Karnataka High Court
Sri. N. P. Rudresh vs Sri. Umashankar on 30 October, 2025
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MFA No. 8169 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE JAYANT BANERJI
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL No. 8169 OF 2017 (GW)
BETWEEN:
1. SRI. N. P. RUDRESH,
S/O.PALAKSHAIAH,
AGED ABOUT 34 YEARS,
R/O NIDUVANDA VILLAGE,
SOMPURA HOBLI,
NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT.
...APPELLANT
(BY SRI HAVERI S. S., ADVOCATE)
Digitally signed AND:
by VALLI
MARIMUTHU
Location: HIGH 1. SRI. UMASHANKAR,
COURT OF S/O LATE LINGADEVARAIAH,
KARNATAKA AGED ABOUT 61 YEARS,
2. SMT. PRAMEELA,
W/O.UMASHANKAR,
AGED ABOUT 56 YEARS,
BOTH ARE R/O. KARNAKUPPE VILLAGE,
NIDAVALALU POST, HEBBUR HOBLI
DISTRICT & TALUK, TUMKUR-572107.
...RESPONDENTS
(BY SRI SOMASHEKHARAIAH R. P., ADVOCATE FOR C/R1 & R2)
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MFA No. 8169 of 2017
HC-KAR
THIS MFA IS FILED U/S.47(1) OF GUARDIANS AND
WARDS ACT,1890 AND SECTION 19(1) OF THE FAMILY COURT
ACT, AGAINST THE ORDER DATED 01.09.2017 PASSED ON
G&WC No.18/2016 ON THE FILE OF THE PRINCIPAL JUDGE,
FAMILY COURT, TUMAKURU, ALLOWING THE PETITION FILED
UNDER SECTION 8 OF GUARDIANS AND WARDS ACT.
THIS APPEAL, COMING ON FOR 'DISMISSAL' THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI
and
HON'BLE MR. JUSTICE K. V. ARAVIND
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE JAYANT BANERJI) Heard learned counsel for the appellant and learned counsel for the respondents.
2. This appeal has been filed praying for the relief to set aside the order dated 01.09.2017 passed by the Principal Judge, Family Court at Tumakuru in G & WC No.18/2016. By means of the impugned order, the petitioners-respondents herein were declared as guardians of the minor child namely, Jaya Vibhav son of the respondent-appellant herein N.P.Rudresh and late Shivageetha. The respondent was restrained from removing the child from the custody of the petitioners, during his minority.
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3. For the sake of convenience, the parties are being referred to by their descriptions appearing in the aforesaid G & WC case.
4. The contention of learned counsel for the respondent is that the impugned order is without jurisdiction inasmuch as it is not the Family Court at Tumakuru, but it was the competent Court at Nelamangala Taluk of Bengaluru Rural District that would have jurisdiction in the matter. It is stated that the ordinary place of residence of the minor child was in Nelamangala Taluk and therefore, the Court of Tumakuru would have no jurisdiction. In support of this contention, learned counsel has relied upon a judgment of a Single Judge of the Orissa High Court in the matter of Konduparthi Venkateswarlu and Others v. Ramavarapu Viroja Nandan and Others1.
4.1 The other contention of learned counsel is that no proper opportunity was granted for cross-examining PW.1, who was petitioner No.1. It is stated therefore, a valuable right of 1 AIR 1989 ORISSA 151 -4- NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR cross-examination of PW.1 was lost, which has resulted in failure of justice and the order deserves to be set aside on this ground alone.
4.2 Learned counsel has further stated that the Family Court has misdirected itself in not appointing the respondent as the guardian, despite the fact that the respondent is the natural father of the minor child and it is the natural guardian, who is entitled to the custody of the child under the Guardians and Wards Act, 18902.
4.3 Learned counsel for the respondent has further stated that there are strong chances of settlement between the parties, and therefore, the matter be adjourned for some time, so that the matter can be finally settled by way of a compromise settlement.
5. Learned counsel for the petitioners has opposed the appeal and has stated that the Family Court had justifiably appointed the petitioners as the guardians. Given the fact that the petitioners' daughter was found hanging in the house of the 2 G & W Act -5- NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR respondent, which was an unnatural death and the respondent and his parents are facing trial before the District and Sessions Court in Bengaluru Rural District and giving of guardianship to the respondent would have compromised the outcome of the trial. It is further stated that adequate opportunities were given to the respondent to cross-examine the PW.1, which was availed of time and again and later, the counsel for the respondent stopped appearing before the Family Court.
