HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL C.M.A.No. 439 of 2007 Dated: 16.10.2014 Between:
Sade Nagabhushanarao.
Vs.
Sade Rojarani.
… Appellant … Respondent HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL C.M.A.No. 439 of 2007 JUDGMENT: (Per Hon’ble Sri Justice G.Chandraiah) This CMA is filed aggrieved by order dt.30.03.2007 in O.P.No.961 of 2003 on the file of the Principal District Judge, East Godavari district at Rajahmundry, by and under which the request of the petitioner/father, seeking custody of minor child – Sade Mahesh to the petitioner after appointing him as guardian for his person and property, was dismissed.
2. The brief facts of the case are that the petitioner is the husband of the Respondent, whose marriage took place on 08.03.1985 as per Hindu rites and customs. However, the Respondent/wife left the marital home, alleging that the petitioner is harassing and behaving cruelly towards her and started staying with her parents. Thereafter, the Respondent filed M.C.No.15 of 1996 before the Magistrate Court at Razole claiming maintenance and during the pendency of the same, in view of the settlement by the elders, the Respondent joined the society of the petitioner and gave birth to a boy on 13.07.1999. After that, again differences arose between the parties, which resulted in filing various cases. Thus, the petitioner/husband filed O.P.No. 961 of 2003 seeking custody of the minor child – Sade Mahesh. The Court below by the impugned order dt. 30.03.2007 dismissed the said petition. Aggrieved by the same, the present appeal is filed.
3. On 21.08.2014 this Court directed the parties to be present in the Court along with the minor child. Accordingly, today the parties have appeared before us along with the minor child. Though the subject mater is relating to the custody of the child, we had counseling with the minor child as well as his parents, who are the petitioner and Respondent herein. Though the Respondent/wife expressed her willingness to join the company of her husband, the petitioner/husband declined the same. Therefore, we are not interested to say anything further on that aspect. During the course of personal hearing, the minor boy said that he is wiling to go with his father/Appellant, if his mother/Respondent joins them. The boy also said that he is happy with his mother, and that they have accompanied by his maternal grand parents to the Court. In other words, the boy is willing to continue with his mother.
4. So far as the factual aspects of the matter are concerned, the case of the petitioner is that he married the Respondent and during the wedlock, they have one male child and after their separation the minor boy was in the custody of the Respondent/mother at Pedapatnam of Mamidikuduru Mandal, East Godavari district. It is his further case that as a father he has every right to seek the custody of his son, and that he got love and affection towards the boy and is capable of taking care of his welfare and education, and hence seeking the custody of the child.
5. On the other hand, the Respondent denied all the material allegations stating that the petitioner ill-treated her so cruelly, made her life miserable, and therefore she had been compelled to stay with her parents. The respondent admitted that she filed the Maintenance case before the lower Court.
6. Before the trial Court, on behalf of the petitioner, PWs.1 and 2 were examined, and Exs.A.1 to A.6 were marked; and on behalf of the Respondent, RWs.1 and 2 were examined and Exs.B.1 was marked.
7. Basing on the above evidence and after considering the material on record and the facts and circumstances of the case, the trial Court dismissed the O.P., finding that the petitioner/father is not entitled for the custody of the minor child from his mother/Respondent, but, however the petitioner was granted liberty to visit the minor boy occasionally. Aggrieved by the same, the petitioner/father preferred the present appeal.
8. We have heard both the parties, minor child and the learned counsel appearing for both the parties, and considered the material on record, including the impugned order passed by the trial Court. The only point to be considered in this appeal is whether the petitioner/father, as legal guardian, is entitled for the custody of the minor child or not. It is the settled principle of law that simply because the petitioner is a legal guardian of the minor child, he is not entitled for his custody automatically in that capacity. The willingness and the welfare of the minor child is the paramount consideration for determining the issue in whose custody the minor should remain. Though the Respondent/wife is willing to join the matrimonial home, the petitioner/husband is not willing for the same. The minor boy is also willing to join the company of his father, if his mother accompanies him. The boy is aged about 16 years, who said that he is studying Intermediate. He appears to be very healthy, alert and active. He intends to prosecute his further studies by staying with his mother only. In these circumstances, when the minor boy is not ready and willing to go alone with his father, without his mother, we cannot compel the minor child to stay with his father. Therefore, in our opinion, it may not be proper to disturb the custody of the minor child from his mother. We therefore see no reason to interfere with the findings of the learned District Judge, which are well considered and based on proper appreciation of the material on record. Hence, there are no merits in the appeal and the same is liable to be dismissed.
9. In the result, the appeal is dismissed. As a sequel, the miscellaneous petitions, if any pending, shall stand disposed of accordingly. No costs.
G. Chandraiah, J.
M.S.K. Jaiswal,J.
Dt.16.10.2014
Kv
HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL C.M.A. No. 439 of 2007 (Judgment of the Division Bench delivered by Hon’ble Sri Justice G.Chandraiah) Dated: 16.10.2014
Kv