Mahamad Rafiq S/O Basha vs Ahamad Hussain S/O Mahimood ...
2021 Latest Caselaw 6290 Kant

Citation : 2021 Latest Caselaw 6290 Kant
Judgement Date : 16 December, 2021

Karnataka High Court

Mahamad Rafiq S/O Basha vs Ahamad Hussain S/O Mahimood ... on 16 December, 2021

Bench: R.Devdas, Rajendra Badamikar

                                1



          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 16TH DAY OF DECEMBER 2021

                         PRESENT

         THE HON'BLE MR.JUSTICE R. DEVDAS
                            AND
 THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

MISCELLANEOUS FIRST APPEAL No.200110/2016 (G&WC)

BETWEEN:
Mahamad Rafiq S/o Basha
Age: 32 Years, Occ: Business
R/o Shiraguppa
Tq. Shiraguppa, Dist. Bellary
                                                 ... Appellant
(By Sri Shivanand Patil, Advocate)

AND:
1.     Ahamad Hussain
       S/o Mahimood Hussain
       Age: 52 Years
       Occ: KSRTC Employee in Kustagi Depot
       R/o Mudgal, Near SBI Bank
       Tq. Lingasugur, Dist. Raichur-584 112

2.     Smt. Gousiya Begum
       W/o Ahamad Hussain
       Age: 47 years, Occ: Household,
       R/o Mudgal, Near SBI Bank
       Tq. Lingasugur, Dist. Raichur-584 112
                                               ... Respondents
(By Sri D.P. Ambekar, Advocate for
    Sri Biradar Viranagoud, Advocate)
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      This MFA is filed under Section 47 of the Guardians
and Wards Act, praying to allow the appeal and set aside the
order dated 15.12.2015 in G & W.C. No.05/2014 on the file
of the Senior Civil Judge & JMFC at Lingasugur and allow
the petition for appointment of guardian and handing over of
custody of minors.

     This appeal coming on for Orders, this            day,
Rajendra Badamikar J., delivered the following:

                       JUDGMENT

This appeal is filed against the judgment and

decree dated 15.12.2015 in G & W C No.5/2014 passed

by the Senior Civil Judge & JMFC at Lingasugur.

2. The appellant/petitioner has filed a petition

under Section 10 of the Guardians and Wards Act

seeking the custody of minor wards viz., Noory Nihal

and Nayimuthulla Khadri. The appellant claims to be

the father and the respondents are the maternal

grandparents of the minor wards. The mother of the

minor wards who was the wife of the appellant is no

more. The appellant has sought for custody of the

minor wards being the natural guardian.

3. The said petition is contested by respondents

on the grounds that the appellant has deserted their

daughter who was the mother of the wards and he has

contracted second marriage having children from the

second marriage. They have also resisted the petition

on various other grounds including ill-treatment to their

deceased daughter. The learned Senior Civil Judge after

recording the evidence and appreciating the oral as well

as documentary evidence before him, has rejected the

petition filed for seeking custody of the minor wards.

4. Being aggrieved by this judgment and

decree, the father has filed this appeal under Section 47

of the Guardians and Wards Act. During the pendency

of the appeal, he has also filed I.A.No.1/2021 under

Section 151 of CPC seeking visitation rights of the minor

wards.

5. We have heard the learned counsel for the

appellant and learned counsel for the respondents. We

have interacted with the minor wards in-camera to

ascertain their willingness or otherwise.

6. The records disclose that the daughter of the

respondents herein was given in marriage to the

appellant and out of the said wedlock the minor wards

viz., Noory Nihal and Nayimuthulla Khadri were born.

Admittedly, the daughter of respondents namely,

Kousar Banu died on 22.10.2013 when she was in the

custody of respondents due to kidney failure. Though it

is asserted that the minor wards were in the custody of

the appellant all along, the records disclose that they

were grown up with their grandparents/respondents

herein. When we interacted with the wards they

expressed their intention to stay with the respondents

only and not to go with their father. The second ward

has expressed that he is unable to identify his father.

Considering the age of the wards, it is evident that they

are capable of taking proper decision as they are grown

up and capable of understanding the things as well as

taking decisions. Noory Nihal is aged about 13 years

and Nayimuthulla Khadri is aged about 09 years and

both are studying in English Medium School. Both

these wards categorically refused to join their father i.e.,

present appellant/petitioner. Their allegation is that

when he had not cared for them all these years, they do

not want to join him now.

7. The learned counsel for the appellant would

contend that in the circumstances, the

appellant/petitioner being the father, atleast visitation

rights may be granted in his favour. The learned

counsel for the respondents submit that the

respondents had no objections for granting visitation

rights either weekly or as deemed fit. Considering these

facts and circumstances, we are of the considered view

that granting the custody of the minor wards to the

appellant/petitioner is not in the interest of the minor

wards. However, since he being the natural father he

has love and affection towards them and visitation

rights cannot be denied. Hence, the appeal needs to be

allowed in part sofaras it relates to visitation rights

alone. Accordingly, we proceed to pass the following:

ORDER

The appeal is allowed in part.

The judgment and decree passed by the

Senior Civil Judge and JMFC at Lingasugur in

G & W. C. No.5/2014 dated 15.12.2015 sofaras

it relates to rejection of custody of the wards to

appellant/petitioner stands confirmed.

However, the appellant/petitioner is given

visitation rights to meet the minor wards till they

attain the age of majority.

The appellant is permitted to meet the

minor wards and interact with them by spending

some time on every Sunday between 4.00 p.m. to

6.00 p.m. in the residence of the respondents.