SEEYALI VEETTIL ABUBACKER Vs. OVINAKATH VAYYILAPURAYIL MARIYUMMA

JUDGEMENT

(1.) THE appellant who is a Muhammadan, applied in the Court of the District Judge of North Malabar for an order appointing him the guardian of his children by the respondent. Subsequently he amended his petition and asked for an order of the Court requiring the respondent to return the children to his custody. The District Judge dismissed the petition. Hence the appeal.

(2.) THE appellant has been married three times. The respondent was his second wife. By his first wife he had a son. He divorced her and the son is in the custody of his mother. By the respondent he has three children, two boys and a girl. The eldest child is nine years of age and the youngest five years of age. The appellant married his third wife before he divorced the respondent. He is now living with the third wife in the house of her tarwad. The respondent is living in her own tarwad house with her mother. Her children are living with her. The respondent has remarried.

(3.) THE District Judge after reviewing the facts came to the conclusion that it was not in the interest of the minors that an order should be passed directing the respondent to return them to the custody of the appellant. We consider that the District Judge is quite right when he says that the children are likely to be better looked after in the respondent's tarwad house than in the house of the appellant's third wife. If they were returned to their father, they would have to live amongst strangers. There is evidence that the appellant's business requires his frequent absence. We have also to take into consideration the fact that the appellant after he had divorced the respondent did not visit his children or have them with him. Then there is the fact that in his petition he made allegations against the respondent's character. We consider that these allegations were made in order to bolster up his claim to the return of the children. They have certainly not been proved. The fact that they were made and not proved is in itself an indication that the father is not a proper person to have the custody of his children. There is a further factor. The application which has given rise to this appeal was not filed until after the respondent had written through a lawyer demanding further money for the maintenance of the children.