MADHAVA PANICKER Vs. SANTHAMMA

JUDGEMENT

(1.) THIS appeal arises from the order of the District judge, Quilon, in O. P. (Guardian & Wards Act) No. 45 of 1974. The learned judge dismissed the appellant's application filed under S. 8 of the Guardian and wards Act, 1890, for the custody of bis minor child.

(2.) THE appellant (whom we shall call 'the father')married the respondent (whom we shall call 'the mother') on 21-5-1965. A daughter by name Shobhana was born to them on 29-7-1966. Shortly after the birth of the child, the parents fell out with each other. The mother filed a petition (M. C. No. 22 of 1969) before the Additional Judicial I-Class magistrate, Pathanam-tnitta, for the maintenance of herself and the minor child. During the pendency of the petition, the parties came to a compromise on the basis of which a divorce was effected by a registered dead dated 4-4-1970 (Ext. B1 ). That deed provided that the mother was entitled to the custody of the child and that the father would pay to her a sum of Rs. 12.00 per mensem to maintain the child. Subsequently an application was filed by the mother for enhanced maintenance and a sum of Rs. 20.00 per mensem was awarded by the magistrate's Court for the maintenance of the child.

(3.) THESE contentions were rejected by the learned Judge. It was found that there was no evidence whatsoever to support the allegation of immorality on the part of the mother. The learned judge also held that there was no evidence to indicate that there was any agreement or understanding between the parties that the child would be handed over to the father on her attaining the age of five. The learned judge disbelieved the evidence of Pw. 2 and Pw. 3. Pw. 2 had no personal knowledge whatever about the life that was led by the mother and Pw. 3 was very vague in referring to the general behaviour of the mother. The learned judge accepted the evidence of C. Pws. 1 to 3 who were neighbours and who spoke to the excellent character of the mother. The child was brought to the chambers of the judge and she was questioned by him. The judge was much impressed by the fact that she looked absolutely healthy and happy and did not want to leave her mother for the custody of her father.