This Civil Revision Petition is filed against the Order dated 15.07.2008 made in I.A.No.44 of 2008 in H.M.O.P.No.239 of 2006 on the file of the Subordinate Court at Poonamallee.
2. The petitioner/husband in H.M.O.P.No.239 of 2006 is the revision petitioner before this court. He is aggrieved by the order of the trial court dated 15.7.2008 made in I.A.No.44 of 2008 by which custody of the minor female child Ovia was given to the first respondent/wife.
3. The petitioner herein filed H.M.O.P.No.239 of 2006 before the Subordinate Judge at Poonamallee under Sec.13(1)(i) and (i-a) & 26 of Hindu Marriage Act, 1955 praying for a decree of divorce dissolving the marriage between the petitioner and the first respondent which was solemnised on 26.03.1995. He also prayed for an order of permanent custody of the minor female child Ovia till she attains majority.
4. Pending H.M.O.P., the first respondent/wife filed an application in I.A.No.44 of 2008 to direct the petitioner/ husband to hand over the custody of the minor child to the first respondent/wife. In the affidavit filed in support of the application in I.A.No.44 of 2008, the first respondent/wife stated that after the marriage, they resided together at Trichy for a period of three years and thereafter, the petitioner/husband shifted the family to Chennai as he was involved in Cine film making like short film etc. Both of them lived in Chennai for seven years and thereafter she was forced to leave the matrimonial home along with her minor daughter to her parent house at Theni on 25.05.2005. The minor daughter was admitted by her in V Standard at Shanti Niketan Metriculation School at Muthuthevanpatti, Theni. As the petitioner/husband refused to maintain her and the child, she filed M.C.No.26 of 2006 before the Chief Judicial Magistrate Court at Theni, seeking maintenance. The elders of the family negotiated a settlement at that time and on that basis, she withdrew the maintenance case as the petitioner/husband promised that he would take both minor daughter and wife back to the residence at Chennai or Trichy. But he did not do so and in the meantime, the minor daughter completed one academic year and she also promoted to VI Standard. Thereafter, nothing happened. Now, the daughter is studying in VIII Standard in the same School. All the educational expenses of the minor daughter are borne by the first respondent/wife.
5. While so, she was surprised to receive summons from the Sub Court, Poonamallee in H.M.O.P.No.239 of 2006 filed by her husband for divorce. As she had to appear before the Sub Court, Poonamallee, she put her daughter temporarily in the hostel at the same school. But the petitioner/husband with the help of Vice Principal of the School at Theni, kidnapped the minor daughter Ovia on 5.4.2008 and she came to know about that on 12.04.2008. Immediately, the first respondent/wife lodged a complaint before the police and sent a telegram to Subordinate Judge, Poonamallee and also to the Principal of the School. After receiving the telegram, the Vice Principal of the School informed the first respondent/wife that the daughter had gone on an excursion and asked her to wait till her return. Hence, the first respondent/wife was waiting till 24.6.2008 and then only she realised that her daughter had been kidnapped by the petitioner/husband. Thereafter, she lodged another police complaint with All Women Police Station at Theni. She further stated that the petitioner/husband was residing in a room at a lodge and therefore, he could not bring up her daughter and hence she filed I.A.No.44 of 2008 for the aforesaid relief.
6. This application was resisted by the petitioner/ husband by filing a counter, wherein it was stated that after filing the petition for divorce (that time he was at Triplicane, Chennai) he now shifted his residence to Thiruvanaikaval, Trichy. He admitted that her daughter was initially residing with the first respondent/wife and during her stay with her mother, husband's in-laws ill-treated the minor girl and treated her with cruelty. That apart, the first respondent/ wife left the daughter in the hostel and came to Chennai to work. His case is that on 5.4.2008, he received a call from the Head Mistress of Theni School asking him to meet the School authorities immediately. When he met the Head Mistress, she handed over a letter written by his minor daughter to the Vice Principal narrating the adulterous life of the first respondent/wife and ill-treatment meted out to her by her meternal uncle. His minor daughter is also did not want to live with her mother and requested the Vice Principal to hand her over to her father, the petitioner herein, so that she could go along with him to his place. When his daughter came to the Principal room, she clearly informed the Principal that she wanted to live with her father only and on that basis he took custody of the minor child. His daughter is now happily living with him and therefore, he prayed for dismissal of the petition filed by the first respondent/wife.
