Wan Yahya J

This is an application by a mother to regain custody of her 20-month old infant from her father. Shanta Kumari, the applicant herein, was married to the respondent, Vijayan, on September 1, 1982. She was 23 years old and was an employee of the Kua Denko, Melaka. He was a year younger and unemployed. The union came about through an arranged marriage.

After the marriage, the couple lived with the husband's parents until early 1984. On January 1, 1984 when she was 7 months pregnant, applicant left her parents in-law house to return to her own parent's house. According to her, during the period of her pregnancy, her in-laws were not only unconcerned about her health but were also totally unkind to her. Applicant's mother, on the other hand, took a more restrained view in the witness stand by saying that she took her daughter back to care for her during the difficult phase of pregnancy and this, according to her, is the normal practice amongst the Malayalam people. Anyway, a family friend of both families who accompanied applicant's mother to the respondent's house, testified that the incident was a stormy one during which the respondent's mother hurled abusive words (which she declined to repeat) on applicant's mother. The respondent's mother then made the applicant remove her 'tali' before leaving from house — a gesture which I have come to understand as denouncing the marriage between the couple according to Hindu custom.

I have no reason to disbelieve this account.

The applicant returned to live in her mother's house and on March 5, 1984 the infant, Preveena, was born. The applicant continued working with the same company to support herself and her infant daughter. Throughout this period and indeed even after the delivery of the child in the General Hospital, Malacca, the respondent neither visited the infant nor supported her. It was the applicant who had to bear the cost of delivery and maintenance of the child.

When the infant was one year and 3 months old, i.e., some time in June 1985, the respondent began to call at the applicant's mother's house where he was well received. For a brief moment, there was hope of reconciliation but one day when the applicant was at work, respondent came in and took away the child without his mother-in-law's knowledge or consent. Subsequent attempts to get the infant back even with police intervention were unsuccessful. Hence, this application to this Court.

The respondent, who adduced no oral evidence but relied only on his affidavit, alleged that the separation was brought about by a misunderstanding. He accused his wife of wishing to be independent and of her inclination to associate freely with friends and to return home late at nights. He even went to the extent of denying her the credit of paying for the hospital bills which he averred were paid by her employer. He finally stated that he took the infant with applicant's consent and that this application was made purely on the instigation of her parents. Finally, he claimed that the applicant who is now working cannot take care of her daughter.

I find it is difficult to understand, let alone believe, these accusations. If she is a woman as he painted her to be, why did his counsel say even at the very inception of these proceedings that the character of the spouses are unimpeachable. As for the hospital bill the applicant has clearly denied the allegation to this in her affidavit in reply and her subsequent evidence in Court. Thereafter, the matter remained unchallenged. Assuming for a moment, even if the applicant company had paid for the delivery, what difference would that make to the conduct of the applicant or her right to care for her child? Likewise, I can find no truth in the allegation that he had obtained her previous consent to remove the infant. If that was the case, there was no need for him to come at the time when the applicant was at work and sneak out with the infant while the mother-in-law was not looking. S