Karnataka High Court
Smt Ranganayaki vs Sri G Prabhudev on 7 March, 2025
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MFA No. 4658 of 2023
C/W MFA.CROB No. 24 of 2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 4658 OF 2023 (GW)
C/W
MFA CROSS OBJECTION NO. 24 OF 2024 (GW)
IN MFA No.4658/2023
BETWEEN
1 . SRI G PRABHUDEV
S/O LATE N V GIRIYAPPA,
AGED ABOUT 62 YEARS,
2 . SMT MADHAVI
WIFE OF SRI G PRABHUDEV,
AGED ABOUT 49 YEARS,
Digitally signed
by NIRMALA BOTH R/AT FLAT NO.G-01,
DEVI NO.532, 27TH CROSS,
Location: HIGH KENCHANAHALLI,
COURT OF RAJARAJESHWARI NAGAR,
KARNATAKA BENGALURU-560098.
...APPELLANTS
(BY SRI MURALIDHAR H M, ADVOCATE)
AND
1 . SMT RANGANAYAKI
W/O LATE N V GIRIYAPPA,
2 . MISS G TEJA
D/O LATE N V GIRIYAPPA,
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MFA No. 4658 of 2023
C/W MFA.CROB No. 24 of 2024
3 . SMT G HEMA
D/O LATE N V GIRIYAPPA,
ALL ARE R/AT PUJYASHREE
N V GIRIYAPPA NIVAS,
3RD AND 4TH FLOORS,
NO.9, KILARI ROAD,
AVENUE ROAD CROSS,
BENGALURU-560053.
...RESPONDENTS
(BY SRI DHANARAJ H S, ADVOCATE FOR R1 & R2
SMT PARINEETA S CHANAL, ADVOCATE FOR R3)
THIS MFA IS FILED U/S 47(a) OF GUARDIANS AND WARDS
ACT, 1890, ACT AGAINST THE JUDGMENT DATED 21.04.2023
PASSED IN G AND WC.NO.52/2019 ON THE FILE OF THE II
ADDITIONAL PRL. JUDGE, FAMILY COURT BENGALURU, PARTLY
ALLOWING THE PETITION FILED UNDER SECTION 25 OF THE
GUARDIAN WARDS ACT AND ETC.
IN MFA CROB No.24/2024
BETWEEN
1 . SMT RANGANAYAKI
W/O LATE N V GIRIYAPPA,
AGED ABOUT 82 YEARS,
2 . MISS G TEJA
D/O LATE N V GIRIYAPPA,
AGED ABOUT 48 YEARS,
BOTH ARE R/AT NO 9,
PUJYASHREE N V GIRIYAPPA NIVAS
3RD FLOOR, KILLARI ROAD,
AVENUE ROAD CROSS,
BENGALURU 560053
...CROSS OBJECTORS
(BY SRI DHANARAJ H S, ADVOCATE)
AND
1 . SRI G PRABHUDEV
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MFA No. 4658 of 2023
C/W MFA.CROB No. 24 of 2024
S/O LATE N V GIRIYAPPA,
AGED ABOUT 62 YEARS,
2 . SMT MADHAVI
W/O SRI G PRABHUDEV
AGED ABOUT 49 YEARS,
BOTH ARE R/AT PUJYASHREE
N V GIRIYAPPA NIVAS, 2ND FLOOR
KILLARI ROAD, AVENUE ROAD CROSS,
BENGALURU 560053
PRESENTLY AT FLAT NO G-01,
NO. 532, 27TH CROSS,
KENCHANAHALLI,
RAJARAJESHWARI NAGAR,
BENGALURU 560098
3 . MISS G HEMA
D/O LATE N V GIRIYAPPA,
AGED ABOUT 44 YEARS,
R/AT NO 9, PUJYASHREE
N V GIRIYAPPA NIVAS,
3RD AND 4TH FLOOR,
KILLARI ROAD,
AVENUE ROAD CROSS,
BENGALURU 560053
...RESPONDENTS
(BY SRI MURALIDHAR H M, ADVOCATE FOR R1 TO R3)
THIS MFA CROB IS FILED U/O.41 RULE 22 R/W SEC.47(A) OF
THE GUARDIAN AND WARDS ACT, 1890, AGAINST THE JUDGMENT
AND AWARD DT.21.04.2023 PASSED IN G AND WC NO.52/2019 ON
THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,
BENGALURU, PARTLY ALLOWING THE PETITION FILED U/S.25 OF
THE GUARDIANS AND WARDS ACT, THEREBY CROSS OBJECTORS TO
TAKE CARE AND CUSTODY OF MINOR P.NIKHIL SRINIVASA AS PER
COMPROMISE PETITION (EX.P-19 MARKED IN G AND W C
NO.52/2019) ENTERED AMONGST PARTIES HEREIN WITHOUT ANY
INTERVENTION CALLED FROM RESPONDENTS HEREIN UNTIL MINOR
ATTAINS MAJOR ALSO TO PASS SUCH OTHER RELIEF/S, ORDER/S AS
THIS HONBLE COURT DEEMS FIT TO GRANT IN THE
CIRCUMSTANCES OF THE CASE IN FAVOR OF CROSS OBJECTORS IN
THE WELFARE AND PARAMOUNT INTEREST OF MASTER.P.NIKHIL
SRINIVASA AND ETC.
