S. RAMA IYER Vs. K.V. NATARAJA IYER

JUDGEMENT

(1.) THIS is an application under Section 491, Criminal Procedure Code, for a direction that a minor boy named Jayaram who is the petitioner's son be brought up before the Court to be dealt with according to law, and that the respondent be directed to restore the said Jayaram to the custody of the petitioner. At one stage it was agreed between the parties that the boy who is 13 years old should be put in the Sri Ramakrishna Mission High School Hostel, Thiagarayanagar, and the father was willing to bear all the expenses of the maintenance and education of the boy in that institution. After his admission in the hostel and the school, in spite of numerous attempts made by the warden, the boy played truant and was persistently running away to the respondent's place. Consequently the consent order was vacated on the 26th September, 1947 and the petition was heard on merits. It was, however, agreed that before passing the final order one further attempt should be made to put the boy in the hostel and in spite of the previous conduct of the boy, the warden was so good as to re -admit him but again on severaL occasions, the boy ran away and finally the respondent removed him from the hostel. We felt convinced that the truancy of the boy, his disinclination to study and his aversion to his father were the result of the prenicious influence of his maternal grand -parents. On the 20th November, 1947, we made the following order on the petition: We think that the petitioner is entitled to the order he asks for in this petition. We direct that the boy Jayaram be handed over to his father, the petitioner, now in Court.

(2.) WE notified when this order was passed that we would announce our reasons later and we proceed to do so now. The minor Jayaram was born on nth March, 1934. His mother Meenakshi -sundararhmal died in May 1942 and the petitioner married his second wife Saradambal in July, 1943, and has now two children by her. The respondent is the father of Meenakshisundarammal. The petitioner's father is alive and he lives in Aiyoor Agaram which is near Villupuram. The respondent's village Kandampakkam is four miles from Aiyoor Agaram. The petitioner's case is that he brought up the boy and educated him up to the third form in which class he was to join after the summer recess of 1947. The boy was sent as usual to Aiyoor Agaram to spend a portion of the vacation and from there he was to go with his step -mother to her father's place, Tiruvannamalai and return in time to rejoin the school. When he was at Aiyoor Agaram, the respondent approached the petitioner's father and asked him to -send the boy with him; but the latter said that the boy had to go to Tiruvannamalai for sometime and that after his return from that place, the boy could be taken by the respondent provided that he was sent back within a few days before the re -opening of the school. The respondent consented and took the boy, but in spite of the termination of the vacation, the boy was not sent. Messages from the petitioner proved of no avail and ultimately a lawyer's notice had to be sent. In the reply to the lawyer's notice allegations were made by the respondent of the ill -treatment of the boy by the petitioner and his second wife and of an attempted alienation by the petitioner and his father of properties alleged to belong to the joint family. There was also an averment that the petitioner had ill -treated the minor's mother during her lifetime.

(3.) WHILE this correspondence was going on, the respondent tried to obtain a school transfer certificate from the authorities of the A.R.C. school where Jayaram Petition praying that in the circumstances stated in the affidavit filed therewith the High Court will be pleased to issue directions of the nature of a Habeas Corpus directing the respondent to bring up minor Jayaram before this Court for being dealt with according to law and for restoring him to the custody of the petitioner herein was studying. On their refusal to issue the certificate except with the permission of the father, the respondent had a notice sent through a lawyer to the authorities of the school threatening to take action against them. He also addressed petitions in that behalf to the District Educational Officer and to the Director of Public Instruction. In the letter written to the Headmaster of the school, the respondent stated that he wanted to get the boy admitted in a school in Kolar where his son is employed. It is urged by the petitioner that after having removed the boy on a false pretence that he would be sent back within ten days, attempts were made by the respondent to obtain a transfer certificate and to send him away to Mysore State in order to place him beyond the reach of this Court. In the reply affidavit filed by the petitioner, it is alleged that the boy has been illegally and improperly detained by the respondent in his custody without the consent of the father, that there is no secondary school at Kandampakkam where the boy could continue his studies and that the nearest school is at Villupuram which is about four miles away. It is further alleged inter alia that the respondent is a man of no means, that he is heavily indebted, that he even borrowed Rs. 400 from the petitioner in 1941 and repaid it in instalments up to 1944 only partially. The respondent is of a garrulous nature and got entangled in a criminal case and has been making desperate attempts to separate the petitioner from his father. As regards the charge of the respondent that the petitioner and his father are trying to alienate joint family properties to the detriment of the minor's interests, the petitioner says that the properties were acquired by his father and that he had no interest in them and that by setting up the false claim, the respondent was jeopardising the interests of the minor by alienating the sympathies of his paternal grandfather. With reference to the alleged ill -treatment by the petitioner and his second wife, the allegation has been emphatically denied and a number of affidavits have been filed in support of the denial. An officer who is holding the office of Huzur Sheris -tadar of the Collector's office, the petitioner, being the Collector's karnam, an opulent landlord belonging to the Beri Chetti caste and an aged Telugu Brahmin lady who is a neighbour, have testified to the fact that the boy was being well treated by his father and his step -mother. There is no evidence per contra on the respondent's side with regard to any of the matters averred by him in his counter -affidavit. We are on the whole inclined to accept the version of facts given by the petitioner with regard to all the matters referred to above. In the matter of the ill -treatment meted out by the petitioner to his deceased first wife, we accept the petitioner's denial. We wish to observe that even if true, that would be no valid ground for refusing custody to the natural guardian of his minor child.