IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.09.2011 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE B.RAJENDRAN O.S.A.No.255 of 2011 Kalaichezhiyan Srinivasan ... Appellant Vs. Nirmala ... Respondent Prayer: Original Side Appeal filed under Order XXXVI Rule 11 of Original Side Rules read with Clause 15 of Letters Patent against the Order dated 21.6.2011 made in Application No.916 of 2011 in O.P.No.186 of 2010. For Appellants : Mr.V.Raghavachari for Mr.N.Senthil Kumar For Respondent : Mr.V.Manohar JUDGMENT (Judgment of the Court was delivered by R.BANUMATHI,J.) Challenge in this appeal is order dated 21.6.2011 made in Application No.916 of 2011 in O.P.No.186 of 2010, whereby the learned single Judge declined to modify the earlier order dated 30.06.2010 in respect of visitation rights of appellant. 2. Marriage of appellant and respondent was solemnized on 27.6.1997 as per Hindu rites and customs. After marriage, the couple moved to Dubai, where the appellant was working and respondent also got an employment as Software Engineer. Out of their wedlock, minor child "Nithyanand" was born on 10.03.2005. The appellant also started a restaurant in 2004 named "Balaji Bhavan" in Dubai and had a very good business. From out of their earnings, appellant and respondent purchased various immovable properties in and around Chennai and in the State of Tamil Nadu. Respondent has a younger sister by name Chitra, who is stated to have been separated from her husband and living with her parents, expressed her interest to come to Dubai to make a living. The said Chitra left her only daughter at her parents house and went to Dubai to live with the appellant and respondent. https://hcservices.ecourts.gov.in/hcservices/ The said Chitra was taking care of the restaurant. After Chitra went to Dubai, differences arose between the appellant and respondent and relationship between appellant and respondent strained. When the appellant expressed his intention to disinvest from the restaurant, the respondent and her sister lodged a police complaint in Dubai against the appellant alleging that the appellant is trying to grab the restaurant from the respondent's sister - Chitra. In these circumstances, on 23.11.2009, the respondent and her sister left for India with minor child and left the child under the custody of respondent's parents and thereafter respondent and her sister went to Dubai leaving the child in India under the custody of their parents. From then onwards, the couple were living separately in Dubai. After return of the respondent to Dubai, differences deepened. Regarding the immovable properties, there were number of litigations between the parties viz., Suit – O.S.No.140 of 2010 in Principal District Court, Chenglepet and O.S.No.584 of 2010 before the Alandur District Munsif's Court. The appellant had also filed criminal case against the respondent in Dubai for Cheque bounce case. In the said case, Dubai Court found the respondent guilty and she was imposed sentence of three months. Challenging it, the respondent has also preferred appeal. It was stated that while imposing the sentence, the passport of the respondent has been impounded and therefore she is not in a position to move out of Dubai. 3. Thereafter, the appellant filed a Petition for restitution of conjugal rights in Dubai Family Court and the Court recorded that reconciliation was not possible. Child Nityanand continued to be in Chennai with the maternal grand parents. In these circumstances, the appellant had filed O.P.No.186 of 2010 under Section 25 of the Guardians and Wards Act seeking custody of the minor child Nithyanand. In A.No.1246 of 2010, single Judge has passed the order on 30.06.2010 inter alia ordering:- (i) to let the minor child to talk to the appellant when ever he calls the child over phone; (ii) parents and the brother of the appellant were permitted to see the child on every Sunday at a common place, which was agreed as Ponniamman koil near the house of parents of respondent at Pallikarani; (iii) the parents and brother of the appellant or anyone claiming under them not to do anything which will disturb the minor child and the minor child should not be taken out of the temple during their visits. 4. Subsequently, in 2010, number of orders came to be passed on various dates. On 11.01.2011, the single Judge has passed the order permitting the appellant to take interim custody of the child from the office of the counsel for the respondent on every alternative https://hcservices.ecourts.gov.in/hcservices/ Friday evening and return the child on the following Sunday after surrendering the passport. 5. During the continuance of the above arrangement, appellant has filed A.No.916 of 2011 seeking for modification of the original order dated 30.06.2010. The modification sought for by the appellant is to permit him to have the custody of the child "Nithyanand" with suitable visitation rights to the respondent. The appellant had alleged that he is travelling to India from Dubai every alternative week and incurring huge expenditure of about Rs.1 lakh per month and if he is granted the custody of the child, the said amount could be utilised atleast for the benefit of the minor child. The appellant has also averred that the child was studying in Cambridge International School in Dubai, which is of International standard and in India the child is put in Sharanalaya Public School, Viduthalai Nagar, Chennai, which is not of equal high standards. The appellant had also alleged that he had taken insurance policy for the education of his son with periodical endowment benefits for which he and his wife are paying the premium. The appellant had also alleged that custody of the child could be given to respondent/mother with visitation rights to the appellant, which would enable him to save the trouble of flying down to India every alternative week and would also save huge sum of money. 