RAMAN KONDERAN Vs. AYYAPPAN PANCHALI

JUDGEMENT

(1.) This C. M. Appeal arises out of an order passed by the court below dismissing a petition filed by the appellant under S.25 of the Guardians and Wards Act.

(2.) The petitioner is the father and the respondent is the mother of the two minor boys aged 8 and 6 respectively who are the subject of the petition. After six years of married life, in or about November, 1953 the parents had separated and the boys had from that time onwards been in the custody of the mother. It was the appellants case that his father inlaw took away the wife and children without his consent or knowledge. The respondents explanation on the other hand which the court below accepted was that she was suffering from a very bad tooth-ache and the appellant took her and the children from the marital home to her fathers house where he stayed three or four days and then left but not to return. On 9-11-1956 the appellant took a second wife in marriage and this led to a criminal complaint by the respondent, soon after on 13-11-1956 for bigamy. Before yet that prosecution was over respondent filed petition on 23-11-1956 for maintenance of herself and the children under S.488 of the Criminal Procedure Code. The bigamy complaint was thrown out in acceptance of the plea of divorce according to the custom of the Thiyya Community to which the parties belonged, set up by the appellant. The respondent withdrew immediately the claim for her own maintenance in the light of the divorce verdict which she acquiesced in and got order dated

(3.) The petition was contested by the respondent on the basis that the appellant had not evidenced any love or affection to the children so far and the application was only a device to avoid payment of maintenance ordered by court. Indeed the appellant had to be compelled by order of court on her motion after this petition on 23-12-1957 to pay the maintenance at all to the minors, though in instalments. She contended that the children had been already put to school and their welfare demanded that they continue in her custody.