Karnataka High Court
Sri.A.M. Chandrashekar vs Smt. Thejaswini on 5 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No.5474 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 5474 OF 2023 (G & WC)
BETWEEN:
Sri A.M.Chandrashekar,
S/o Late Marimada,
Aged about 37 years,
R/at No.79, Kesare,
3rd Stage, 1st Main Road,
Mysuru,
Now R/at : No.17, 3rd Floor,
1st Main, 2nd Cross,
K.P.Agrahara,
Bengalujru-560 023. ...Appellant
(By Sri. Somashekaraiah R.P., Advocate)
AND:
Smt.Thejaswini,
D/o Gurumallesh,
W/o A.M.Chandrashekar,
Aged about 35 years,
R/at Doddebagilu Village,
T.Narasipura Taluk,
Mysuru District. ...Respondent
( By Sri Mohan Krishna R.G., Advocate )
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MFA No.5474 of 2023
This Miscellaneous First Appeal is filed under Section
47 of the Guardians and Wards act, 1890 praying to set aside
the order dated 26.07.2023, made in G and WC No.20/2021 on
the file of the III Addl.Prl.Family Judge, at Mysuru, in the
interest of justice and equity.
This Miscellaneous First Appeal coming on for Hearing
through Physical Hearing/Video Conferencing and reserved for
Judgment on 22.01.2024, coming on for pronouncement this
day, Dr.H.B.Prabhakara Sastry, J., delivered the following:
JUDGMENT
Being aggrieved by the order dated 26.07.2023,
passed by the learned III Addl.Principal Family Judge,
Family Court, Mysuru (hereinafter for brevity referred to
as `Family Court'), in G & W.C.No.20/2021, wherein the
Family Court has allowed the petition filed by the present
respondent as a petitioner therein under Section 7 of
Guardians and Wards Act, 1890 (hereinafter for brevity
referred to as `Guardians and Wards Act'), and directed
the respondent therein, who is the appellant herein, to
hand over the custody of their minor son Tanush C. to the
petitioner therein, the respondent in the said
G & W.C.No.20/2021 has filed the present appeal.
2. The summary of the case of the petitioner before
the Family Court was that she is the legally wedded wife of
the appellant herein (respondent before the Family Court),
whose marriage was solemnised on 08.03.2015 as per
Hindu rites and customs. After marriage, they established
their family at Mysuru along with the mother of the
respondent therein. Prior to the marriage, the petitioner
was practicing as an Advocate, however, after her
marriage with the respondent, she stopped her practice as
an advocate. The respondent was working at Bengaluru at
the time of marriage and visiting Mysuru during weekends.
For a period of one year, they led a normal marital life
which resulted in the petitioner giving birth to a son by
name Tanush C., on 28.11.2016.
3. One year after her marriage with the respondent,
the respondent started harassing the petitioner for all
small and trivial reasons. The mother of the respondent
was also not allowing the petitioner to contact her parental
family and was not permitting her to visit her maternal
home even during festivals. With respect to the first
birthday of their son Tanush on 28.12.2017, the mother of
the respondent picked up quarrel with the petitioner and
her father and respondent thrown the petitioner out of her
marital home. Thereafter, the respondent filed a petition
against the petitioner for the relief of divorce before the
Family Court in M.C.No.48/2018, however, the said
petition came to be dismissed on merits.
4. The petitioner filed a petition before the Family
Court for restitution of conjugal rights in M.C.No.634/2018
and the same came to be decreed. By virtue of decree of
restitution of conjugal rights, though the respondent by
agreeing to take back the petitioner to his house, made a
separate room on rent in Mysuru and started residing with
the petitioner and their child, however, he continued to
ill-treat the petitioner and one fine day, took away the
custody of the child Tanush from the petitioner and left the
home and started residing with his mother along with the
child in another house. He did not even allow the
petitioner to visit the child and talk to the child. On the
date 04.01.2021, the mother of the respondent died.
Thereafter, the respondent without even intimating the
petitioner, left Mysuru along with the child Tanush
and started living at Bengaluru. All the efforts made by
the petitioner to see the child went in vein. The petitioner
further contended that the respondent being an employee
of a private company at Bengaluru is not able to look after
the child properly. The petitioner being the mother, is
able to take care of the child and the child also requires
the company of its mother. With this, she prayed for a
direction to the respondent to handover the custody of the
minor child to the petitioner.
