Madras High Court
Vijayalakshmi vs The Inspector Of Police, Karur Police ... on 16 November, 1990
Equivalent citations: AIR1991MAD243, II(1991)DMC319, AIR 1991 MADRAS 243, (1991) 2 ALL CRI LR 151, (1991) 2 DMC 319, (1991) 2 HINDULR 532, (1991) MADLW(CRI) 221, (1991) MATLR 99
ORDER Bellie, J.
1. The wife has filed this petition under Art. 226 of the Constitution for a writ of habeas corpus directing her husband-second respondent to hand over custody of her children to her. The first respondent-Inspector of Police has been Impleaded since according to the petitioner-wife she has preferred a complaint against her husband to the first respondent.
2. The petitioner and the second-respondent were married in the year 1982. They have two children aged about 6 years and 5 years. The case of the petitioner-wife in her affidavit filed in support of the petition is that on account of the cruel behaviour of the husband towards her she came to her parents' house at Karur in 1985. She filed a petition under S. 125. Cr. P.C. for maintenance for herself and her two children and an order was passed directing the husband to pay a sum of Rs. 500. - to the petitioner and a sum of Us. 150, - for each of the two children every month. In the meanwhile the husband got himself converted into Islam and married another girl. He did not pay maintenance amount regularly and therefore the arrears mounted and hence she filed a petition for execution of the order. While so on 1-6-1990 her husband, in her absence, entered into her house and took away the children. On 6-6-1990 she gave a complaint to the Inspector of Police-first respondent, but he did not take any action. Hence this petition.
3. As against this the second respondent-husband would contend in his counter affidavit to the effect that there was a compromise between him and his wife and in that she undertook not to execute the maintenance order but however on 22-7-1988 deserting him she went away from his house. During 1989 he got transferred to Karur and there he educated the children. Now the children are study ing in Ranipet in North Arcot under the care of his parents there. He denied that he entered the house of the petitioner and took away the children on f-6-1990. He further contends that if the petitioner is aggrieved, her remedy is to file a petition under the Guardians and Wards Act, 1890, and on this ground alone the petition has to be dismissed.
4. The petitioner filed a reply affidavit stating that when she left her husband's house in January, 1986 she took with her children also. Thereafter the husband filed a Divorce Petition O.P. No. 43 of 1986 and she filed a petition under S. 125, Cr. P.C. in which maintenance was ordered. While so the husband came to Karur and expressed regret for his actions and the Divorce Petition was dismissed as compromised. Thereafter the couple lived together in the house of the husband (at Madras). But the husband again treated her cruelly and on 22-7-1988 he forcibly got a letter from her to the effect that she will not claim maintenance, and he sent her out. But again he wrote letters for pardoning him, and be brought with him the children to Karur and there they were admitted in the Kittle Angel English School and he also started a clinic there and from then on the husband was living with the petitioner. During that time his intimacy with a Muslim Woman Mumthaj was growing up and he brought her to Karur and leaving the petitioner-wife's house he is living separately with her. The children were in the petitioner's custody in her house. It was then on 1-6-1990 in her absence the husband took away the children.
5. The point for consideration is whether as prayed for in the petition, the second respondent shall be directed to hand over custody of the children to the petitioner-wife?
6. ft is the definite case of the petitioner-wife that the children were in the custody of her in her house at Karur and without her knowledge when she was away from f he house the second respondent-husband took away the children. A reading of the affidavit filed in support of ihe petition and the counter affidavit would show that according to the petitioner the relationship between the husband and wife became estranged and there was a Divorce Petition filed by the husband and a maintenance petition filed by the wife, and subsequently there was a reapproachmcnt and the husband came to wife's house in Karur with the children and all lived together and while so the husband's intimacy with a Muslim woman had grown up and therefore he left the petitioner's house and lived in a separate house with the said woman.
7. According to the petitioner on 1-6-1990 the second respondent took away the children from her house. The husband in his counter statement would deny that he took away the children from the house of the petitioner. But however, he would not say that the children were not with the petitioner or in her house and they were all along with him. The petitioner's averment in the reply affidavit that the husband, after expressing regret, brought the children to the petitioner's house and there he was living with them has not been denied by the husband. From this it can be safely concluded that it is true that the children were living in the house of the petitioner-wife and from there the second respondent-husband took them away. In this circumslance the question is whether the petitioner's prayer for directing the respondent-husband to deliver custody of the children to the petitioner can be granted.
8. It is admitted that the second respondent has converted into Islam and he married a Muslim girl. On account of this, as per the Proviso in S. 6 of the Hindu Minority and Guardianship Act he has ceased to be a Hindu and hence he is not entitled to act as a natural guardian to the minors. As per this section after the father the mother would be the natural guardian of the minors. Therefore the second respondent-husband is not entitled to act as natural guardian as a matter of legal right and claim custody of the minors, whereas the petitioner-wife can claim so.
9. However, concerning the minor children it is well settled law that the legal right alone is not the criterion and the paramount consideration would be the welfare of the minor children (see, "Veena Kapoor v. Varinder Kumar Kapoor" and Mohini v. Virender Kumar . Now, we have seen above that the children were living in the mother's house in Karur, and it is not in dispute that they were being educated there. Tt is from there the second respondent-husband has taken away the children, and now they have been put in the care of the second respondent's parents at Ranipet. It is not in dispute that the petitioner-wife herself is a teacher and she is earning as such and she has also the support of her parents. Immediately after the husband removed the children from her house she lodged a complaint with the police and then she has come up with this petition. In Ranipet, the children are without the affection of the mother, and as regards the father admittedly he is not living with them and he would only say that he used to visit them frequently.
10. Earlier it appears there had been disaffection between the spouses i.e., the petitioner-wife and the second respondent-
husband and then reapproachment, and then again both of them have gone to court, the husband for dissolution of marriage and the wife for maintenance for herself and her children. But we are not much concerned with this, and we have to only consider whether in the present circumstances, considering the welfare of the children, whose custody is proper. We are dearly of the view that the children must be in the custody of the mother.
We are deciding the matter on the affidavits filed by both sides, and the order passed in this petition will not preclude the second respondent-husband to take steps in a civil Court under provisions of the Guardians and Wards Act for custody of the children if he so-
desires.
11. We, therefore, order that the second respondent shall deliver custody of the children to the petitioner. We direct the second respondent to bring the children (o the Court and produce them before the Additional Registrar (Judicial) on 26-11-1990 at 11.00 a.m. and the Additional Registrar will then make over the custody of the children to the Petitioner. No costs.
12. Petition allowed.