Sanjay S/O Suhas Deshpande vs Smt Priya
2021 Latest Caselaw 3276 Kant

                              1            MFA No.200330/2021




             IN THE HIGH COURT OF KARNATAKA
                     KALABURAGI BENCH

        DATED THIS THE 1st DAY OF SEPTEMBER, 2021

                           PRESENT

        THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

                             AND

          THE HON'BLE MRS. JUSTICE J.M.KHAZI


  MISCELLANEOUS FIRST APPEAL No.200330/2021(G &WC)

BETWEEN:

Sanjay S/o Suhas Deshpande
Age: 42 years, Occ: Private Work
R/o H.No.9, 2nd Cross, APG Layout
Vidharnyapura, Bengaluru-29
Presently R/o H.No.7-1202/27/A/3
Behind Central Warehouse, Vakkalgera
Neharu Gunj, Near Pratibha International
School, Kalaburagi                                ... Appellant

(Party-in-person)

AND:

Smt. Priya Joshi W/o Sanjay Deshpande
Age: 31 Years, Occ: Nil
R/o Gangamruta, Banashankari
Jaya Nagar, Kalaburagi-585 101
Now at Parimala Nivas, Jewargi Colony
Kalaburagi - 585 101                           ... Respondent

(By Sri Chaitanya Kumar C.M., Advocate)

      This Miscellaneous First Appeal is filed under Section 47
of the Guardians and Wards Act, 1890, praying to allow the
appeal by setting aside the order dated 15.02.2020 passed by
                                  2           MFA No.200330/2021




the District Judge, Family Court, Kalaburagi in G & W.C.
No.10/2017 and consequently to allow the petition filed by the
appellant.

       This appeal having been heard and reserved on
31.07.2021, coming on for pronouncement of judgment this
day, K.S. Mudagal J. sitting at Principal Bench, delivered the
following:

                          JUDGMENT

Aggrieved by the rejection of his application for his

appointment as guardian of his minor son, the appellant

has preferred the above appeal.

2. The marriage of the appellant and the

respondent was solemnized on 07.07.2014. Out of their

wedlock, son by name Akul is born on 11.05.2015. The

marriage of the appellant and the respondent did not sail

well. The respondent along with her minor son is living

separately since December, 2015.

3. The appellant got issued notice to the

respondent alleging willful withdrawal from his society

without any excuse and demanded the restitution of

conjugal rights. She replied the said notice denying his

allegations. In the reply she alleged that he himself

subjected her to ill-treatment in connection with his

unlawful demands and he was an alcohol addict, etc.

4. The respondent filed Crl.Misc.No.158/2016

before the Family Court, Kalaburagi seeking maintenance

for herself and for her child on the ground that the

appellant despite having sufficient means has failed and

neglected to maintain them.

5. The appellant filed M.C.No.87/2016 against the

respondent before the Family Court, Bengaluru seeking

restitution of conjugal rights. Later he filed

M.C.No.4104/2016 against the respondent before the

Family Court, Bengaluru for decree of divorce on the

ground of desertion and cruelty.

6. Pending all such proceedings, he filed G & W.C.

No.10/2017 against the respondent under Section 7 r/w

Section 25 of the Guardian and Wards Act seeking his

appointment as guardian and custody of his minor child

Akul Deshpande.

7. The respondent contested the said

proceedings. The parties adduced the evidence. The trial

court by the impugned order dismissed the petition holding

that the ground set up by the appellant are not proved.

The trial court further held that the welfare of the child is

better protected under the care and custody of the

respondent.

8. The appellant sought his appointment as

guardian and custody of the child on the following

grounds:

i) The respondent is suffering from a mental

health disorder called narcissistic personality disorder.

Having regard to her mental health condition the custody

of the child with her is injurious to the development of the

child.

ii) The environment in the parental family of the

respondent having regard to the nature of respondent and

her parents is not conducive for the welfare of the child.

iii) Though the Family Court in the matrimonial

proceedings has granted right of visitation of the child to

him, respondent is illegally depriving him of such rights

and she has gone under-ground with the child to deprive

such rights.

9. Though the appellant sought to project much

about the matrimonial proceedings between him and the

respondent for the purpose of the petition under Section 7

r/w Section 25 of the Guardians and Wards Act, they are

not much irrelevant. To succeed in his petition, he was

required to establish the grounds set up by him. Needless

to state that respondent denied all those grounds.

Reg. Mental health of respondent:

10. The allegations of mental health disorder is a

serious allegation. The burden of proving the said

allegation was on the appellant. To substantiate the

mental health condition of the respondent, except his self

serving testimony the appellant did not chose to examine

any doctors or the specialist in the field. His self serving

testimony in that regard was denied by the respondent.

