- (1.) PETITION filed under Sections 3 and 7 to 10 of the Guardian and Wards Act. 1890 in respect of the minor N. Asha.
(2.) THE petition is filed by the mother of the minor namely Nirmala as against the respondent who is the father of the minor and she has made the following allegations. THE petitioner and the respondent are all residents of Madras and they are Indian Christians. THEir marriage took place on 9.10.1985 at Madras as per Christian rites and ceremonies. THE petitioner is a graduate in economics and also qualified in Typewriting and shorthand. THE petitioner is working in Electronics Corporation of Tamil Nadu commonly known as ELCOT which is a State Government undertaking. At the time of her marriage the respondent was employed as an Engineer in M/s. Hindustan Motors Ltd., Trivellore, Madras. After the marriage, both the petitioner and the respondent resided in the house of the respondent along with his parents at Vadapalani. During their stay in the house of inlaws, the petitioner was illtreated and dowry was demanded from her by the inlaws. In 1987. the petitioner and respondent started living separately in various places within the city. Minor Asha was born on 21-7-1986. THE father-in law of the petitioner namely the father of the respondent is a retired Inspector of Police and another sister of the respondent is working as Sub Inspectors in the city police. THE respondent got himself enrolled as a Honorary Traffic Warden in 1990 and he resigned the job in Hindustan Motors to take private business. THE petitioner and the respondent were residing along with the minor child in Kellys. THE minor was studying in Bain School upto 1st standard. It was convenient for the petitioner to reside there because her parents were residing nearby and the minor child can be left in their custody after school hours till the respondent returned from the office. THE respondent neglected to look after the family and he used to come late every day. THE respondent used to abuse the petitioner unnecessarily and the petitioner was subjected to mental torture. THE respondent shifted their residence to Ambattur which is nearer to the office of the respondent and it was very inconvenient for the petitioner and the minor to go to their office and school. Minor Asha was admitted in Spartan school at Anna Nagar where she studied in the 2nd standard. Because of the distance between the school and the house and also office of the petitioner, she has to avail long leave on many occasions only with a view to attend to her minor daughter. Again, the respondent shifted their residence to Mugappair in 1993-1994. THE minor girl was transferred and put in Jessie Moses School, Anna Nagar, where she studied in third class from July, 1993. THE petitioner could not get leave of ten and her parents help could not be availed because the house was situated far away from the petitioner's house from Kellys. THE petitioner therefore resigned her job in September, 1993 and she was taking care of the minor thereafter. While so, in November, 1993 the respondent deserted the petitioner and the minor daughter and left the house, went and joined his parents' house at Vadapalani. For two months the petitioner and the minor daughter were living alone in the house at Mugappair and thereafter the petitioner along with the minor decided to reside with her parents in January, 1994 at Anna Nagar. THE petitioner is maintaining herself and also looking after the minor from out of her savings made during the time of her employment and also out of her income she gets from tailoring work. THE petitioner filed O.P. No. 182/1994 before this Court for appointing her as guardian but subsequently withdrew the same after the minor was returned to her. THE respondent filed O.P.No 388 of 1994 which is now pending before the I-Additional Family Court praying for divorce from the petitioner alleging falsely that the petitioner and correspondent therein are living in adultery. It is alleged that the petitioner has left him even in the year, 1991 which is a false statement. THE respondent filed the petition for divorce making false allegations with a view to get married for the second time. Throughout the minor has been attended by the mother, namely the petitioner and she has been looking after her education right from L.K.G. to 5th standard. THE minor was admitted to Valliammal School in Anna Nagar in June, 1994. While so, the respondent took away the minor in November, 1994. THE petitioner gave a complaint to the police and the respondent agreed to allow the minor to stay with the petitioner for five days in a week and the respondent was allowed to take the child for two days during the week ends. THE petitioner got her admitted to 5th standard in Spartan School in June, 1995, Bus the minor was taken away from the school by the respondent on 18.6.1995. He stopped her from going to school and the petitioner filed H.C.O.P. No. 1198 of 1995 which was dismissed. THE minor was made to say before the High Court in the said proceedings that she is not willing to go with the petitioner namely the mother. Minor is aged only 9 years and