MAYAMMA Vs. N CHIKKANNA

JUDGEMENT

(1.) This appeal by the wife is directed against the judgement and order dated 31st July 1981 passed by the District Judge, Bangalore Rural District in G & W.C.No.6 of 1978 on his file ordering custody of the two minor children, namely, Ravi and Bhagyalakshmi in favour of the husband petitioner.

(2.) The husband petitioner, namely, N. Chikkanna made an application to the Court of the Civil Judge, Bangalore District for custody of the children namely Ravi and Bhagyalakshmi who were of 10 years and 7 years respectively. The application was originally filed before the District Judge, Bangalore on 27.11.1976 and registered as G & W Case No. 95/76. Consequently on establishment of a separate District Judge for Bangalore Rural District, the said case was transferred to the Rural District and renumbered as G & W case No. 6 of 1978 on 1.9.1978.

(3.) The petitioner and respondent are admittedly husband and wife. They were married according to the Hindu rites in 1964. Out of their wedlock, a son by name Ravi and a daughter by name Bhagyalakshmi are born and they were as stated above of 10 years and 7 years respectively on the date of filing of the application. They were in the custody of the respondent-wife. Wife and husband were living separately ever since 1974. The wife filed an application under section 488 of the old Criminal Procedure Code in C. Misc. 40 of 1974 in the Court of the M etropolitan Magistrate (III Court) Bangalore city claiming maintenance from the petitioner-husband and for two minor children also. The court allowed maintenance for the children at the rate of Rs.60/- per month. Ex.p.3 is the certified copy of the order. The husband filed an application under section 13 of the Hindu Marriage Act for a decree of divorce against the wife in M.C.No.22/76 on the file of the Civil Judge, Bangalore District, Bangalore and the said application was allowed by judgement dated 3.3.1978. The certified copy was Ex.p.1. The husband in the petition in question asked for the custody of the children. The wife resisted. According to her, her husband was a drunkard, his temperament was unpredictable. He lacked affection and care for the children. He did not even care to pay the maintenance for the children. The children were attached to her and they were properly looked after by her. Therefore she pleaded that the welfare of the children could be achieved only if they were with her, the mother. The trial Court raised the sole point for consideration as under: Whether the petitioner is entitled to the custody of his minor son and daughter who are admittedly residing with the respondent-wife since about 1974?