Custody different from guardianship.

JUDGEMENT :- This appeal arises out of proceedings initiated by the respondent herein, who is to wife of the appellant, in O. P. No. 195 of 1983, District Court, Tiruchirappali, under Sec. 25 of the Guardians and Wards Act, (Act VIII of 1890), read with S.6 (a) of the Hindu Minority and Guardianship Act (Act 32 of 1956), praying for the return of the custody of the minor daughter Meera alias Pincky, aged about a year and a half.

2. The circumstances under which the proceedings were instituted by the respondent herein are as under; on 10-12-1980, the respondent was married to the appellant Tiruchirappalli and thereafter the appellant and the respondent had been living as husband and wife. According to the case of the respondent, their marital life was a long story of grief, distress and sorrow on account of the ill-treatment meted out to her by the appellant right from the very Beginning. The appellant belonged to an affluent family and had also taken to drinking and other vices and any advice tendered request made by the respondent was turned down and met with even physical torture. The parents-in-law also adopted an unhelpful attitude and on several occasions, the respondent was sent out of the house with a demand for more and more dowry. But in spite of all these, the respondent, as a dutiful wife, tolerated the physical as well as the mental torture and continued to live in the family.

On 14-1-1982, the respondent was blessed with a female child and she was named as Meera and that raised hopes in the respondent that there would be some change in the way of the life of the appellant and his attitude towards the respondent. But the appellant continued as before and ill-treated respondent and inflicted cruelty on her. The respondent was asked to get out of the house and was deprived of all her jewellery and other valuables brought from her parents' place and stripped of her right to marital life and the custody of her infant daughter and was sent to her parents' house at Madras by her father-in-law. The protests raised by the respondent were of no avail and the several attempts made by her to bring about some workable arrangement did not bear fruit. A notice was issued by the respondent to the appellant demanding the restoration of the custody of the infant child, but there was no response. According to the respondent, in law she was entitled to have the custody of the infant child and since the respondent was denied the custody of her 1½ years' old infant child and she was unable to bear the pangs of separation from the child, the respondent filed the application in O. P. No. 195 of 1983 before the District Court, Tiruchirappalli, praying for the reliefs set out earlier, alleging that she is the best fitted person to have the custody of the infant child and any further retention of the child in the custody of the father would lead to disastrous results as there was no proper person to look after and care for the infant child.

3. In the counter filed by the appellant, while admitting the marriage with the respondent on 10-12-1980, and the birth of a daughter on 14-1-1982, he contended that he is the natural guardian according to law and the respondent was entitled only to the temporary custody in cases where the infant is under the age of five years. The ill-treatment stated to have been meted out to the respondent by the appellant as well as her parents-in-law was denied. That the appellant was addicted to drinking and other vices was also disputed. The driving out of the respondent from the matrimonial home was denied and the appellant claimed that his family is a very affluent one philanthropically disposed and therefore, the appellant thought fit to marry the respondent coming from a poor family without any demand for dowry. The claim of the respondent that she was stripped of her jewellery and the custody of the infant child was denied.

Abandonment of the marital home along with the infant child was attributed to the