Karnataka High Court
Smt. Rekha vs Dodda Yellappa Talavara on 21 December, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21st DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S. MUDAGAL
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL No.5024/2022(GW)
BETWEEN:
SMT. REKHA,
W/O LATE BASAVARAJA ,
AGED ABOUT 32 YEARS,
WORKING AS TELE CALLER
IN HUNDAI SHOW ROOM,
P. B. ROAD, NEAR AVARAGERE,
DAVANAGERE - 577002.
...APPELLANT
(BY SRI REVANNA BELLARY, ADVOCATE)
AND:
1. DODDA YELLAPPA TALAVARA,
S/O DODDA HANUMAPPA TALAVARA,
AGED ABOUT 66 YEARS,
AGRICULTURIST,
2. NINGAVVA,
W/O DODDA YELLAPPA TALAVARA,
AGED ABOUT 61 YEARS,
AGRICULTURIST.
3. SHARANAPPA TALAVARA,
S/O DODDA YELLAPPA TALAVARA,
M.F.A.No.5024/2022
2
AGED ABOUT 36 YEARS,
AGRICULTURIST.
4. KUMARA
S/O DODDA YELLAPPA TALAVARA,
AGED ABOUT 36 YEARS ,
AGRICULTURIST.
5. KUMARI RAJESHWARI GIRI
@ RAJESHWARI TALAVAR,
AGED ABOUT 11 YEARS,
MINOR,
REPRESENTED BY GUARDIAN No. R-1,
DODDA YELLAPPA TALAVARA,
S/O DODDA HANUMAPPA TALAVARA,
AGED ABOUT 65 YEARS,
AGRICULTURIST,
RESIDENTS OF DONI MUNDARAGI TALUK,
GADAG DISTRICT.
...RESPONDENTS
(BY SRI Y.D. TALAWAR, ADVOCATE FOR R3 (ABSENT);
R1, R2, R4 AND R5 ARE SERVED;
R5 IS MINOR REPRESENTED BY R1)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 47(a) OF GUARDIAN AND WARDS ACT PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 06.06.2022
PASSED IN G AND WC NO.06/2020 ON THE FILE OF THE
JUDGE, FAMILY COURT AT DAVANGERE, DIRECTING
RESPONDENTS No.1 TO 4 TO HANDOVER THE CUSTODY OF
RESPONDENT No.5 AND ARTICLE BELONGS TO THE APPELLANT.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 05.12.2023, THIS
DAY K.V. ARAVIND J., PRONOUNCED THE FOLLOWING:
M.F.A.No.5024/2022
3
JUDGMENT
This appeal is preferred challenging the order dated
06.06.2022 passed in G & W Case No.6/2020 by the
Family Court, Davanagere.
2. Appellant was petitioner and respondents were
the respondents in G & W case No.6/2020 before the
Family Court. The parties are referred to henceforth as per
their ranks before the Family Court for convenience.
3. Brief facts;
The petitioner is married to Basavaraja. Out of their
wedlock, they have two daughters namely, Miss Meghana -
elder daughter and Miss Rajeshwari Giri @ Rajeshwari
Talavar - younger daughter, who is respondent No.5.
Respondent Nos.1 and 2 are parents of Basavaraja.
Respondent Nos.3 and 4 are his brothers. Basavaraja died
in the year 2017. After the death of her husband,
petitioner is residing separately along with her elder
daughter. At the time of separation, respondent No.5 -
younger daughter continued to reside with respondent
Nos.1 to 4.
4. Petitioner filed an application seeking custody
of respondent No.5 from respondent Nos.1 to 4 on the
ground that she was separated from the petitioner, is
deprived of education, she has been ill-treated and due to
illiteracy of respondent Nos.1 to 4, respondent No.5 is not
provided with good education. The petitioner is working as
Tele Caller and earning salary of Rs.15,000/- per month
and capable of taking care of both daughters.
appeared before the Family Court. Respondent No.3 filed
objections and the same was adopted by respondent
Nos.1, 2 and 4. The respondents denied the petition
averments and alleged that petitioner has no good conduct
and due to her harassment, Basavaraja committed suicide.
6. The petitioner examined herself as PW.1 and
got marked documents at Exs.P1 to P10. Respondent No.3
examined himself as RW.1 and got marked documents at
Exs.R1 to R5.
