Karnataka High Court
Sarita W/O. Jagadish Shettimani vs Jagadish S/O. Kallappa ... on 24 May, 2023
Bench: S G Bysgpj, Vapj
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MFA No. 100397 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF MAY, 2023
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 100397 OF 2014
(GW/WC-)
BETWEEN:
1. SARITA W/O. JAGADISH SHETTIMANI
AGE: 26 YEARS,
NOW R/O. H NO. 145/2, GHANTIKERI ONI, HUBLI
DIST: DHARWAD
2. KUMAR SAMIT @ KUSHAL S/O. JAGADISH SHETTIMANI
AGE: 07 YEARS,
MINOR R/BY HIS MOTHER
SARITA W/O. JAGADISH SHETTIMANI
AGE: 26 YEARS,
Digitally signed
by NOW AT R/O. H NO. 145/2, GHANTIKERI ONI, HUBLI
MOHANKUMAR
B SHELAR
MOHANKUMAR Location: High
DIST: DHARWAD
B SHELAR Court of
Karnataka,
Dharwad
Date:
2023.05.30
11:30:53 +0530
...APPELLANTS
(BY SRI. PRASHANT HOSMANI, ADVOCATE)
AND:
JAGADISH S/O. KALLAPPA SHETTIMANI
AGE: 33 YEARS,
OCC: PRIVATE SERVICE
R/O. HIRENYAKESHI NAGAR,
SANKESHWAR
TQ: HUKKERI
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MFA No. 100397 of 2014
DIST: BELGAUM
...RESPONDENT
(BY SRI. SANGRAM S KULKARNI, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 47 OF GUARDIANS AND
WARDS ACT, 1890 AGAINST THE ORDER DATED 15.04.2013 PASSED
IN G & W.C.NO.4/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUKKERI, ALLOWING THE PETITION FILED UNDER SECTIONS 7, 9
AND 10 OF THE GUARDIANS AND WARDS ACT, 1890.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
VIJAYKUMAR A. PATIL, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been filed under Section 47 of
Guardian and Wards Act, 1890 against the Judgment
dated 15.04.2013 passed by Senior Civil Judge, Hukkeri,
by which petition filed by the respondent/husband seeking
for appointment of a guardian of the minor Kumar Samit
@ Kushal has been allowed.
2. Facts giving rise to filing of this appeal are
briefly stated that the marriage of the appellant and
respondent was solemnized on 04.04.2005 at Sankeshwar
and from the wedlock, minor ward Kumar Samit @ Kushal
has born on 24.04.2006. The difference between the
MFA No. 100397 of 2014
husband and wife arose and they have started living
separately. It is pleaded that, the respondent father has
taken admission of the ward in the Vivekanand School,
Sankeshwar, but the appellant No.1 wife without heeding
to the request of the respondent has taken the child to her
parents place on 19.05.2010 stating that she would return
back to the Sankeshwar. However, she has not returned
back to the matrimonial home. It is further pleaded that,
the respondent has got issued legal notice dated
19.01.2012 making various allegations against the
appellant and the appellant has filed maintenance petition
against the respondent. It is also pleaded that, the
appellant No.1 obtained the forged birth certificate of
minor ward mentioning his name as Kushal and got
admission in Little Star Kids Convent School, at
Hirebagewadi village and the appellant No.1 has taken the
custody of the minor ward without the consent of the
respondent. Hence, the petition was filed for appointment
of the respondent as a guardian of the minor ward and
sought for the custody of the minor.
MFA No. 100397 of 2014
3. The appellant No.1 has entered appearance
before the Trial Court and filed objections denying the
contents of the petition. The appellant has pleaded that
there is no dispute with regard to the relationship between
the parties and the birth of the child and she has
specifically denied that, she has illegally taken the custody
of the minor ward. It is pleaded that, the appellant No.1
was unable to bare the harassment of the respondent
husband. Hence, he was compelled to stay at Hubballi
along with her parents and minor ward. It is further
pleaded that, the appellant No.2 minor is deaf and dumb
boy and it is the appellant No.1 who is taking care of the
minor ward from the birth and she is the capable person to
take care of her son and his education prospects. It is also
pleaded that, the respondent husband despite suffering
the order for maintenance by the competent Court, he has
failed to pay any maintenance nor bothered to take care of
the minor ward since from his birth.
MFA No. 100397 of 2014
4. The Family Court has framed the issues and
recorded the evidence. The respondent has entered the
witness box and examined himself as P.W.1 and got
marked Ex.P.1 and Ex.P.2. The appellant No.1 has not
adduced any evidence. The trial Court vide Judgment
dated 15.04.2013 has allowed the petition filed by the
respondent under Section 7, 9 and 10 of the Guardians
and Wards Act, 1890 by appointing the respondent as a
Guardian of the minor ward i.e. Kumar Samit and further
directed the appellant No.1 to handover the custody of the
minor ward to the respondent within one month.
