Karnataka High Court
Mrs Vineetashaji vs Mr Dominic Joseph Zacharia on 4 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No. 7082 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 7082 OF 2023 (GW)
Between:
Mrs. VineetaShaji
D/o. Shaji Jacob,
Aged about 37 Yrs,
R/at 3166, Prestige Park View Apartments,
Hope Farm Junction,
Kadugodi P.O. Whitefield,
Bangalore - 560067.
...Appellant
(By Smt. Rashmi George, Advocate)
Digitally And:
signed by
VEENA
KUMARI B
Location: Mr. Dominic Joseph Zacharia
High Court
of Karnataka S/o. Joseph Zacharia,
Aged about 42 Yrs,
R/At CP-4224, Casa Paradiso Block 4,
Sobha City Road, Devin Paradise Enclave,
Thirumenahalli,
Bangalore - 560077.
...Respondent
(By Smt. Nethravathi K., Advocate)
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MFA No. 7082 of 2023
This Miscellaneous First Appeal is filed under Section 47 of
the Guardians and Wards Act, 1890, praying to set aside the
impugned order dated 07-09-2023 passed in G & W.C. No.34/2022
in I.A.No.1, by the Court of the Principal Senior Civil Judge,
Bengaluru Rural at Bengaluru, by allowing this appeal, pass such
other orders that this Court deems fit to grant in the facts and
circumstances of the case, in the interest of justice and equity.
This Miscellaneous First Appeal coming on for Final
Hearing, through Physical Hearing/Video Conferencing, this
day, Dr.H.B.Prabhakara Sastry J. delivered the following:
JUDGMENT
The present petitioner, as a mother of the baby girl
by name Renee Dominic Joseph (hereinafter for brevity
referred to as "Renee"), said to be aged 3 ½ years, has
filed this appeal, challenging the order passed by the Court
of the Principal Senior Civil Judge, Bengaluru Rural
District, Bengaluru (hereinafter for brevity referred to as
the "the Trial Court") dated 07-09-2023 on I.A.No.1 in
G and WC.No.34/2022, allowing the said I.A. filed under
Section 25 (1) of the Guardians and Wards Act, 1890,
(hereinafter for brevity referred to as "the G & WC Act")
by the present respondent, who is the father of the said
baby Renee, where under the Trial Court, while allowing
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his application had held that the applicant/respondent was
entitled for the custody of the minor child Renee and the
appellant was directed to handover the custody of the
child to the custody of the respondent/father from
10:00 a.m. to 4:00 p.m. on every Saturdays and
Sundays, who shall, in turn, handover the custody of the
baby Renee back to the appellant's custody before
5:00 p.m.
2. The contention of the appellant as well the
argument of the learned counsel for the appellant is that,
the child Renee was born to the appellant, seven years
after the marriage and the child is greatly attached to her
mother. Due to the differences between the parties, the
appellant and the respondent are living separately since
about two years.
It is the major contention of the learned counsel for
the appellant, as canvassed in her argument that, the
custody of the child from 10:00 a.m. to 4:00 p.m. for two
days in a week would amount to handing over the
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permanent custody of the child to the respondent and that
the appellant apprehends that the respondent may run
away with the child or kidnap the child.
It is also the submission of the learned counsel for
the appellant that the present appellant has also filed a
petition for dissolution of her marriage with the
respondent, in the year 2022 and the same is pending.
Under the said circumstance, the impugned order ought
not to have been passed by the Trial Court. However,
while concluding her submission, the learned counsel for
the appellant submitted that, if the visitation right is
modified and confined to a single day in a week, that too
under the supervision of the appellant/mother of the child,
probably, the appellant may not have any objection for the
same.
3. Per contra, the learned counsel for the
respondent/father in her brief argument submitted that,
admittedly, the parties to the appeal are the natural
parents and guardians of the child Renee and that being
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the case, the child which is only 3 ½ years old should not
be deprived of the love and affection by her father. As
such, in the interest of the welfare of the child, the father
should have a right to the custody, at least during day
time of the child, which was rightly considered by the Trial
Court in its impugned order, as such, the same does not
warrant any interference at the hands of this Court.
4. After hearing the learned counsels for the parties,
the only point that arise for our consideration in this
appeal is:
Whether the impugned order under
consideration warrants any interference at the
hands of this Court?