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MFA No. 4658 of 2023
C/W MFA.CROB No. 24 of 2024
THE APPEAL AND CROB OBJECTION HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 03.02.2025, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, POONACHA.J.,
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
and
HON'BLE MR JUSTICE C.M. POONACHA
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE C.M. POONACHA)
The above appeal and cross objection call in question the
order dated 21.4.2023 passed in G&WC No.52/2019 by the II
Additional Principal Judge, Family Court, Bengaluru1. Hence,
they are taken up together for consideration.
2. For the sake of convenience, the parties herein are
referred as per their ranks before the Trial Court.
3. G&WC No.52/2019 has been filed by the parents
(first petitioner being the father and second petitioner being the
mother) of Master P.Nikhil Srinivas under Section 25 of the
Guardians and Wards Act, 18902 for custody of minor son
arraying the mother and sisters of the first petitioner as
respondent Nos.1 to 3 respectively.
Hereinafter referred to as the 'Family Court/Trial Court'
Hereinafter referred to as 'G&W Act'
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4. It is the case of the petitioners that their son
P.Nikhil Srinivas is born on 20.1.2009. Then the petitioners and
respondents were living in the same building at No.9,
"Pujyashree N.V.Giriyappa Nivas, Kilari Road, Avenue Road
Cross, Bengaluru 560 053, in different floors. That respondent
Nos.2 and 3 who are the sisters of the first petitioner being
unmarried, they were living together with their mother. That
since the respondent Nos.2 and 3 were depressed being
unmarried, the petitioners permitted their minor son to be with
the respondents. Another son by name Master P.Yashas
Srinivas is born to the petitioners on 8.11.2010 and he is in
their custody.
5. It is the further case of the petitioners that the
respondents used to stay in the 3rd and 4th floors of the building
and for about 6 to 7 months after the birth of their second son,
the atmosphere was pleasant. Thereafter, the respondents
started poisoning the mind of Nikhil, as a result of which he
started behaving in an unusual manner with the petitioners.
The respondents filed G&WC No.27/2015 to appoint them as
guardians of Nikhil. The petitioners were arrayed as
respondents in the said proceedings entered appearance.
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G&WC No.27/2015 was disposed of by compromise dated
10.12.2015 entered into between the parties. The respondents
who are petitioners in G&WC No.27/2015 filed Execution
Petition No.830/2018 to execute the terms of the compromise.
Subsequently, the petitioners filed G&WC No.50/2019 for a
direction to the respondents to return the custody of their
minor son.
6. The respondents being the grand-mother and
paternal aunts of the minor son entered appearance before the
Family Court and contested the proceedings contending, inter
alia, that the respondents have taken care of Nikhil from his
birth and that the petitioners though the parents had
abandoned him and had practically relinquished their right. It is
further contended that the petitioners, due to various reasons
were unable to take care of Nikhil and hence, they have
brought him up showering him with love and affection.
Initiation of G&WC No.27/2015 and the compromise entered is
admitted. It is further contended that the petitioners have
vengeance against the respondents and hence, they have
initiated the proceedings for custody of Nikhil only to wreck
their vengeance. It is further contended that the respondents
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have taken care of all the emotional needs of the minor son
during his formative years and hence, sought for dismissal of
the petition.
7. Petitioner No.1 (father) got examined himself as
PW.1. Exs.P1 to P23 have been marked in evidence.
