BHAGYALAKSHMI Vs. K N NARAYANA RAO

JUDGEMENT

(1.) This is an appeal under Section 47 of the Guardians and Wards Act 1890, against the order in O. P. 103 of 1978, District Court, Salem allowing an application filed by the respondent herein under Section 25 of the Guardians and Wards Act (hereinafter referred to as the Act) praying that the appellants should be directed to hand over custody of three minor children Rama Rao, Punitha and Nagaratnam to the respondent. The first appellant is the wife of the respondent herein, while the second appellant is the father of the first appellant. The first appellant and the respondent were married in 195 7 at Katapadi Village, Udipi taluk. The respondent secured a job with Kandasami Spinning Mills, Komarapalayam, in 1964, and brought the first appellant to that place where they lived together. Three children, viz., Rama Rao, Punitha and Nagaratnam were born to the first appellant and the respondent and the children had been admitted into school at Komarapalayam where they were studying. There were some minor quarrells and misunderstandings between the first appellant and the respondent. The first appellant appears to have suggested that she may be allowed to go to the village of Kote for a brief stay to which the respondent agreed and persuant to this, the first appellant and the three minor children left Komarapalayam in or about July, 1975, and the first appellant promised to return back to Komarapalayam with the children within a short time. Thereafter, the respondent also is stated to have visited the first appellant and the children several times, when he was informed by her as well as the second appellant that the first appellant was suffering from a severe form of Arthritis and that she was undergoing treatment and believing this, the respondent had allowed the first appellant and the children to continue to live at Kote. Even thereafter, the respondent had visited the first appellant and the children once in every month and also looked after their needs. While so, in or about March 1978, according to the respondent, the appellants suggested that the respondent should deposit a substantial sum in the name of the first appellant at Udipi so that she may draw the interest thereon and incur the expenditure on behalf of the children. This suggestion, according to the respondent, was only to enrich the second appellant, as he was a man of no means and when it was found by the respondent that all the sums given by him had been utilised for the family expenses of the second appellant and only very little had been spent on the children, the respondent appears to have informed the first appellant that she should come back to Komarapalayam with the children and that further treatment can be had at that place. On the refusal of the first appellant to do so, the respondent returned to Komarapalayam and thereafter made attempts through one Y. Ramakrishnaiya to get back to Komarapalayam the first appellant and the minor children, but all attempts in that direction failed. The first appellant sent a notice on 15-4-1978, claiming a sum of Rs. 1000 per month as maintenance for herself and the minor children. According to the respondent, he even thereafter requested the first appellant to come back to Komarapalayam with the children, but she did not do so as she was only determined to exploit the situation to squeeze some money out of the respondent. The respondent stated that he is entitled to the guardianship and custody of his minor children Rama Rao, Punitha and Nagaratnam, aged about 14, 12 and 9 respectively. It was also the further case of the respondent that in Kote village proper facilities for the education of children were not available and that the appellants also did not command the means as well to give good education to the minor children. In addition, the respondent claimed that minor Punitha was about to attain puberty and that it became necessary to make arrangements for her marraige as well. The respondent further claimed that owing to lack of adequate educational facilities as well as other psychological factors, it will not be in the interest of the minors to allow them to remain to Kote. He therefore prayed that they should be directed immediately to return to Komarapalayam. It was under these circumstances that the respondent filed O. P. 103 of 1978, District Court, Salem, praying that his minor children Rama Rao, Punitha and Nagaratnam should be restored to him.

(2.) That application was resisted by the first appellant herein, who pleaded that there were quarrells owing to the ill treatment meted out to the first appellant and the minor children and that after 1972, the respondent had been ill-treating the first appellant and the children which made it impossible for them to live with the respondent, and therefore, the first respondent was obliged to live away from the respondent. The first appellant further pleaded that she was obliged to leave the respondent in July 1975, with her minor children, as the respondent refused to maintain them. The several visits to Kote village stated to have been made by the respondent were denied. The attempt of the first appellant to secure a large sum of money from the respondent in her name to facilitate her to draw interest thereon was denied. The first appellant also denied that the respondent had asked her and the children to come back to live with him. The attempts stated to have been made through mediators to secure the first appellant and minor children were refuted. While admitting the issue of a notice dated 15-4-1978 to the respondent, the first appellant charged the respondent with carelessness to look after the children and also stated that the welfare of the minor children will be in jeopardy, if they were left in the care and custody of the respondent. The first appellant also claimed that proper facilities to educate the children at Udipi or Manipal were available and that such facilities were better than those available in the place of the respondent. The first appellant also claimed that she had the means to give good education to the minor children. The first appellant also put forth the plea that it would be proper and safe for Punitha, who was about to atttain the age, to stay with the first appellant rather than with the respondent. An objection was also taken that the minor children were not living with in the jurisdiction of the District Court of Salem, at the relevant period or at the time of the filing of the application. The welfare of the minors, according to the first appellant, required that they should not be left with the respondent and the application filed by the respondent was characterised as an attempt to forestall the maintenance claim of the first appellant and the minor children.

(3.) The second appellant adopted the counter of the first appellant.