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The child was happy with the father so custody was given to him.

Andhra Pradesh High Court

(3 Aug, 1988)

Y. Varlakshmi
Vs.
Y. Kanaka Durga Prasad

CASE NO.A.A. O 300 and 301 of 1987

Mr. Justice S.S.M. Quadri
Mr. Justice B.P. Jeevan Reddy

Jeevan Reddy, J.:-

(1) These two civil miscellaneous appeals can be disposed of by a common order. Cma. No. 300 of 1987 arises from op. No. 251 of 1984 which is a petition filed by the appellant wife for restitution, of conjugal rights under section 9 of the hindu marriage act. Cma. No. 301 of 1987 arises from op. No. 2 of 1985, which is a petition filed by the respondent husband for custody of the minor son of the parties, under section 7 of the guardian and wards act. For the sake of convenience, we shall refer to the wife as the ‘petitioner’ and the husband as ths ‘respondent’.

(2) The petitioner and the respondent were married on 9 – 12 1982. They belong to the same village. In fact, the house of the petitioner’s parents is only at a distance of one furlong from the house of the respondent. They lived happily after the marriage in the house of the parents of the respondent. On 25 – 10 – 1985, a male child was born. The child had a cleft upper lip (hare – lip). The delivery took place in a private nursing home and, nine days there after the petitioner and the child were taken to the house of the petitioner’s parents. After 21 days, it appears they were brought to the respondent’s house. The boy was shown to a doctor for rectifying the hare – lip. The doctor advised four or five operations. The first operation took place on 12 – 3 – 84 at guntur which is at a distance of about 15 to 20 miles from the village. By that date, the petitioner became pregnant again. On 17 – 3 – 1984, an abortion was effected. According to the petitioner, she was bleeding heavily on that account. Then we coms to 5 – 4 – 1984 which happens to be a crucial date in this case. On the morning of that date, the petitioner says, she was bleeding heavily and she wanted to go to her parents’ house which, as stated herein before, is situated at a distance of about one furlong. She sent word to her parents. Her father came with another relative. When they asked the permission of the respondent to take her home, permission was not forthcoming either from the respondent or from his father. Be that as it may, she was taken to her parent’s house. This was in the morning. In the afternoon, the petitioner received a talegraphic lawyer’s notice issued at the instance of the respondent it is ex. A – 1. The relevant portion of ex. A – 1 reads as follows :

“son born deformed bodily features child treated intensive care my client his parents you not living amicably with my client from beginning guilty extreme cruelty my client bearing cruelty utmost patience. You left suddenly my client’s house this morning forcibly left ailing child my client unable to bear any longer your cruelty taking steps divorce informed”

.

The petitioner says that, after receiving the said notice, she tried to go to back to the respondent’s house and, when she was not permitted to do so, there were efforts at mediation. When they did not succeed, she sent a reply (ex. A – 4) through a lawyer. Ex. A – 4 is dated 5 – 5 – 1984. This was in reply to the telegram ex. A – 1. In ex. A – 4 it was stated that the petitioner was forced to leave the respondent’s house with the clothes she was wearing as she apprehended danger to her life. It was alleged that the respondent’s parents forcibly got terminated the pregnancy of the petitioner without her knowledge and consent at a particular private clinic. It was alleged that, after an injection was given, she was taken to the house of the respondent’s maternal aunt and two days later, she was brought to the respondent’s house. It was stated that the petitioner suffered heavy bleeding since the termination was not done properly and that in that condition, she left the respondent’s house and, on that occasion, the respondent took away ths child from the petitioner’s arms. It was stated that after uadergoing treatment, the petitioner had recouped her health, that she had nothing against her husband, that she had forgotten misunderstandings if any that had arisen between them, and that she was ready and willing to lead normal marital life with the respondent. The respondent was requested to come and take the petitioner to his house. Op. No. 251 of 1984 under section 9 of the hindu marriage act was filed by the wife shortly thereafter.

(3) The contents of the original petition arc to the following effect. After the marriage the parties were leading a happy marital life, that a child was born on 25 – 10 – 1983, that the petitioner become pregnant again within a few months, that her pregnancy was terminated by the respondent’s parents without her knowledge and consent, and that on 5 – 4 – 1984, she was forced to leave the respondent’s house. She underwent medical treatment in a private nursing home, though she wanted to join the respondent and tried to go to the respondent’s house, she was not allowed to live there, and that the mediations also failed. Respondent had no justification for withdrawing from the society of the petitioner. Reference was also made to the exchange of notices.