7. The Family Court, on consideration of
pleadings and evidence on record, formulated the following
points for consideration;
"i) Whether the petitioner proves that the
custody of minor respondent No.5 is to
be delivered to her for the welfare and
well being of the minor respondent No.5?
2) Whether the petitioner is entitled for the
reliefs claimed in the petition?
8. The Family Court held that the petitioner did
not seek custody of respondent No.5-minor girl from 2017
till 19.08.2020, as respondent No.5 is studying in V
Standard change of custody would affect her education
and welfare. The Family Court further held that the
respondents have sufficient income, child has no
acquaintance with the petitioner and cannot adjust to
strange environment. The petitioner has been provided
visitation rights in view of order of this Court in
W.P.No.101082/2021 (GM-CPC), dated 09.08.2021 and
concluded that the petitioner is not entitled for custody of
minor girl.
9. Insofar as the second point regarding handing
over of school records, silk sarees, valuable gold
ornaments, the Family Court held that school records are
not in custody of respondent Nos.1 to 4. It was observed
that petitioner can take appropriate legal proceedings to
get back the gold ornaments. With the above findings, the
petition filed under Section 25 of the Guardians and Wards
Act, 1890 (hereinafter referred to as 'G & W Act' for short)
was dismissed.
10. Though notice of the appeal was served on
respondent Nos.1 to 4, they are unrepresented.
Considering that the matter pertains to custody of minor
daughter, this Court by order dated 22.08.2023 directed
the District Legal Services Authority/Taluk Legal Services
Authority to visit the respondents and inform them of the
pendency of the appeal. In compliance of the order, the
District Legal Services Authority has submitted report
about notifying the respondents regarding pendency of
this. As there was no representation from the respondents,
by order dated 14.09.2023, one more opportunity was
given, offering them free legal aid from the Legal Services
Committee for which they did not respond. The
respondents failed to avail the enormous opportunities
provided to them.
11. Sri Revanna Bellary, learned counsel appearing
for the appellant submits that respondent Nos.1 to 4 are
holding the custody of respondent No.5 for the sake of the
share of her deceased father in the family properties.
Respondent Nos.1 to 4 are rustic illiterates and
unaffordable, continuation of respondent No.5 in their
custody would deprive her of better education and welfare.
The petitioner earns monthly salary of Rs.15,000/- from
her job, has provided good education to her elder
daughter, if custody of second daughter is also handed
over, she would continue to provide the same standard of
education to her also. Considering the paramount welfare
and interest of the minor girl, he prays to handover the
custody to the petitioner.
12. On examination of the pleadings, evidence and
contentions of parties, the following point would arise for
our consideration;
"Whether the Family Court was right in
denying the custody of respondent No.5-minor
girl to the petitioner the natural guardian?"
Analysis
13. The fact of petitioner having custody of her
elder daughter and providing her quality of education are
not in dispute. She is working and earning salary of
Rs.15,000/- per month as per Ex.P.5 - Salary Certificate
with further enhancement. She is pursuing graduation in
law. Respondent No.5 - minor daughter remained in the
custody of respondent Nos.1 to 4 in view of sudden death
of petitioner's husband Basavaraja and due to age of
respondent No.5. Custody of respondent No.5 - minor
daughter continued with respondent Nos.1 to 4 not
because of financial incapacity of the petitioner, but due to
need of moral support and care to be given to respondent
No.5 due to her age.
14. Respondent Nos.1 to 4 have not disputed the
financial capacity of the petitioner to provide quality
education to respondent No.5 as has been provided to her
elder daughter Kumari Meghana. Respondent Nos.1 to 4
have not placed any material to show that comparatively
they are in better financial position than the petitioner to
provide quality education and better life condition to
respondent No.5. Undisputedly, respondent Nos.1 to 4 are
illiterates residing in a village. On the other hand, the
petitioner is a graduate working in Call Centre earning
reasonably handsome salary, settled in Davanagere having
comparatively far better access to educational, medical
and other facilities, than place of respondent Nos.1 to 4.
Under the above facts and circumstances irresistible
conclusion is that the welfare of respondent No.5 - minor
girl, would be served entrusting her custody to the
petitioner - mother and natural guardian.
15. The allegation of respondent Nos.1 to 4 that
petitioner was in illicit relationship with one Laxman Gosi,
due to which, petitioner's husband Basavaraja committed
suicide has not been proved. In the cross-examination of
PW.1, she has denied that she is residing in Davanagere
along with Laxman Gosi. No evidence has been brought
on record by respondent Nos.1 to 4 to prove that the
petitioner is in such illicit relationship, therefore entrusting
custody of respondent No.5 to her is unsafe.
