[Cites 3, Cited by 0]
Karnataka High Court
Mr Asifulla Shariff vs Mrs Ruksar Banu on 18 December, 2025
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MFA No. 3674 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE JAYANT BANERJI
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 3674 OF 2023 (GW)
BETWEEN:
MR.ASIFULLA SHARIFF,
S/O KIFAYTHULLA SHARIF,
AGED ABOUT 28 YEARS,
R/O AGASAVALLI VILLAGE,
HAIHOLE ROAD, SHIVAMOGGA.
...APPELLANT
(BY SRI.J.D.KASHINATH, ADVOCATE)
AND:
MRS.RUKSAR BANU,
D/O ANWAR PASHA,
Digitally
signed by K G AGED ABOUT 25 YEARS,
RENUKAMBA R/O NEAR BILAL MASJID,
Location: 1ST CROSS LEFT SIDE,
HIGH COURT TIPPU NAGAR, SHIVAMOGGA.
OF
[[
WARD: ARHAM SHARIFF,
KARNATAKA
S/O ASIFULLA SHARIFF,
AGED ABOUT 4 YEARS,
RESIDING AT NEAR BILAL MASJID,
1ST CROSS LEFT SIDE,
TIPPU NAGAR, SHIVAMOGGA.
...RESPONDENT
(BY SRI.MALLAPPA, ADVOCATE FOR
SRI.KAMARAJU, ADVOCATE)
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MFA No. 3674 of 2023
HC-KAR
THIS MFA IS FILED U/S.47(a) OF GUARDIANS AND
WARDS ACT, AGAINST THE JUDGMENT AND AWARD DATED
03.06.2022 PASSED ON G AND WC NO.15/2021 ON THE FILE
OF THE PRINCIPAL JUDGE, FAMILY COURT, SHIVAMOGGA,
DISMISSING THE PETITION FILED UNDER SECTION 7, 10 AND
25 OF THE GUARDIAN AND WARDS ACT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI
AND
HON'BLE MR. JUSTICE K. V. ARAVIND
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE JAYANT BANERJI)
Heard the learned counsel for the appellant and
learned counsel for the respondent.
2. This appeal is filed seeking to challenge the
judgment and decree dated 03.06.2022 passed by the
Principal Judge, Family Court, Shivamogga in G & WC
No.15/2021. By means of the impugned judgment, the
petition filed by the appellant/petitioner under Section 7,
10 and 25 of the Guardian and Wards Act, 1890 seeking
custody of his minor child, was dismissed.
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3. Pursuant to the previous order of the Court the
parties are present in person in the Court. The respondent
has also come with their son namely Arhaam Shareeff. The
parties have produced their respective Aadhar Cards and
have also been identified by their respective advocates.
The parties have acknowledged that they were husband
and wife to each other prior to the Khula Nama of 2021. It
is also admitted to the parties that Arhaam Shareeff, the
minor child is the biological child of the parties, born from
the wedlock.
4. After hearing the parties, the family Court had
framed the following points for consideration.
POINTS
1. Whether petitioner proves that he is the father
of minor ward by name Arhaam Shareef?
2. Whether petitioner made out grounds to allow
the petition?
3. What order?
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5. The answers of the Family Court to the said
points are as under:
"Point No.1: In the negative.
Point No.2: In the negative.
Point No.3: As per final order for the Following:"
6. As regards points No.1 to 3 the Family Court
seems to have been under a misconception as to the name
of the appellant/petitioner. When the admitted fact is that
the name of the appellant is Asif Ulla Shariff, and the
name of the former wife is Ruksar Banu and both have
acknowledged each other in their presence today in Court,
this aspect of the matter therefore, as dealt with by the
trial Court, deserves no credence. It is admitted to the
parties that the Khula Nama dated 31.10.2021 was
obtained by the wife which brought to an end their
marriage which was solemnised on 20.04.2017. It appears
that in the examination-in-chief, the petitioner/appellant
had stated that at the time of Khula Nama a condition was
imposed that every month for 15 days, the custody of the
minor ward would be with him and for 15 days, it would be
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in the custody of the respondent. It was only on that
condition that he admitted to give Khula Nama in presence
of the witnesses. The Court noted that the
petitioner/appellant had not examined his blood related
close sisters or witnesses to corroborate his case with
regard to the condition imposed at the time of Khula Nama
nor had he offered any explanation what restrained him to
examine the said witnesses of blood related close sisters.
Therefore, the Family Court had said that it cannot be said
that the child is the minor ward of the petitioner/ appellant
and his son. Accordingly, point No.1 was answered in the
negative.
7. Admittedly, the petitioner thereafter has
entered into another marriage with Afreen Banu and
leading his marital life with her and that he has 2 minor
children from the second marriage. The trial Court was of
the view that since the appellant/petitioner had undergone
a second marriage, it may not be possible for him to give
love and affection towards the minor ward. When the
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appellant/petitioner is residing with his second wife, the
boy may not get natural love and affection from him. The
petitioner/appellant, it appears had not disclosed whether
his second wife got children or not before the Family
Court. Accordingly, the Family Court concluded that it was
not just and fair to give custody of the minor ward to the
appellant/petitioner.
8. The income of the appellant/petitioner was
doubted on the ground, amongst others, that the
unregistered partnership firm document that was
produced, being not registered, would not be proof of the
fact that the petitioner and his brother are partners and
running a shop under the name and style of Shariff
Fashion Hub. Accordingly, it was held by the Family Court
that availability of sufficient income was not demonstrated
by the appellant/petitioner. Other documents including
trade license etc., produced by the appellant were also
discarded. Accordingly, the petition was dismissed.
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9. We find from perusal of the aforesaid judgment,
that it has been passed without due consideration. In our
opinion it is a fit case for remand. Therefore, we set aside
the impugned order and remand the matter back to the
Family Court concerned for adjudication after permitting
the parties to lead evidence. We would request the Court
concerned to proceed with the matter expeditiously.
10. In the meantime, since the appellant, being the
father of the minor child, cannot be denied visitation
rights, we direct that;
(i) The appellant-father shall be permitted by
the respondent and her family members
to visit the minor child on first and third
Sunday of every month
(ii) The father can interact with the minor
child in and around the residence of the
respondent.
(iii) The matter will not be precipitated by any
of the parties by allowing any untoward
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incident happening at the time of the
visitation we have permitted.
(iv) The appellant-father shall be permitted to
interact with his child any time between
10.00 a.m. to 1.00 p.m. for a maximum
period of one hour.
(v) After a period of three months from
today, the parties shall be at liberty to
apply to the Family Court for modification
of visitation/interim custody rights as they
may seek, which the Family Court shall
consider in accordance with law given the
overarching consideration of what is in
the best interest of the child.
Subject to the aforesaid observations, this appeal is
allowed.
Since the parties are present, we direct the parties
shall appear before the Family Court concerned on
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07.01.2026, whereafter the Family Court shall fix the next
date for proceeding with the matter.
It is made clear that the interim visitation right that
we permit shall be effective forthwith, that to say, the first
visitation is permitted on 21.12.2025.
Sd/-
(JAYANT BANERJI)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
BVK
List No.: 1 Sl No.: 8