(4) The respondent filed a counter, the material contents whereof are as follows : – on 5 – 4 – 1984, the petitioner was not forced to leave the respondent house alleged by her nor was her pregnancy terminated by the respondent’s parents without her knowledge and consent. She left the house voluntarily. The abortion was also caused by herself on her own without informing the respondent or his parents. Even before the birth of the son, the petitioner was not properly attending to house hold duties and was not properly cooperating with the respondent in running the household affairs though his parents were treating her as a daughter. At her mother’s instigation, the petitioner was behaving in a careless manner. After the child was born, the petitioner began neglecting the child. She desired that the child should not survive because of the physical deformity. Though the child was taken to guntur for being examined by doctors in november, 1983, neither the petitioner nor her parents accompanied the child. After return from guntur, the child was given to the petitioner with detailed instructions how to look after him, but she was not following those instructions. Therefore, the petitioner and the child were brought to the respondent’s house on 21 – 11 – 1983 and, thereafter, they were living in the respondent’s house only, but the petitioner was not attending upon the child nor caring for him. ‘then she suddenly left the house on 5 – 4 – 1985 ignoring the protestations of the respondent and his parents. It was then that the notice ex. A – 1 was given.

(5) Op no. 2 of 1985, the petition filed by the respondent husband under section 8 of guardian and wards act to appoint him as the guardian of his minor son, was initially filed as op no. 143 of 1984 on the file of the district judge, krishna at machilipatnam and was later transfered to the court of the subordinate judge, vijayawada for being tried along with op no. 251 of 1984. In this petition, the respondent stated the very same facts and asked for the custody of the minor on the ground that he, the natural father, is the natural guardian of the minor. This was opposed by the wife on the same grounds as alleged by her in perpetition.

(6) Both the original petitions were clubbed together and evidence was recorded in op no. 251 of 1984. Thus learned subordinate judge framed the following two issues :

1) whether the respondent (husband) has withdrawn from the society of the petitioner (wife) without reasonable and probable cause ? 2) whether the father (petitioner in op no. 2 of 1985) can be appointed as guardian of the minor son ?

(7) The petitioner examined herself as p. W. 1 and her father as p – w. 2 she filed exs. A – 1 to a – 6. The respondent examined himself as r. W. 1 and his father and r. W. 2 and filed exs. B. 1 to b. 7 on his behalf.

(8) On a consideration of the evidence adduced by the parties, the learned subordinate judge held that the petitioner had indeed developed aversion towards her son and was not caring for him,. Which amounts to cruelty towards husband, the learned subordinate judge further held that the petitioner left the respondent’s house on 5 – 4 – 1984 without any reasonable or probable to leave the house, permanently abandoning her infant son who was operated just a couple of weeks ago. This too amounts to cruelty. The learned subordinate judge accordingly held that, in the circumstances, it must be held that it was the petitioner. Who withdrew from the company of the respondent without any proper and reasonable cause. The conduct of the petitioner is unexcusable it was held, and, therefore, she is not entitled to a decree for restitution of conjugal rights. So far as the appointment of the guardian of the minor son is concerned, the learned subordinate judge was of the opinion that the very filing of the petition was unnecessary. Since the father is in any event the natural guardian, and also having regard to the findings aforementioned, he appointed the respondent (father) as the guardian and accordingly dismissed op. No. 251 of 1984 and allowed op no. 2 of 1985.

(9) The findings recorded and the conclusions arrived at by the learned subordinate judge are questioned by the petitioner appellant in these two appeals.

(10) Under sec. 9 of the hindu marriage act a party is entitled to apply for restitution of cojugal rights in case the other party has without reasonable excuse withdrawn from the society of the other. Explanation to sec. 9 casts the burden of proving reasonable excuse for withdrawn upon the person who has withdrawn from the society. Formerly, subsection (2) of section 9 limited the defences available to such respondent to the grounds mentioned in section 10. But the said sub – section was deleted by the amendment act of 1976 which at the same time introduced the explanation. The effect of the amendment is that the defences in such a petition are not confined to the grounds mentioned in section 10. The defences thus become unspecified in other words whether there was a reasonable excuse for the respondent to withdraw from the society of the petitioner is a matter to be determined on the facts and circumstances of each case. In this case the petitioner wants to live with the respondent. The respondent says that he is not prepared to live with her because of her cruel conduct. It is therefore for the respondent to establish that he has reasonable excuse for withdrawing from the society of the petitioner.