11. Referring to Ex.P.7, the copy of text messages

allegedly sent to him by the respondent, the appellant

contended that respondent has unstable mental health.

The respondent disputed the genuineness of the said

document. Ex.P.7 being the secondary evidence of

electronic record, unless the conditions mentioned in

Section 65-B of the Evidence Act, 1872 (for short, 'the

Act') are complied the same is inadmissible in the evidence

and cannot be relied. The appellant did not produce the

certificate as required under Section 65-B of the Act to

prove the said document.

12. The Hon'ble Supreme Court in the judgment in

Arjun Panditrao Khotkar Vs. Kailash Kushanrao

Gorantyal and others reported in (2020) 7 SCC 1 has

held that unless the certificate as required under Section

65-B of the Act is produced such electronic evidence is

inadmissible. Having regard to the above said provisions

and the judgment and non-compliance of Section 65-B of

the Act, Ex.P.7 has no evidentiary value.

13. The appellant at one stretch contends that he

took care of all the needs of the respondent still she

deserted him. At the same time in his cross-examination

he admits that he did not take her to any doctor saying

that she has mental health issue. The application filed by

him for referring her to the medical examination was

rejected by the trial court. He did not challenge that order.

Therefore that order attained finality.

14. The appellant himself suggests to the

respondent in her cross-examination that she completed

her degree education in Bengaluru and lived in Bengaluru

for 15-20 years. He also suggested that she has studied

Master of Arts and she is taking care of education of the

child. Further, in his cross-examination he has admitted

that without his aid respondent got the child admitted to

English medium school paying his school fee, text book

fee, school van fee, etc. All such admissions of the

appellant in his evidence and suggestion to P.W.1 go

contrary to his allegation of she suffering from mental

health disorder. They go to show that she is mentally

stable.

15. The proceedings in Crl.Misc.No.158/2016 and

the depositions of the parties in the said case were

admitted facts. The certified copy of the order in

Crl.Misc.No.158/2016 and the depositions in the said case

were marked as Ex.R-51 and R-52. Those records reveal

that the appellant himself suggested to respondent in

those proceedings that respondent was doing job in a

private school and she was earning Rs.20,000/- per

month.

16. The trial court took into consideration such

suggestion to reject the allegations of the appellant that

respondent is suffering from narcissistic personality

disorder. This court does not find any error in the trial

court rejecting the allegations of the appellant regarding

mental health condition of the respondent.

Reg. the welfare of the child:

17. The next allegation was that the environment

in the parental family of the respondent is not conducive to

the welfare of the child having regard to the nature of the

respondent and her parents. The contention of the

appellant that respondent is suffering from mental ill-

health is already rejected. As already pointed out the

evidence on record shows that respondent without the aid

of the appellant is looking after the needs of the child and

her parents are supporting her. Therefore, the said

contention is also not acceptable.

18. So far as the welfare of the child in his

company, the respondent contended that he was an

abusive husband and was assaulting her in the presence of

child. The appellant himself in his cross-examination

admitted that on 19.08.2016 respondent filed complaint

before Kodihalli Police alleging cruelty to her by him. He

further admitted that police summoned him and he

executed a bond before the Police undertaking that he will

not harass the respondent. He is making unfounded

allegations of psychological disorder against the

respondent without seriousness of proving the same. He

admits that despite the order of the court to pay

maintenance he has not paid maintenance to his wife and

child.

19. The above facts go to show that the appellant

himself is an abuser and has no regards to the court's

order. Apart from that, he admits in his cross-examination

that he is a tobacco smoker and consuming non-vegetarian

food contrary to their family practices. He himself admits

that his mother is not alive, father is living separately and

his siblings are also living separately. Therefore, it can be

inferred that if the child is given to his custody there will

be no care taker for the child or to support the appellant

for such care taking.

20. When the petition was filed, the child was just

2 and ½ years old. As per Section 6 of the Hindu Minority

and Guardianship Act, 1956 upto the age of 5 years, the

son shall ordinarily be with a mother. The appellant was

not able to make exceptions to that.

21. Considering the aforesaid aspects, the trial

court rightly rejected the contention of the appellant that

the welfare of the child will not be promoted in the custody

of the respondent.

Reg. Breach of order granting visitation rights:

22. The other allegation was that the respondent

was not permitting him to meet the child as per the order

of the Family Court regarding his right of visitation. The

respondent denies such allegation. The appellant has not

initiated any enforcement proceedings for the alleged

violation of the order of the Family Court.

Even in the impugned order the trial court has

granted him the visitation rights. This court does not find

any illegality or impropriety in the impugned order.

Therefore, the appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE BL