Respondent No.1(mother of first petitioner) got examined
herself as RW.1 and Respondent No.2 (sister of first petitioner)
got examined herself as RW.2. Exs.R1 to R60 have been
marked in evidence. The Family Court, vide its order dated
21.4.2023 partly allowed the petition and passed the following
order:
The petition filed by the petitioners under
Sec.25 of the Guardians and Wards Act, is hereby
partly allowed with costs.
The petitioners are entitled for interim
custody of ward viz., Master P. Nikhil Srinivasa to
the extent of 30% i.e., 3 months from March to
May. Thereafter, he is directed to hand over the
minor to the respondents without fail. On the
other hand, the respondents are entitled for
custody of minor to the extent of 70% i.e., 9
months from June to February.
The respondents are hereby directed to
handover the interim custody of the minor child to
the petitioners as per the aforesaid order to
develop bondage between the minor and his
natural parents.
Further, both petitioners and respondents
are hereby directed not to tutor the child in order
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to gain their rights illegally. They are directed to
ensure the safety of health and education of the
minor and to maintain harmony during interim
custody.
During interim custody of the minor, the
non-custodian parents are having communication
rights over phone or internet facility, regarding
this, parties are directed to communicate their
respective phone numbers or internet ID.
Draw decree accordingly."
8. Being aggrieved the above appeal and cross
objection have been filed.
9. Sri Muralidhar H.M., learned counsel for the
petitioners/appellants contends that the respondents have no
manner of right vis-à-vis minor son of the petitioners and the
custody of the ward requires to be with parents. That having
regard to Sections 19(b) and 25 of the G&W Act, the petitioners
before the Trial Court who were the appellants in the above
appeal are entitled to absolute custody of the minor son. That
the Trial Court misdirected itself in not awarding absolute
custody of the minor son to his parents who are the petitioners.
Hence, he seeks for allowing of the above appeal, dismissing
the cross objections and granting absolute custody of the minor
son. In support of his contentions, he relies upon the
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judgement of the Hon'ble Supreme Court in the case of
Gautam Kumar Das v. NCT of Delhi & Ors.,3
10. Per contra, learned counsel Sri H.S.Dhanraj
appearing for respondent Nos.1 and 2 submits that the petition
filed by the petitioners before the Trial Court under Section 25
of the G&W Act itself was not maintainable having regard to the
fact that the aspect regarding custody of the minor son had
been amicably settled between the parties vide the compromise
entered into in G&WC No.27/2015. That petitioners who are the
parents of Nikhil have not in any manner contributed for his
upbringing and all the material and emotional requirements of
Nikhil have been taken care of by the respondents. That the
Trial Court has adequately appreciated the oral and
documentary material on record. However, the Trial Court
ought not to have granted custody to the petitioners even for
three months from March to May and that the Trial Court ought
to have dismissed the petition filed by the parents and
permitted continuance of the custody of the child with the
respondents. Hence, he seeks for allowing of the cross
objection and dismissing the appeal. In support of his
Judgment dated 20.8.2024 passed in SLP (Criminal) No.5171/2024
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contentions, he relied on the judgment of the Hon'ble Supreme
Court in the case of Shazia Aman Khan & Anr., v. The State
of Orissa & Ors.,4.
11. Learned counsel, Smt.Parineeta S.Chanal for
respondent No.3 adopted the submissions made by the learned
counsel for respondent Nos.1 and 2.
12. The submissions of both the learned counsel have
been considered and the material on record including the
records of the Trial Court have been perused. We have also
interacted with the child (Nikhil Srinivas) and the parties in
Chambers. The questions that arise for consideration are:
i. Whether the petition in G&WC No.52/2019 is
maintainable?
ii. Whether the order passed by the Family Court
is erroneous and liable to be interfered with?
iii. Whether the custody of Master P Nikhil
Srinivas requires to be handed over to his
parents i.e., the appellants/petitioners?
Reg. question No.(i):
13. The admitted fact situation is that Nikhil, minor son
of the petitioners was born on 20.1.2009 and has been under
the care and custody of the respondents who are his paternal
Judgment dated 4.3.2024 passed in SLP (Crl.) No.7290/2023
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grand-mother and aunts ever since his birth. Although it is the
contention of the petitioners that the care and custody of the
child was with the respondents since respondent Nos.2 and 3
(sisters of the first petitioner) were unmarried and the child
was left as a source of companionship, it is the contention of
the respondents that the parents of the child never cared for
his welfare and wellbeing and were only interested in the
upbringing of their younger son Master P.Yashas Srinivas.
