Sundari Ravl v. 1. Sundari @ Keetha Ramya Krishna

Petition under section 151 cPC praying that in the circumst,ances stated in the affidavit f iled in support of the petition, the High court may be pleased to direct the res;pondent grant interim custody of the;hild namely sundari Nikith, aged about 8 years and g months to the petitioner till the disposal of the above appeal. Counsel forthe Appellant: Sri G. Sundaresan Counsel for the Resoondents: None Appeared The Court de{ivered the fottowing: JUDGMENT THE HONOURABLE SRI JUSTICE T.VINOD KUMAR THE HONOURABLE SMT. JUSTICE P.SREE SUDIIA AND CwIL MISCELLANEOUS APPEAL No.55O of 2o24 JUDGMENT: ftter Hon'ble Smt. Justice P.Sree Sudha) This Civit Miscellaneous Appeal is hled against the Order dated 19.07.2024 in G.W.O.P.No.O2 of 2024 passed by the learned Il-Additional DisLrict and Sessions Judge, Huzr-rrnagar.

2. The appellant/ husband filed a petition against the respondent/u,ife before the trial Coort uide G.W.O.P.No.02 of 2024 under Section 8(b) of the Hindu Minority and Guardianship Act, 1955 r/w Section 10 & 25 of the Guarrlians and Wards Act, 1890, seeking custody of the minor chiid by name Sundari Nikith. The appellant/husband got cxamineci P.W. 1 on his behalf and also got examined P.Ws.2 to 3 on his behalf and also got marked Exs.Pl to P3 on his behalf. The respondent/wife did not turn up before the triai Court even after receiving the notice and hence she was se.t ex-parte, b:ut the trial Court observed that appellant/husband had perforrned another marriage, as such the custody of the minor child should be vested with his natural mother for the overall development of the minor child and dismissed the petition without costs 2 Aggrieved by the said Order, appellart/husband prefe rred the present zrppe rl

3. Ihe m rir-r grievalce of the appellalt herein rs :hat the minor child .vas very weak and lean with dirty clothesr and he was nlt ever sent to school. Respondent/wife and her parents are not taking care of the minor child. The resprtndent/,wife and her brother tu-c taking the child to their agricrritural l:rnd and engaging hinr ir-r agricultural works, thereby r:austng damage and d,:stroJ'ine thc bright future of the child ',vithout sending him to the sr:I-rool. The appellant/ husband elso slated that though he pr:rformed another marriage, his mother is staying with hin-r and she can take care of the child. Tl Lerefore, requested thr Court to set asrde the Order of the trial (lcurt.

4. l\,lotices scnt lo the respondent were scrwed ulton the father and brother of the respondent/wife, but thel- relused to receive thc si rnc. Service of summons on any adult rne mber of the farlily czLn be deemed as proper service, and he nce the respondent/ v'ife is set ex-parte and heard the argument s of the Couns,:I for tlLe appellant/ husband. I / 3

5. Now, it is for this Court to see whether the appellant/husband is entitled for the custody of the minor child and the Order of the trial Court is on proper appreciation of the facts or not?

6. The marriage of the appellant with the respondent was performed on 22.O2.2014 and they are blessed with a rnale child on O6.01.20i6. The appellant/husband frled a petition uide H.M.O.P.No.27 of 2076, seeking divorce on the ground of crueity and the said pctition was allowed on 29.01.2019, granting the decree of divorce by dissolving the marriage between them. From 2Ol9 onwards, the child was staying with the respondent/wife. The appellant/husband has filed the present Civil Miscellaneous Appeal in the year 2024 i.e., after 5 years by stating that the child was aged about 9 years, but he was not sent to the school and the respondent/wife was not taking any measures for the welfare of the child and the child was deprived of the education and proper food and thus he. requires the custody of the chi1d. In the divorce decree, it was mentioned that respondent/wife has completed her B-Tech, but she was not working and earning and at one point of time, it was stated that she was working as a Teacher for one year. Though the respondent/wife contested the divorce petition, she has not I l ,l 4 contesrted th,: G.W.O-.P, even after serving of the noticrl, for the reasorrs best known to her. In the present appeal also notices were s,erwed rtpon her father and brother. Thoul3h they l-rave the knowl:dgc ol the proceedings, they did not turn up br,:fore the Court and rr:rnained ex-parte. Therefore, it is .br the (lourt to confine to the evidence adduced by the appellzLnt/ h r-rs l;and for deciding the Guardian O.P. In Guardian O.P's the paramor,rnt consideratior lbr the Court is the welfare of the rninor clLild.

