CMA/1810/2020 of RAVICHANDRAN Vs PRAVEENRAJ on 10 September 2026

Judgment

(Judgment of the Court was delivered by N.Mala J.)

The grandparents of the minor child, Rikshitha have filed the above appeal challenging the order of the Family Court, Cuddalore, in GOP.No.144/2019, dated 13.02.2020, directing them to hand over the custody of the child to the respondent, father of the minor child.

For the sake of convenience, the parties will be referred to as per their array in the appeal.

The contest in the present case is between the father of the minor child and her grandparents for her custody.

The summary of facts are as follows: The respondent married the appellants’ daughter one Vidyapriya on 13.08.2014 and out of the wedlock, they begot a female child on 12.07.2016. The respondent alleged that since the marriage was an intercaste love marriage, the appellants were not happy with the marriage and therefore, they pressurized their daughter to leave the respondent and return to the paternal home. The respondent further alleged that his wife was ready and willing to join him, but the appellants prevented her from continuing her marital life. The respondent further alleged that his wife, during her lifetime, filed a domestic violence case and the same was closed pursuant to her death on 10.12.2018. The respondent alleged that his wife died

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under suspicious circumstances and due to the untimely death of his wife, he was driven to pain and mental agony. The respondent further alleged that the appellants being senior citizens, were incapable of taking care of his daughter and maintaining her in comfort as befitted her status in life. The respondent alleged that as the biological father, he had every right to the custody of his child and therefore, he filed the above petition.

The appellants contested the petition and denied all the allegations made by the respondent. The appellants alleged that during the lifetime of their daughter, the respondent harassed and ill-treated her for dowry and therefore, their daughter preferred a domestic violence case in DVC.No.3/2018. The appellants admitted that the domestic violence case was closed on the death of their daughter. The appellants further alleged that the respondent is an unfit person and incapable of taking care of his child. The appellants contended that the respondent was a drunkard and that his parents were HIV patients and so it would be against the interest of the minor child to entrust her custody to the respondent. The appellants further alleged that the respondent never cared for his minor daughter and wife during their daughter’s lifetime. They further contended that they had the financial wherewithal to take care of the minor child and therefore, prayed to dismiss the petition.

Before the Family Court, the respondent examined himself as PW1 and also examined his father Jayaraman as PW2 and marked five documents.

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On the side of the appellants, one Ravichandran was examined as RW1 and four documents were marked on their side.

The Family Court, on the basis of the evidence on record, both oral and documentary, found that the respondent, as the biological father, was entitled to the custody of the minor child as a matter of right in view of the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956. The Family Court, further held that the respondent was a hale and healthy person and had sufficient income as a Welder and hence, capable of taking care of his child. The Family Court, therefore, allowed the petition. Aggrieved by the order of the Family Court, the appellants, the grandparents of the child, have filed the above appeal.

The learned counsel for the appellants submitted that the petition filed by the respondent for custody of his daughter was not a bona fide one, since he had failed to pay even a single pie for maintenance right from her birth and that he had never visited her at any time. The learned counsel submitted that the petition itself was filed as a counterblast to the FIR in Crime No.384/2017, filed by the second daughter of the appellants, against the respondent for the offences under the provisions of the Indian Penal Code and the Tamil Nadu Prohibition of Women Harassment Act, 2012. The learned counsel further submitted that the respondent did not deny that his parents were affected with HIV and therefore, it would not be in the interest of the child to entrust her custody to the respondent, as

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the parents of the respondent may be handling the child. The learned counsel further submitted that the Family Court failed to note that the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, cannot supersede the welfare of the minor child, which alone is of paramount importance. The learned counsel therefore prayed that the appeal be allowed.

We have heard both the learned counsels and perused the materials placed on record.

