Karnataka High Court

Sri Sunil Kumar H S vs Smt Prathima Y V on 2 July, 2024

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                                                         MFA No.1172/2018




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 2ND DAY OF JULY, 2024

                                        PRESENT

                       THE HON'BLE MRS JUSTICE K.S.MUDAGAL

                                            AND

                    THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

                MISCELLANEOUS FIRST APPEAL No.1172/2018 (GW)

                BETWEEN:

                SRI SUNIL KUMAR H S
                AGED ABOUT 44 YEARS
                S/O SHIVANANDA S.R.
                R/AT NO.503, E.W.S.
                13TH CROSS, KUVEMPU NAGAR
                HASSAN - 573 201                                ...APPELLANT

                (BY SRI P.P.HEGDE, SENIOR COUNSEL FOR
                    SRI VENKATESH SOMAREDDI, ADVOCATE)

                AND:

                SMT PRATHIMA Y V
Digitally
signed by K S   DIVORCED WIFE OF SUNIL KUMAR H.S.
RENUKAMBA       AGED ABOUT 38 YEARS
Location:       ASSISTANT TEACHER
High Court of
Karnataka       GOVT. P.U.COLLEGE (HIGH SCHOOL)
                CHAANNAITHODY, VAMADAPADAVU POST
                BANTWAL TALUK
                D.K.DISTRICT - 574 324                        ...RESPONDENT

                (BY SRI SANJEEV RAO.S., ADVOCATE [ABSENT])

                     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
                SECTION 47(A) OF THE GUARDIANS & WARDS ACT, 1890 PRAYING
                TO SET ASIDE THE JUDGMENT AND DECREE DATED 07.11.2017
                PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, HASSAN IN
                G & W.NO.02/2015 DISMISSING THE PETITION FILED UNDER
                SECTION 12 OF THE GUARDIAN AND WARDS ACT.
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                                              NC: 2024:KHC:24613-DB
                                                  MFA No.1172/2018




     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
FURTHER HEARING, THIS DAY, K.S.MUDAGAL.J, DELIVERED THE
FOLLOWING:

                          JUDGMENT

Challenging dismissal of his petition under Section 12 of

the Guardian and Wards Act, 1890 ('G & W Act' for short) for

custody of his son Rohan, the petitioner in G & W.No.2/2015

on the file of the Principal Judge, Family Court, Hassan has

preferred this appeal.

2. The appellant was the petitioner and the

respondent was the respondent in G & W.No.2/2015. For the

purpose of convenience, the parties are referred to henceforth

according to their ranks before the Trial Court.

3. The petitioner and the respondent are Hindus and

governed by Hindu Laws. Their marriage was solemnized on

07.05.2006 at Dharmasthala. In their conjugal life, on

02.01.2008, the couple are blessed with son Rohan. There

were some disturbances in the marriage. The couple filed

M.C.No.2/2015 before the Senior Civil Judge & JMFC, Bantwal

under Section 13B of the Hindu Marriage Act, 1955 (' the Act'

for short) seeking dissolution of the marriage by mutual

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consent. However, due to differences, they did not reach

consensus. Therefore, the said petition was withdrawn.

4. Before that M.C.No.49/2014 was filed by the

respondent against the petitioner seeking divorce on the

ground of cruelty. On hearing the parties, the petition was

allowed on 01.06.2017. The respondent had also filed the

petition under the provisions of the Protection of Women from

Domestic Violence Act, 2005 ('DV Act' for short) in

Crl.Misc.No.1021/2014.

5. The petitioner and the respondent are working.

The petitioner filed G & W No.2/2015 alleging that the

respondent has illicit relationship with one Girish Ithal. For that

reason, she has deserted him. He contended that the

respondent is working as Teacher in a school which is situated

40 kilometers away from her residence. In her absence, the

child will be unmonitored and that may affect the welfare of

the child. He further claimed that he is residing with his

parents, financially well off and the child's interest will be

better protected in his custody. Therefore he sought custody of

the child.