7. The trial court by order dated 15.7.2008 allowed the petition and directed the petitioner/husband to give custody of his daughter, the minor child, to the first respondent/ wife within 15 days. Aggrieved by the said order, the husband has filed the above Civil Revision petition under
Article 227 of the Constitution of India.
8. This Civil Revision petition came up for admission on 24.7.2008 and on that day, considering the facts and circumstances of the case, I directed the petitioner/father to bring his minor child Ovia to my chamber and accordingly, she was brought by her father. I spoke to the child personally without the presence of her father to ascertain her mind. She spoke clearly and expressed her opinion that she would remain only with her father at Trichy and she did not like to go to Theni to stay with her mother. After hearing the child and ascertained her mental make-up, I ordered notice to the respondent and stayed the order of the trial court dated 15.2.2008 made in I.A.No.44 of 2008.
9. The first respondent entered appearance through her counsel and contested the matter. Heard the learned counsel for the petitioner/ husband and the learned counsel for the respondent/wife. I have also gone through the records filed in support of this petition.
10. In a matter of this nature where the minor's interest is involved, what is paramount is the welfare of the minor child and nothing else. Though I am not happy with the way in which the petitioner/husband took custody of the minor child from the School at Theni, I find that the minor girl (the daughter) is strong in her conviction and categorical in her decision that she would stay only with her father at Trichy where she is at present happily living and studying in Vignesh Sri Renga Matriculation Higher Secondary School, Srirangam, Trichy and she would not go to Theni to live with her mother.
11. The minor daughter is very intelligent showing lot of maturity. She does not appear to have been tutored at all. She is bold and adamant that she would not go with her mother. Still, I asked her mother, who appeared in Court along with her counsel to persuade the minor child to go with her mother. But the minor categorically refused to do so. The learned counsel for the first respondent/wife was also present when the mother had personal talks with the minor child. I was given to understand by the learned counsel for the first respondent/wife that the minor girl has not shown any interest at all to go along with her mother.
12. Therefore, considering the interest and welfare of the minor child, I permit the petitioner/husband to have interim custody of the minor daughter. It is stated that Theni School authorities namely, Shanthi Nikethan Matriculation School at Muthudevanpatti, Theni where she studied last before joining Vignesh Sri Renga Matriculation Higher Secondary School, Srirangam, Trichy, are now refusing to issue Transfer Certificate (T.C.) to the minor daughter and without a valid T.C. the present School where she is studying namely, Vignesh Sri Renga Matriculation Higher Secondary School at Srirangam, Trichy are refusing to permit the minor child to sit for the ensuing Annual examination to be held in this month end. Hence, I direct Shanthi Nikethan Matriculation School authorities, Muthudevanpatti, Theni, to issue immediately the necessary Transfer Certificate to the minor child Ovia to enable her to appear for examination at the present School, namely, Vignesh Sri Renga Matriculation Higher Secondary School at Srirangam, Trichy. The School authorities may act on the production of a copy of this order from the petitioner/husband side.
13. It is also made clear that this interim custody given to the father is valid till the disposal of the main H.M.O.P.
14. Further, considering the nature and urgency of the case and considering the fact that both the parties are not residing at Chennai, I transfer the H.M.O.P.No.239 of 2006 suo motto, from the file of the Sub Court, Poonamallee to the file of the Principal District Judge, Theni, who, after receiving the case papers from the Sub Court, Poonamallee shall either take up the case by himself or transfer the same to any appropriate Court at Theni. On such transfer being made, the transferred court at Theni District, shall decide the main H.M.O.P.No.239 of 2006, on merits and in accordance with law within a period of three months from the date of receipt of the case papers. The Sub Court, Poonamallee is hereby directed to send the entire records pertaining to the H.M.O.P. No.239 of 2006 to the Principal District Court, Theni as expeditiously as possible to enable the Principal District Judge, Theni to do the needful, as above mentioned.
15. Before parting with the case, I would like to add that it is not explained by the petitioner/husband that some elderly women are staying with him at Trichy to take care of the minor female child, especially when the child attains puberty and goes through that biological and physiological changes for the first time in her life. Therefore, the petitioner/husband is hereby directed to ensure that some affectionate closely related elderly women are always available in that house, where the minor child is residing, to take care of the minor female child, failing which the first respondent/wife is permitted to approach the concerned Court at Theni District where the H.M.O.P. will be transferred and tried, to obtain appropriate orders on the basis of this order.
16. In the result, this Civil Revision petition is allowed. No costs. M.P.No.1 of 2008 is closed.
vaan To
1. The Subordinate Judge, Poonamalle
2. The Principal District Judge, Theni