HARIHAR PERSHAD JAISWAL Vs. SURESH JAISWAL

JUDGEMENT

(1.) This appeal arises out of an order passed by the Additional Chief Judge, City Civil Court, Hyderabad dismissing the application field by the appellant (Petitioner) under S. 25 of the Guardians and Wards Act, on the ground that the Court has no jurisdiction to entertain the petition. The petitioner is the appellant herein.

(2.) The relevant facts of the case are as follows : The petitioner is the husband of the 3rd respondent. They were married some time in the year 1959 and they had a boy and one girl. The girl was born in some time in the year 1962. The parties lived together at Hyderabad. Some time in the year 1967, quarrels started between the petitioner and respondent No. 3. It is the case of the petitioner that the girl (Neeta) was born on 7-5-1962 and she has been studying at the Shiv Dat Raj High School, Lal Bazar, Hyderabad in 4th class in the year 1970. The minor girl Neeta was kidnapped on 2-10-1970 at 12 Noon from the house of the petitioner by the respondents expect respondent No. 3 who is wife and the girl has been concealed after kidnapping all the respondents under the changed name Anita . It was his case that the girl was kept at Nagpur and Tumsar, Bhandara District, Maharashtra state and that on receiving information on 7-5-1975 that the minor girl, had been kidnapped, the petitioner tried to trace the girl, but the respondents concealed her and threatened the petitioner and asked him to go away. Consequently the petitioner got issued a search warrant at both places and the girl was recovered at Tumsar from the custody of the first respondent. It may be noted that the first respondent is the brother-in law of respondent No. 3 who is the wife of the petitioner. Thereafter she was produced by the 1st respondent before the Court of the 5th Metropolitan Magistrate, Hyderabad, Andhra Pradesh. At that stage, the third respondent filed a petition for handing over of the girl having given her address as house No. 2-1-161/2, Nallakunta, Hyderabad. It is in these circumstances the petitioner filed O. P. No. 195/75, out of which the above appeal arises, in the Court, of the Additional Chief Judge, City Civil Court, Hyderabad for declaring him to be the natural guardian of the minor and for the custody of the minor girl Neeta. The petitioner has impleaded as many as five persons as respondents, the first respondent being the sisters husband of his wife Suseela who is impleaded as respondent No. 3. Respondents 2 and 5 are brothers of his wife respondent No. 3. Respondent No. 4 is the father of respondent No. 1.

(3.) In the above said O. P. 195/75, respondent No. 3, the wife of the appellant has filed a counter opposing the reliefs prayed for the petitioner . According to her , her marriage with the petitioner took place in the year 1959 at Nagger at her parents house . After the marriage, she came to Hyderabad and started residing with the petitioner as his wife at Charminar where the petitioner owns a house . They had two children , one boy and one girl and they were born in the year 1961 and 1963 respectively .The name of the son is Anil Jaiswal and that of the daughter is Anita Jaiswal; but the family people used to call her as Neeta which is the shorter form of her name . She further states that respondent No. 3 lived with her children till 1967 and that during the period from 1959 to 1967 the petitioner developed hatred towards her and abused her on many occasions and was saying that he would marry another woman . He was ill-treating her and her children and he never cared for their proper boarding and lodging in the year 1967 respondent No. 3 went to her brothers place to attend a function and stayed there for a period of four months . After her return from Nagpur , she found that her husband developed illicit intimacy with a Gujrati lady who was living in the same house . Thereafter the petitioner and his mistress used to harass her and her children and made the life of the 3rd respondent and her children very miserable . In these circumstances the respondent 3 started living with her children along with her mother-in-law in the second floor of the building , but there also the petitioner used to come and ill-treat her. For some time, respondent No. 3 finding no other way to maintain herself, started stitching clothes and maintain herself and her children. Even there the 3rd respondent was not left alone and on one occasion she alleges that the petitioner and her mistress tried to pour Nitric Acid on her, but she somehow escaped and that this incident has been witnessed by the neighbours who had saved her. The petitioner drove respondent No. 3 keeping both the children with him. She further alleges that the children remained with the 3rd respondent till 6-7-1970 and in the year 1970 respondents 4, 5, 2 and also the father of the 3rd respondent came to Hyderabad for a settlement, but the petitioner refused to maintain her children and handed over both the children to them and thereafter the children went to Nagpur. The children were admitted in Naveen Vidya Bhavan, Nagpur in the year 1970. In 1970 when her son Anil was playing in the school grounds, the petitioner came there and took him without her consent and knowledge and on the way he sent a cable message stating that he was taking his son along with him. Thereafter her father expired in 1972 and she shifted herself along with her daughter Anita to Tumsar where her sister resides. She admitted the minor into school where the girl has studied 6th and 7th classes and is at present in the 8th class. It is further stated that the petitioner field M. P. 879/75 in the month of June 1975 before the 5th Metropolitan Magistrate, Hyderabad under Ss. 97 and 98 of the Cr. P. C. praying for a search warrant stating that the minor was kidnapped in the year 1970 and he came to know about her whereabouts only in June 1975. The Magistrate issued a search warrant and in compliance with the same, the girl was produced before the Magistrate at Hyderabad on 21-6-1975 and the Magistrate, after recording the sworn statement of the girl, handed over the custody of the girl to respondent No. 3 during the pendency of the said Criminal Miscellaneous petition on certain conditions. Having failed in his attempt to get the custody of the child under the Criminal Proceedings, the above original petition has been filed. She also states that I.A. No. 348/75 has been filed requesting the Court to hand over the girl to him and if the girl is not handed over to him, she may ordered to be sent to a certified school. The lower Court passed an order dated 8-7-1975 permitting respondent No. 3 to keep the girl along with her till the disposal of I. A. No. 348/75. It is her case that during the period from 1960 to 1975 the petitioner is writing several letters to the respondent No. 3 and her children and that he obtained the orders of the search by playing fraud and misrepresentation . She further states that since the petitioner is of bad character and was actually living with another lady, it is not in the interests of the minor girl to be handed over to the custody of the petitioner. She further alleges that the petitioner has been consuming liquors and was leading a bad life and hence the minor cannot be given to the petitioner. She further contended that the Court at Hyderabad had no jurisdiction to entertain the petitioner.