5. It is an admitted fact that the marriage between
the parties herein was solemnised on the date 31-05-2012
and out of the said wedlock, a girl child was born on the
date 09-04-2019 and it was named as 'Renee Dominic
Joseph', as such, as on the date, the age of the child
would be four years and eight months. According to the
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learned counsels for the parties, the child is now going to
the School and has got five days a week as the School
working days. It is also submitted from both side that the
mother of the child, who is the appellant herein, is a
medical Doctor by profession and the respondent, who is
the father of the child, is a software Engineer. The
present appellant, as a mother of the child, has filed a
petition under Section 7(1)(a) and (b) and Section 17 of
the G and WC Act, before the Trial Court, which is pending
in G & WC No.34/2022, seeking the relief of declaration
and appointing the petitioner therein (appellant herein) as
the natural guardian and for granting permanent custody
of the child 'Renee Dominic Joseph' to the petitioner and of
the child having the complete, physical and legal custody.
6. During the pendency of the said petition, the
respondent therein, who is the present respondent, has
filed an interlocutory application - I.A. No.1, under Section
25 (1) of the G and WC Act, in the Trial Court. The said
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I.A. came to be allowed by the order dated 07-09-2023,
giving the custodial right of the child Renee to the present
respondent (father), twice a week i.e. on every Saturday
and Sunday from 10:00 a.m. to 4:00 p.m.
7. Admittedly, baby Renee is only four years and
eight months old, as on the date. Even according to the
parties to the litigation, the parents of the child are living
separately since about two years and a petition for
dissolution of the marriage between them is also said to be
pending. No doubt, for such an young age of the child,
the mother would be a good care-taker, however, the role
of the father of the child with respect to his offspring,
particularly of a minor child, cannot be ignored.
8. The allegation of the present appellant in the Trial
Court that the respondent was finding fault with her in
everything she does and used to pick fights and that
medically also, he has very weak libido etc. are all the
subject matter of trial. However, those allegations should
not come in the way of the parents giving their love and
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affection to their child and building a better future for it.
In the dispute between the father and the mother, the
child should not suffer. The child of the age group of the
baby like Renee, which is of a very tender age, requires
the love and affection, protection and company of both the
parents, i.e. father and the mother. When the father and
the mother, both are alive, depriving a child of its
entitlement to have the love and affection of its parents
i.e. both father and the mother would not be a justice that
is being done to the child.
9. Admittedly, except a bare apprehension of the
appellant that in case if the respondent (father) is given
with the custody of the child Renee during day time only
at the weekends would result in he either kidnapping or
running away with the child, is with no corroborative
material and it is only an apprehension which probably the
appellant has assumed by herself. At this juncture, what
is to be noticed here is that, the Trial Court, in its
impugned order, has not granted the custody of the child
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to the respondent either for the whole day, i.e. round the
clock or evening or night hours. It is only for two days in
a week during day time, that too, from 10:00 a.m to
4:00 p.m., the interim custody of the child is ordered to be
given by the appellant to the respondent. Under the said
circumstance, the apprehension of the appellant that the
said custody would become a permanent custody or that
the respondent (father) would run away with the child
would find no basis to believe. No materials are placed to
show that any such attempt was previously made by the
respondent or the that the respondent has any such
preparation or motive to commit any such alleged act
against the child. Under the said circumstance, mere
assumption and presumption of a party to the litigation
cannot acquire the place of fact. On the contrary, for the
grievance between the parents, the child shall not be a
prey for it and cannot be made to suffer.
10. Finally, so far as the submission of the learned
counsel for the appellant about restricting or confining the
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visiting right only for a day, that too, under the
supervision of the mother is concerned, under the present
circumstances, as could be made out by the parties before
the Court, at this juncture, we do not find any such
necessity or reason that the custody of the child is to be
restricted to only one day, that too, to be always under
the supervision and within the vision of her mother. Being
the parents and natural guardians of the child, the
husband and wife both should repose confidence inter se
and should have trust between themselves. It is that
relationship built upon trust and love and affection only
would give a full-fledged love and affection and sense of
protection to the child like baby Renee in the instant case.
As such, in the absence of any material to suspect any
adverse happening in case if the custody of the child is
entrusted to the respondent/father of the child for two
days, during day time, i.e. from 10:00 a.m. to 4:00 p.m.
on every Saturday and Sunday, we do not find any reason
to modify the impugned order passed by the Trial Court,
even to the extent of confining the said visitation right for
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one day, that too, under the supervision and vision of the
mother. Hence, we do not find any reason to interfere in
the impugned order.
Accordingly, we proceed to pass the following:
ORDER
The appeal stands dismissed as devoid of merit.
Sd/-
JUDGE
Sd/-
JUDGE
BMV*
