J. Prabhudas Vs. A.S. Nagabhushanam - Court Judgment

Excerpt:
- - 2. according to the parents-in-law of the respondent, their daughter was not looked after and cared well by the respondent and that she was ill-treated by him and that medical treatment was not provided by him. whatever may be the truth, the very dispute shows that all was not well inter se respondent and his wife, as otherwise, such a dispute would not have erupted so as to even fight with regard to the right to the custody of the dead body and the consequent custody of children. , the respondent's name uttered and we could see her feelings of contempt against her father and the reasons are best known to her. but the welfare of the minor being the paramount consideration, we are fully satisfied that she is happy with her grand parents, but her sister miss sumalatha, who was examined by us in the chambers yesterday emphatically declined to go to her grand parents and that she loves her father so much. in such circumstances, we are not satisfied with the order of the lower court in so far as the custody of miss shiv mallika alias sarita mallika is concerned and she shall remain with her maternal grand father viz. she is being well maintained by her grand parents with the assistance of her maternal uncles.orderb. subhashan reddy, j.1. this c.m.a. arises against the order of the court-below in restoring the custody of two children viz., padma sivkiran and miss. shiv mallika @ sarita mallika, who are son and daughter of the respondent herein. the respondent had married swaroopa kumari alias lalitha bai and begot three children viz., master padma shivkiran (son), miss shiv mallika alias sarita mallika (daughter) and miss sumalatha (daughter). while the son is aged 17 years 2 months as on this day his date of birth being 1-5-1978; the first daughter miss shiv mallika is aged 13 years and the second daughter miss sumalatha is aged 11 years. the custody of master padma shivkiran and miss shiv mallika had been with the maternal grand father, who stays along with his sons in a joint family. the respondent's wife died on 21-2-1990 because of the stomach cancer. there was lot of strain in their relationship.2. according to the parents-in-law of the respondent, their daughter was not looked after and cared well by the respondent and that she was ill-treated by him and that medical treatment was not provided by him. the hard fact is that she died in hospital and her dead body was taken to her parents' house. the respondent did not attend his wife's funeral and while admitting that, it is pleaded that he was prevented from attending the funeral. whatever may be the truth, the very dispute shows that all was not well inter se respondent and his wife, as otherwise, such a dispute would not have erupted so as to even fight with regard to the right to the custody of the dead body and the consequent custody of children. in these matters, the true facts will not come to light as the accurate eye account will be lacking, as most of the disputes being domestic and personal, will not be revealed to others. be that as it may, it is proved beyond doubt that there is such a rupture between the respondent and his parents-in-law as also his brothers-in-law and that lot of fight had been going on with regard to the custody of the minor children mentioned above. admittedly, the elder children i.e., the son and first daughter were with the parents-in-law of the respondent i.e., maternal grand-father of the children, who is a retired municipal employee and he is getting a pension to sustain himself without depending on any one of his four sons. his four sons are all employed and it cannot be said that they are creepers so as to eat away the money belonging to the minors. in a system of our joint families in india particularly in andhra pradesh, it is a common feature that in the absence of mother, title maternal grand parents take so much care in the event of strained relationship with son-in-law and his other family members. that is the reason why the elder kids had been in the custody of the maternal grand parents and when we had examined them in tine chambers, it was not that they were unhappy and in fact miss shiv mallika alias sarita mallika, who was examined by us in the chambers to-day was so ferocious when her father's name i.e., the respondent's name uttered and we could see her feelings of contempt against her father and the reasons are best known to her. but the welfare of the minor being the paramount consideration, we are fully satisfied that she is happy with her grand parents, but her sister miss sumalatha, who was examined by us in the chambers yesterday emphatically declined to go to her grand parents and that she loves her father so much. the son who was also examined yesterday and who was in the custody of the grand parents a week ago and since one week he had been staying with his father, who also attained the age of discretion, has stated that he likes to stay back with his father. we