14. It is not necessary to re-appreciate the entire
factual matrix and the material on record so as to give a finding
as to the reason for the parents to leave the minor son with the
respondents since the same being an admitted situation and
the child as on date is 16 years old. The petition before the
Family Court has been filed by the parents only seeking his
custody.
15. Admittedly, the respondents had filed G&WC
No.27/2015 which has ended in compromise dated 10.12.2015
(Ex.P19). It is relevant to notice that various terms in the
compromise are primarily pertaining to the property which is
being occupied by the respondents and as to the manner of
sharing the rentals and occupation of the said property.
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However, with regard to the custody of the child, relevant
clauses of the compromise (Ex.P19), are as under:
"3. The Petitioners duly recognise & agree the
Respondents to be the natural guardian of Master
P. Nikhil Srinivas. Similarly, the Respondents duly
recognise the care & custody of Master P. Nikhil Srinivas
by the Petitioners eversince his birth.
4. Both the parties agree that Master P. Nikhil
Srinivas shall continue to be under the care &
custody of the Petitioners. The Petitioners shall
be at liberty to take all measures in order to
protect the interests of Master P. Nikhil Srinivas
and they shall also be responsible for providing
proper education and overall growth of Master P.
Nikhil Srinivas. The Petitioners shall represent
before all the institution more in particular
educational institution for providing proper
education to Master P. Nikhil Srinivas. The
Respondents duly agree that they shall support
the Petitioners in providing good & quality
education to Master P. Nikhil Srinivas. The
Respondents also undertake to provide financial
assistance to Master P. Nikhil Srinivas in order to
get proper & good education either in Bengaluru
or elsewhere.
7. Both the parties agree to establish a cordial
relationship against each other in order to protect the
interests of Master P. Nikhil Srinivas.
8. Both the parties agree to evolve themselves and
provide space & time for the well being of Master P.
Nikhil Srinivas.
9. Both the parties agree that the Petitioners shall
provide medical and all such legal necessities to
the child. However, the Respondents duly agree
to pay all the expenditure that would be incurred
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by the Petitioners in order to provide medical &
legal necessities.
10. The Respondents wholeheartedly agree and come
forward to give all moral, emotional & affectionate
support to the petitioners not only to sustain their lives
but also to protect the interest of Master P. Nikhil
Srinivas.
11. Both the parties also agree that they shall mutually
resolve all the difference regarding allocation of
properties. Both the parties duly agree that the first
Respondent shall stand in frontline as family's elder
person and protect their interest. The first Respondent
should represent before all authorities including before
the Courts of law in order to protect the interest of the
parties to this proceedings with respect to their
property. As a gesture of co-operation, affection & love,
the first Respondent agrees for the Petitioners and his
son Master P. Nikhil Srinivas to occupy the third & fourth
floors, which the Petitioner shall use for their residence.
Similarly the Petitioners have no objection for the
Respondents to reside in second & fifth floors and use
the same for self occupation. In as much as the shops
which are in the ground floor & first floor are concerned,
and which are let out to third party tenants, the first
Respondent shall be responsible to collect the rents from
the ground floor shop tenants, and the first floor shop
shall be managed by the Petitioners. The first
Respondent should co-operate & assist the Petitioners
and realise the maximum rent from all the shops in the
first floor. The Petitioners shall be entitled to receive
the rent from all the shop tenants in the first floor and
use the same for their benefits. The first Respondent
shall get the fourth floor premises vacated from the
occupation of a tenant, duly whitewashed, by January
2016 and shall hand over the same to the Petitioners
immediately.
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15. Both the parties agree that the school fees of
Master P. Srinivas shall be given by the first
Respondent to the Petitioners."
(emphasis supplied)
16. It is further undisputed that to execute the terms of
the compromise, the respondents have filed Execution Petition
No.830/2018 for recovery of certain amounts.
17. It is sought to be contended by the learned counsel
for the respondents that the petition in G&WC No.52/2019 filed
by the parents of the child is not maintainable having regard to
the compromise dated 10.12.2015 passed in G&WC
No.27/2015 (Ex.P19). However, notwithstanding the
settlement arrived at between the parties vide Ex.P19, it is a
settled proposition of law that with respect to the matters
pertaining to the custody of the child there is no finality and it
is always open for the parties to approach the Court for suitable
reliefs demonstrating the changed circumstances.