5. In response to the notice served upon him, the
respondent appearing through his counsel, filed his
statement of objections, wherein, after admitting that the
petitioner is his legally wedded wife and Master Tanush is
the son born to them out of their wedlock, the respondent
denied the other averments that he was not taking care of
his wife and child and was harassing the petitioner even
for the trivial reasons. He also denied that he had taken
away the custody of the child from the petitioner. On the
other hand, he contended that the petitioner was not
taking care of his mother properly and was not providing
food to her. The petitioner herself abandoned the child by
giving it to the custody of the respondent stating that it is
the respondent's child, as such, it is for him to take care of
the said child. However, the respondent admitted as true
that his divorce petition in M.C.No.48/2018 came to be
dismissed, on the other hand, the petition for restitution
of conjugal rights filed by the petitioner in
M.C.No.634/2018 came to be decreed.
He further contended that the child Tanush is very
much comfortable with him and he is taking care of the
child properly. Now the child is going to school, studying
in I Standard and by opting to work from home, he is able
to take care of the child properly and devote whole time
towards the welfare of the child. With this, he prayed for
dismissal of the petition.
6. Before the Family Court, the petitioner got herself
examined as PW-1 and got marked two documents at
Exs.P-1 and P-2. The respondent got himself examined as
RW-1 and got marked twelve documents at Exs.R-1
to R-12.
7. After hearing both side, the Family Court by its
impugned order dated 26.07.2023 passed in
G & W.C.No.20/2021, allowed the petition of the petitioner
and directed the respondent before it to hand over the
custody of their minor son Tanush to the petitioner,
however, the respondent was given liberty to visit child
Tanush on Sunday between 9.00 a.m. to 6.00 p.m. at
Mysuru. Aggrieved by the same, the respondent in the
Family Court has preferred this appeal.
8. The respondent herein is represented by her
learned counsel.
9. Records from the Family Court pertaining to the
matter were called for and the same are placed before the
Court.
10. Heard the arguments of learned counsels from
both side and perused the materials placed before this
Court, including memorandum of appeal, impugned order
and also the records of the Family Court.
11. For the sake of convenience, the parties would be
henceforth referred to as per their rankings before the
Family Court.
12. Learned counsel for the appellant/husband in his
brief argument submitted that the child Tanush is now
studying in II Standard and his annual examination in the
school is approaching very fast, as such, at this juncture,
the custody of the child need not be disturbed. He further
submitted that the father being a freelancer working from
home only, that too, when the child goes to school,
as such, can devote maximum time to the child and take
care of the child properly. Though the learned counsel
repeatedly stated that child requires the love and
affection from both father and mother, however contended
that father is giving abundant love and affection to the
child. While concluding his argument, he contended that,
in case, if the Court comes to an opinion of confirming the
custody of child with the mother, in such an event, the
visiting rights of the father be extended to two days
a week i.e., on Saturday and Sunday.
13. Learned counsel for the present respondent/wife
(the petitioner in the Family Court) in his brief argument
submitted that mother is the most appropriate natural
guardian for care, love and affection of a child. The
mother has presently suspended the practice on her own
as an advocate and shall devote full time towards the
welfare and development of the child. He also submitted
that the current academic year of the child would not be
disturbed in any manner since the mother would stay at
Bengaluru in her sister's house along with the child and
help the child in facing the school examination with all
due preparation. He also stated that the mother has taken
a house on rent near the Court at Mysuru so that she can
spend more time at home with the child. With this, he
prayed to dismiss the appeal.
14. It is an admitted fact that the parties to the
appeal are husband and wife whose marriage was
solemnised on 08.03.2015. It is also an admitted fact that
out of their wedlock, the parties to the appeal got a child
by name Tanush C., born to them on 28.11.2016. It is
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also submitted to the Court from both side that the said
boy Tanush is now studying at Bengaluru in II Standard
schooling. The contention of the appellant that he resides
and is working at Bengaluru is not denied from the
respondent's side. On the other hand, the respondent
(the mother of the child) is an advocate at Mysuru, who
contends that for the welfare of the child, she would
temporarily stop practicing as an advocate and devote
whole time towards the welfare of the child.
