B VASANTHI Vs. BAKTHAVTCHALU

JUDGEMENT

(1.) This writ petition is filed under Article 226 of the Constitution of India directing the respondent herein to produce the bodies of the minor children, Master Karthi and Miss Lavenya, before this court and hand over them to the petitioner.

(2.) The averments stated in the affidavit filed in support of the petition are briefly as follows :- The petitioner and the first respondent got married on 14-11-1980. She gave birth to one male child by name Master Karthik now aged about 10 years and a female child by name Miss Lavanya now aged about 7 years. It is further alleged that the first respondent is working as clearing agent in the Madras Harbour. He had illicit intimacy with some girl friends and planned to have a second marriage at the instigation of his parents, who also made arrangements for the second marriage of the first respondent. It is further alleged that the first respondent used to return home in a drunken state and beat the petitioner brutally and if the children interfere, they will also be beaten. She was thrown out of the house when she questioned his behaviour. Thereupon he shifted his house to his parents' house. It is alleged that when the petitioner was beaten and thrown out of the house, her children cried for help. The first respondent beat them and locked them in the house. The petitioner gave a complaint to the second respondent. Inspector of Police to rescue them, but in vain. It is stated that if the minor children are left in the custody of the first respondent, their future is spoiled as they are not given proper education. There is nobody to take care of the children, from morning to evening, when the first respondent used to go for work. Unless the children are given proper education, their future will be spoiled. All her efforts to take back the children proved to be of no avail. The minor children are kept in illegal custody of the first respondent. The first respondent being the father of the children cannot claim any right over the children because he cannot take any interest of the minor children. The paramount consideration is the welfare of the minor children. Hence this writ petition.

(3.) In the counter-affidavit filed by the first respondent while denying the above allegations it is inter alia contended that the marriage between him and the petitioner was solemnized on 14-11-1980 and Karthik Anand, a male child, aged about 10 years, and Lavanya, a daughter aged about 9 years were born. He emphatically denied that he is in illicit intimacy with girl fiends and planned to have a second marriage at the instigation of his parents and the said allegation is nothing but figment of imagination. He also denied that he used to come late in the night and most of the time in a drunken state. He emphatically denied that he beat the petitioner and also the children if they interfered. It is false to state that he drove the petitioner out of the house. According to him, it is a deliberate falsehood to allege that he beat the children and locked them in the house. Since there was not occasion for the petitioner to give a complaint to the police, the allegation to the contrary is false. He emphatically denied that the female child was stopped from school and that there was nobody to take care of the children from morning to evening and that the minor children are now in his illegal custody. According to him, it is only the petitioner who had never shown any regard or affection for the first respondent since the date of marriage and in order to have her own ways, she used to threaten the first respondent with suicide attempts. He set up a separate residence within six months after marriage in order to have peaceful and harmonious life, even though he is the eldest son of his parents and he had the moral obligation to live with his parents so as to support his younger brother, sister, etc. The petitioner used to pick up quarrels with the neighbours, shop etc. Since there were several complaints, he had no other go except to shift his residence to the nearly area Pammal. The petitioner stayed away from him for over year when she left for her parents' house for her second confinement. After great persuasion, she was made to live with the first respondent in Muthamizh Nagar, Pammal.