B KISHORE Vs. MANJU ALIAS MANJULA

JUDGEMENT

(1.) THIS appeal is directed as against the order passed by the learned single Judge in O.P.No.706 of 1993. The petitioner filed the O.P. under Sec.10 of the Guardian and Wards Act read with O.21, Rule 3 of Original Side Rules contending as follows: Petitioner is the father and the respondent is the mother of K.Dinesh born on 22.9.1983. After the marriage, the petitioner and the respondent were living in Madras in so many places. The terms between the petitioner and the respondent were not cordial and there were frequent quarrels on account of incompatibility and the respondent was not able to adjust herself to the conditions of the petitioner. The respondent along with the minor son K.Dinesh without any just or cause or reason, abruptly left for Bombay in the beginning of October, 1993 and never chosen to come back. The efforts taken by the petitioner have not resulted in any fruitful result so far. The respondent out of illwill and malice is bent upon withdrawing herself from the marital home of the petitioner for unknown reasons. The petitioner is employed in a decent organisation and is also earning from his financial business which is being done by his mother Rajkumari at Bombay. The petitioner being the father, is able to maintain the minor son, provide him with all comforts, good education besides love and affection in his company. The minor son is with his mother at Poona and he had to necessarily forego his studies. The petitioner is able to look after the welfare of the minor boy by providing him good health, good education and nourishments and the petitioner being the father is quite fit for the custody of the child and he cannot be refused that. The petitioner being the father and natural guardian is entitled to have custody of the minor son in preference to the respondent on account of her conduct which is neither just nor proper. The interest of the minor son is paramount. His interest will be protected if the petitioner is appointed as guardian and no prejudice would be caused to the respondent. The respondent is bent upon spoiling the educational career of the minor son. Hence, the petition is filed directing the respondent to handover custody of the minor son to the petitioner.

(2.) THE respondent filed counter contending as follows: THE petitioner has not come to court with clean hands. THE petitioner is not a person worth to act as a guardian of the minor son. THE petitioner has no earnings at all. THE petitioner was an addict to alcohol. In fact he has not sufficient money even for his drinking purpose. In spite of advice and warning, the petitioner had not stopped taking alcohol daily. THE respondent was subjected to all sorts of cruelty and on account of taking alcohol daily, the petitioner's health was affected and so, he was admitted in T.T.K. hospital and other private hospitals for treatment. In spite of sufficient advices, the petitioner did not put an end to his habit of drinking alcohol and he used to drink in front of the minor boy and use bad and filthy language against the respondent. Even the petitioner's mother came down to Madras and advised to the petitioner to which he never listened. Unable to bear the mental torture and the cruelty of the petitioner, the respondent informed her parents and after the arrival of the mother of the petitioner the respondent left the company of the petitioner with the consent and knowledge of the petitioner and his mother. THE minor son was taken with the consent and knowledge of the petitioner and his mother. THE petitioner was doing call job at the race course. he is not having any income and even if he earns. it is not enough for his drinking purpose. Even the mother of the petitioner knows that the petitioner will not mend his ways. THE welfare of the minor son is paramount THE education, character and shaping of the minor boy would be affected if he is left with the custody of the petitioner who is an addict to drinking alcohol. THE minor son is studying well in the custody of the respondent. THE father and brother of the respondent are at Poona. THE respondent had secured a job with a building contractor and is getting a decent income for herself and to spend for the education and other needs of the minor son. THE respondent is also earning by way of tuition. THE welfare of the minor son would be greatly affected if he is left in the custody of the petitioner. THE minor boy cannot be deprived of the mother's affection at his tender age. THE petitioner had issued instructions to the Rajaji Vidyalaya wherein the minor boy was studying, not to issue the transfer certificate. It is only with the consent and knowledge, the petitioner, the respondent took the minor boy with her and so, the petitioner is estopped from claiming the custody of the minor son. THEre is no merit in the petition and it has to be dismissed.

(3.) THE petitioner claims that he being the father and natural guardian, is entitled to custody of the minor son. THE petitioner as P.W.1 states that he is working and also having his own finance company. But, he admits that he was an alcoholic and his relationship with the respondent was not cordial and sometimes there were quarrels between him and the respondent because of incompatibility. He states that when the respondent left him without his knowledge and consent, she took the minor son when he was out of home and the minor son is very much attached to him and he was looking after his son with fatherly love and affection. He states that his son is willing to join him and study in Madras and he can give him good education, nourishment and comfort at Madras and his mother can look after him. He further states that after he underwent treatment at T.T.K. Hospital he left the habit of alcohol and he is offering blood donation often and he can give excellent education to his son if the custody of the son is given to him.