15. The petitioner in the Family Court (the mother of
the child) and the respondent before the Family Court (the
father of the child) have reiterated in their evidence as
PW-1 and RW-1 the contentions taken up by them in their
petition and statement of objections respectively. The
marriage photograph of the parties and the Birth
Certificate of the child Tanush produced by the petitioner
in the Family Court as Exs.P-1 and P-2 is not disputed
from the respondent's side. Similarly, the respondent in
the Family Court to show that the child is comfortable with
him has produced six photographs of the child from
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Exs.R-1 to R-6 and has produced copy of the complaint
shown to have been given by his wife (the petitioner
herein) at Ex.R-7. He also produced a copy of the police
notice calling him for his appearance at Ex.R-8, copy of
the statement of the petitioner (wife) before the police at
Ex.R-9 and Ex.R-11, copy of his statement before the
police at Ex.R-10 and an endorsement by the police about
the closure of the complaint at Ex.R-12. Those documents
produced by the respondent in the Family Court is not
disputed from the petitioner's side.
16. The above documents from Exs.R-7 to R-12,
coupled with the statements elicited in the cross-
examination of PW-1 would go to show that the petitioner,
as wife of the respondent in the Family Court, had filed a
police complaint against the respondent alleging cruelty by
him, however, the police after summoning both the parties
to the complaint, had recorded their statement of
undertaking that they would give no scope for any
differences of opinion and altercation and would lead
happy marital life and thereafter proceeded to close the
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complaint. This fact go to establish that all is not well
between the husband and wife, amidst whom, the child
Tanush appears to be suffering.
17. According to the petitioner-wife, when her
husband (respondent) made a room/house at Mysuru and
started living with his wife and the child subsequent to the
judgment passed in the petition filed by her seeking
restitution of conjugal rights, however, within a short time,
on the pretext of showing the child to his mother, took the
child away from the possession and custody of its mother
and did not return the custody of the child to the petitioner
since then.
On the contrary, the respondent-husband contended
that it is his wife (the mother of the child) herself who
discarded the custody of the child stating that child is born
to the respondent, as such, it is for the respondent to take
care of the child. However, except mutual allegations,
nothing is placed on record in the form of any document or
corroborative evidence to substantiate their contention.
Still, the fact remains that, just prior from the date of
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institution of G & W.C.No.20/2021 before the Family
Court, the child Tanush has been in the custody of his
father. Admittedly, even after allowing of the said petition
in favour of the petitioner (the mother of the child), the
respondent therein (the father of the child) has not
handed over the custody of the child to its mother.
Learned counsels from both side submit that the mother of
the child has filed a Execution Petition before the
jurisdictional Executing Court in that regard, however,
considering the pendency of the present appeal, no
progress is made in the said Execution Petition.
18. It is the settled principle that while considering
the matter relating to the custody of the child, it is the
welfare of the child which has to be considered as most
important. The child cannot be a doll in the hands of the
parents to keep transferring it from hand-to-hand for their
pleasure or joy. On the other hand, it is the responsibility
of the parents of the child to bring up the child in a healthy
atmosphere, in good circumstances, keeping the physical
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and mental health and overall development of the child as
their top priority.
19. In the instant case, though the respondent
(father of the child) alleges that his wife (mother of the
child) was not properly taking care of the child and
contends that she herself handed over the child to him
stating that it is his child as such it was for him to take
care of the child, however, except making that statement
in his evidence, there is nothing on record to corroborate
the same. On the contrary, the petitioner as a mother of
the child has specifically denied the same. The very fact
that the divorce petition filed by the husband (respondent)
against his wife (petitioner) and the said wife succeeding
in her petition for the relief of restitution of conjugal
rights, would itself go to show that the father of the child
was not interested in leading happy marital life with his
wife, whereas, the wife was interested in joining back
her husband though at the relevant point of time, they
were living separately.
