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Child been deprived of the mother’s affection, court allow the child to remain with the father while granting visitation rights to the mother: Supreme Court

The custody of a child born out of wedlock in the midst of a matrimonial dispute between the appellant and respondent has been dealt in this Judgment. The appellant, dissatisfied with previous judicial rulings, appeals to the Supreme Court to contest the custody decision made by the Magistrate, upheld by subsequent appellate courts, ultimately reaching the High Court and now the Supreme Court.

The case, Selvaraj vs Revathi [S.L.P.(Crl.) No.9914 of 2018] originated in a Magistrate’s court where the respondent filed a complaint under Section 12 of the Guardians and Wards Act, claiming maintenance and seeking interim custody of the child. The Magistrate, upon hearing the application, granted interim custody of the child to the respondent. Following this decision, the appellant filed an application seeking revocation of the custody order, which was subsequently dismissed by the Magistrate.

Unsatisfied with the Magistrate’s ruling, the appellant pursued appellate remedies. The appellant appealed to the Principal District Judge, Pudukottai, challenging the Magistrate’s decision. However, the appeal was dismissed, affirming the lower court’s ruling. Subsequently, the appellant filed a revision petition before the High Court, seeking a review of the appellate decision. The High Court, after considering the merits of the case, upheld the lower courts’ decisions, leading to the present appeal before the Supreme Court.

Throughout this legal journey, the primary contention revolves around the custody of the child born to the parties amidst a contentious matrimonial dispute. The appellant challenges the custody orders issued by the lower courts, arguing for a different arrangement or revocation of the respondent’s custody rights. This case underscores the complexities surrounding familial disputes, especially concerning child custody, and the judicial process’s role in resolving such disputes in accordance with relevant legal provisions and precedents.

In the matter of H.M.O.P. No. 12 of 2014 and M.C.No.4 of 2014 concerning custody proceedings initiated in 2014 under the Protection of Women from Domestic Violence Act, 2005, and adjudicated by the Judicial Magistrate, Pudukottai, the appellate court addressed the non-compliance of the custody order and subsequent attempts at mediation and resolution.

The appellant was directed to hand over custody of the child to the respondent in May 2014 when the child was three years and three months old. However, despite no stay on the order, custody remained with the appellant until the present date. Efforts to mediate the dispute between the parties were initiated in December 2019, but the respondent was not ready to mediate, and the child, then nine years and nine months old, expressed unwillingness to go with the mother.

The court, on October 19, 2023, interacted with the child in the presence of both parties. The child adamantly refused to go with the mother or even engage in conversation with her. Recognizing the importance of both parents’ love and affection for a child’s proper growth, the court decided to involve Ms. V. Mohana, a learned senior counsel, to interact with the child and submit a report.

Ms. Mohana’s report, submitted on November 22, 2023, detailed her efforts to bridge the gap between the parties and counsel them, noting the child’s initial aversion towards the mother but eventual willingness to meet monthly in a public place. Despite the child’s continuous residence with the father, Ms. Mohana’s efforts aimed to reintroduce the child to his mother’s affection.

The court acknowledged the significance of maintaining contact with both parents but recognized the unique circumstances where the child had been deprived of the mother’s affection from the beginning. Consequently, it modified the custody arrangement to allow the child to remain with the father while granting visitation rights to the mother, including scheduled phone calls and monthly meetings in public places.

In making this determination, the court considered the child’s age, ability to make decisions, and the efforts of Ms. Mohana in facilitating communication between the parties. It appreciated Ms. Mohana’s sincere efforts in mediating the dispute.

Therefore, the court disposed of the appeal with the aforementioned modifications to the custody order, emphasizing the paramount importance of the child’s welfare in custody decisions and the significance of maintaining relationships with both parents.

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Written by- Aditi

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