SAU ANASUYABAI Vs. TRYMBAK BALWANT RAKSHE

JUDGEMENT

(1.) This appeal is preferred by the mother against the order dated Jan. 13, 1984 passed by the III Extra Assistant Judge, Pune on an application filed under Sections 7 and 8 of the Guardians and Wards Act, by the applicant-father for custody of three minor children. It is necessary to set out the facts in great detail as in my judgment, the trial Judge had shown utter non-application of mind while passing the impugned order in favour of the father.

(2.) The appellant married respondent in the year 1967 and out of the wedlock six children were born but one died. The remaining five children are : Sanjay about 12 years' old, Rajashri about 9 years' old Jayashri about 6 years' old, Baby about 4 years' old, and Kaluram about 2 years, old. Out of the five children, two are male : Sanjay and Kaluram, while the remaining three are daughters. The parties lived together till Sept., 1976 when the appellant-wife left the house and went to stay with her relation at Kasarwadi in Pune District. It is the claim of the husband that the eldest son Sanjay and one daughter Jayashri are residing with him, while the remaining two daughters Rajashri and Baby and youngest child Kaluram were taken away by the wife while leaving the house. The respondent-father claims that the wife filed an application being' No. 488 of 1977 before the Judicial Magistrate, First Class Court No. 9. Pune, under Sec. 125 of the Code Criminal Procedure for maintenance for herself and for the three minor children. The Magistrate by order dated Nov. 24, 1980 declined to grant maintenance to the wife but awarded maintenance of Rs. 75.00 each to the two daughters Rajashri and Baby and Rs. 50 per month to the minor son Kaluram. The husband thereafter filed the application claiming that he is carrying on business of repairing motor-cars, scooters and auto rickshaws and earned about Rs. 9,000.00 per year and out of this amount, it is not possible to pay the maintenance amount of Rs. 200.00 to the three children as directed by the Magistrate. The husband also claimed that the amount of maintenance, if handed over to his wife would not be used for the maintenance of children but would be spent on other relations of the wife. The husband also claimed that the wife failed to impart education to Rajashri and Baby by admitting them in the school and has also failed to bring them up in life. The husband claimed that he is the lawful guardian of all the three minors and, therefore, custody of three minors should be handed over to him. The application under Sections 7 and 8 of the Guardians and Wards Act was accordingly filed before the District Court, Pune on Feb. 25, 1981. It is necessary to state that though the husband claimed that Jayashri, one of the daughters was living with him, the prayer made was for custody of Jayashri, Baby and Kaluram. The perusal of the application shows that the husband was most careless in making the prayer as the custody of Jayashri was demanded instead of Rajashri. Wednesday, the 27th Feb., 1985

(3.) In answer to the petition, the appellant-wife filed reply at Ex. 4 and claimed that the claim for custody is totally misconceived and is nothing but a counter-blast to the order passed by the Magistrate directing payment of maintenance to the three minor children. In the written statement filed on Feb. 25, 1981, the wife also claimed that the welfare of the three children demands that their custody should be retained with the wife and not handed over to the father. The appellant filed the affidavit stating that after the marriage, for a period of 14 years, she had carried out the duties in the house and in the field and gave birth to six children and thereafter the respondent started ill-treating the appellant and so also the children. The respondent used to assault the appellant and the children for petty reasons and also declined to give them enough food. The appellant claimed that she suffered the hardship by taking into consideration the interest of the children but the respondent not only continued the ill-treatment, but it became more severe. Ultimately, the respondent drove out the appellant and she was required to take shelter in the house of relation; one Shivajirao Thete. The mother also claimed that she is looking after the children properly and earning her, livelihood by undertaking an employment. The children are very happy in the company of the mother and she doing her best to bring them up in life.