G MOHANAN Vs. LATHIKA

JUDGEMENT

(1.) This appeal arises from the order of the District Judge, Palakkad in O.P (Guardian) No. 203/2002, whereby the District Court rejected the application of the father of two minor children for custody of the children. The children are with the respondent-mother. At the time of filing of the O.P, the children were aged 4 = and 3 years. The father filed the petition stating that the relationship between the appellant -husband and the respondent-wife soured as a result of which the respondent left him taking the children with her without the knowledge and consent of the appellant in the year 1999. His demand for restitution of conjugal rights having been rejected by the respondent-wife, he filed H.M.O.P.No.37/2002 before the Sub Judge, Palakkad for restitution of conjugal rights. He alleged that the respondent is not a well educated lady and she is now residing with her parents and brothers depending on them for her livelihood. The contention of the appellant is that in such a situation, it would not be in the welfare of the children to be with the respondent as the children would be deprived of proper education, proper clothes, proper health care etc., since the respondent does not have any independent income to maintain the children.

(2.) The respondent-wife contested the application stating that there is lack of bona fides on the part of the appellant-husband in filing the petition and his only motive is to harass the respondent. She would submit that she filed an application before the Judicial First Class Magistrate, Chittoor for maintenance as also a criminal complaint, C.C. No. 274/2001 under Section 498(A) of the Indian Penal Code read with Section 34 thereof. The present petition for custody of the children, after three years, that too, without paying the maintenance for the children in spite of the specific orders passed by the Judicial First Class Magistrate, Chittoor in the petition for maintenance, is totally devoid of any bona fides whatsoever, is the case of the respondent-wife. She would therefore support the order of the District Court and pray for dismissal of the appeal.

(3.) We have considered the rival contentions of the parties in detail.