SANGEETHA RAGHURAM Vs. PUSHPA RAGHURAM

JUDGEMENT

(1.) THIS Original Petition is filed under Sec. 9 of the Guardians and Wards Act read with clause 17 of the Letters Patent for directions as to the appointment of the guardian to the petitioners during their minority and the, custody of the minor children. The petition is filed by the father's eldest sister or behalf of the minors. It is stated that differences arose between the father of the minors and the 1st respondent the wife and the 1st respondent filed a petition being O.P. 76 of 1980 for judicial separation, for maintenance and for permanent custody of the minors under Sec. 10(1) of the Hindu Marriage Act. The decree for judicial separation and maintenance of Rs. 850/ - per month for the wife and minors were granted. The minors are living with the 1st respondent after judicial separation. The first petitioner is studying 1st Year Intermediate in Kasturba Gandhi College, Secunderabad, and the 2nd petitioner is studying 10th class in Keyas Girls School, Secunderabad. Between 1st August, 1983 and 13th October, 1983, the petitioners were driven out of the house by the 1st respondent. On 12th October 1983 the 1st respondent and her brother K. Srinivas compelled them to abandon their education and leave for Bangalore. As the petitioners refused, they were beaten up and they were ultimately driven out of the house on 13th October, 1983. Thereupon, the petitioner went to 2nd respondent who was residing with his eldest brother, but both of them could not take as they felt that it would be going against the orders of the Court. Thereafter they took shelter in the house of their aunt and she has been looking after the petitioners from that day. In the circumstances, it is stated that the 2nd respondent the father of the minors may be appointed as guardian or in the alternative to appoint his brother C. Narasimchar or any of the sisters of the 2nd respondent as the guardian of the petitioners herein during the minority and for a direction for maintenance of Rs. 200/ - per month for each of the petitioners by the 2nd respondent.

(2.) THE 1st respondent, the mother of the minors, filed a counter -affidavit stating that the marriage between her and the 2nd respondent was solemnised on 17th May 1965 at Maredpally and the 2nd respondent is physically handicapped person as his right leg and right arm were congenitally deformed. The two daughters Sangeetha and Sujatha were born in 1967 and 1968 respectively. The 1st respondent was subjected to cruelty continuously and the 2nd respondent went to the extent of accusing the 1st respondent of adultery. Ultimately this respondent was obliged to initiate proceedings for judicial separation in O.P. No. 90 of 1980, and after contest the O.P. was allowed. The Court held that the 1st respondent entitled to the custody of minor children. Sangeetha is aged 16 years and the Sujatha is aged 15 years. But, unfortunately Sangeetha developed friendship with 28 year old man called B. Satyanarayana living in the vicinity at Secunderabad. As this respondent did not like the intimate movements with that boy, she chided her. As this respondent was not satisfied with the behavior of the girl, she decided to leave Secunderabad and reside at Bangalore where her parents are living particularly to divert the girl from the bad association of B. Satyanarayana. This respondent severely warned Sangeetha on 12th October, 1983. Though Sangeetha was freely moving with B. Satyanrayana neither the proposed guardian nor the 2nd respondent restrained her movements. The allegation that the 1st respondent or her brother Srinivas beat the girls at any time is denied. The mother alone can safeguard the interest of minors and if Sangeetha is allowed to lead the life in the present style she will be ruined. Sujatha will also follow her sister. To safeguard the minors from the evil company, it is necessary that the custody of children be handed over to their mother. The proposed guardian is not a fit person to be appointed as a court guardian. When the matrimonial court granted custody of the minor children with this respondent, the petitioner or the 2nd respondent cannot disturb such custody. The 2nd respondent is a crippled person who cannot look after the children. The brother and sister of 2nd respondent are incompetent to act as guardian of minors.

(3.) THE learned counsel for the petitioner contended that in view of the conduct of the 1st respondent, custody of the minors have to be entrusted with the next friend the paternal aunt who has filed this petition or the father of the minors and particularly in view of the fact that the 1st respondent shifted her residence to Bangalore and no prospect of return to Secunderabad and the education of the minors will be disturbed. The learned counsel for the 1st respondent contended that this application is not maintainable as this High Court did not possess the power to entertain the petition as contemplated under sec. 3 of the Guardians and Wards Act. It is further contended that the jurisdiction to appoint the guardian under the Guardians and Wards Act vests with the District Court and the petition directly to the High Court is not maintainable and not appropriate in the circumstances and the minors are not competent to file a petition and the question of changing the custody of the minor children does not arise in view of the order in O.P. No. 76 of 1980.