16. Ex.R.4 - FIR registered on the complaint filed
by Sharanappa Talavar, brother of the deceased
Basavaraja, against the petitioner and Laxman Gosi has
resulted in charge sheet. S.C.No.47/2017 before the
Principal Civil Judge, Mundargi, Gadag, in which the
petitioner and Laxman Gosi were sought to be prosecuted
for the offence punishable under Section 306 read with 34
of IPC resulted in their discharge on the ground that
charge sheet does not disclose instigation of the petitioner
and Laxman Gosi to Basavaraja to commit suicide and
there was no sufficient material in the charge sheet to
prove that the trial for offence punishable under Section
306 read with 34 of IPC. In view of discharge of the
petitioner in the criminal case, nothing can be attributed
towards the character or conduct of the petitioner.
17. It is not disputed that out of two daughters,
elder daughter is in the custody of the petitioner and she
has been provided with quality of life and education.
Further, the evidence on record would indicate that the
petitioner is in better financial position. Whereas,
respondent Nos.1 to 4 have not placed any evidence to
prove financial resource to educate respondent No.5 or to
provide better life condition to her as compared to the one
provided by the petitioner to her another daughter.
18. Petitioner is pursuing her law graduation. Her
educational qualifications would definitely influence and
help education of respondent No.5 and she would be in a
better position in the society. It is the law of universe that
for a child nothing is parallel to the mothers love and
concern. In the custody of respondent Nos.1 to 4, child has
lost the company of her sibling, emotional and moral
support of the petitioner and sibling which is essential for
sound development of a child.
19. Further, considering the seriousness of dispute
and allegations made by respondent Nos.1 to 4 against the
petitioner, it is not in the welfare and interest of
respondent No.5 to continue the custody with respondent
Nos.1 to 4. The possibility of misunderstanding between
the petitioner and respondent Nos.1 to 4 reflecting on
respondent No.5 cannot be ruled out. This view is further
justified in view of reluctance shown by respondent Nos.1
to 4 in defending the custody of respondent No.5. The
notices issued by the Court are not responded, though
considering the welfare of respondent No.5, an intimation
regarding pendency of this matter and legal assistance was
offered to respondent Nos.1 to 4, they have failed to avail
the same to defend the custody of respondent No.5. This
conduct and attitude would further show that they have no
regards for Courts and legal process. Therefore the welfare
of the minor girl is likely to suffer in the hands of such
persons. In view of Section 19 of G & W Act, it is the
mother natural guardian of minor girl.
20. The legal Notice issued by petitioner as per
Ex.P2 has not been rebutted by respondent Nos.1 to 4. No
reply to legal notice is placed on record. This would
further show the interest and responsibility of respondent
Nos.1 to 4 in continuing to take welfare of minor girl.
21. Respondent Nos.1 and 2, the grandparents of
the minor girl being aged 68 and 63 years respectively are
in the evening of their lives. The minor girl is aged 13
years. The age of respondent Nos.3 and 4 who are uncles
of respondent No.5 are 35 years. Considering the age of
grandparents and welfare of the minor girl, it is
appropriate to handover the custody of minor girl to her
mother natural guardian.
22. In the light of discussion in the preceding
paragraphs, we hold that the findings of the Family Court
are not sustainable. Hence, the following:
Order
(i) Appeal is allowed.
(ii) The order dated 06.06.2022 in G & W Case
No.6/2020 passed by the Family Court,
Davanagere, is hereby set aside.
(iii) Petition filed by the petitioner under Section 25
of G & W Act is hereby allowed.
(iv) Respondent Nos.1 to 4 shall produce the child
Kumari Rajeshwari Giri @ Rajeshwari Talavar
(respondent No.5) along with her clothes,
school records and medical records etc on
02.01.2024 at 11.00 a.m. before the trial
Court. On such production the trial Court shall
handover the custody of the same to the
petitioner.
(v) If respondent Nos.1 to 4 fail to comply this
order, the trial Court shall execute this order
and see that the custody of the child is
restored to the petitioner.
(vi) In case the petitioner faces any difficulty in
collecting school transfer certificate of the
child, the Member Secretary, District Legal
Services Authority, Davanagere shall
coordinate with the concerned authorities to
enable the petitioner in getting the transfer
certificate
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
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