6. By the impugned order dated 21.06.2011, learned single Judge declined to modify the order holding that if custody is given to the appellant, the child will be moved out of the jurisdiction of the Court. The learned judge further pointed out that the conviction, which the respondent is facing in Dubai in a cheque bounce case and that she is not in a position to move outside the jurisdiction of the Court in Dubai and therefore respondent may not be able to seek redressal before the Madras High Court, especially on account of the circumstances in which she is placed. The learned judge held that if the respondent is in a position to travel to India and seek assistance of the court at any point of time, then only permission can be granted to the appellant to move the child temporarily out of the jurisdiction of the Court. 7. Learned counsel for appellant Mr.Raghavachari has submitted that the learned Judge did not keep in view that the appellant is spending nearly Rs.1 lakh for his air travel alone to come to Chennai from Dubai once in a fortnight to see the child. He further submitted that the appellant has expressed his readiness that custody of the child could be given to mother, who is at Dubai, pending the main petition with fortnight visitation rights to the appellant in Dubai. It was further submitted that the learned Judge erred in holding that if the modification application is allowed and if the child is to be taken to Dubai, there is no way to compel the parties to bring back the child to India. The main submission of the appellant is that the appellant is spending huge amount of money and most of his earnings https://hcservices.ecourts.gov.in/hcservices/ are being spent on air travel alone. 8. Drawing our attention to the various litigations between the parties and also the Cheque bounce case, the learned counsel for respondent has submitted that because of the conviction in Cheque bounce case, the respondent is not in a position to move out of Dubai and because of the circumstances in which she is placed, if child is moved outside the jurisdiction of the Court, the respondent may not be able to seek any redressal before this Court. It was further submitted that the interest of the child is being well taken care by her parents and therefore there is no justification for interfering with the impugned order. 9. When the matter was heard by us on 19.8.2011 in the morning session, being a Friday, the day of exercise of visitation rights, the appellant was also present in the Court. Learned counsel for the appellant insisted that we must talk to the child. Since it was the visitation week end, we directed the learned counsel for respondent to ask the grandparents of the child to bring the child to the Court at 3.30 p.m. Accordingly, the minor child "Nithyanand" was produced before us by the grandfather in the Chamber at 3.30 p.m and we asked the grandfather and the appellant as well as the counsel for both sides to remain outside. We spoke to the child and the child stated that he is studying in II Standard, He conversed well both in English as well as in Tamil and he understood the questions put by us. The child expressed that he was very comfortable in Dubai and he would very much like to continue the studies in Cambridge International School in Dubai. The child also expressed that though he is okay with the grant parents, he very much longs to be with both mother and father in Dubai. While talking to the child, we could realise that the child was missing the love and affection of both mother and father. After talking to the child, we asked the parties to come inside the Chamber. When the parties came inside, we asked the child whether he wants to go to the father, immediately the child rushed to the father, hugging and kissing him. Thereafter we directed the appellant to take the child for exercise of his visitation rights for that and also directed him to hand over the passport as directed by the learned single Judge. Till the time we completed the hearing, the child tightly stuck to the father. 10. Though we are called upon to decide the temporary arrangements to be made during the pendency of the main O.P, law is well settled and in deciding the question of custody of a minor, welfare of the minor is of paramount importance. The boy, who studied in Cambridge International School in Dubai, which is of International Standard, is put in a very moderate school in Chennai. The boy now lives with maternal grandfather and grandmother and living away from his parents. We have noticed that the child is really missing the love and affection of both mother and father. While considering the paramount interest and welfare of the minor child, maintenance, https://hcservices.ecourts.gov.in/hcservices/ education and the loving care that the child would receive are the factors to be kept in view. The child, having been brought up in Dubai and started his education in Cambridge International School and now because of the strained relationship of the parents now put in a very moderate school and in very disadvantageous position. In our considered view, love and affection of father and mother and the good education will ensure the self development of the child both in thought, actions and behaviour and his well being. 