Delay In Deciding Custody Cases May Prolong Harassment Of Minor Children: Madras High Court

A Bench of Justices SM Subramaniam and Sathya Narayana Prasad observed that matters of custody of minor children have to be decided expeditiously by the courts. If the decision of the court is delayed, it may lead to prolonged harassment of the minor children.

The court also observed that today's younger generation is wise and intelligent and can assess human behaviors. Hence, when the children are left in a lurch by the father and mother, the minor children have to be enquired and the veracity of the statement made by them has to be assessed in a proper manner to arrive at a conclusion in the interest of children.

"A good family alone can create a good nation. Every child has got a right to get better life as enunciated in the Indian Constitution. Right to life includes a decent life and not mere animal life. The life of minor children has to be protected by all concerned. It is the duty of Courts to ensure that minor children are protected and their interests, vision and wishes are preserved to the extent possible to provide them a better future as it is the mandate of the State under the Constitution."

In the present case, the appellant and the respondent were granted divorce by way of mutual consent. The appellant was working as a Head Constable In Tamil Nadu Police Department and the respondent was employed as Junior Assistant in Tamil Nadu Electricity Board.

The appellant submitted that the respondent forcibly took their two minor daughters away from the appellant to the residence of his sister and further prevented the appellant from visiting the children. Thus, the appellant was forced to file a petition seeking custody of her minor daughters. Though an interim order was passed granting custody of children during weekends, the same was not honoured by the respondent. Subsequently, the court dismissed the petition stating that the father was also a guardian and that the appellant had not made out a valid ground for the purpose of providing custody.

The respondent objected to the contentions by appellant stating that the children were happy with the father and that the interest of the children was being looked after by the sister of the respondent. It was submitted that the respondent was a dutiful father and that the education of children was also being looked after by the respondent.

The court highlighted that the OP Court had not dealt the matter with care and caution. The court also did not consider the fact that the respondent was not in fact taking care of the children and that they were placed with his sister. The court also did not consider that the mother was also capable of providing a better and decent living to the children as she was holding a respectable post.

To form a proper opinion, the court thought it necessary to examine the children. When the children were brought before the court, they started crying spontaneously and informed the court that they did not want to go with the father. They also informed the court that they were tortured/beaten up by the father and also in the house of the respondent's sister. Contrarily, they have expressed their willingness to join with the mother. The court also took note of the attitude of the respondent showing unwillingness to bring the children before the court.

Thus, in an attempt to protect the interest of the children, the court handed over the custody of the children to the mother and denied any visitation rights to the respondent/father. The court also directed the respondent to hand over all the e certificates, documents and belongings of the children to the appellant the same day.

"Courts are not expected to grant custody of minor children in a routine manner, merely based on allegations and counter allegations set out in the petition and counter affidavit. Beyond such pleadings, the psychological aspect of the children, the real interest involved and what would be better for their future have to be necessarily considered as the children are the backbone of our great nation," the Court concluded.

Case Title: C Shamilakumari v P Chandrasekar

Case No: OSA No 142 of 2022

Citation: 2022 LiveLaw (Mad) 226

Counsel for Appellant: Mr. AD Janarthanan

Counsel for Respondent: Mr. GV Sridharan