The basic facts are undisputed, namely, the marriage of the respondent with the appellants’ elder daughter Vidyapriya on 25.03.2015. The birth of the minor girl child Rikshitha, on 12.07.2016, is also not denied. The appellants have also not disputed the paternity of the respondent. However, their main objection to the petition for custody is that the respondent was a drunkard and as such, unfit to have the custody of the child. The appellants contend that the respondent is not a person of good character since he during the life time of their daughter used to harass and ill-treat her for dowry. The DVC.No.3/2018 filed by their deceased daughter is relied in support of the contention. The appellants contend that even though the respondent, as a father and natural guardian may, in law be entitled to the custody of the minor child, however, his bad character and his antecedents render him unfit for custody.

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At the outset, we would like to point out that the respondent has not denied his drinking habit and his parents affliction with HIV. The appellants have filed the copy of the FIR in Cr.No.384/2017, dated 09.11.2017, as Ex.R2. Ex.R2, was lodged by the appellants’ second daughter against the respondent. In the FIR, the complainant, the sister of the deceased/wife of the respondent, clearly stated that the respondent used to ill-treat and beat her sister who was residing along with them in the paternal home. The FIR also recites that the respondent abused the complainant in obscene language and when her mother, the 2nd appellant, tried to prevent the respondent from hitting her, the respondent disgraced the 2nd appellant in public by pulling her saree. It is also seen that even the deceased wife, during her lifetime instituted a domestic violence case against the respondent before the All Women Police Station, Neyveli, in DVC.No.3/2018, in which, she alleged ill-treatment and harassment by the respondent and his parents. The deceased wife further stated certain other incidents which forced her to leave the matrimonial home.

The above documents establish that the respondent ill-treated his wife during her lifetime, but that, by itself, in our opinion, cannot render the respondent unfit to have the custody of the child. However, we are also conscious of the fact that more than the father’s fitness and his legal right, the predominant consideration in custody cases is the welfare of the child.

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The facts reveal that the minor child Rikshitha was born on 12.07.2016, and ever since her birth, she has been initially, under the care and custody of her mother and on her death, in the care and custody of the appellants. It is not the respondent’s case that he attempted to visit his daughter from the date of her birth till the date of petition or that, he was prevented and obstructed by the appellants from visiting his minor daughter. In the absence of any averment that he had taken sincere efforts to visit his daughter any time prior to the filing of the petition, we find force in the contention of the appellants that the petition has been filed as a counterblast to the complaint lodged by the appellants’ second daughter against the respondent for the offences under Sections 323 and 506[i] of IPC and Section 4 of the Tamil Nadu Prohibition of Women Harassment Act. It is true that the respondent, as the father and natural guardian of the minor child has a preferential right to claim the custody of the child. However, in our view, it is not the legal right of the party that is the guiding factor in matters concerning custody of the minor child, but the welfare of the minor child is of paramount importance. Even though the respondent has stated that the appellants are incapable of maintaining and bringing up the child befitting her social status, we find that even the respondent does not appear to have a regular job. The respondent is doing welding work in Neyveli. Under the circumstances, we find that the first appellant, who is a retired Government employee, drawing

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monthly pension of Rs.20,000/-, is more capable of taking care of the minor child’s well being. The appellants in the counter contended that they own movable and immovable properties and the said contention is not denied by the respondent.

Yet another aspect which we would like to point out is that the minor girl child, ever since her birth, has been with the appellants and therefore, she has developed a bond with her grandparents. She is now 10 years of age and is likely to attain puberty, we are of the considered view that it will be in her best interest to let her continue to stay with her grandparents who have taken care of her ever since her birth.

In view of the above discussions, we find merit in the Civil Miscellaneous Appeal and hence, the same is allowed and the fair and decretal order dated 13.02.2020, made in GOP No.144 of 2019, on the file of Family Court, Cuddalore, set aside. No costs. Consequently, the connected miscellaneous petition is closed. (P.T.A.,J.) (N.M.,J.) 10-09-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No AP To

1. The Judge, Family Court, Cuddalore.

2. The Section Officer, VR Section, High Court Chennai.

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P.T.ASHA J. AND N.MALA J. AP CMA No. 1810 of 2020 AND CMP NO. 13355 OF 2020 10-09-2026