11. The expression "welfare of a minor" is a term of a very wide connotation; it ought not to be measured in money only or by physical comfort alone. It has many facets, such as financial, educational, moral, ethical and due regard has to be had to the ties of love and affection and capacity of building up of a good career of the minor. In the circumstances of the case, keeping in view the interest and welfare of the minor child, in our considered view, it would be appropriate that the child has to be sent back to Dubai. Even though the appellant had asked for interim custody of the child, both in the petition as well as in the grounds of appeal, the appellant had also stated that he has no objection if custody of the child is granted to the respondent/mother and that he could be given visitation rights in Dubai. We also feel sending back the child to Dubai would be in the welfare of the child as the child can have the love and affection of both mother and father. It would also ensure good education for the child and at the same time, it would save the appellant from the trouble of flying down to India once in a fortnight and would also save a huge sum of money, which can be usefully spent either for the child or other useful purposes. 12. As pointed out earlier, because of the differences between the parties, the appellant had filed a criminal case against the respondent in respect of bouncing of a cheque issued by her in favour of the appellant. In the said criminal case, the respondent was convicted and sentenced to three months imprisonment. Challenging the said conviction, the respondent has preferred appeal and her passport is said to be impounded. That apart, the appellant had also filed a Civil Suit before the Principal District Court, Chenglepet in O.S.No.140 of 2010 and O.No.584 of 2010 - suit for permanent injunction has also been filed before the District Munsif's Court, Alandur. 13. Having regard to the grounds raised in the Memorandum of Appeal and also the submissions made by the learned counsel for Appellant, solely keeping in view the interest and welfare of the minor child, it would be appropriate that the child is sent back to Dubai. The child, being of tender age, custody of the minor child is given to the mother, who is in Dubai by giving visitation rights to the Appellant. Pending disposal of the main O.P, the appellant shall have the visitation rights on 2nd and 4th week ends of every month (Friday + Saturday). The appellant shall have the custody of the https://hcservices.ecourts.gov.in/hcservices/ child at 10.00 A.M on the Friday morning of the 2nd and 4th week ends and shall have the custody of the child till Saturday and hand over the child back to the respondent on Saturday evening before 5.00 P.M. The impugned order is modified and this appeal is partly allowed. 14. We have posted the matter today [16.09.2011] under the caption "for clarification and judgment". The Appellant is also present in Court. Regarding exercise of visitation rights and the place of taking the child at Dubai, we have heard Mr.V.Raghavachari, learned counsel appearing for the Appellant and Mr.V.Manohar, learned counsel appearing for the Respondent. We have also heard the appellant. 15. In the result, the order of the learned single Judge dated 21.6.2011 in Application No.916 of 2011 is modified and this appeal is partly allowed with the following directions:- ●The custody of the minor child "Nithyanand" shall be with the Respondent/mother, who is at Dubai and the Appellant/father shall have visitation rights. ●The Respondent shall hand over the passport of the minor child within one week from today to the Appellant to enable the Appellant to obtain Visa for the minor child. ●Mr.M.Sriram, Advocate is appointed as Commissioner for handing over the custody of the minor child to the Respondent. His remuneration is fixed at Rs.25,000/- and the same shall be paid by the Appellant directly to the Advocate-commissioner. That apart, the appellant shall also bear the travel expenses to the Advocate Commissioner. The Advocate-Commissioner shall take the minor child-Nityanand to Dubai after obtaining necessary Visa and hand over the passport and the minor child to the Respondent-mother. The custody of the child in Dubai with the Respondent/mother is subject to the result of the main O.P. ●Appellant shall exercise visitation rights on the 2nd and 4th week ends of every month. That is the Appellant shall take custody of the minor child at 10.00 A.M on the Friday morning of the 2nd and 4th week ends and shall have the custody of the minor child till 4.00 P.M on Saturday and hand over the minor child back to the Respondent-mother before 5.00 P.M. on Saturday evening. The handing over and taking over of the custody of the child shall take place at Zabeel Park, Dubai Karama. https://hcservices.ecourts.gov.in/hcservices/ ●Appellant shall take necessary steps to get admission for the minor child in the Cambridge International School at Dubai, where he earlier studied and shall bear all the expenses for the studies of the minor child. Respondent shall also hand over all the school records pertaining to the minor child to the Appellant enabling him to get admission. ●Both parties shall strictly adhere to the directions issued by this Court. The Appellant also filed an affidavit to that effect. ●Till the obtaining of Visa for the child to go to Dubai and the handing over of the custody of the child to the Respondent/mother by the Advocate Commissioner, the appellant shall continue the visitation rights in India as per the impugned orders. ●The above interim arrangement is passed without prejudice to the contentions of both parties in the O.P. Both parties shall also co-operate for early disposal of the O.P. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar usk To The Sub-Asst.Registrar Original Side High Court Madras. 1 cc to Mr.N.Senthil Kumar, Advocate, Sr.No.57764 1 cc to Mr.V.Manohar, Advocate, Sr.No.57982 Judgment in O.S.A.No.255 of 2011 PA {CO} TP/20.9.2011. https://hcservices.ecourts.gov.in/hcservices/