6. We have perused the record of the case as well as the impugned order.
7. It appears from the record that the daughter of the petitioners namely, Shivageetha was married to the respondent on 08.11.2010 at Sri Siddalingeswara Samudaya Bhavan, Dobbaspet at Nelamangala Taluk as per customs. After the marriage, the respondent and his family members were harassing the daughter of the petitioners demanding additional dowry. Their daughter came to their house when she was pregnant and gave birth to a male child on 08.09.2011 at Siddaramanna Hospital, Tumakuru. The naming ceremony of the child was performed by the petitioners in a grand fashion as -6- NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR per the wish of the respondent and his family members on 31.05.2012 and the child was named as Jaya Vibhav. After the naming ceremony, the daughter of the petitioners along with the child joined her matrimonial home. However, the respondent and his family members started harassing the daughter of the petitioners demanding money. Unable to tolerate the torture, the daughter of the petitioners called them and intimated about the harassment on 21.07.2012. After receipt of the call, and before reaching the house of the respondent, the respondent and his family members murdered the daughter of the petitioners and hanged her to the fan. A complaint was lodged to the Dabbaspet Police and a FIR was registered against them bearing Crime No.152/2012 under Sections 498A and 304-B of the Indian Penal Code, 18603 read with Sections 3 and 4 of the Dowry Prohibition Act, 19614. On coming to know that the respondent and his family members were making hectic efforts to pressurize the Investigating Officers to close the case, the petitioners lodged complaint to the State Women Commission on 28.07.2012 and to the 3 IPC 4 DP Act -7- NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR Karnataka State Human Rights Commission on 25.07.2012. Thereafter, the police submitted charge sheet on 20.10.2012 for the offences punishable under Sections 498A, 304-B read with Section 149 of the IPC and Sections 3 and 4 of the DP Act. The case is stated to be pending before the District and Sessions Judge, Bengaluru Rural District in S.C. No.107/2013. The petitioners also filed a suit for partition on behalf of the child and sought maintenance for the child against the respondent in O.S. No.6187/2012.
8. In order to get sympathy from the Court and escape his liability, it is alleged, that the respondent filed a petition seeking custody of the child before the Senior Civil Judge, Nelamangala. An application filed by the petitioners seeking rejection of the petition of the respondent was erroneously rejected on 09.02.2016, which order has been challenged by the petitioners before the High Court by filing a writ petition and the same is pending consideration.
9. It was stated by the petitioners that after murdering their daughter, the respondent ran away from the house leaving the child abruptly. The petitioners took the child -8- NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR to their custody and since then the child is being looked after by them with love and affection and they have got the capacity to maintain the child. It is stated that the mother of the child died when the child was nine months old and the child was in the house of the respondent for nine months and within one month after going to the house of the respondent, the mother of the child was murdered. It was stated by the petitioners that the child was aged five years and admitted to Vipra English School, Hebbur of Tumakuru Taluk. The child was residing with the petitioners, who are his grandparents at Karunakuppe village in Tumakuru and therefore, the petition.
10. Objections were filed by the respondent. The dowry harassment was denied. However, the date of birth of the child and the date of naming ceremony of the child was admitted. It was also admitted that after the naming ceremony, the daughter of the petitioners namely, Shivageetha joined the house of the respondent along with the child. Harassment of Shivageetha to bring money was denied and it was further denied that she could not tolerate the torture and called upon the petitioners and intimated them about the same on -9- NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR 21.07.2012. Murder of the daughter of the petitioners was denied. Allegation of harassment by the deceased-Shivageetha was denied by the respondent. It was stated that she hanged herself to the fan. The absence of the respondent in his house at the time of the death of the daughter of the petitioners was sought to be explained. The Police had arrested the respondent and he was sent to jail. After obtaining bail, the respondent filed petition under Section 25 of the G & W Act before the Senior Civil Judge, Nelamangala. By this application, custody of the minor child of the respondent was sought.
11. The first petitioner herein was examined as PW.1 and one witness as PW.2 and documents at Exs.P1 to P9 were marked and the petitioners' side evidence was closed. The respondent did not cross-examine PW.2 and did not step into the witness box to substantiate his defence in spite of sufficient opportunity given to him.
