IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.01.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.RAJA O.S.A.No.350 of 2009 and M.P.No.1 of 2009 R.Sathyabama ..Appellant Vs. G.K.Chenthilkannan .. Respondent The appeal filed under Order XXXVI of O.S. Rules read with Clause 15 of the Letters Patent against the judgment and decree passed in O.P.No.584 of 2007 dated 21.8.2009 passed by the learned single Judge of this Court. For Appellant : Mrs.K.Sumathi For Respondent : Mr.Ashok Menon J U D G M E N T (Judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges the order of the learned single Judge of this Court made in O.P.No.584 of 2007 whereby the custody of the minor child Adithya Abhishek, aged 9 years, came up for consideration and the following order came to be passed. "13. Therefore, in the interest of the minor child and considering that the petitioner is the father, it is hereby ordered as follows: i) The petitioner/father is entitled to have the custody of the minor son in the alternate Saturdays or Sundays when there is no school and no examination for the child on the following Monday. ii) The respondent is directed to entrust the minor child at 10.00 a.m. on such Saturdays or Sundays as the case may be and the https://hcservices.ecourts.gov.in/hcservices/ petitioner shall return the custody of the child to the mother by 6.00 p.m. in the Sunday evening. iii) The petitioner/father will have the custody of the boy, if there are holidays during Dussehra and Christmas for a period of three days each and during summer vacation for a period of 10 days. The father is entitled to the custody of the boy from the mother during those periods. On the expiry of the stipulated period, the father shall hand over the custody of the boy back to the mother. iv) The petitioner is also permitted to visit the minor boy on every birthday of the minor child on 23rd November. v) The petitioner is also permitted to visit the boy on the New Year's Day and 2nd February, being the birthday of the petitioner. vi) The name of the minor child shall be continued to remain as C.Aditya Abishek in the records. 14. In the light of the visitation rights being granted to the petitioner and the petitioner having given permanent custody of the minor child to the respondent, the OP is disposed of in the above terms. Consequently, A.No.5052 of 2007 will stand closed. In case of any difficulties, the parties are at liberty to move this Court." 2. The Court heard the learned counsel for the appellant and also for the respondent. 3. Concededly, the marriage between the spouse took place on 5.3.1999 and out of the wedlock a child was born on 23.11.1999. Both the appellant/wife and the respondent/husband were employed. The appellant made visit to U.S.A. from March 2003 to May 2003 and from May 2005 to June 2006. During the said period the minor child was in Madras. The case of the respondent before the learned single Judge was that on 28.2.2007, the appellant in the guise of visiting the child took the child and refused to give the child back. 4. While advancing the arguments on behalf of the appellant the learned counsel would submit that it was a case where the Original Petition was filed by the respondent/husband seeking permanent custody. On different occasions, interim orders were passed. Pending the same, the respondent/husband filed a memo and a reply to the same was also filed wherein it has been categorically stated that the https://hcservices.ecourts.gov.in/hcservices/ averments in the memo were objected to. Under such circumstances, the Court should have taken up the matter for enquiry, instead of passing an order. The learned counsel would further submit that in the instant case, there was a specific allegation of adultery. Hence, the minor child should not be allowed to stay with the father over night. The learned single Judge has granted the relief of visitation rights to the respondent on every alternate Saturdays or Sundays between 10.00 a.m. and 6.00 p.m. and also to have custody of the child for three days during Dussehra and Christmas holidays and ten days during summer vacation. This would not only cause inconvenience to the child but also the studies of the child would be disturbed. Hence, the said order has got to be set aside. 5. The Court heard the learned counsel for the respondent on the above contentions. 6. The learned counsel for the respondent would urge that original petition was filed by the respondent for the custody of the child, but, in order to avoid the embarrassing situation, he filed a memo stating that permanent custody could be given to the appellant/mother and he would be given visitation rights specifically mentioned therein. The learned single Judge, taking into consideration the paternity of the respondent and the averment putforth in both memo and reply, had passed the order, which is reasonable. Hence, the order of the learned single Judge has got to be affirmed. 7. The Court paid is anxious consideration on the submissions made and looked into the materials available. 8. The child, who is present in Court is enquired. So far as the first contention that the learned single Judge should have taken up the matter for enquiry since the circumstances did not need for passing an order, as putforth by the learned counsel for the appellant, cannot be countenanced. The Original Petition was filed by the father/respondent seeking permanent custody of the child. After the counter was filed, he thought it fit to file a memo asking for visitation rights while giving permanent custody with the appellant/mother. The reason putforth by the learned counsel for the respondent/father is that in order to avoid embarrassing situation and considering the welfare of the child paramount, he filed a memo leaving the custody with the appellant/mother. When the respondent/father himself has come forward with a memo giving up the custody with the appellant/mother, there is no need for enquiry at all. Hence, the first contention of the learned counsel for the appellant is rejected. https://hcservices.ecourts.gov.in/hcservices/ 9. Insofar as the visitation right is concerned, as could be seen from the order of the learned single Judge, the respondent/father was given visitation rights that he could have the custody of the child in the alternate Saturdays or Sundays. Now, the learned counsel for the appellant would submit that the child should not be allowed to be with the father during the night hours. 10. When the child is enquired, he stated that on the three days, during Christmas vacation, he was with his father and all the family members were there. Under such circumstances, the Court is unable to appreciate the contention put forth by the learned counsel that the child should not be with the father during night hours. 11. Taking into consideration, the interest of the minor child, the Court feels it fit that the respondent/father is entitled to have the custody of the child Aditya Abishek on the first Saturday and Sunday of every month, i.e., from 10.00 a.m. on Saturday to 6.00 p.m. on Sunday. So far as the custody of the child for three days given by the learned single Judge to the respondent/father during Christmas and Dussehra holidays is concerned, the Court is of the opinion that it need not be disturbed. Insofar as the custody of the child by the respondent/father for ten days during summer vacation is concerned, the Court is of the view that there is no need for any modification, since there will be 40 to 45 days during summer vacation and the appellant/mother is all along with the child. Under such circumstances, the learned single Judge has given only ten days visitation rights to the respondent/father. Therefore, the respondent/father will have the custody of the child for ten(10) days during summer vacation which should commence from the very first day of the summer vacation. 12. With the above modification, the appeal is disposed of. No costs. Consequently, M.P.No.1 of 2009 is closed. vsi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Sub Assistant Registrar, Original Side, High Court, Madras. + 1 cc to Mr.K.Sumathi, Advocate SR No.1162 + 2 ccs to M/s. Ashok Menon Advocate SR No.1399 KSJ(CO) SR/19.1.2010 O.S.A.No.350 of 2009 https://hcservices.ecourts.gov.in/hcservices/