18. The Hon'ble Supreme Court in the case of Rosy
Jacob v. Jacob A Chakramakkal5, has held as follows:
"18. ........... All orders relating to the custody of the
minor wards from their very nature must be
considered to be temporary orders made in the
existing circumstances. With the changed
(1973) 1 SCC 840
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conditions and circumstances, including the
passage of time, the Court is entitled to vary such
orders if such variation is considered to be in the
interest of the welfare of the wards. It is
unnecessary to refer to some of the decided cases
relating to estoppel based on consent decrees, cited at
the bar. Orders relating to custody of wards even when
based on consent are liable to be varied by the Court, if
the welfare of the wards demands variation".
(emphasis supplied)
19. The Hon'ble Supreme Court in the case of Vikram
Vir Vohra v. Shalini Bhalla6 after noticing its earlier
judgment in the case of Rosy Jacob5 as also in the case of
Dhanwanti Joshi v. Madhav Unde7 has held as follows:
"15. Even though the aforesaid principles have been laid
down in proceedings under the Guardians and Wards
Act, 1890 these principles are equally applicable in
dealing with the custody of a child under Section 26 of
the Act since in both the situations two things are
common; the first, being orders relating to custody of a
growing child and secondly, the paramount
consideration of the welfare of the child. Such
considerations are never static nor can they be
squeezed in a straitjacket. Therefore, each case
has to be dealt with on the basis of its peculiar
facts."
(emphasis supplied)
20. The appellants have contended in the memorandum
of appeal that the compromise is not binding between the
parties as the appellants were under threat and blackmail from
(2010) 4 SCC 409
(1998) 1 SCC 112
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the respondents and hence, agreed to the compromise. That
the compromise was opposed to law and not a valid
compromise. It is relevant to note here that the appellants
have not averred in the petition as to the nature of threat or
blackmail from the respondents which has compelled them to
agree to the compromise. In any event, having regard to the
settled legal position as noticed above, it is not necessary to go
into the contention regarding compromise not being a valid one
and such a contention has also not been pressed by the learned
counsel for the appellants in the course of his submissions.
Moreover, in the said compromise, respondents herein have
clearly admitted that the present petitioners are the natural
guardians of the child. Hence, question No.(i) framed for
consideration is answered in the affirmative.
Reg. question Nos.(ii) and (iii):
21. It is the vehement contention of the respondents
that the petitioners have not adhered to the financial aspects
agreed to between the parties in the compromise (Ex.P19)
wherein they were also required to provide the expenses
incurred towards the education of the child, which has not been
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done. However, the said assertion made by the respondents is
vehemently disputed by the learned counsel for the
appellants/petitioners and it is contended that the first
petitioner/appellant(father) from time to time has paid various
amounts towards education and welfare of the minor son.
However, no specific material in that regard has been pointed
out from the material on record.
22. Notwithstanding the assertion and rebuttal made by
the respective parties with regard to the expenses incurred for
the upbringing of the minor son of the parties, the present
proceedings for custody has to be decided based upon the
principle of the best interest of the child. For the said purpose,
interaction with the child and parties in Chambers was held. It
is true, the child expressed itself to be comfortable in the
custody of the respondents. It is also relevant to state that
there has been lot of acrimony and animosity between the
parties with regard to various aspects including custody of the
child as well as issues pertaining to the property of the parties.
Under such circumstances and having regard to the fact that
child is in the custody of the respondents for long time, child's
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affinity with respondents is natural.
23. Another important aspect that is required to be kept
in mind is the fact that the child, Nikhil has a sibling who is
younger to him by almost 2 years and is presently aged about
14 years. Having regard to the prevailing situation of the
disputes that are existing between the parties, Nikhil has not
developed any notable bonding with his younger brother, which
is not in his best interest.
24. At this juncture, it is relevant to notice the legal
position. Sections 19(b) and 25 of the G&W Act state as
follows:
"19. Guardian not to be appointed by the
Court in certain cases.
Nothing in this Chapter shall authorise the Court to
appoint or declare a guardian of the property of a
minor whose property is under the superintendence of
a Court of Wards, or to appoint or declare a guardian
of the person--
(a) ............
(b) of a minor, other than a married female,
whose father or mother is living and is not, in the
opinion of the court, unfit to be guardian of the
person of the minor, or
(c) ..........."
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"25. