Madras High Court Appoints Father As Guardian After Noting Minor’s Clear Preference | Both Parents Found Equally Capable | Court Ensures Mother’s Visitation Rights
Sanchayta Lahkar
The High Court of Judicature at Madras Single Bench of Justice K. Kumaresh Babu has dismissed a petition filed by the biological mother seeking appointment as guardian and permanent custody of her minor son. The Court appointed the father as guardian of the person and property of the child and directed that the mother shall have custody during summer vacations and extended holidays. Additionally, visitation rights were granted to the mother for major festivals and through video conferencing. The child, now aged ten, was found capable of expressing his views clearly. Based on his preferences, the Court stated in favor of the father, while ensuring continued access for the mother.
The petitioner, mother of the minor child, filed the original petition seeking to be appointed as guardian and to obtain permanent custody of her son. She also filed applications seeking communication and visitation rights. The respondent, father of the child, opposed the petition and sought permission to take the child to Dubai for educational purposes.
The petitioner and the respondent were married on 2 November 2011 and had a son, Evaan, born on 22 April 2015. Marital differences arose, and the parties have been separated since 4 November 2021. The petitioner alleged that the respondent removed the child from Uthandi to Bangalore on 5 November 2021 without her consent. A complaint (CSR No.13 of 2022) was filed on 11 January 2022. According to her, repeated efforts to meet the child were thwarted by the respondent.
The petitioner alleged emotional neglect by the respondent during her pregnancy and postpartum period, both in Abu Dhabi and India. She submitted that the respondent made luxury purchases while she was compelled to take up employment as a teacher to support herself and the child. She was diagnosed with obsessive-compulsive disorder (OCD) and returned to India on 2 November 2018 with the child for treatment. She also alleged that the respondent entered into an extramarital relationship in April 2019, lost his job in July 2020, and subsequently started a logistics business in August 2021.
The petitioner stated that a mutual understanding existed regarding custody, and the child alternated between both parents. She claimed she was mistreated when she visited Bangalore and denied meaningful interaction with the child. The petitioner contended that the child is being used as a pawn in marital disputes and stated the importance of raising the child in an environment that respects women. She relied on judgments from the Supreme Court addressing parental alienation and the child's right to experience love and care from both parents.
The respondent denied the allegations and claimed the child had been voluntarily sent with him. He argued that the child was born and raised in Abu Dhabi and Bengaluru, not Chennai, and therefore his residence was not Chennai. He contended the delay in filing the police complaint indicated that no wrongful removal occurred. The respondent stated the petitioner’s claims were driven by a desire to migrate to Canada.
The respondent, who is the natural guardian, asserted that he provided a healthy environment and that the child expressed a clear preference to stay with him. He questioned the petitioner’s mental and emotional fitness to have custody, given her admission of OCD and alleged involvement in an extramarital relationship with a colleague named Aditya. The respondent maintained that the petition was motivated by extraneous considerations and intended as a pressure tactic.
Both parties examined themselves as witnesses. The petitioner was examined as PW1 and produced twenty documents (Exs.P1 to P20), including WhatsApp messages, legal notices, photographs, and employment records. The respondent was examined as RW1 and submitted fifteen documents (Exs.R1 to R15), including speech and occupational evaluation reports of the child, photographs, email correspondence with psychiatrists, and school progress reports.
The Court stated in "The petitioner and the respondent were living in Bangalore from August 2021 and she had only come to Chennai for Diwali holidays". It observed that "there is no averment that the petitioner had attempted to go back to Bangalore to the matrimonial home but, on the contrary, she had indicated that the respondent had taken the child on 17.11.2021". The Court found "no pleadings or even an evidence... as to what steps she had taken for repatriation of the child".
Regarding the claim of custody, the Court noted that "even as per her proof affidavit, the petitioner and the respondent were living in Bangalore from August 2021" and "she had come to Chennai in the month of November 2021 to celebrate Diwali". The petitioner’s claim that the child was removed from Chennai was contradicted by her own submissions.
On the fitness of the parents, the Court stated: "The petitioner being the biological mother cannot be said to not provide the comforts of the child both physically and psychologically". However, it also observed that "even though, the petitioner had claimed that the respondent was involved in an extramarital affair, she had not placed any material on record to substantiate such of her claim".
The Court evaluated both parties’ abilities to provide for the child’s well-being. It remarked: "The respondent had produced under Ex. R7, an evaluation Report of the minor child with regard to his speech and occupational evaluation" and "Ex. R12, a printout of the Progress Report of the minor child".
After interacting with the child in chambers, the Court recorded: "After an interaction, this Court was of the opinion that there was a mild parental alienation and the child was little reluctant to go with the mother". Upon a second interaction, the Court observed: "The child still expressed his view of being with his father rather than mother. He had also expressed his reasons with clarity".
The Court refrained from disclosing the child’s reasons but considered them in assessing custody. It noted: "Since, this Court has found that both the petitioner and the respondent are equally capable of giving the essential needs and the comforts to the minor child, but, in choosing as to whom could be given the custody of the minor child, this Court also takes into consideration the view of the minor child who is ten years old, who has clear understanding of his ambition and has a better clarity of his vision".
The Court dismissed the original petition and appointed the respondent as guardian of the person and property of the minor child. It stated: "The respondent is appointed as the guardian of the person and property of the minor child Evaan (born on 22.04.2015), now aged 10 years".
It directed that "the petitioner would be entitled to have the custody of the minor child during the summer vacation and the extended holidays". The Court further stated: "The petitioner would have a right of visitation of the minor child during the major festivals and also on the birthday of the minor child".
The Court ordered: "The respondent shall provide video conferencing platform to the petitioner enabling her to have video conferencing with the minor child on every Wednesdays and Saturday between 6.00 pm and 8.00 pm and shall also ensure that such video conferencing would be made effectively at least for a minimum of 30 minutes per day".
All connected miscellaneous applications were closed.
Advocates Representing the Parties:
For the Petitioner: Ms. B. Poongkhulali, Advocate
For the Respondent: Mr. P.R. Raman, Senior Counsel assisted by Ms. Anupamm Raghuraman for M/s. Raman & Associates
Case Title: XXX vs. Pidintala Navneet Kumar Reddy
Case Number: O.P.No.405 of 2022
Bench: Justice K. Kumaresh Babu