are fully convinced about the true nature of the statements of all the kids and have no reason to believe that the wishes of the kids are tainted with any coercion. nothing weighs with the court excepting the welfare of the children. in such circumstances, we are not satisfied with the order of the lower court in so far as the custody of miss shiv mallika alias sarita mallika is concerned and she shall remain with her maternal grand father viz., j. prabhudas at h. no. 15-5-162, osman shahi, afzalgunj, hyderabad. mr. prabhudas shall be made responsible for the safety and security of the above kid.3. the amount which miss shiv mallika alias sarita mallika gets out of the terminal benefits including the pensionary benefits of her late mother swaroopa kumari alias lalitha bai (to the extent of 1/3rd) shall be invested by the family court, hyderabad, with any bank giving maximum interest, on cumulative basis for a period of five years. if any amount is necessary out of the same, mr. prabhudas has to file an application before the family court, hyderabad, who after verification of the bona fides of such request, can make over such amount so as to meet that situation.4. inso far as the custody of master padma shivkiran and miss. sumalatha are concerned, they shall be with their father a.s. nagabhushanam and their care, security and safety is the responsibility of the respondent-a.s. nagabhushanam. the proportionate amounts (2/3rd) towards terminal benefits and pensionary benefits of late swaroopa kumari shall be drawn by the family court, hyderabad and shall be invested in the bank yielding maximum interest. insofar as the proportionate amounts pertaining to master padma shivkiran are concerned, the period of term deposit shall be three years with cumulative interest while that of sumalatha is five years with cumulative interest. the respondent shall not be entitled to draw any amounts as he is liable to maintain his above two children.5. it is not in dispute that the respondent is getting not less man rs. 3,500/-per month towards salary. his wife died; he has no dependents excepting his son and younger daughter. his elder daughter, miss shivmallika alias sarita mallika is aged 13 years. she is studying in 7th class in english medium. she is nearing the age of puberty and needs proper food, clothing and education. she is being well maintained by her grand parents with the assistance of her maternal uncles.6. in view of what is stated supra, her maternal grand father mr. j. prabhudas will continue to have custody. but, she is entitled to be maintained from the funds which have got to be provided by her father. such maintenance liability rests upon the respondent mr. a.s. nagabhushanam. the family court had awarded her rs. 200/- per month. the family court had also awarded amounts for two other minors mentioned above, but since the son and the younger daughter are in the custody of mr. a.s. nagabhushanam, no maintenance need be awarded to them, as they will be maintained by mr. a.s. nagabhushanam. as such, the maintenance amounts awarded in favour of master padma shivkiran and miss. sumalatha are set aside. while it is true that no revision has been filed for enhancement of maintenance amount for ms. shiva mallika alias sarita mallika, the power inheres this court in view of section 482 of criminal procedure code and in appropriate cases, this court can invoke that provision, even if mere is no petition in that regard and even if there is no revision for enhancement. we are of the considered view that this case is appropriate to exercise our inherent power under section 482 of cr .p.c. and hence, we enhance the maintenance amount from rs. 200/- per month to rs. 500/- per month having regard to the necessities, be it food, clothing, educational or medical. but, in the circumstances, we order the payment of the above amount of rs. 500/- per month in favour of miss shiva mallika alias sarita mallika to be deposited by the respondent-mr. a.s. nagabhushanam, to the credit of m.c. no. 343 of 1995 on the file of the family court, hyderabad commencing from the month of august, 1996. the first deposit of rs. 500/- shall be made by 15th august, 1996 and every subsequent month, rs. 500/- within the said period of 15th of each english calendar month, shall be deposited. if the deposit is not made, mr. j. prabhudas shall be entitled to enforce this order by invoking the provision contained under section 125(3) cr.p.c. on deposit of the maintenance amount as ordered above, mr. j. prabhudas shall be entitled to withdraw the said amounts periodically without furnishing security and shall spend on ms. shiva mallika alias sarita mallika. the family court hyderabad on receipt of this order shall pursue with the employer of late ms. swaroopa kumari alias lalitha bai for getting the amounts of terminal benefits including the pensionary benefits for investment as directed above.7. both the c.m.a. and criminal revision cases are disposed of in terms stated above. no costs.

