Child Care Centre, Family Court, between 10.30 a.m. and 12.30 p.m. on 29.1.2010.

21. On 20.4.2010, when this application was taken up for disposal, at 2.15 p.m., the child was produced before Court and I made enquiry and the child expressed his unwillingness to go with his father. Furthermore, the child made allegations against his father. Now, the child is 11 years old and he is studying in VIth Standard. It is true that the child is with the single parent, i.e. one of the parents, and the child can be tutored by that parent and the child will reproduce the same as a parrot. When this Court directed the minor child to interact with his father, neither of them interacted with each other, even though they were sitting in the same Bench in the Court Hall.

22. Furthermore, the respondent-mother of the child, went to the extent of making serious allegations against her husband, the applicant herein, stating that the child was subjected to sexual abuse by the applicant-father, and so, the child is afraid of his father and hence, he is not willing to go with his father.

23. As admitted by both parties, the case has been registered on the basis of the complaint given by the respondent against the applicant, on 8.10.2009, for the offences under Sections 498-A, 377 and 506 (Part-II) IPC, and the main O.P. has been filed on 14.9.2009, seeking for the custody of the child. In the criminal case, the minor child was examined as a witness by the investigating agency. The case has been registered under Section 377 IPC along with Section 498-a and 506 (Part-II) IPC, alleging that the husband sexually molested and abused his son, who was aged about 7 years. In such circumstances, since serious allegations have been made against the applicant, if the minor child is handed over to the applicant-father, it will cause hindrance to the investigation and trial of the criminal case filed against the applicant, because, the child is alleged to be a victim and also alleged to be a witness in the criminal case filed on the basis of the complaint given by the respondent before the Commissioner of Police, Central Chennai, Egmore, Chennai-8, in the Police Department file in Rc.No.6465-A/cop/Visitors and RC.No.495/Dc/emp/COP-Visitors/09.

24. Learned Senior Counsel for the applicant would submit that one of the applicant’s sister is now at Mangalore for maintaining and taking care of the minor child and she is ready to come over to Chennai from Mangalore for taking care of the child. Admittedly, in Chennai, there is no female member in the family of the applicant to take care of the minor child, if the minor child is given interim custody to the applicant. Furthermore, the child is now with the respondent-mother and whether the allegations made against both the spouses are true or false, have to be decided only after letting in oral and documentary evidence. Considering the serious allegations made against the applicant, it is unsafe and premature to give the interim custody of the child to the applicant-father.

25. As already stated in the earlier paragraphs, even though the child was produced before Court, neither the child nor the applicant-father interacted with each other. In such circumstances, if the child is given interim custody to the applicant-father, it will affect the mental faculty and the psyche of the child, as the child is able to express his views freely to the Court when the case was heard on 23.12.2009 and on 20.4.2010.

26. The first thing that calls for notice is the fact that, in an application under Section 25 of the Guardians and Wards Act, the sole criterion is the minor’s welfare. It is only if the Court is of opinion that “it will be for the welfare of the ward to return to the custody of his guardian” that it can pass an order for such return. The rights of the guardian should not weigh at all though, since in all legal systems, rules relating to guardianship are framed with a view to protect the interests of minors, it may be presumed that, if the law gives the guardianship to a particular person, it is in the interests of the minor that person should have custody of his person.

27. The father’s right is not absolute. It is circumscribed by the considerations of welfare of the minor. If the minor’s welfare requires that custody should not be given to the father, he cannot get it merely because he happens to be the father.

28. Under Hindu law, the father would be the natural guardian, but in considering the question as to whether the father should have the custody of the child or the mother when the two are separated, the Court has to consider primarily the interests of the minor and in arriving at a decision, the Court has to take into consideration all the circumstances of the case.

29. In the decision of the Supreme Court reported in AIR 1982 SC 792 (Veena Kapoor Vs. Varinder Kumar), it was held by the Apex Court as follows:

“It is well-settled that in matters concerning, the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party.”

30. One of the paramount and germane considerations would be to take into account the wishes of the child. Since the minor son is aged about 11 years, and as he has expressed his intelligent preference in the matter of guardianship, his wishes should be respected. Preference of the minor, if he is sufficiently old, should be given due weightage. It is also the duty of the Court to examine whether the wish expressed by minor is free and frank desire, where a child above five years in custody of mother throughout was found to be well-nourished and playful, the application of the father for the custody of the child is to be considered more cautiously in the background of his conduct.

31. While considering the averments in the application, it shows that the minor child was not close with the father, even though the applicant-husband and the respondent-wife were living in the same roof and the minor child was with the respondent-mother till she left the matrimonial home along with the minor child on 9.9.2009. Now, the child is with the respondent-mother. The custody in which the minor had been prior to the controversy, should not ordinarily be disturbed, if there are materials to show that the minor has reconciled to that custody and really disliked the change. 32. For the foregoing reasonings, I am of the view that the applicant-father of the child, is not entitled to get the interim custody of the child. The application is devoid of merits and the same is dismissed.

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