5. Learned counsel for the appellant submits that,
there is no dispute with regard to the relationship between
the parties and birth of the minor ward and there is also
no dispute with regard to the fact that, the minor ward
Kumar Samit is deaf and dumb boy and he is in custody
and care of the appellant No.1 mother from his birth. It is
submitted that, the appellant No.1 has filed objections to
the petition before the Trial Court, however, she could not
MFA No. 100397 of 2014
adduce evidence to support her contentions. It is further
submitted that, the Trial Court ought to have provided fair
and sufficient opportunity to the appellant No.1 to adduce
evidence. The Trial Court has proceeded to pass the
Judgment solely relying on the self serving statement of
the respondent-husband, which has caused great injustice
to the appellants. It is also submitted that, the Trial Court
has not assigned any reason whatsoever to arrive at a
conclusion in appointing the respondent-husband as a
guardian and further directing the appellant No.1 to
handover the minor child to the respondent. The Trial
Court has not taken into account the paramount interest of
the minor ward while passing the impugned Judgment.
6. Per contra, learned counsel for the respondent
supports the impugned Judgment and submits that, the
Trial Court has considered all the aspects and passed the
impugned Judgment directing the appellant No.1 to
handover the custody of the minor ward to the respondent
by appointing him as a guardian. It is submitted that, the
MFA No. 100397 of 2014
appellant No.1 has left the matrimonial home along with
the minor ward without the consent of the respondent,
hence, he was compelled to approach the Trial Court for
appointing him as a guardian of the minor ward. It is
further submitted that, the respondent being the father is
capable to maintain the minor ward and he can provide
good education and take care of the minor ward and
sought for dismissal of the appeal.
7. We have heard the learned counsels Sri.
Prashant Hosmani and Sri. Sangram S. Kulkarni for the
parties and perused the appeal papers and trial Court
records.
8. There is no dispute with regard to the
relationship between the parties and birth of the child. It is
also not in dispute that, from the date of birth i.e.
24.04.2006 the minor ward Kumar Samit was with the
appellant No.1 and respondent when they were together.
It only when the appellant No.1 started living separately
from the matrimonial home i.e. 19.05.2010, the minor
MFA No. 100397 of 2014
ward has went with the appellant No.1 mother. It is also
not in dispute that, the couple have started living
separately and they are not in good terms.
9. The points that arise for consideration before
this Court are that:
(i) Whether the Trial Court is justified in allowing
the petition filed by the husband without providing
sufficient opportunity to the respondent-wife to
adduce the evidence?
(ii) Whether the Trial Court is justified in
appointing the respondent-husband as a guardian
and directed the appellant No.1 to hand over the
minor ward to the respondent?
10. The answers to the above questions are in
negative for the following reasons:
The Trial Court has proceeded to pass the Judgment
based on the pleading and self serving statement of P.W.1
and has come to the conclusion that, the appellant No.1
has left the matrimonial home along with a minor ward
and she has not given any reply to the notice sent by
MFA No. 100397 of 2014
respondent and the parents of the appellant No.1 are poor
and they are unable to maintain the minor ward. The
conclusion of the trial Court that, the appellant is unable to
maintain the minor ward and the respondent is getting
salary and may be in a better position to give good
education and other amenities to the minor is without any
basis. On meticulous appreciation of the material available
on record and on close scrutiny of the reasons assigned by
the Trial Court it is very much clear that, the Trial Court
has committed error in not providing sufficient opportunity
to the appellant No.1 to adduce the evidence. The Trial
Court has given the finding that the respondent is in a
better position to take care of the minor ward is without
any basis and the Trial Court has failed to appreciate the
fact that the appellant No.1 is taking care of the minor
ward from the date of his birth and it has also not
appreciated the fact that the respondent has not paid
maintenance to the appellant No.1 and his minor ward,
despite Court orders. The Trial Court has committed gross
error in not providing sufficient opportunity to the
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MFA No. 100397 of 2014
appellant No.1. The Trial Court is required to ascertain by
way of pleading and evidence what is the paramount
interest of the minor ward, his well being and education.
Hence, we are of the opinion that, in the interest of
justice, one more opportunity is required to be provided to
the appellant No.1-mother to adduce her evidence before
the trial Court to substantiate her claim/right of
guardianship and the custody of the minor ward. Hence,
we proceed to pass the following:
ORDER
(i) The impugned Judgment dated 15.04.2013
passed in G & WC No.4/2012 by the Senior Civil Judge,
Hukkeri is set aside.
(ii) The matter is remanded back to the Trial Court
with a liberty to the appellant No.1 to file
objections/additional objections if any to the petition and
the Trial Court is directed to provide sufficient opportunity
to the parties to adduce evidence and then proceed to
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MFA No. 100397 of 2014
pass the order on merits. All the contentions are kept
open.
(iii) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
svh
