BALASUBRAMANIAN MOHAN Vs. VIDYA MOHAN

JUDGEMENT

(1.) THE appellant is the father of the minor child Anusha Mohan. He wants her custody from the respondent, who was his erstwhile wife. THEir marriage was declared as a nullity on the application of the appellant in C.S. No. 83 of 1990. THE appellant is a Christian and the respondent is a Hindu and the marriage was not registered under the Special Marriage Act. It was in that circumstance, the marriage was declared as a nullity.

(2.) OUT of the wedlock, which was declared invalid, the respondent gave birth to two daughters. The elder daughter, by name Regina Mohan, is with the appellant. In his application for getting custody, the appellant alleges that in the interest and welfare of the children, both of them will have to be brought up together. It is also stated that the respondent is professing Hindu faith and she is bringing up Anusha also in that faith. It is further alleged that she is unfit to be the guardian of the child and that she has forfeited that right after leaving the matrimonial home. It is also stated that the petitioner will be in a position to meet the requirements of both the minors and look after their interest and welfare since he has got the capacity, status and better financial background, and will be able to discharge his duties as guardian. He also says that the children have to be brought up according to Christiam Religion to which he belongs. The respondent being a Hindu, it will not be possible for her to bring up the children on in a Christian way of life. He also says that being the father, as natural guardian he has got the preference to get a custody of the child. The appellant's parents are living with him in his house only to look after the children. His father has resigned his job and has settled down with him only to look after the grandchildren.

(3.) IN her counter, the respondent has denied the allegations made by the petitioner (appellant herein). According to her, she was sent out of the matrimonial home along with the second child. She also admits that welfare of the children requires that both the children must be brought up together, and she prays that the elder daughter may also be handed over to her. She has further stated that even though in 1990 the marriage was declared as null and void, from that time onwards the appellant was staying away from the first child and she was left in the custody of her grandparents. The petitioner was all along employed in Port Blair and did not make any arrangement even for the elder daughter's education. She further avers that it was one of the pre-conditions even before marriage, that the children should be brought up by professing Hindu religion and only in accordance with that condition, the children were never baptised and they never followed Christianity. According to her, the present case of the petitioner that the children have to be brought up as Christians is only for the purpose of this case. She says that herself and her daughter were all along following Hindu faith and were also treated as Hindus by the petitioner himself. She also alleges that the job requirement of the petitioner is such that he has to be away for days together from station and has to be in the High seas. IN such circumstances, enrusting the second child also to his custody will amount to weparating the children from both the parent's. The minor child Anusha is being looked after by her properly, and there is no necessity to entrust the child to the appellant. The welfare of the child also demands that she (respondent) must have the continued custody of her younger daughter, Anusha.