Karnataka High Court

Mrs Mariam Misria vs Mr Shihab M K on 13 April, 2023

Bench: Alok Aradhe, Vijaykumar A Patil

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                                      M.F.A.No.8527 of 2015




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 13TH DAY OF APRIL, 2023
                       PRESENT
       THE HON'BLE MR JUSTICE ALOK ARADHE
                         AND
  THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
            M.F.A. NO.8527 OF 2015 (GW)
BETWEEN

MRS MARIAM MISRIA
D/O MUHAMMED
AGED 33 YEARS,
3A, LITTLE FLOWER APARTMENT,
BLIKE ASHRAMA ROAD,
KANKANADY P.O.
MANGALORE-575002
                                              ...APPELLANT
(BY MISS TANUSHA SUBBAYYA, ADV. A/W
    SRI K.SHRIHARI, ADV.)

AND

MR. SHIHAB M.K.
S/O LATE MOIDU HAJI
MANIKKOTH
AGED 40 YEARS
CHOMALA P.O.
BADAKARA,
KERALA STATE-576010.
                                            ...RESPONDENT
(BY SRI KRISHNAMOORTHY D., ADV.-ABSENT)

      THIS MFA IS FILED U/S.47(A) OF THE GUARDIANS AND
WARDS ACT, AGAINST THE ORDER DATED 08.09.2015 PASSED
ON G & WC NO.15/2014 ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, DAKSHINA KANNADA, MANGALORE,
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                                               M.F.A.No.8527 of 2015




PARTLY ALLOWING THE PETITION FILED U/S 7 AND 10 OF THE
GUARDIANS AND WARDS ACT.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
10.04.2023,    COMING         ON     FOR    PRONOUNCEMENT          OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:


                            JUDGMENT

This appeal under Section 47(a) of the Guardians and

Wards Act, 1890 has been filed against the judgment and

decree dated 08.09.2015 passed in G & W.C.No.15/2014

by the Principal Judge, Family Court, Dakshina Kannada,

Mangalore, by which the petition filed by the

respondent/husband to appoint him as a guardian and

seeking custody of female child Sakeena Muskaan, was

partly allowed by allowing the appellant to retain the

custody of the minor female child and permitted the

respondent to get access to the child by way of visitation

rights.

2. Brief facts giving rise to filing of this appeal are that,

the marriage of the appellant and respondent was

M.F.A.No.8527 of 2015

solemnized on 04.11.2001, and out of the wedlock two

children viz., Aamil Ayesh Umer and Sakeena Muskaan

were born on 18.07.2002 and 08.08.2007 respectively. It

is averred that after few years, the relationship between

them turned out be sour and the appellant filed the

divorce petition on the grounds of desertion and cruelty.

Consequently, the I Additional Civil Judge, Mangalore by

Judgment and Decree dated 23.11.2010 dissolved the

marriage between the appellant and the respondent. It is

further averred that the son is in the custody of the

respondent/husband. The respondent is seeking the

custody of the second child viz., Sakeena Muskaan stating

that he is capable of maintaining and taking care of his

daughter, he has made arrangements to admit her to

English medium School and he further claims that the

daughter's future is safe in his hands. On the aforesaid

grounds, the respondent filed petition to appoint him as

guardian and further seeking custody of the minor

daughter.

M.F.A.No.8527 of 2015

3. The appellant/wife has filed statement of objections

opposing the petition. The appellant has not disputed the

factum of marriage, dissolution of marriage and that the

first child is in the custody of the respondent. It is further

averred that the respondent has remarried and staying

with another woman after dissolution of marriage with her.

The second child being a daughter and the appellant being

the natural guardian is entitled to retain the custody. The

appellant denied other averments and allegations made in

the petition and seeks for dismissal of the petition filed for

custody of the child.

4. The Family Court has recorded the evidence of the

parties. The appellant examined herself as RW.1 and

produced Exs.R1 to R12. The respondent examined

himself as PW.1 and produced Exs.P1 to P7. The Family

Court based on the evidence adduced by the parties vide

judgment dated 08.09.2015 partly allowed the petition

filed by the respondent. In the aforesaid factual matrix the

present appeal has been filed.

M.F.A.No.8527 of 2015

5. Learned counsel for the appellant submits that the

impugned judgment of the Family Court is contrary to the

pleadings and evidence on record. It is submitted that the

Family Court has failed to appreciate the fact that the

respondent has remarried after getting divorce from the

appellant and is staying with another woman, hence, he is

not entitled for any visitation rights as directed by the

Family Court. It is further submitted that the respondent

has not even once visited the appellant's house to see the

child and not spent any money on the daughter's well

being and education and it is the appellant who is taking

care of the daughter by providing education. Hence, the

Family Court has erred in granting visitation rights to the

respondent-husband. It is also submitted that the minor

child is a school going child, does not have any time to

meet the respondent and the visitation rights are

conferred against her wishes. It is stated that the Family

Court has erred in appreciating the evidence on record as

the respondent has married twice after obtaining the

divorce and allowing the respondent to visit the child

M.F.A.No.8527 of 2015

would be contrary to the best interest of the child. If the

child is allowed to meet the respondent it would affect the

health and well being of the child, and therefore seeks to

allow the appeal.