12. The Family Court further noted that the respondent filed application under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure, 19085, read with Sections 9 and 13 of 5 CPC
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NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR the G & W Act. In the aforesaid G & WC No.18/2016 filed by the petitioners, the respondent filed an application seeking to reject the petition as barred by the law of estoppel and there was no cause of action. Objections were filed by the petitioners.
13. The points that arose for consideration before the trial Court were as follows:
"1. Whether it is necessary to appoint the petitioners as guardians of their minor grand child namely Jayavibhav?
2. Whether the petitioners are entitled for permanent injunction?
3. Whether the petition is hit by estoppel and lack of cause of action?
4. What order?"
14. The findings of the Court were as follows:
"Point No.1: In the affirmative Point No.2: In the affirmative Point No.3: In the negative Point No.4: As per the final order for the following"
15. After noting the pleadings and evidence of the case, the Family Court was of the opinion that though the respondent is the biological father of the child, the respondent and his parents were facing trial before the Sessions Court in Bengaluru
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NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR Rural District for the dowry death of the mother of the child. When the respondent and his parents are facing trial regarding dowry death, the respondent is not entitled to the custody of the child. The Court opined that in the particular case, the Court is compelled to take a different view because the custody of the minor child cannot be entrusted to the father; the welfare of the child is of paramount consideration and if the child is given to the custody of the respondent, certainly it would come in the way of the trial the respondent is facing. The Family Court observed that the respondent, only with an intention to gain sympathy in the trial, had filed the petition seeking custody of the child before the Senior Civil Judge, Nelamangala. It was found that the petitioners who are the maternal grandparents of the child were taking good care of the child and had competence to maintain the child and they were entitled to be declared as guardians of the child. It was noted that the petitioners are giving good education, love and affection to the child.
16. Accordingly, the petitioners were declared as guardians of minor child with consequential orders.
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17. It has been fairly submitted by learned counsel for the respondent that the petition filed by the petitioners against the rejection of their application filed before the competent Court in the application filed by the respondent in the Court at Nelamangala seeking custody of the child under the G & W Act, came to be disposed of with a direction to the Court concerned to dispose of the matter within a period of six months.
18. As far as the aspect of jurisdiction of the Family Court at Tumakuru is concerned, learned counsel has referred to the provision of Section 9 of the G & W Act to contend that it is the ordinary place of residence of the minor child that is to be considered and evidently, after the birth of the child, the child was residing with the respondent in the respondents' house in Nelamangala and therefore, the Court having jurisdiction would be the Court in the District of Bengaluru Rural District.
19. A perusal of the judgment of the Family Court and the record reveal that, admittedly, the child was born on 08.09.2011 at Tumakuru. The naming ceremony of the child
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NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR was performed by the petitioners at Tumakuru on 31.05.2012. After the naming ceremony, the daughter of the petitioners along with the child joined the respondent at his house. The allegation is that due to the harassment of the daughter of the petitioners by the respondent and his family members, she was not able to tolerate the torture and she called up the petitioners' to intimate about the harassment on 21.07.2012. Before the petitioners could reach the house of the respondent, their daughter hanged herself on the same day. Since neither the respondent nor his parents were residing at the site of the alleged murder of the petitioners' daughter, the petitioners took the child and brought him back to Tumakuru to their place of residence. Ever since July 2012, the minor child is residing continuously with the petitioners. In view of the aforesaid facts, the judgment relied upon by the learned counsel for the respondent-appellant in Konduparthi Venkateswarlu, is to be seen. The learned Single Judge referred to several judgments of the Rajasthan High Court6, a decision of the Andhra Pradesh High Court7, a judgment of the Allahabad High 6 Smt. Vimla Devi v. Smt. Maya Devi, AIR 1981 Raj 211 7 Harihar Pershad Jaiswal v. Suresh Jaiswal, AIR 1978 Andh Pra 13
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NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR Court8, a judgment of the Patna High Court9 and a judgment of the Kerala High Court10. All the aforesaid cases of various High Courts had considered the usage of the expression "ordinarily resides" in Section 9 of the G & W Act. Each of the cases was decided on the facts of each particular case and it was observed that generally, the length of residence at a particular place would determine the question as to where the minor ordinarily resides.