she has been tutored to say so and she is not in a position to express her preference in an independent manner. THE petitioner filed Special Leave Petition against the dismissal of H.C.O.P. in Supreme Court on 21.11.1995. From 18.6.1995 the respondent has refused even to allow this petitioner to see her minor daughter. THE minor's mind has been poisoned by the respondent and their parents and sisters. THE minor is to attain puberty and she needed the love and affection of her mother. THE respondent is doing business besides being employed as a Honorary Traffic Warden. He has no time to attend to minor's needs or requirements. THE petitioner has got sufficient means to look after the minor. She owns a plot in Madras Besides the petitioner's parents, brothers and sisters are all living nearby and it will be easy for the petitioner to attend to the minor for all her needs. THE minor is not properly looked after and her education has suffered. THE minor is allowed to stay in a friend's house of the respondent. Her physical and mental growth are at stake. In the interest of the minor, the petitioner requests that she must be left in the custody of the petitioner who is not disqualified in any way. THEre are no female members to take care of minor girl and the love that could be shown by natural mother to her daughter cannot be substituted. THE petitioner is a graduate and she is also a freelance writer and she is the best person to take care of the minor and attend to her requirements and needs. Hence, she has filed this petition for appointing her as guardian for minor and also for custody of the minor child. The respondent filed a counter contesting the claim of the petitioner by contending as follows: " The present petition is barred by res judicata in view of the decision made in H.C.O.P. filed by the petitioner. The petitioner could not reside in a joint family and only as per her wishes the respondent set up a separate house and they were living separately. The parents or sisters of the respondent never interfered in the family life of the petitioner and the respondent. The respondent resigned his job to take up private business. In fact this respondent joined as Honourary Traffic Warden even in the year 1987 and subsequently he was appointed as a Training Officer for School children, for teaching them traffic regulations. It is not true to say that this respondent was not bestowing enough attention on the minor. In fact the petitioner never cared for the minor. While she was working she used to go early for work and returned late in the night. The respondent got his child admitted in various schools because they have been shifting their residence. The petitioner never showed any love and affection for the minor daughter. The petitioner has joined a cult group called Jehova Witnesses, whose principles and ideologies are contrary to normal human life and Christianity. The petitioner has spoiled the mind of the minor by stopping her from attending church regularly but taking her to the Jehova Witnesses where they did not respect the National Flag or the National Anthem. The petitioner had extramarital relationship with one Asaai Thambi, who was working as Manager in the office of the petitioner. Because of the illegal activities of the petitioner, the respondent was forced to shift the house from Kellys to Mugappair. The petitioner used to spend all the time outside the house and even when she applied for leave she would not be available in the house. It was the respondent who took care of the minor daughter. The petitioner was living in adultery with said Asaai Thambi after deserting the respondent and minor child. The respondent and the minor have joined the parents of the respondents and they are living together. Because of the adulterous conduct of the petitioner, the respondent had filed O.P. No. 388 of 1994 praying for divorce. It is false to state that the respondent is interested in marrying a second time: The respondent has no idea of marrying for a second time. The minor was admitted by the respondent in Stella Primary School, Madras because it was nearer to their house. The minor was produced before the Family Court and also before the High Court and the minor stated all the time in unambiguous words that she does not want to go with the mother. The minor has been throughout looked after by the respondent. She has also expressed her independent preference before the Courts on more than one occasion. The needs and welfare of the minor also requires that she must be allowed to continue to be in the custody of the respondent. The post of Traffic Warden is a honorary post and the respondent had enough time to look after the minor and attend to her requirements. The petitioner being a member of the Jehova Witnesses is a disqualification since the child cannot be brought up in a proper atmosphere. The Welfare and interest of the minor requires that she must be left in custody of the respondent as it is.
(3.) THE petitioner examined herself as P.W.1 and has filed Exs.P1 to P21 documents. THE respondent examined himself as R.W.1 and has filed R1 to R15 documents.;