(11) Now, let us see what is the cruelty alleged by the respondent against the petitioner. Firstly a vague allegation is made that even before ths birth of the child she was not properly attending to household duties and was not cooperating with the respondent in running the household affairs. However no attempt was made to establish the said allegation at the stage of trial. The only other allegation of the respondent is that, because the child was bora with a physical deformith (here – lip) , she was not caring for the child. In support of the said allegation three circumstances are urged. They are (1) when the child was taken to guntur in november, 1983 she did not accompany the child (2) she did not accompany the child when he was taken for the first operation to guntur on 12 – 3 – 1984 and (3) she left the house on 5 – 4 – 1984 abandening the child and contrary to the wishes of the respondent and his parents. A general allegation is also made that she was not looking after the child and she wanted him to die.

(12) The first question that arises is whether not caring for the child by the wife constitutes a reasonable excuse for the husband to withdraw from the society of the wife within the meaning of section 9. We do not however propose to express any definite opinion on the above question. We shall proceed on the presumption that such conduct does amount to reasonable excuse within the meaning of section 9 and examine the evidence in the case on that footing.

(13) Admittedly after nine days of the delivery of the child, the petitioner and the child were taken to her parents house. The twenty – first day function was performed at the house of the petitioner’s parents as is the custom. According to the respondent after the twenty – first day ceremony, she and the child were brought to his house. Admittedly some time in the last week of november the child was taken to guntur to show him to the doctor to suggest a course of action for rectifying the physical defect. Though in the counter it was stated that the petitioner did not accompany the child to guntur on this occasion no such statement was made by the respondent while in the witness – box. All that he stated was that he and his parents were looking after the boy and that he took the boy to the doctor at vijayawada and guntur. He did not say that the petitioner did not accompany him now we come to the performance of operation on the child on 12 – 3 – 1984 at guntur. It is an admitted fact that the petitioner did not go to guntur. Her case is that the respondent’s parents asked her to remain at guntur while the respondent’s case is that she herself did not choose to accompany the child. We find it difficult to believe that a mother would not have affection towards her own child more so the first child just because he is born with a small physical defect viz. A cleft upper lip. The deformity was also not a major one. The doctors had also advised that it would be rectified. We are therefore not prepared to believe the evidence of the respondent that the petitioner was not caring for the child. We also find the said averment of the respondent vague. It is not alleged that she was treating him with cruelty. It is not alleged that she was not breast – feeding him. A general allegation that she did not like the boy or that she developed an aversion towards the boy we find hard to believe. In the circumstances we are inclined to believe the petitioners version given in the witness – box that until the child was born her parents – in law were treating her with affection. But that, after the birth of the child they started ill – treating her saying that she was responsible for the birth of such a child. Therefore we are not inclined to believe the respondent’s version that the petitioner did not choose to accompany the child when he was taken to guntur for the first operation on 12 – 3 – 1984. It must be remembered that on that date the boy was hardly five months old and he would require breast – feeding by the mother. But there is another event which took place at about the same time. On 17 – 3 – 1984 the petitioner had an abortion. Her case is that she was taken by the respondent and his maternal aunt to a private clinic where an injection was given to her saying that it was for cough and cold but it resulted in abortion. According to her she was never told nor did she ever consent to the abortion. Her case is that, because the abortion was not properly performed there was heavy bleeding and inspite of that she was asked to attend to daily household chores. On the other hand the respondent’s case is that she got done the abortion herself on her own without informing him or his parents and without his consent. Again we find it difficult to accept the respondents version. We find it wholly unlikely that a girl of seventeen years in the situation of the petitioner would dare to go in for an abortion without informing the husband or his parents. Had she done so, she would have been driven from the house by them on that ground alone. It is more likely in the circumstances that the abortion was got performed at the instance of the respondent. It is quite probable that they were not pleased by the pregnancy so soon after the birth of the first child. The first child was born with the aforementioned physical defect and he required a number of operations to set it right. Evidently, it required a good amount of expense nursing and care on the part of the concerned. In such a situation another pregnancy and the possibility of another child in quick succession was not welcomed and probably that is the reason why abortion was advised. Sri chandra sekhara rao learned counsel for the respondent contended that it unlikely that the petitioner did not know the abortion and that without her knowledge, it could not have been performed either by the respondent or his relative. He also pointed out the discrepancy between the averments in ex a – 4 and the original petition and her evidence in the witness – box. It is pointed out that while in ex a – 4 it is alleged that the abortion was got performed by the respondents parents without her consent, in her evidence she stated that it was done at the instance of the respondent and his meternal aunt. We do not think that this discrepancy is so material as to discredit the testimony – in – main of the petitioner. It may be that the idea came from the respondents parents. In any event we are not prepared to believe the respondents case that the abortion was got performed by the petitioner on her own and without informing and without the consent of the respondent or his parents. Indeed such a thing is inconceivable in the circumstances.

