P. NANDHAKUMAR Vs. S. SATHYA

JUDGEMENT

(1.) The judgment and decree dated 05.06.2018 passed in G.W.O.P.No.75 of 2016 is under challenge in the present Civil Miscellaneous Appeal.

(2.) The appellant is the father of the minor child and the respondent is the mother of the minor child. The marriage between the appellant and the respondent was solemnized on 28.10.2012 and they were living together happily. A female child born from and out of wedlock. Now, the child is aged about 8 years namely Yalini. Due to difference of opinion, the appellant and the respondent are living separately. The respondent/wife states that she was forced to leave the matrimonial home. Litigations are pending, more specifically, the divorce petition filed by the appellant in H.M.O.P.No.66 of 2005 was dismissed by the trial Court and the appellant preferred an appeal and the said appeal is pending. Admittedly, the appellant and the respondent are living separately for about 5 years. All along, the child right from the birth is with the respondent/mother. Being a girl child, the custody of the mother is preferable due to various reasons. The appellant filed an application under Section 25 of the Guardian and Wards Act directing the respondent/wife to produce the minor child/Yalini to the petitioner.

(3.) The trial Court adjudicated the issues with reference to the facts and circumstances as well as the evidence made available. The trial Court made a finding that on perusal of the evidence of P.W.1 and P.W.2, it is seen that nowhere the appellant has stated that he spent money for the welfare of the minor since her birth. From the evidence of R.W.1 to R.W.3, the child is under the custody of the respondent/mother. Thus, the Trial Court itself in clear terms held that "the appellant has not spent a single pie for the welfare of the minor Yalini". Thus, the appellant as a father has not acted for the welfare of the minor child at any point of time. Thus, the trial Court considered Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and further, considered the fact that the matrimonial dispute between the appellant and the respondent is pending before the Appellate Court, dismissed the petition. Even thereafter, the respondent/mother continued to maintain the female child.