K.M. VINAYA Vs. B.R. SRINIVAS

JUDGEMENT

(1.) APPELLANT has filed this appeal challenging the legality and correctness of the order dated 01 -02 -2011 made in G and WC No. 106/2004 passed by the III Additional Principal Judge, Family Court at Bangalore directing the appellant herein to hand over custody of the child to the respondent herein. The facts of the case are as follows: The respondent -husband had filed a petition under Section 25 of the Guardian and Wards Act, 1890 (hereinafter referred to as 'the Act' for short) seeking custody of his minor son, Vathan from the appellant -wife. It is the case of the respondent that the appellant and respondent are the legally wedded husband and wife and their marriage was solemnized on 10 -12 -1997 at Thirumala Thirupathi Devasthanam Choultry at Bangalore. She entered the matrimonial house on 10 -4 -1998 after completion of her final year B.Sc. examination. She stayed in the matrimonial house up to 5th month of her pregnancy i.e. upto May 2001 and she left the matrimonial house much against the wishes of the respondent and his parents. She gave birth to a male child -Vathan on 13 -08 -2001. It is the further case of the respondent that during her stay in the matrimonial house, she was looked after very well by him, his parents and other members of the family. She was encouraged by the respondent to prosecute her further studies in computers and to run computer classes and there was no reason for her to leave the matrimonial house during the 5th month of her pregnancy in order to put an end to the matrimonial life. After going to her maternal house, she started giving all pinpricks and treated him with mental and physical cruelty. The respondent was visiting his wife and son at her maternal house almost everyday. During her pregnancy also he was visiting and taking care of her. Four months after the birth of his son, he repeatedly requested her to return to the matrimonial house. However, she refused to come back to the marital house. He also requested his in -laws to advise and send her to the marital house. In spite of repeated requests made by him as well as his parents, the appellant bluntly refused to go back to his marital house. During his visit to her maternal house, he used to shower his love and affection upon his son. Neither the appellant nor her mother and sister tolerated the child coming close to him and getting attached to him. His son had undergone a surgery and medical treatment when he was one year old, which was not disclosed to the respondent or his patents. As the respondent is the natural guardian of his son, he is legally entitled to claim custody of his son and he was deprived of love and affection of his son. The welfare, and well -being of the minor son lies with the father. If the child is deprived of his parental love and affection, it will have adverse consequence upon the emotional and psychological development of the child. Before completion of eight months to her son, the appellant got an appointment and she is more interested in her job and to earn money. She has neglected to maintain her son; she leaves the child under the custody of her mother and she works 10 to 12 hours a day and return home late in the night. She also works in the night shifts. She does not have enough time to take care of his minor son. The minor son lost love and affection of mother as well as the father and not growing in a congenial atmosphere. Though the child was suffering from congenital scoliosis the appellant has not given timely treatment. In view of that, the child had to undergo major operation. Due to the negligence on the part of the appellant, the child had to suffer a lot. The respondent is employed in a private company, having his -own income and he is in a position to take care of his son and his educational expenditure. He can take care of his son more affectionately, so that the child can grow physically, mentally and emotionally and can be a responsible) citizen of the country. It is further alleged that in spite of issuance of legal notice on 9 -2 -2004 calling upon the appellant to return to the matrimonial house along with the child, she has given reply notice making unfounded allegations against the respondent and deprived him of the love and affection of his son. In view of that, a petition has been filed for custody of the minor child.

(2.) THE appellant herein filed objection to the said petition denying the averments made in the petition, however, admitted the relationship with the respondent and also admitted that the family of the respondent is a joint family. In view of the ill -treatment of the respondent and his family members, she had to leave the matrimonial house -, during 5th month of her pregnancy. The respondent failed to discharge his duties as a dutiful husband. After the marriage, the appellant learnt that the respondent was in the habit of stealing the household articles and jewels prior to the marriage and it was continued even after the marriage. The creditors of the respondent started harassing the appellant for repayment of loan by using the language undermining the dignity of the appellant. On account of which, the appellant has suffered a lot. After the birth of her son in the year 2001, the respondent remained irresponsible even towards the child and had never taken care of her or the child. In fact, after the birth of the child, the respondent had started doubting the character of the appellant and started ill -treating her both mentally and physically. He was also in the habit of abandoning her and her son and absconding from the place without intimating any one in the family. Once, in the month of August 2002, he had been to Nepal and from there he sent a mail to the appellant requesting her to arrange money for his return journey to Bangalore. On account of intolerable ill -treatment, she started living separately from November 2003 and in order to maintain herself and her son, she got appointed in M.S. Ramaiah Institution. Subsequently she got a job in Progeon for maintenance of herself and to up -bring the child since the respondent has failed to take care of them. The respondent is an irresponsible man and he has not generated enough confidence either for her to live with him or for entrusting the custody of the child to him. After Naming Ceremony, he had not visited her house even to see the appellant nor the child. Further, a petition under Section 25 of the Guardians and Wards Act is not maintainable. From the day of birth, the child is under the custody of the appellant and she has taken care of her son, good treatment has been provided and her son is admitted to one of the prestigious schools and he is securing high percentage of marks. Apart from that, she has filed a petition under Section 13 of the Hindu Marriage Act seeking for divorce in M.C. No. 1234/2004. The said matter is pending consideration before the II Additional Family Court. Hence, the respondent is not entitled for the custody of minor child and sought for dismissal of the petition.

(3.) THE respondent/petitioner in order to prove his case examined himself as P.W. 1 and examined Dr. Mahesh B.H. as P.W. 2 and got marked the documents as Ex. P1 to Ex. P56. The appellant/respondent examined herself as R.W. 1 and got marked the documents as Ex.R1 to Ex.R93 and also examined Dr. B.S. Shankar as R.W. 2.