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V.Appalraj vs Elavarasi on 8 July, 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.07.2019

CORAM

THE HONOURABLE MR.JUSTICE T.RAJA

C.M.A.No.2752 of 2019

V.Appalraj .. Appellant

-vs-

Elavarasi
W/o Appalraj .. Respondent

Memorandum of Grounds of Civil Miscellaneous Appeal under Section 47
of the Guardian and SectionWards Act, against the fair and decretal order dated
24.07.2014 passed in G.O.P.No.13 of 2012 on the file of the learned Principal
District Judge, Krishnagiri.

For Appellant :: Mr.C.Samivel

For Respondent :: Mr.P.Mani

JUDGMENT

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.

2. 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
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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-
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mother, the appellant moved G.O.P.No.13 of 2012 before the learned Principal
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District Judge, Krishnagiri under Section 25 of the Guardian and SectionWards Act read

with Section 6 of the Hindu Minority and SectionGuardianship 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.

3. 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.

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4. 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
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has rightly refused to accept the prayer for custody. This Court finds no illegality
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or infirmity in the decretal order passed by the Court below. Accordingly, the civil

miscellaneous appeal stands dismissed. No costs.

Speaking/Non speaking order 08.07.2019

Index : yes/no

ss

To

1. The Principal District Judge
Krishnagiri

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T.RAJA, J.

ss

C.M.A.No.2752 of 2019

08.07.2019
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