20. Considering the facts of the case, the learned Judge of the Orissa High Court in Konduparthi Venkateswarlu had opined that it was not Visakhapatnam but the ordinary place of residence of the minor being at Berhampur and therefore, the District Judge, Ganjam was right in his conclusion that he had jurisdiction under Section 9 of the G & W Act to entertain the application for custody of the child.
21. In view of the facts narrated above, we have no doubt in our minds that the place of ordinary residence of the 8 Jamuna Prasad v. Mst. Panna, AIR 1960 All 285 9 Bhola Nath v. Sharda Devi, AIR 1954 Pat 489 10 Sarada Nayar v. Vayankara Amma, AIR 1957 Ker 158
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NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR child was Tumakuru, where he had been residing from the age of 10 months, that is, to say from 21.07.2012 till filing of the petition under the G & W Act and, as admitted, even now. Therefore, the objection as to jurisdiction is rejected.
22. Next coming to the contention with regard to the respondent not being afforded an adequate opportunity to cross-examine the witnesses, we find from perusal of the order sheet and the testimony available in the trial Court records that, the examination-in-chief of the PW.1 by way of an affidavit and orally was done on 28.01.2017. Further, for cross-examination of the PW.1, the dates viz., 18.02.2017 and 17.03.2017 were fixed, but he was not cross-examined. Thereafter, PW.1 was cross-examined on 10.04.2017. Again the dates were fixed for cross-examination of PW.1 on 19.04.2017, 01.06.2017 and 07.06.2017, but PW.1 was not cross-examined. On 19.06.2017, PW.1 was cross-examined in part.
22.1 On 19.06.2017, after cross-examining the PW.1 in-part, the learned counsel for the respondent submitted that he would file an application regarding the maintainability of
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NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR the petition as G and WC case. Therefore, the cross- examination of PW.1 was taken as 'closed'. It was observed by the Court that the respondent was granted sufficient adjournments for cross-examination.
22.2 On 11.07.2017, the affidavit of the witness PW.2 was filed being his examination-in-chief. On 20.07.2017, though petitioner No.1 and PW.2 were present, but respondent and his counsel were absent. Hence, the cross-examination of PW.2 was taken as 'nil'. On 27.07.2017, though the petitioner was present, the Court noted that the respondent and his counsel were absent continuously and there was no representation. Hence, the evidence of the respondent was taken as 'nil'. On 19.08.2017, both the parties were present. An application under Order VII Rule 11(a) and (d) of CPC was filed by the counsel for the respondent. This was orally objected to by the counsel for the petitioners. The matter was fixed for arguments.
22.3 On 21.08.2017, the petitioner was present who filed the objections to I.A. No.5. An application under Section 151 CPC was filed by the respondent. An application
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NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR under Order XVIII Rule 12 of the CPC was also filed. Even though PW.1 was present in Court, the counsel for the respondent submitted that he is not ready to cross-examine PW.1 on that day. The Court observed that since sufficient opportunity was given to the respondent, he has not shown interest to go-on with the further cross-examination of PW.1 and cross-examination of PW.2 and the respondent was also not adducing evidence. Hence, IA Nos.6 and 7 were rejected refusing the prayer of the counsel for the respondent for adjournment and posted the matters for orders on 01.09.2017. On 01.09.2017, the impugned order was passed.
22.4 Therefore, the aforesaid clearly reveals that adequate opportunity was afforded to the respondent to cross- examine the PW.1 as well as PW.2 and therefore, we see no merit in the contention of the learned counsel for the respondent that the respondent was not given adequate opportunity to cross-examine the PW.1.
23. As far as the aspect regarding the validity of the order, which is sought to be challenged, is concerned, as noted above, the respondent is facing trial under the provisions of
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NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR Sections 498A, 304-B, 149 IPC read with Sections 3 and 4 of the DP Act. Even on the previous day of listing i.e., 16.10.2025, the learned counsel for the petitioners had made the submission regarding talks of compromise going on between the parties for settlement and had sought an adjournment. Noting the submissions of learned counsel for the parties, the following order was passed:
"The counsel for the parties requests an adjournment in the matter on the ground that negotiations are going on between the parties and there are chances of imminent settlement.
The instant case is an appeal arising out of an order dated 01.09.2017 passed by the Principal Judge, Family Court at Tumakuru in G & WC No.18/2016. The respondents are the petitioners and grandparents of the ward, in the aforesaid G & WC No.18/2016. The ward is stated to be now of 14 years of age.