7. 'lhe Hcn'ble Apex Court in the case of Mausa.tn;i Moitra Ganguli Vs. Jegant Ganguli,r held that 'the principte s of lana in relation to the custody of a minor child are uell settLed. It is trite tL,nt uhil.e determining the question as to uthich pcrrent the cc.Lre atd- r:ontrol of a child should be committed, the Jlr.st and the paramou.nt c( nsideratiotl is the uelfare and interest of i.he child and not the r;.clhts of the parents under a stotute. " And also, in the case of I).S.G Vs. A.K.G,2 it was held thar ,,the Courl is require'd to giue due ueight to the ordinary com,fort of t)te child, contentment, irtellectual, moral, phgsical deuelopmen.t, health, education, and generol maintenance, and the fat 'ourable surrouitdings. The Court is not bound either by statute:;, or by stict R:ules oJ euidence, or procedure or preced-ent. In deciLTing the I atn 2oo8 sc zze: 'lzozoy I u scc :+l 5 issue of atstodA, the paromount con-sideration should be the welfare and utellbeing of tLrc child."

8. In this case, the appellant/husband stated that respondent/wife was not sending the child to the school and she was also not providing proper food to him and thus he was weak and leal and was with dirty clothes. To refute the evidence, respondent/wife did not appear before the Court, but the trial Court observed that as the appellant/ husband performed another marriage, the custody of the child should be with the natural mother and accordingly dismissed the petition. if at all, the respondent/wife is really interested in the welfare of the child, she should contest the matter either before the trial Court or beforc this Court to bring the facts in her favour, but she failed to do so.

9. Admittedly, appellant/husband is no other than the father of the minor child. He also stated that though he { performed another marriage, so far they did not have any child and moreover it is also stated that mother of the appellant is also staying with him and she is willing to take care of the minor child. The child at the age of 9 years, requires proper nutritious food and education, but the respondent/wife failed to 6 provide the same. Though she is educated, for t-he reasrrns best knowr, to her, she could not contest the Guardian O.P :rnd also to ma,<e repr esentation before this Court and iailed to provide educar-ion to the minor child. As the welfare of the child is the paramount c rrrsideration for the Court, this Court ilnd s that it is just and re a sonable to grant custody of the minor chi.d to the appellrnt./ husband for the overall well being of Lhe child

10. . n the result, the Civil Miscellaneous Appeal I s allowed setting erside r.he Order of the trial Court in G.W.O.1,.1',tro.02 of 2024 <laLed 19.O7 .2024 and the custody of the rninor cl'rilcl i.e., Sundari Niki'.h. is granted to the appellant hereir-r. T1-rere shall be no r;rder a; to costs. It4iscelLrneous petitions pending, if any, shal. stand closcd. Sd/- K. SRINIVASA RAO JOINT REGISTRAR rrRUE coPY// \ ' t ---- l ,\ vsE ( CI]ON OFFICER ar (with records, \ To,

1. The ll l\dditional District and Sessions Judge at HYzurnag if any)

2. One CC; to Sri tl. Sundaresan, Advocate [OPUC] 3. Two Cl) Copies Kam/PSLw l l I I I I I I I I I I t \ \ I i I i I I i I I I I ! I I i HIGH COUR'I' DATED::2710312025 I t E1. Ft :, tr. 't C\ +'?s .'. \\ c! .ai oir+ + Ur JUDGMENT CMA.No,550 of 2024' a) t- ?+... .)..:: ALLOWING T'HE CMA 5 6ra w -4,6\ j \.,'r -