MAYAMMA v. N. CHIKKANNA — 1984 DIGILAW 126 (KAR)

( 1 ) THIS appeal by the wife is directed against the judgement and order dated 31st July 1981 passed by the district Judge, Bangalore Rural District in G and W. C. No. 6 of 1978 on his file ordering custody of the two minor children, namely, ravi and Bhagyalakshmi in favour of the husband petitioner. ( 2 ) THE husband petitioner, namely, N. Chikkanna made an application to the Court of the civil Judge, Bangalore District for custody of the children namely Ravi and Bhagyalakshmi who were of 10 years and 7 years respectively. The application was originally filed before the district Judge, Bangalore on 27. 11. 1976 and registered as G and W Case No. 95/76. Consequently on establishment of a separate District Judge for Bangalore Rural District, the said case was transferred to the Rural District and renumbered as G and W case No. 6 of 1978 on 1. 9. 1978. ( 3 ) THE petitioner and respondent are admittedly husband and wife. They were married according to the Hindu rites in 1964. Out of their wedlock, a son by name Ravi and a daughter by name Bhagyalakshmi are born and they were as stated above of 10 years and 7 years respectively on the date of filing of the application. They were in the custody of the respondent-wife. Wife and husband were living separately ever since 1974. The wife filed an application under section 488 of the old Criminal Procedure Code in C. Misc. 40 of 1974 in the Court of the M etropolitan Magistrate (III Court) Bangalore city claiming maintenance from the petitioner-husband and for two minor children also. The court allowed maintenance for the children at the rate of Rs. 60/- per month. Ex. p. 3 is the certified copy of the order. The husband filed an application under section 13 of the Hindu Marriage Act for a decree of divorce against the wife in M. C. No. 22/76 on the file of the Civil judge, Bangalore District, Bangalore and the said application was allowed by judgement dated 3. 3. 1978. The certified copy was Ex. p. 1. The husband in the petition in question asked for the custody of the children. The wife resisted. According to her, her husband was a drunkard, his temperament was unpredictable. He lacked affection and care for the children. 3. 1978. The certified copy was Ex. p. 1. The husband in the petition in question asked for the custody of the children. The wife resisted. According to her, her husband was a drunkard, his temperament was unpredictable. He lacked affection and care for the children. He did not even care to pay the maintenance for the children. The children were attached to her and they were properly looked after by her. Therefore she pleaded that the welfare of the children could be achieved only if they were with her, the mother. The trial Court raised the sole point for consideration as under: whether the petitioner is entitled to the custody of his minor son and daughter who are admittedly residing with the respondent-wife since about 1974? ( 4 ) DURING hearing the husband-petitioner examined himself in support of his case. The wife examined herself and a witness. The trial court appreciating the evidence on record found that there was already a divorce of the wife by the husband, that the husband was employed on a salary of Rs. 350/- per month and therefore the husband should be given the custody of the children, he being the proper guardian under the law. Aggrieved by the said judgement and order, the wife has instituted the present appeal before this court. ( 5 ) IT may be mentioned in this context that ravi attained the age of majority in July, 1983 and the question of his custody would not at this juncture arise at all. We are concerned only with the custody Of minor girl Bhagyalakshmi who has not attained the age of majority as yet. ( 6 ) THE learned Counsel appearing for the appellant-wife strenuously urged before us that the learned Civil Judge relied upon the judgement and decree in M. C. 22 of 76 produced at ex. p. 1 for divorce and he pointed out that subsequently the decree has been set aside by this court in MFA No. 806 of 1978 on 10th July, 1981. He sought for admitting the certified copy of the judgement into evidence before this court as he could not produce it before the trial court, as the certified copy was given to him only on 22. 9. 1981, that is, after the judgement in G and W proceedings. He sought for admitting the certified copy of the judgement into evidence before this court as he could not produce it before the trial court, as the certified copy was given to him only on 22. 9. 1981, that is, after the judgement in G and W proceedings. It is true that the learned Civil Judge has referred to the decree of divorce by the learned Civil judge. Therefore it is necessary that the subsequent order of this Court setting aside that order allowing the appeal of the wife should also be taken into consideration. Therefore we allow the certified copy of the judgement and decree in M. F. A. No. 806 of 1978. It is now given an exhibit. ( 7 ) THE learned Counsel appearing for the appellant urged before us that in view of the judgement and decree in M. F. A. 806 of 1978, the relationship of husband and wife subsisted between the parties and the children were all along attached to the wife and they were staying with the wife their mother. Therefore it would be in the best interest of welfare of the girl to stay with the mother and hence he submitted that the order of the trial court which is made without