UMAMAHESWARI Vs. V SEKAR

JUDGEMENT

(1.) The petitioner is the wife of the respondent. The above petition has been filed u/Ss. 3, 7 to 10 and 25 of the Guardian and Wards Act 1890 to declare the petitioner to be the guardian of the persons of the two female minors viz., 1. Vijayalakshmi and 2. Aswini alias Anuradha and to direct the respondent to give custody of the two female children to the petitioner.

(2.) The marriage between the petitioner and the respondent was performed according to Hindu rites and ceremonies at the cost of the parents of the petitioner at Madras 30-4-1990. The two minor children were born to them out of the said wedlock on 2-6-1981 and 5-7-1983 respectively. From her savings, the petitioner purchased two plots of house sites, one at Avadi and another at lyyappanthangal. The respondent, who was employed for a meagre salary with a real estate dealer suggested to the petitioner to dispose of the house site at Iyyappanthangal and purchase a small house at K. K. Nagar. According to his suggestion, the plot of land at Iyyappanthangal was sold and out of the amount raised through the sale of the land and from her savings, a small house at No. 4, 10th Sector, 54th Street, K. K. Nagar, Madras-600078 was negotiated. At the time of registration of the sale of that house, the respondent suggested that the sale may be registered in his name. The petitioner being a dutiful, faithful and affectionate Hindu wife agreed to the said suggestion and the property was registered in the name of the respondent on 3-4-1989. The family occupied the new own house and continued their profession. In the meantime, the petitioner out of her own income and earnings, purchased T.V. mixi and wet grinders and other household utensils. Immediately after the purchase of the house in the name of the respondent, he started showing his true colour and behaved in an erratic manner. He started accusing the petitioner of her morality, which caused not only physical suffering but also mental torture to the petitioner. The respondent has also caused unbearable physical and mental cruelty, such as abusing of immorality and causing bodily injury by beating her. The petitioner was able to tolerate all the sufferings meted out by the respondent for the sake of her two minor children. The petitioner submits that the respondent has no love or affection for the children and that he did not take any interest in the welfare of the minor children. His mother is aged about 80 years and she is in no way helpful to the children. The petitioner further states that the respondent detained the children with him with a view to sell the house property at K. K. Nagar. He was of the view that the petitioner may not take any action to make a claim on the house property as the respondent was having the custody of the children. When he achieved the custody, he has sold the house property for a throw away price. Immediately after the sale of the house, the respondent took all the sale proceeds and the children to an undisclosed place and all the efforts by the petitioner to trace his residential address ended in failure. According to the petitioner, the respondent paid no interest in the welfare of the children. They were not provided with proper clothing or food. They were made to walk to the School and the children were not at all interested in the studies. That apart the respondent never stays in the house. The children were left with the mercy of the 80 year old of the mother of the respondent, who is unable to provide even the requirements to the children. The petitioner also learnt that the respondent is keeping the children in a slum locality. The environment is so bad that, if the children are allowed to continue to live in such an environment it may affect the welfare and future of the children both mentally and physically. The petitioner further submits that the respondent is not a suitable person to have the custody of the female children and that he is unfit to be the guardian of the person of the minor children. The atmosphere and environment and treatment of the children are so bad as stated above besides the character and capacity of the respondent are also against the interest and welfare of the minor children. According to the petitioner, the respondent is not a fit person to be the guardian and custodian of the minor children. The petitioner is now living with her mother who is aged about 60 years. Besides mother the petitioner's brother, who is employed is also helping the family. The family is living in a decent locality. The mother of the petitioner is hale and healthy and is capable of giving all the required assistance to the minor children during the absence of mother at work. The petitioner is also always available to give the female children the proper and suitable advice as and when required by them. She is also capable of extending the required guidance, help and assistance not only counselling but also accompanying them to the School and can easily bring them back when she return from her office. The petitioner is now earning more than Rs. 2000/- per month and she can give more comforts to the children from her earnings. She had no other burden. Her survival is only for the welfare of her children and her entire earnings is only for the children. It is further stated that the first child Vijayalakshmi is now running 10th year. The mother of the respondent is fairly very old lady. The female children need their mother's advice and guidance in several matters of importance at this stage. The custody of the minor children especially female children when given to the mother will lead the children to get the appropriate advice in matters of importance from the mother. With these averments, the petitioner has filed the above original petition to declare herself to be the guardian of the person of the minor female children Vijayalakshmi and Aswini alias Anuradha.

(3.) The respondent has filed a detailed counter-affidavit denying all the allegations contained in the petition of the petitioner. He also has denied the facts alleged by petitioner and states that he only purchased the two house sites and disposed of the house site at Ayyappanthangal and that he purchased a house site at No. 4, 10th Sector, 54th Street, K. K. Nagar, Madras in April, 1989 and that it is utter false to state that he wanted the said house to be registered in his name. The respondent further submits that he has purchased the two house sites and he has purchased the house at K. K. Nagar out of his own income. In fact he has purchased the colour TV and mixi and other household articles out of his own income. The respondent has also denied that he is leading a wavered life etc., and according to him, he has not committed the act of any cruelty on the petitioner and he is leading a duty to the husband towards the family and having much affection over the minor children. On the other hand, the respondent states that the petitioner is only leading a wavered life and is having illicit intimacy with one Allah Baksh, who was working as a Peon in the Sub-Registrar's office, Virugambakkam. As soon as the matter was brought to his knowledge, the respondent advised her not to have any affairs with the said Allah Baksh. Even after his repeated warnings, she has not mended her ways and on the other hand, the said Allah Baksh used to visit their house quite frequently. The respondent further submits that on 27-8-1989 his brother and his wife advised the petitioner not to have any affairs with the said Allabaksh and requested her to lead a life with the respondent. Even after this, her behaviour did not change and again she used to visit his house frequently. The respondent and his mother are looking after the interest and welfare of the minors and imparting the education of the minor children. The allegations contained in the petition of the petitioner is not correct and have been made only to suit her purpose and have been invented for the occasion. The respondent is residing in a decent locality and the children are all being brought up very well. The petitioner is not a suitable person to have the custody of the minor children since she is living in adultery with another person. She is also involved in a criminal offence under S. 420 and she was arrested and later remanded before the 17th Metropolitan Magistrate's Court and later was released on bail and the surety was also given by the respondent. The said criminal case is still pending. Since the petitioner is leading an adulterous life she is not the fit and proper person for appointment of guardian of the minor children. Thus, it is seen that the petitioner cannot be appointed as the natural guardian of the two minor children and that the minor children are never living to live with the petitioner since she is leading an adulterous life. She has deserted the children without any valid and reasonable cause. On the other hand, the respondent is having good character and capacity and having every right to act as a guardian of the minor children. With these averments, the respondent has filed a counter in the main original petition.