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20. Further, the wife of the respondent, apart from
filing a petition for restitution of conjugal rights against
her husband, has also as a mother of the child Tanush
filed the present case in G & W.C.No.20/2021 under
Section 7 of the Guardians and Wards Act, seeking the
custody of the child to her. These acts creates doubt in
the contention of the father of the child (the respondent in
the Family Court) that mother was not taking care of the
child and that she is not loving her child.
21. The difference between the husband and wife
appears to have arisen with respect to taking care of the
mother of the husband who was said to be residing with
the respondent (father of the child). Admittedly, the said
mother of the respondent passed away on 04.01.2021.
Even thereafter also, the parents of the child Tanush did
not shown any inclination to reunite and to take care of
the child jointly.
22. During the pendency of this proceeding, this
Court also made several attempts to convince the parents
of the child to reside together in the best interest of the
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child, however, though initially they shown some
inclination, but, later shown it that they want to reside
separately. In the said process, a conciliation was made in
our chambers on 05.01.2024, on which day, the child was
brought by them. The child did not show any resistance to
his mother when she approached the child and pampered
it. However, on the next date of hearing, that was on
08.01.2024, the matter was again called in the open
Court, the present appellant who had initially inclined to
reconcile the matter, has changed his decision and wanted
to contest this appeal on its merits.
23. Thus, as observed by this Court, the child has
not shown any hesitation to respond to its mother.
Similarly, it did not show any dislike towards his father
also. Under these circumstances, there is nothing to infer
that the child may not adjust with its mother in case if the
custody of the child is given to its mother.
24. Admittedly, the child is a school going boy,
studying in II Standard. Though the father of the child
(appellant herein) claims that he can devote more time
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towards the child compared to his wife, however,
admittedly he is an earning member in the family, as
such, required to devote considerable time towards his
avocation. Though he claims to be working from home,
however, he is required to work even being at home also.
As such, it cannot be expected that he can devote
sufficient time to the welfare of the child.
Similarly, the mother of the child is an advocate by
profession, however, through her learned counsel, she
submitted that she is not a busy advocate and has
sufficient time in her hand to devote towards the welfare
of her child. She even volunteered to submit that she can
shift her place of work from Mysuru to Bengaluru, provided
her husband i.e., the present appellant takes her back so
that they can give a better future to the child. Still, the
fact remains that, despite an order in favour of his wife in
M.C.No.634/2018, which was filed by his wife for
restitution of conjugal rights, the husband is not ready to
take his wife back, but, only wants the custody of the
child.
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25. Apart from the above, according to the husband,
he is working as a Service Technician of Copying machine,
whereas, the mother of the child is a Law graduate and an
young advocate. As such, she being an independent
professionalist and educated and more importantly, being
the mother of the child, can give better care and concern
towards the young child who is studying in II Standard
schooling than her husband, who is the father of the child.
26. In addition to the above, the mother of the child
through her counsel also submitted that she would not
cause any disturbance to the ensuing annual examination
of the child. She would retain the child at Bengaluru only
in her sister's house and support the child for its
preparation to the ensuing annual examination. The same
would enable the father of the child to devote more time
towards his avocation and maintenance of the family.
Similarly, the mother can devote considerable time for the
welfare of the child, including preparing the child in a
better manner to face annual examination in its school.
Therefore, the welfare and interest of the child would be
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more brighter, provided its custody is confirmed with its
mother. As such, we do not find any reason to interfere in
the impugned order.
27. Further the submission of the learned counsel for
the appellant that the visitation rights of the father be
extended for two days a week also appears to be not
conducive to accept since the appellant as a father has
already got visitation rights on every Sunday from
9.00 a.m. to 6.00 p.m. As such, it is not the visitation
right confined to a couple of hours per week. On the
contrary, the mother is also required to spend some time
with the child during the weekends to prepare the child for
its next week activities, including schooling. Therefore, we
do not find any reason to extend the duration of the
visiting rights of the father towards its child.
28. Accordingly, we proceed to pass the following :
ORDER
The Appeal filed by the appellant is dismissed as
devoid of merits.
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Registry to transmit a copy of this judgment along
with records to the concerned Family Court without delay.
Sd/-
JUDGE
Sd/-
JUDGE
bk/
