MARY SUMATHI NO 128/5 EMERALD FLATS ANNA NAGAR WEST CHENNAI Vs. CHARLES ASIRVATHAM NO 36 ANNA STREET TARAMANI CHENNAI

JUDGEMENT

(1.) IN the matter of minor Swetha Beulah. Petition filed under sections 2 & 7 to 10 of the Guardians and Wards Act, 1890. This petition is filed by Mary sumathi mother of the minor alleges that she was given in marriage to the respondent on 4.2. 1989, that the marriage was held in Maranadha Church at Thiruninvavur in Thiruvallar District, that after the marriage they were living together as husband and wife, that the petitioner is a Doctor holding M.B.B.S. degree, that she has also obtained a Post Graduate Diploma, that after the marriage in 1989 they were residing together in Bhuvaneshwar in Orissa. Where the respondent in General INsurance Corporation, that even from the initial period, the petitioner was subjected to cruelty and ill-treatment at the hands of her husband, namely the respondent, that the petitioner came to Hyderabad in 1990 and joined Post Graduate Course and was residing with her parents in Hyderabad for sometime, that the respondent transferred to Hyderabad and both of them were living together at Hyderabad for sometime, that ill-treatment become so untenable and therefore the petitioner was forced to leave the matrimonial home, that the minor Swetha Beulah was born on 10.9.1990, that when she left her husband she also took the minor child with her, that she had earlier filed a petition for divorce which was allowed to be dismissed because the elders prevailed upon her to withdraw the petition, that the petitioner again joined the respondent in Hyderabad in 1993 but the ill-treatment still continued, that the petitioner was forced to leave the matrimonial home in September, 1993, that thereafter the petitioner has come with the child and settled at Madras along with her parents, that she was previously employed as a Doctor in C.S.I.Kalyani Hospital, Chennai, that now the petitioner has started her private practice, that she is liking for the child and the child is being brought up nicely, that minor is studying in a good school, that the respondent has married a second wife in 1995, that he has also got a female child born to her, that he has deserted his second wife also, that eversince the birth of the child she has been only brought up by this petitioner with her own resources, that the respondent has never evinced any interest in the welfare of the minor so far, that in fact the respondent has given a written undertaking that the child shall be only in the custody of the petitioner, that the respondent is recently threatening the petitioner to take away the child forcibly from the school, that therefore she is constrains to file this petition praying for appointment of herself as guardian for the minor and allowing her to have the custody of the minor.

(2.) RESPONDENT filed a counter contesting the claim of the petitioner by contending that it is true that he married the petitioner on 4.2.1989 and the marriage was solemnised according to personal law governing the parties, that they were residing in Bhuvaneshwar after the marriage where the respondent was working, that at the instigation of the parents, the petitioner left the respondent and went to Hyderabad, that the respondent also got transfer and went to Hyderabad with the only desire to resume normal married life with the petitioner, that the petitioner was adamant in taking her Post Graduate course, that even though she had completed the degree course in 1982 she has chosen to join Post Graduate Course in 1989 only to leave the respondent and to live with her parents in Hyderabad, that the minor was born on 10.9.90 at Secundarabad, that they were living together at Hyderabad, that the petitioner parents were not giving proper treatment to this respondent as a member of the family, that the petiti oner's parents wanted this respondent to come and live with them in their house, that they tried to dominate the life of the petitioner and the respondent, that the respondent has served eight years in Indian Air Force from 1978 to 1986, that the respondent has acquired qualification for his further promotional activities, that he has got adequate, resources to look after the Welfare of the minor, that it is he who admitted the minor in Kotwal's Montessori and Primary School, Secundarabad that he has no minated the minor for receipt in case of his death or retirement, that the petitioner left the matrimonial home without any reason or justification, that the petitioner wanted to marry a wealthy man, that she is not having a balanced mind that she used to cause physical injuries on the respondent, that it is false to state that he is ill-treating her, that the petitioner has falsely alleged illicit intimacy between this respondent and a co-worker, that the petitioner after finishing her D.G.O.in Hyderabad in 1992 left conjugal home without informing the respondent, that the elders and relations in the family tried to giving reconciliation between the petitioner and the respondent, that actually compromise has been arrived at in 1992, that the petitioner lived with him for sometime and thereafter left the matrimonial home without any just cause, that the petitioner has left for Gulf countries for one year leaving the child in the custody of her parents, that the respondent filed O.P.No.1 of 1995 before the District Judge, Madurai for divorce but the same was dismissed, that even thorough the respondent has alleged in the petition that a male child was born out of Wedlock to the petitioner with another person he has not stated that the minor Swetha Beulah was born out of that relationship, that a written settlement deed was executed baton the petitioner and the respondent, that the respondent returned all the jewels to the petitioner, that he has also agreed to leave the minor child in the custody of the petitioner, that now he has decided to revoke the permission, that he has not disqualified himself in any manner to be unfit to be the guardian of the minor, that since the petitioner is employed as a Doctor she will not have sufficient time to bestow love and affection on the child or to look after the minor, that it will be only in the interest and welfare of the minor that the child must be in custody of the respondent and he may be recognised as lawful guardian, that he is possessed of sufficient resources, that therefore the petition may be dismissed and the custody of the child may be restored to him.

(3.) P.W.2 Roseline Prabha in an young woman who also comes from same community of the petitioner and the respondent and who professes Christian faith. She has sworn to the fact that the respondent married her on 29.5.1995 at Madurai and the marriage was solemnised by a priest who was the head of an independent church. P.W.2 has also stated that she knew about the marriage between the petitioner and the respondent but she was persuaded to marry the respondent because the latter was given out that he was obtained divorce from the petitioner. Hopes of P.W.2 also were dashed in on time and she lived only for few months with the respondent and thereafter has to leave because of ill-treatment and cruelty. But she did not remain passive like the petitioner and she was managed to get compensation of Rs.1, 10, 000/- in consideration of which she has executed Ex.P-5 divorce deed dated 19.12.1996. Even though the deed is not valid the fact remains that P.W.2 was able to purchase peace from the respondent by putting an end to their joint life and getting a sum as compensation. It is also stated therein that for the child born to the respondent and P.W.2, the former made a fixed deposit of Rs.50, 000/- and fixed deposit receipt was handed over to P.W.2. So, the respondent who has been separated from the petitioner between 1991 and 1995 thought it fit to marry second time even during subsistence of the first marriage and the second alliance ended in failure as seen from Ex.P-5.