K SARASU Vs. SENGODAN

JUDGEMENT

(1.) THIS revision case raises an interesting question of law whether the mother of a minor child can move a criminal Court, claiming the custody of the child from its father on the sole ground that she has got the paramount right of guardianship over her minor child in preference to that of the child's father.

(2.) THE brief facts of the case are: THE petitioner Smt. Sarasu is admittedly the wife of the respondent and they are Hindus. THE petitioner gave birth to two children, viz., Saravanan (male) now aged about 5" years and Kanchana (female) now aged about 3" ears. It is averred in the affidavit filed by the petitioner that the respondent, her husband, developed illicit intimacy with one Suguna and about three year ago discarded the petitioner and the two children and drove them out of the house. Consequently, the petitioner, with her two chidren took refuge in her parents" house and began living with them. Since then the petitioner has been nurturing the children, taking care of their welfare and giving them good ieducation. While so, on 26th November, 1979, at about 2-30 p.m. while the petitioner with her children was in her aunt's house at Malikuntham village for brief stay the respondent with six of his associates came there and forcibly took away the two minor children. THE petitioner gave a complaint about this incident at the Mecheri Police Station but no case was registered and no action was taken. Hence, she filed a petition under section 97 of the Criminal Procedure Code, before the Judicial First Class Magistrate No. II, Salem, seeking a warrant for search and production of the minor children complaining that both the children were illegally and wrongfully confined by the respondent in his house and that such a confinement might lead to their mental depression and retardation resulting in stunting growth, mental as well as physical and apprehending danger to her children.

(3.) DURING the hearing of this revision petition, the two minor children were produced before this Court by the respondent. In spite of the best advice given by this Court to the petitioner and the respondent to come to an amicable settlement, they are not able to patch up their differences and arrive at a settlement despite the fact that the learned Counsel appearing for both the parties also made their best efforts to bring the parties together.