(14) Next we shall take up the events which took place on 5 4 – 1984. According to the petitioner she was bleeding heavily on account of the abortion and therefore she wanted to go to her parents house just a furlong away. She sent word to her parents. Her father came and wanted to take her away. There is no suggestion in the respondents evidence that they wanted to take her away without the respondents or his parents consent. Assuming that she was taken away to her parents house without the consent of the respondent or his parents we do not think that it amount to abandonment or leaving the house permanently by the wife. It was only a temporary visit until her pain and trouble ceased. But is rather understandable. Immediately he rushed to an advocate and got a telegraphic notice issued saying that she has been treating him (respondent) with cruelty that she left the house suddenly and forcibly leaving the ailing child and that he is proposing to take steps for obtaining a divorce. This reaction on the part of the husband we find totally unjustified. A little understanding was called for on his part but his reaction was wild and totally unrelated to the wife’s act. The petitioners case is that while she was leaving the child was not allowed to be taken by her and therefore, she was obliged to leave him with the respondent. In the circumstances we cannot say that her going away to her parents house without the child is a cruel her going away to her and therefore she was obliged to leave him with the respondent. In the circumstances we cannot say that her going away to her parents house without the child is a cruel act or such a despicable or unexcusable act as to deprive her of her rights as a wife and a mother. The petitioner’s further case is that when she wanted to go back she was not allowed to enter the house which evidence we are not inclined to believe in the light of the respondents conduct in issuing ex a – 1. According to the petitioner the mediation efforts also failed. Her evidence is corroborated by her father pw 2. It is only then that the wife gave a reply ex a – 4. Sri chandrasekhara rao contended that if the wife was willing to go and live with the respondent why did she not reply immediately to ex a – 1 notice. We are unable to see any substance in this contention. No wife would immediately rush with a reply notice in such circumstances. She may have though that ex a – 1 was issued in a huff or anger and therefore she wanted to settle the matter on a personal level. When that failed and mediation also failed, she had so option but to give a reply notice since otherwise she had no option but to give a reply notice since otherwise she would have been found fault with for not replying to ex a – 1.

(15) We have already referred to the fact that the allegation of cruelty on the part of the petitioner towards the child is very vague. It is generally alleged that she did not care for the child and that she and her parents wanted the child to die. Attribution of wholly unnatural conduct to the mother we are not prepared to believe particularly in the absence of any specific evidence of acts of cruelty or negligence. On a consideration of the entire evidence we are not satisfied that the respondent has established the case of cruelty alleged in his counter. The evidence adduced by him falls very much short of the proof required in such a case. In our opinion the learned subordinate judge was not justified in recording a finding to the contrary. For the above reasons we allow cma no 300 of 87. The judgment of the learned subordinate judge in o p no 251 of 1984 is set aside. There shall be a decree for restitution of conjugal rights as prayed for. Having regard to the relationship between the parties we make no order as to costs.

(16) Cma no 301 of 1987 : – so far as this appeal is concerned we are not inclined to interfere for more than one reason. Under section 6 of the hindu minority and guardianship act 1956 the natural guardian of a hindu minor is the father and only after him the mother. It is true that in the case of a minor who has not completed the age of five years, the custody shall ordinarily be with – the mother. But in this case for reasons beyond the control of the petitioner – wife the boy has been living with the respondent and his family since more than four years. Shortly he would be completing five years. Any displacement of the child at this stage will cause psychological damage to him. Moreover it is nobody’s case that the respondent or his parents are not treating the boy with care “and affection. In the circumstances we are not inclined to disturb the decree and order of the court below appointing the respondent – father as the guardian of the minor son. However, we think it appropriate to give a direction enabling the wife to visit the son periodically. We direct that every second sunday, the respondent husband will take the son in the morning at about 8 a m or arrange to send the boy at about that time to the petitioner – wife’s house. The first visit shall be on 15th august 1988 and thereafter every second sunday. The petitioner – wife shall leave the child or send the child by the evening at about 6 p m to the respondents house. We are making this direction with the hope and expectation that this may lead to a reconciliation between the parties and also 10 ensure that the boy gets the mother’s affection also in some measure at least. C m a no 301 of 1987 is dismissed subject to the above directions which shall be effective till the boy attains majority or until the parties come together. Whichever is earlier. No costs.

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