6. None for the respondent.

7. We have heard the learned counsel for the appellant

and perused the material on record.

8. It is admitted by the parties to the proceedings that

their marriage was solemnized on 04.11.2001 and out of

wedlock two children viz., Aamil Ayesh Umar and daughter

Sakeena Muskaan were born on 18.07.2002 and

08.08.2007 respectively. It is also admitted that the

marriage was dissolved between the parties by decree of

divorce on 23.11.2010 and the son viz., Aamil Ayesh Umar

is under the care and custody of the respondent. It is

also not in dispute that the minor daughter Sakeena

Muskaan is in the custody of the appellant from day one

and the respondent has filed petition under Sections 7 and

M.F.A.No.8527 of 2015

10 of Guardians and Wards Act, 1890, for appointing him

as guardian of minor daughter viz., Sakeena Muskaan.

9. The Family Court, on appreciation of evidence on

record, has allowed the petition in-part permitting the

appellant to retain the custody of the minor child Sakeena

Muskaan and permitted the respondent to visit the minor

child and take the child during Dasara and Christmas

vacations for 5 days each and 15 days during summer

vacation to his residential place. Further, liberty was

granted to the respondent to visit the minor child once in a

month preferable on Sunday between 3.00 p.m. to 6.00

p.m. after prior intimation to the appellant.

10. The assertion of the appellant is that the respondent

has married twice after getting divorce from the appellant

and his second wife has a child out of her earlier wedlock

and son Aamil Ayesh Umar is in custody of the

respondent, the grant of any visitation rights would affect

the health, well being of the minor daughter. The

apprehension of the appellant has been taken care of by

M.F.A.No.8527 of 2015

the Family Court keeping in mind that the minor child

being the female child of the appellant and respondent,

the permanent custody is given to the appellant-mother.

11. The Family Court has also recorded the finding that

the respondent, being the father of the Sakeena Muskaan,

is entitled to have visitation right for the overall

development of the minor child. We do not find any error

in the aforesaid finding of the Family Court. The Family

Court has recorded the finding that the respondent cannot

be declared as a natural guardian of the female child,

however the respondent being the father of the child, the

child needs love, care and affection of the father, hence,

proceeded to grant visitation rights as well as permitted

the respondent to take the minor daughter to his

residence during the vacations.

12. The Family Court has specifically directed the

respondent that he shall take utmost care about the safety

of the minor child while exercising the visitation rights and

when the child is in his custody during the vacations. It is

M.F.A.No.8527 of 2015

further directed by the Family Court that he shall not leave

the minor child with any other person at any point of time.

The Family Court while granting the visitation rights has

kept in mind the welfare and wellbeing of the minor

daughter, there is no error in the said finding calling for

interference in the present appeal.

13. This Court vide interim order dated 17.02.2016 has

recorded that the parties have filed joint memo dated

17.02.2016, which reads as under:-

"We have heard the learned counsel appearing for appellant and learned counsel appearing for respondent. The appellant, respondent and the children are present before the Court and their presence is placed on record.

Learned counsel appearing for appellant and learned counsel appearing for respondent, during the course of submission, have filed a Joint Memo dated 17th February, 2016 and submitted that appropriate order may be passed as per the terms and conditions of the Joint Memo.

The submission of the learned counsel appearing for both the parties, as stated supra, is placed on record.

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M.F.A.No.8527 of 2015

The joint memo dated 17th February 2016 duly signed by the appellant and respondent and attested by the learned counsel appearing for the respective parties is also placed on record. The terms and conditions of the joint memo read thus:"In view of the intervention of the elders of the family of both the parties and also this Hon'ble Court, the parties have settled the lis between them in so far as the interim custody of the minor ward, namely, Sakeena Muskaan subject conditions: to following

1. The Respondent is entitled to take interim custody of the child every alternative Sunday from 9:00 am to 5:00 pm and it is his duty to pick the child from the house of the Appellant and drop the child. While taking custody, he should be accompanied with elder son by name Amil Ayush Umer.

2. The Appellant shall open a Bank account in the name of the minor Sakeena Muskaan and give the particulars of the bank account with IFSC code for transferring money to the account by Respondent with regard to the expenses and fees for the minor ward Sakeena Muskaan. The Appellant shall send the copies of the fees receipts to the Respondent.

3. The Respondent is entitled to visit the minor ward Sakeena Muskaan at school premises with prior intimation to the Appellant and the appellant shall

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M.F.A.No.8527 of 2015

inform the school authorities about such visit of the respondent."

6. In the light of the terms and conditions of the aforesaid joint memo and also the submission of the learned counsel appearing for both the parties, both the parties are hereby directed to comply with the conditions in true letter and spirit without fail. If there is breach of any of the terms conditions of the Joint Memo dated 17/02/2016 by either of the parties, the other party is at liberty to move the matter before the Court for further orders.

The respondent is directed not to precipitate the matter until further orders."

14. The appellant has not pointed out any instances that

the respondent/husband has acted prejudicial to the

interest of the minor daughter and contrary to the

arrangements entered into by them as per the joint memo

referred supra. In the absence of any such instances from

the order dated 17.02.2016 passed by this Court, we do

not find any reason to interfere with the judgment and

decree passed by the Family Court.

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M.F.A.No.8527 of 2015

15. The Family Court, on meticulous appreciation of the