VAIDEHI Vs. I GOPINATH

JUDGEMENT

(1.) This writ petition is filed by the mother of the detenus under Article 226 of the Constitution of India, for the issuance of a Writ of Habeas Corpus directing the respondent-husband to produce the minor children, Madhulika aged 9 years and Anirudh aged 6 years, before this Court and set them at liberty by handing them over to the petitioner.

(2.) The case of the petitioner as seen from the affidavit filed in support of the petition is briefly as follows: The petitioner and her husband, the respondent, were married on 18/01/1981 at Madras. Out of the lawful wedlock, she has given birth to two children, namely, daughter Madhulika aged 9 years and son Anirudh aged 6 years. She was residing with the respondent and the two children in a flat in Gandhi Nagar, Madras. Some time back the respondent and she had marital problems and their relationship deteriorated and finally she was driven out of the flat by the respondent on the night of 25/10/1991. Ever since then she has been residing with her mother at T. Nagar. Better sense prevailed on the respondent on the next day and after discussion it was agreed that their marriage had come to an end. Further, the petitioner should continue to reside with her mother and come to the flat at Gandhi Nagar daily to see the welfare of the children. Accordingly she used to come daily to the flat at Gandhi Nagar and attend the children and return to her mother's house at T. Nagar. On Saturday ( 30/11/1991) the respondent, his brother I. Srinivas. Advocate Mahanti from Delhi, P.M.M. Rao (the brother-in-law of the respondent) and some others barged into the petitioner's mother's house at T. Nagar, abused her and made all kinds of wild and baseless allegations against her. They also threatened the petitioner and her mother with physical violence. Ever since then the respondent denied access of the petitioner to her children. Since the children were not available in the flat at Gandhi Nagar, she made enquiries about them and later on 11-12-1991 she made enquiries at the St. Michael's Academy, and she was shocked to learn that the children had been withdrawn from the school and transfer certificate was obtained by the respondent. Thereupon, she issued a notice through lawyer on 11-12-1991 calling upon the respondent to hand over the children to her and also a telegram directly to the respondent to his office address. It is further stated that since she has no information about the whereabouts of the children, she is very much concerned about the safety of the children as the children were particularly attached to her. The respondent is given to fits of violent temper and he is bound to beat them if they should cry or ask for the petitioner. On enquiry, the petitioner learned from the neighbours that they heard the cry of the children and the shouting of the respondent at them. Hence, it is not in the welfare of the children to be deprived of their mother's care and affection. Such an act of deprivation by the respondent is illegal besides being harsh and cruel not only to the petitioner but also to the children themselves. Further, the petitioner suspects that the respondent has taken the children away from Madras and put them in the care of strangers. They must be undergoing trauma is a result of the respondent's cruel, thoughtless and selfish behaviour. The respondent is not at all interested in the welfare of the children. Above all, withdrawal of the children from the school in the middle of the academic year is detrimental to their studies. The continued custody of the children with the respondent is illegal and definitely not in the interest of the minor children. Hence this writ petition.

(3.) In the counter-affidavit filed by the respondent, besides denying the various allegations, he inter alia contends as follows:- He admitted the marriage and the birth of the children. According to him, their married life was a happy one and they had two children, namely, daughter by name Madhulika aged 9 years having been born on 17-91982 and son by name Anirudh aged about 6 years having been born on 2-1-1986. He is a Senior Executive in India Cements drawing a salary of Rs. 5,000/- per month with company car, quarters and other perks. They were living in Hyderabad, Delhi and Madras. It is further stated that the marital problem referred to by the petitioner started when she was enticed by one A. V. Amarnath residing at door No. 100, St. Mary's Road, Madras, while his wife and daughter are residing at Bangalore. She started ill-treating the children as if they were burden to her and she never cared for the respondent, their children or in house keeping. She used to go out of the house often and return very late in the nights without informing the respondent and against his wishes. This development started in May, 1991. She used to meet the paramour Amarnath at the meditation and prayer hall of "Sundaram", Greenways Road, Madras, belonging to the Sathya Sai Baba Trust, under the guise of attending Sai Bajans every Thursday and Sunday. She developed illicit intimacy with the said Amarnath. The above fact was known to the respondent on a perusal of the letter dated 11-8-1991 written by the petitioner to Amarnath and his letter dated 17-11-1991 to the petitioner and the conversation over phone on various dates which were recorded by the respondent in audio-cassettes. It is only the information of the petitioner to the said villain Amarnath has ruined the family life of the respondent with the petitioner, the future of the innocent children and the reputation of the family. He emphatically denied that the petitioner was driven out of the material home by him on 25-10-1991 or on any other date. On the other hand, on 25-10-1991 the petitioner had complained of severe stomach pain and she was taken to the Tamil Nadu Hospital, Adyar for treatment late that night. The respondent informed the petitioner's mother of the adulterous act of the petitioner with Amarnath and the breaking down of their marriage. The petitioner's mother came to the house on 27-10-1991 and even stayed overnight to see that good sense prevails over the petitioner and the matter could be settled without washing dirty linen in public, but in vain. The next day (28-10-1991) the petitioner on having realised that her adulterous life is being exposed, reacted in a most unreasonable and dangerous manner and went to the extent of stating that she would do as she wishes, and after confessing her illicit relationship with Amarnath, abandoned him on the night of 28-10-1991 without caring for the future and welfare of the children. Her whereabouts were not known for 3 days. Only on 1-11-1991 she came to her mother's house. She came to his house on 10-11-1991 and took away her belongings including the gas stove, and afterwards, she used to come of and on when the respondent was not in the house. Even on 22-11-1991 she was speaking on telephone in the residence of the respondent, to her adulterer Amarnath and it was recorded by him in audio casette. On 29-11-1991 the petitioner, her mother and cousin Malini came to the flat of the respondent. The petitioner had gone even to the extent of giving threats that she would kill the children, the respondent and herself. It is only at the instance of the petitioner and her family members, the meeting on 30-11-1991 took place in the petitioner's mother's residence at T. Nagar and the allegations contra are false.