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6. The respondent contested the petition denying the

allegations made against her. She contended that the

petitioner himself was an abuser, which forced her to stay

separately and initiate proceedings against him under DV Act

and for divorce on the ground of cruelty. She seeks dismissal

of the petition.

7. In support of his case, the petitioner got examined

himself as PW.1 and got marked Exs.P1 to P27. The

respondent was examined as RW.1 and on her behalf, Exs.R1

to R8 were marked.

8. The Trial Court on hearing the parties, by the

impugned judgment and order dismissed the petition holding

that the allegations of the respondent leading adulterous life

was not proved. The Trial Court further held that the couple

are financially independent. The Trial Court appreciating the

evidence found and on interaction with child found that the

child is spending its time with both, his father and mother,

though he stays with his mother. The Trial Court further held

that the petitioner has migrated to Chennai for pursuing higher

studies and his parents are aged. Therefore the child

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continuing in the custody of the mother serves the welfare of

the child and ultimately dismissed the petition.

9. Sri P.P.Hegde, learned Senior Counsel appearing

for Sri Venkatesh Somareddi, learned Counsel on record for

the appellant/petitioner submits that the child is now aged

16½ years and he is in PUC which is a crucial period. He

further submits that the petitioner is meeting the educational

expenses of the child. He submits that though the trial Court

observed in the body of the judgment that the petitioner is

enjoying the visitation rights, the same is not reflected in the

final order and the petitioner will be satisfied if specific order is

passed for visitation rights.

10. The respondent though served did not turn up.

Sri Sanjeev Rao.S., learned Counsel though undertook to

appear on her behalf, subsequently he failed to appear.

11. The records show that custody of the child was

sought on the ground that the respondent mother is leading

adulterous life, therefore it is injurious for the child to continue

with the custody of the mother. The respondent filed

M.C.No.49/2014 against the petitioner for decree of divorce on

the ground that petitioner is making unfounded and false

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allegations of adultery and that amounts to cruelty. Ex.P27 the

certified copy of the judgment in M.C.No.49/2014 passed by

the Principal Senior Civil Judge and J.M.F.C., Bantwal, D.K.

shows that the said Court accepting her contention granted

decree of divorce in her favour.

12. Further Ex.P26 the certified copy of the order

dated 08.05.2017 in Crl.M.C.No.1021/2014 passed by the

Principal Senior Civil Judge and J.M.F.C., Bantwal, D.K. shows

that the respondent herein filed the said case under Section 12

of the DV Act against the petitioner alleging that he subjected

her to domestic violence suspecting her fidelity and failed and

neglected to maintain her and her son etc. The said Court

partly allowed Crl.M.C.No.1021/2014 restraining the petitioner

from subjecting her to domestic violence and awarded

Rs.4,000/- per month as maintenance to their son Rohan.

Those orders have attained finality. Now the child is aged 16½

years. Once he attains majority he can stay with either of the

parents of his choice. Further the evidence on record shows

that though the petitioner was in Hassan at the time of filing of

the petition, subsequently he shifted to Chennai for pursuing

higher studies and his parents were in Hassan. The Trial Court

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took that aspect also into consideration and rejected the

petition.

13. Moreover, the petition was filed in the year 2015.

Now ten years have elapsed and the parents of the petitioner

by this time should have advanced in age. Taking into

consideration all these aspects, the Trial Court was justified in

holding that continuation of the custody of the child with the

mother serves welfare of the child. However, the Trial Court

though observed that the petitioner is enjoying the visitation

rights and the child is happy in the company of both parents,

did not pass any orders regarding visitation rights. Therefore

the order requires to be modified only to that extent. The

appeal deserves to be allowed in part only to that extent.

Hence the following:

ORDER

The appeal is partly allowed.

The impugned judgment and order dated 07.11.2017 in

G & W.No.2/2015 passed by the Principal Judge, Family Court,

Hassan so far it relates to rejection of the petition for

permanent custody of the child is confirmed.

It is further directed that the petitioner is entitled to

temporary custody of the ward Rohan during weekly holidays

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and half part of the vacations subject to the consent of both

the parties and without disturbing his academics.