The petition was allowed by the Principal Judge despite noticing that the appellant/respondent being the father is the natural guardian and he should not ordinarily be denied his natural right to keep his child with him,
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NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR but the facts and circumstances of the case compelled the Court to take a different view.
Noticing the paramount consideration of the welfare of the child, the trial Court noted that the appellant/respondent is facing a criminal trial in a Sessions Case bearing SC No.107/2013 filed under Sections 498A, 304-B IPC, read with Sections 3 and 4 of the DP Act and 34 IPC, Police Station, Dabbaspet in which the appellant is accused of killing his wife. The aforesaid sessions trial is pending before the Court concerned in District Bengaluru Rural. The Principal Judge noted that if the child is given in the custody of the appellant/respondent, certainly it will come in the way of the trial the appellant/respondent is facing. The finding was that the appellant- respondent, only with an intention to gain sympathy in the trial he is facing, has filed petition seeking custody of the child. Therefore, the respondents/petitioners, who are the maternal grandparents of the child, were found to be entitled to be declared as guardians of the child. The petition was accordingly allowed.
In the facts and circumstances of the case, and noticing prima facie that a compromise as is being sought to be entered into between the
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NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR parties may jeopardise the outcome of the trial, this Court asked the counsel for the appellant to proceed with the argument of the case.
Learned counsel for the appellant sought an adjournment to enable him to prepare the case. As such, list the matter in the week after the next for dismissal.
The PDJ/Judge-in-charge of Bengaluru Rural District is directed to furnish a status of the trial, which shall be made available prior to the next date of listing of the case.
List this matter on 30.10.2025.
The Registrar concerned is directed to communicate the instant order forthwith to the District Judge."
24. The report from the office of the Principal District and Sessions Judge, Bengaluru Rural District dated 25.10.2025 is available on record. From perusal of that and its enclosures it appears that proceedings in the Sessions trial were going on before the trial Court and on 16.09.2025, an application was filed by the Public Prosecutor under Section 311 of the Code of
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NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR Criminal Procedure, 197311 to permit recall of the CW.1- complainant and for leading evidence in the interest of justice. The Court noted that, the charges were framed and the matter was set for recording the evidence of the prosecution. The complainant is the father of the deceased and, as noted by the trial Court, he was not keeping good health and a memo was submitted by him to drop him from giving evidence. The trial Court noted, and in our opinion correctly so, that CW.1 is the father of the deceased whose evidence is very much important to prove the case of the prosecution. The application under Section 311 of the CrPC was therefore, allowed.
25. The order of 23.10.2025 reflects that the file of the case was misplaced and it was not sent to the Court on that day. However, thanks to the efforts of the trial Court, the file was traced. The matter has now been fixed for 22.11.2025.
26. Perjury eats into the entrails of any system of judicial administration. Any attempts at compromise in the facts and circumstances, would be an incentive to the accused to ensure by whatever means available at his disposal, to turn 11 CrPC
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NC: 2025:KHC:43365-DB MFA No. 8169 of 2017 HC-KAR witnesses hostile. The consequences of that would likely lead to compromising the interest of justice. Therefore, the request for adjournment made on 16.10.2025 to enable the parties to enter into a compromise, militates against the interest of justice in the facts and circumstances of the instant case. In exercise of our inherent powers of supervision under Article 227 of the Constitution of India, we direct the trial Court to proceed in the matter independently and in accordance with law. It is well within the trial Court's competence that should any witness turn hostile, suitable steps be taken against that witness under the relevant provisions of the Bharatiya Nyaya Sanhita, 202312 and the Bharatiya Nagarik Suraksha Sanhita, 202313.
27. We find that the Family Court has delved on the issue of the father of the minor child being implicated in the case of murder of his own mother, and justifiably held that custody of the child to the father would compromise the outcome of the trial.
12
BNS 13 BNSS
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28. For the reasons aforesaid, we see no merit in the instant appeal. The appeal is therefore, dismissed.
The Registrar concerned is directed to send a copy of the instant order to the Sessions Court where the trial is pending for placing the same on record of the S.C. No.107/2013.
Sd/-
(JAYANT BANERJI) JUDGE Sd/-
(K. V. ARAVIND) JUDGE VBS List No.: 1 Sl No.: 9