Judgment:
ORDER

B. Subhashan Reddy, J.

1. This C.M.A. arises against the order of the Court-below in restoring the custody of two children viz., Padma Sivkiran and Miss. Shiv Mallika @ Sarita Mallika, who are son and daughter of the respondent herein. The respondent had married Swaroopa Kumari alias Lalitha Bai and begot three children viz., Master Padma Shivkiran (son), Miss Shiv Mallika alias Sarita Mallika (daughter) and Miss Sumalatha (daughter). While the son is aged 17 years 2 months as on this day his date of birth being 1-5-1978; the first daughter Miss Shiv Mallika is aged 13 years and the second daughter Miss Sumalatha is aged 11 years. The custody of Master Padma Shivkiran and Miss Shiv Mallika had been with the maternal grand father, who stays along with his sons in a joint family. The respondent's wife died on 21-2-1990 because of the stomach cancer. There was lot of strain in their relationship.

2. According to the parents-in-law of the respondent, their daughter was not looked after and cared well by the respondent and that she was ill-treated by him and that medical treatment was not provided by him. The hard fact is that she died in hospital and her dead body was taken to her parents' house. The respondent did not attend his wife's funeral and while admitting that, it is pleaded that he was prevented from attending the funeral. Whatever may be the truth, the very dispute shows that all was not well inter se respondent and his wife, as otherwise, such a dispute would not have erupted so as to even fight with regard to the right to the custody of the dead body and the consequent custody of children. In these matters, the true facts will not come to light as the accurate eye account will be lacking, as most of the disputes being domestic and personal, will not be revealed to others. Be that as it may, it is proved beyond doubt that there is such a rupture between the respondent and his parents-in-law as also his brothers-in-law and that lot of fight had been going on with regard to the custody of the minor children mentioned above. Admittedly, the elder children i.e., the son and first daughter were with the parents-in-law of the respondent i.e., maternal grand-father of the children, who is a retired municipal employee and he is getting a pension to sustain himself without depending on any one of his four sons. His four sons are all employed and it cannot be said that they are creepers so as to eat away the money belonging to the minors. In a system of our joint families in India particularly in Andhra Pradesh, it is a common feature that in the absence of mother, title maternal grand parents take so much care in the event of strained relationship with son-in-law and his other family members. That is the reason why the elder kids had been in the custody of the maternal grand parents and when we had examined them in tine chambers, it was not that they were unhappy and in fact Miss Shiv Mallika alias Sarita Mallika, who was examined by us in the chambers to-day was so ferocious when her father's name i.e., the respondent's name uttered and we could see her feelings of contempt against her father and the reasons are best known to her. But the welfare of the minor being the paramount consideration, we are fully satisfied that she is happy with her grand parents, but her sister Miss Sumalatha, who was examined by us in the chambers yesterday emphatically declined to go to her grand parents and that she loves her father so much. The son who was also examined yesterday and who was in the custody of the grand parents a week ago and since one week he had been staying with his father, who also attained the age of discretion, has stated that he likes to stay back with his father. We are fully convinced about the true nature of the statements of all the kids and have no reason to believe that the wishes of the kids are tainted with any coercion. Nothing weighs with the Court excepting the welfare of the children. In such circumstances, we are not satisfied with the order of the lower Court in so far as the custody of Miss Shiv Mallika alias Sarita Mallika is concerned and she shall remain with her maternal grand father viz., J. Prabhudas at H. No. 15-5-162, Osman Shahi, Afzalgunj, Hyderabad. Mr. Prabhudas shall be made responsible for the safety and security of the above kid.

