GANGAMMA Vs. VISWANATHA J SALIAN

JUDGEMENT

(1.) This is an application under S, 482 of the code of Criminal Procedure, 1972 (the Code). The Order dt. 29-3-1982 of the Additional Munsiff and JMFC Udupi., in Misc. Case No. 197 of 1981 on his file and the order dt. 10-1-1983 of the Sessions Judge, Mangalore in Cr.R.P. No, 35 of 1982 on his file confirming the order of the JMFC are under challenge in this petition.

(2.) Petitioners 2 and 3 are the son and daughter respectively of the 1st petitioner Gangamma. The 1st respondent Vishwanath J. Salian (Viswanath) is her son-in-law having married her daughter Vasanthi. He had married her on 18-1-1979 at Udupi. Giving birth to twins (both male) on . 11-12-1979 she died in a hospital at Bombay .wherein, in those days, she used to reside with Viswanath. Since the babies are too young for being looked after by the father, Gangamma and her son Shankara Karkera the 2nd petr., brought them to their place at Udupi Taluk. Since then the two babies are with their grand-mother and the two other petitioners who all constitute a joint family. Of late Viswanath has come to feel that he should have the custody of his children and that it was not desirable to leave them with their grand-mother and the other members of the family. In the meanwhile the grand-mother and the aunt of the children (petitioners 1and 3) have developed a great attachment to them. They are reluctant to part with the company of the children. The very idea of sending them to their father makes them terribly sad and unhappy. Sensing this attitude of the petitioners and feeling frustrated in his attempts to obtain the custody of his chidren he filed the application in the trial Court in Misc. Case No. 187/81 under S. 97 of the Code. Instead of issuing a warrant, as contemplated therein, the learned Magistrate called upon these petitioners, who were respondents before him, to showcause as to why an order as sought for should not be issued to them. Having appeared these petitioners filed their objections opposing the claim. Parties also filed their affidavits. After hearing then the Court below by its order referred to above, directed these petitioners to produce the two children before it on 8-4-1982 at 11 a.m. with a direction to the first respondent also to be present in Court on that day. In the view of the learned Magistrate the 1st respondent (petitioner before him), being the father was entitled to the custody of his children. The learned Sessions Judge has confirmed the order of the learned Magistrate as stated above.

(3.) Challenging the order of the trial court the learned Counsel for the petitioners made mainly two submissions. His first submission is that the averments of Viswanath in his petition did not attract S. 97 of the Code and the court below has erred in invoking that provision at his instance. His second submission is that, even otherwise, the court below had committed grave procedural irregularities in its enquiry and therefore the entire proceeding including the order in question is vitiated and therefore deserves to be struck down.