V. Appalraj vs Elavarasi

T. Raja, J

Mr.V.Appalraj, Father of minor Thennarasu, being aggrieved by the impugned decretal order dated 24.7.2014 passed in G.O.P.No.13 of 2012 by the learned Principal District Judge, Krishnagiri declining the prayer for custody of the minor son to him, has come to this Court with this civil miscellaneous appeal.

Learned counsel for the appellant, assailing the impugned order, stated that the appellant married the respondent on 14.9.2005 as per Hindu rites and religious customs at his house at Melsrinivasapuram Village, Krishnagiri Taluk and District. Thereafter, a male child by name Thennarasu was born on 16.11.2006. As the appellant was working in the Army, after the marriage, he lived with the respondent for 40 days and thereafter, he left the village and joined duty in the Army leaving the respondent in the house along with his parents. It is stated that right from day one, the respondent failed to give respect to her mother-in-law and also failed to look after the house hold works. However, in the month of January 2006, the appellant came on two months leave and treated the respondent with love and affection by taking her to various places as per her wishes and left her in the matrimonial home by advising her to treat his parents properly by attending to the works. But the respondent repeated her atrocities on her parents-in-law and she used to go to her sister's house frequently without the knowledge of the appellant's parents and stayed there unnecessarily. Sometimes she used to ask her sister's husband to come and take her to his house and as soon as he comes, both used to go together. When the appellant's mother questioned, she used to quarrel with filthy words. That has given rise for separation. Finally, a legal notice was issued on 6.2.2007 to the respondent for re-union. On receipt of the same, a reply notice dated 13.2.2007 was sent with false and imaginary allegations. Thereafter, the appellant filed M.O.P.No.52 of 2019 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and the case was also referred to the Lok Adalat. Although they advised the parties to live together, the respondent refused to do so. Therefore, the appellant filed M.O.P.No.3 of 2010 before the Sub Court, Krishnagiri seeking divorce. Subsequently, the same was also dismissed for default. In the meanwhile, since the appellant's minor son A.Thennarasu, who was born on 16.11.2006, was only in the care and custody of the respondent-mother, the appellant moved G.O.P.No.13 of 2012 before the learned Principal District Judge, Krishnagiri under Section 25 of the Guardian and Wards Act read with Section 6 of the Hindu Minority and Guardianship Act, 1956 to direct the respondent to handover the custody of the minor to the appellant. The Court below, giving a finding against the appellant that if the custody of the child is ordered to be given to the appellant, the life of the minor child would be spoiled. The said order is questioned before this Court.

Learned counsel for the appellant, pleading further, stated that when the respondent is having illicit relationship with her sister's husband for a long period, due to that relationship, the respondent may not be able to take care of the minor child and therefore the future custody of the son should have been ordered in favour of the appellant-father. When the appellant again made out a case that on 10.1.2007, he went to the respondent's house to take back the respondent and his child to the matrimonial home, but she refused to accept the re-union. Therefore, a panchayat was also convened on 4.2.2007 and the panchayatdars also advised both the appellant and the respondent to accept the re-union. However, the respondent again refused to do so. Only thereafter, the appellant filed a petition for restitution of conjugal rights. When the appellant has been able to substantiate his claim that he has been taking all efforts to see the child and also to go for re-union, the Court below ought not to have given a finding that the appellant has declined to see his own son for the past seven years and that cannot be a ground for refusal of the custody of the minor son to the appellant.

But, this Court is unable to find any merit in the appeal, for the following reasons. After the marriage was solemnized between the appellant and the respondent on 14.9.2005 as per the Hindu rites and customs, a male child was also born on 16.11.2006 and as the appellant is in Indian Army, he has left the respondent in his matrimonial home. Thereafter, he developed some suspicion that the respondent is frequently visiting her sister's house and developing unwanted relationship. When the matter was taken up by the Court below, it was the appellant who admittedly deposed before the Court below that he would marry his aunt's daughter and the respondent should give her consent for divorce. He has also further declared that the respondent is living in an illicit relationship with her sister's husband. But no iota of evidence was produced. Therefore, the learned Principal District Judge, Krishnagiri, finding that there was no evidence produced to show that the respondent-wife was having any illicit relationship, declined to accept the prayer for custody of the minor son to the appellant. One another reason assigned by the Court below shows that the appellant had not even seen his son for the past seven years. That shows that he has not taken any step to provide maintenance and also the education of his son and the respondent-mother alone has been looking after the welfare of the minor son. When a specific question was posed to the appellant that the respondent paid a sum of Rs.25,000/- per month for the education of the minor son, he has openly declared that he did not know anything about his son's education and maintenance. That clearly shows that the appellant has not even bothered about his son's education and maintenance. Therefore, the Court below has rightly refused to accept the prayer for custody. This Court finds no illegality or infirmity in the decretal order passed by the Court below. Accordingly, the civil miscellaneous appeal stands dismissed. No costs.