3. The amount which Miss Shiv Mallika alias Sarita Mallika gets out of the terminal benefits including the pensionary benefits of her late mother Swaroopa Kumari alias Lalitha Bai (to the extent of 1/3rd) shall be invested by the Family Court, Hyderabad, with any Bank giving maximum interest, on cumulative basis for a period of five years. If any amount is necessary out of the same, Mr. Prabhudas has to file an application before the Family Court, Hyderabad, who after verification of the bona fides of such request, can make over such amount so as to meet that situation.

4. Inso far as the custody of Master Padma Shivkiran and Miss. Sumalatha are concerned, they shall be with their father A.S. Nagabhushanam and their care, security and safety is the responsibility of the respondent-A.S. Nagabhushanam. The proportionate amounts (2/3rd) towards terminal benefits and pensionary benefits of late Swaroopa Kumari shall be drawn by the Family Court, Hyderabad and shall be invested in the Bank yielding maximum interest. Insofar as the proportionate amounts pertaining to Master Padma Shivkiran are concerned, the period of term deposit shall be three years with cumulative interest while that of Sumalatha is five years with cumulative interest. The respondent shall not be entitled to draw any amounts as he is liable to maintain his above two children.

5. It is not in dispute that the respondent is getting not less man Rs. 3,500/-per month towards salary. His wife died; he has no dependents excepting his son and younger daughter. His elder daughter, Miss Shivmallika alias Sarita Mallika is aged 13 years. She is studying in 7th class in English medium. She is nearing the age of puberty and needs proper food, clothing and education. She is being well maintained by her grand parents with the assistance of her maternal uncles.

6. In view of what is stated supra, her maternal grand father Mr. J. Prabhudas will continue to have custody. But, she is entitled to be maintained from the funds which have got to be provided by her father. Such maintenance liability rests upon the respondent Mr. A.S. Nagabhushanam. The Family Court had awarded her Rs. 200/- per month. The family Court had also awarded amounts for two other minors mentioned above, but since the son and the younger daughter are in the custody of Mr. A.S. Nagabhushanam, no maintenance need be awarded to them, as they will be maintained by Mr. A.S. Nagabhushanam. As such, the maintenance amounts awarded in favour of Master Padma Shivkiran and Miss. Sumalatha are set aside. While it is true that no revision has been filed for enhancement of maintenance amount for Ms. Shiva Mallika alias Sarita Mallika, the power inheres this Court in view of Section 482 of Criminal Procedure Code and in appropriate cases, this Court can invoke that provision, even if mere is no petition in that regard and even if there is no revision for enhancement. We are of the considered view that this case is appropriate to exercise our inherent power Under Section 482 of Cr .P.C. and hence, we enhance the maintenance amount from Rs. 200/- per month to Rs. 500/- per month having regard to the necessities, be it food, clothing, educational or medical. But, in the circumstances, we order the payment of the above amount of Rs. 500/- per month in favour of Miss Shiva Mallika alias Sarita Mallika to be deposited by the respondent-Mr. A.S. Nagabhushanam, to the credit of M.C. No. 343 of 1995 on the file of the family Court, Hyderabad commencing from the month of August, 1996. The first deposit of Rs. 500/- shall be made by 15th August, 1996 and every subsequent month, Rs. 500/- within the said period of 15th of each English calendar month, shall be deposited. If the deposit is not made, Mr. J. Prabhudas shall be entitled to enforce this order by invoking the provision contained Under Section 125(3) Cr.P.C. On deposit of the maintenance amount as ordered above, Mr. J. Prabhudas shall be entitled to withdraw the said amounts periodically without furnishing security and shall spend on Ms. Shiva Mallika alias Sarita Mallika. The Family Court Hyderabad on receipt of this order shall pursue with the employer of late Ms. Swaroopa Kumari alias Lalitha Bai for getting the amounts of terminal benefits including the pensionary benefits for investment as directed above.

7. Both the C.M.A. and Criminal Revision Cases are disposed of in terms stated above. No costs.