considering the order made in the mfa should be set aside by allowing the appeal. As against that, the learned Counsel appearing for the respondent-husband in this appeal argued supporting the judgement and order of the trial court. ( 8 ) THE sole point that arises for our consideration in this appeal is: whether the learned Civil Judge was justified in ordering the custody of the children to the father on the facts of this case? ( 9 ) IT is a well established principle of law that while ordering the custody of the children, the paramount considertion is the welfare of the children. On the facts of this case, it is clear that father and mother have been living separately from each other ever since the year 1974. It is further in the evidence that the wife instituted a petition under section 488 Cr. P. C. (old) for maintenance on 1. 1. 1974 and it came to be decreed against the husband for the maintenance of the children on 8. 4. 1976. It is further in the evidence that the wife instituted a petition under section 488 Cr. P. C. (old) for maintenance on 1. 1. 1974 and it came to be decreed against the husband for the maintenance of the children on 8. 4. 1976. It is thereafter that the husband instituted a petition for divorce in M. C. 22 of 1976 and he also instituted the present petition for custody of the children on 27. 11. 1976 in G and W 95 of 1976 before the district Judge, Bangalore. The lerned Civil judge, no doubt, made much of the fact that m. C. 22 of 1976 instituted by the husband for divorce of the wife was decreed by the learned civil Judge and therefore there was no relationship of husband and wife between the parties. In the circumstances, he thought it proper to order the custody of the children to the father as he was the legal guardian. But as stated above this court in MFA No. 806 of 1978 has reversed the judgement and decree of the learned Civil judge and has dismissed the application of the husband for divorce. It has held that it is the husband who deserted his wife by neglecting her and not vice versa. ( 10 ) THE evidence on record clearly establishes that the husband has not paid the maintenance charges of the children fully. He has been paying in bits when arrest warrants have been issued in execution. The children have been with the mother all along and a Bench of this Court had an occasion to know the wishes of the children who were of 17 years and 12 years on 14. 2. 1984 and the Division Bench has recorded the desire of the children thus: appellant is present with her two children. Her eldest son is aged about 17 years and her daughter is aged about 12 years. Both of them state that they want to stay with their mother and they do not want to go with their father. " it is reported to us that the daughter is in s. S. L. C. Thus, it is clear that the mother has been taking care of the children properly. She has been educating them and the son has come up age. He stays with her. It is submitted that he is now earning. " it is reported to us that the daughter is in s. S. L. C. Thus, it is clear that the mother has been taking care of the children properly. She has been educating them and the son has come up age. He stays with her. It is submitted that he is now earning. On the other hand, as stated above, the father has not been paying the maintenance also regularly in spite of the order of the Court. In the circumstances, it is obvious that the father has neglected the interest of the children. ( 11 ) THE Supreme Court of India in Jijabai vithalrao Gajre vs. Pathankhan and others, air 1971 SC 315 , has ruled that:"the position in Hindu Law as well as under section 6 of the Act (Hindu Minority and Guardianship Act) is that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. Where the father was alive but had fallen out with the mother of the minor daughter and was living separately for several years without taking any interest in the affairs of the minor who was in the keeping and care of the mother it was held that in the peculiar circumstance, the father should be treated as if non-existence and therefore the mother could be considered as the natural guardian of the minor's persons as well as property. ( 12 ) THE ruling applies on all fours to the facts of the present case. Father and mother are separated ever since 1974. The evidence on record discloses that the father has practically neglected the children. It is the mother who has been taking care of them and educating them. There is no love lost between the children and the father. He has not even been paying the maintenance charges to the children. In fact, it is clear that the application for custody of the children has come after the maintenance application was decreed and the reason is obvious. That being so, we are satisfied that on the facts of the present case also the father should be treated as non-existent and the mother is the proper person under whose custody the girl should live. That being so, we are satisfied that on the facts of the present case also the father should be treated as non-existent and the mother is the proper person under whose custody the girl should live. ( 13 ) THE trial Court has mis-directed itself especially so when it could not consider the judgement and decree made by this court in mfa 806 of 1978. Hence, the appeal is allowed. The impugned order of the trial court is hereby set aside and the application of the husband for custody of the children is hereby dismissed. No costs. --- *** --- .