JAYASREE Vs. VIVEKANANDAN

JUDGEMENT

(1.) Appellant is the respondent in O.P. 46/2009 on the file of the Family Court, Palakkad. The petition was filed before the Family Court by the respondent who is the husband of the appellant seeking custody of two children. The case of the respondent/husband in the OP is as follows inter alia. Respondent and appellant are husband and wife. Their marriage was on 26.1.1997. Within three months from the date of marriage the respondent left India to Gulf countries for continuing his job. The first child was born to them on 23.6.1999. From his hard earned money he purchased a plot for constructing a house in the year 2000. On 31.8.2002 the second son was born. During 2000-2003 the respondent constructed a house in the plot purchased spending about 9 lakhs. Since the respondent was working abroad, minors were under the custody and care of the appellant. There was a tumour in the leg of the elder son and treatment was made. The entire expenses claimed by the appellant for treatment i.e. about 9 lakhs was sent by the respondent to the appellant. The respondent also bought one innova, one Scropio, one Ambassadar car and an auto rikshaw thinking that it will be a good investment and further to provide better facility to the wife and children. One Mr. Santhosh was a driver of one of the vehicles. The appellant's approach towards the respondent started changing when she developed unreasonable intimacy with the driver and later on that became more strong and the money and the vehicles of the respondent is shared by Mr. Santhosh. On verifying the account the respondent found that the amount claimed for treatment of the minor is misused by the appellant by utilizing the same for the whims and fancies of Santhosh. The RC of the innova car purchased in the name of the appellant is transferred in the name of Santhosh. Appellant is not interested in the welfare of the children.

(2.) We heard the learned counsel for the appellant and learned counsel for the respondent. This is a case where the appellant had filed her objections. It appears that, the case was listed for trial. There were adjournments. The Family Court would state that when the case came up, I.A. 599/2011 was filed by the respondent on 18.3.2011 seeking interim custody of the minor child for 15 days. The child was produced on 30.3.2011. The case was posted to 18.4.2011. The child was produced till 1.30 P.M. on 18.4.2011. The child interacted with the father. Thereafter, the matter was posted to 28.4.2011. The child was produced for 2 hours. According to the appellant, the child was laid up due to fever on 6.5.2011. The appellant was directed to produce medical certificate or the child. The matter was adjourned to 7.5.2011. According to the appellant, the appellant was absent on 7.5.2011 while the respondent was present on 7.5.2011. On 9.5.2011 again the respondent was present. A medical certificate from a Government Homeo Practitioner was produced. Then the case was posted to 11.5.2011. The doctor apparently advised seven day's rest starting from 4.5.2011. The appellant was asked to produce the child on 11.5.2011. On 11.5.2011 the respondent was present. But, the appellant was absent and the child was also not produced and the matter was taken up for orders to 13.5.2011. It is noted in the order that, in fact, the counsel for the appellant submitted to take the petition for orders. On 13.5.2011 an order was passed directing the appellant to produce the child for giving short term custody of one week to the respondent/father and the respondent was also directed to hand over custody of the child to the appellant at 11 A.M. on 23.5.2011. It appears that, the appellant did not produce the child. Thereupon, the respondent/husband filed I.A. 1299/2011 under the Guardian and Wards Act for arresting the child and giving custody of the child. The said petition was allowed. It is noted by the court that the warrant was returned un-executed. In the meantime, the school re-opened and the warrant was recalled. Thereafter, the court noted that I.A. 1298/2011 dated 18.5.2011 was filed under Order 6 Rule 16 of the Code of Civil Procedure to strike off the defence of the appellant since she has violated the order of the court. As per the order dated 8.6.2011 the court allowed the application and struck off the defence of the appellant. The court took note of the chief affidavit of the respondent and he was examined as P.W. 1. The extract of statement of account of State Bank of Travancore, Pathirippala branch in the name of the appellant was marked as Ext.A1. Ext.A2 is the statement of account of another account in the name of the respondent. After appreciating the evidence and obviously without looking the defence the court proceeded to find that the respondent was in the gulf and the children were looked after by the appellant/mother. The court relied on the evidence and found that the respondent/husband was looking after the wife and children and he has spent 9 lakhs for the treatment of the elder child. The court referred to the evidence of the respondent that he has purchased some vehicles and one of the vehicles has been transferred in the name of one Santhosh who was a driver in one of the vehicles without his consent which would reveal that the allegation that misuse of amount is correct. The court notes the death of the elder child due to illness despite treatment given to the child on the basis of money given by the respondent/father. It is further noted that the attitude of the appellant in showing reluctance in giving short term custody cannot be tolerated. It is stated that the court notes the grievance of the respondent that the appellant is trying to take the child along with the driver Santhosh. The court also noted as follows: The petitioner also sworn in about the intimacy developed between the respondent and driver Santhosh. The attitude of the respondent also shows that she is not a law abiding citizen. Interest of the child will not be protected if custody of the child is permanently given to such persons.

(3.) This is a case where admittedly the defence of the appellant has been struck off and it is after appreciating evidence of the respondent inter alia as already stated the court has proceeded to pass an order giving permanent custody of the surviving son after the tragic death of the elder son to the respondent. Learned counsel for the appellant would submit that the court below by cryptic one line order struck off the defence of the appellant. Learned counsel would attempt to find fault with the court for resorting to the provisions of Order 6 Rule 16. He places reliance on three decisions of the Apex Court. They are Iqbal v. His Holiness Dr. Syedna Mohd. Burhanuddin Saheb, 2005 13 SCC 759, Sathi Vijay Kumar v. Tola Singh, 2006 13 SCC 353, Abdul Razak v. Mangesh Rajaram Wagle, 2010 2 SCC 432. This is a ground which is taken in the memorandum of appeal also. He would further point out that, in fact, the court proceeds to provide in the judgment the reasons for dismissing the application under Order 6 Rule 16. He would submit that in regard to the remittance of money as is said to be proved by Exts.A1 and A2 the appellant has a case in the counter affidavit and it is denying the appellant opportunity to substantiate her case the defence was struck off.