N. NIRMALA Vs. NELSON JAYAKUMAR AND ORS.

JUDGEMENT

(1.) THE Petitioner is the mother of the detenu. The first Respondent is the husband of the Petitioner and the father of the detenu. According to the Petitioner, her minor daughter N. Asha, aged 9 years was illegally taken away by her husband, the first Respondent herein and he is refusing to give custody of the minor child. Therefore, according to the Petitioner, the detenue child is under the illegal custody of the first Respondent. It was submitted that O.P. No. 388 of 1994 was filed by the first Respondent herein for divorce and the Petitioner herein filed a petition for maintenance and both these petitions are now pending in the Family Court. According to the Petitioner, her minor daughter was being educated and taken care of by her from her infancy and the minor child was admitted into L.K.G. in Bain School Kellys, Madras. In 1993, the Petitioner resigned her job to take care of her daughter. She was residing at Mogapair, Anna Nagar, madras, in 1993. The first Respondent insisted her to come and live in the outskirts of Vadapalani. Thereafter, her minor daughter was admitted in the 3rd Standard in Jessie Moses School, Anna Nagar Madras. The Petitioner filed O.P. No. 182 of 1994 under Guardian Wards Act for the custody of the minor child and that was withdrawn. The first Respondent is coercing the Petitioner to give consent for the divorce. Since the Petitioner is not giving such consent the first Respondent is disturbing her by taking away her child. In 1994, the child was admitted again in Valliammal School, Anna Nagar, madras, by the first Respondent. Thereafter the child was admitted in Sparten School Anna Nagar, Madras, for which the Petitioner spent nearly a sum of Rs. 12,000/ - in 1995. Her daughter was attending the School from 15.7.1995 in 5th Standard. On 18.6.1995, evening, the first Respondent came and took away her child. The first Respondent is under the influence of his sister, who is also a Sub Inspector of Police. It was, therefore, pleaded that the custody of the minor child should be restored to her.

(2.) THE first Respondent has filed a counter affidavit. According to him, he did not take away the child from the custody of the Petitioner on 18.6.1995. The child was not taken care of by the Petitioner right from her childhood. The Petitioner had notice to take care of the minor child since she was going for work in the morning and coming late in the evening. The Petitioner had not informed anything about her resigning the job. When the Petitioner deserted the minor child the Respondent took care of her. The first Respondent came to know that the Petitioner belongs to a faction called "Jehova Witnesses" whose principles and ideologies are contrary to normal human life apart from Christianity. His sister who is a police officer has nothing to do with his family affairs. On the advice of the authorities, the child was given to the Petitioner on certain occasions and ultimately the child returned to the first Respondent for want of parental care, love and affection. All other allegations made by her contrary to what is stated in the counter are false. O.P. No. 388 of 1994 was filed in the Family Court for divorce against the Petitioner on the ground of adultery. The Petitioner filed I.A. No. 32 of 1995 for interim maintenance. All along the first Respondent was giving education to this minor daughter. He had to spend a huge amount and put her in Valliammal School in November, 1993. The child was all along with the first Respondent. The first Respondent is the legal Guardian of his minor daughter. In I.A. No. 32 of 1995, interim maintenance was claimed only for herself and not for the minor child. At present, the Petitioner is without employment and she has no means to look after the minor child. The child was also once produced on 8.8.1995 before the Family Court. But the child refused to go along with her mother. Hence the petition is liable to be dismissed.

(3.) LEARNED Counsel appearing for the Petitioner relied upon various decisions in order to show that in this particular case, the custody of the minor child should be given to the mother. Reliance was placed upon the decisions in Gohar Begam v. Suggi ( : A.I.R. 1960 SC 93); Subbaswami Goundan v. Kamakshi Ammal and Anr. (A.I.R. 1929 Mad 234 (D.B.)); Rama Iyer v. Nataraja Iyer (A.I.R. 1948 Mad 294); Mary Vanitha v. Baby Royan (1991 II M.L.J. 234) Mohd. Buhari v. Rahamathunnisa (1992 1 L.W. 48); Vijayalakshmi v. Inspector of Police, Karur Police Station. Karur (A.I.R. 1991 Mad 243 (D.B.)); and in Kamaladevi v. State of Himachal Pradesh (A.I.R. 1987 H.P 37 (D.B.) Page).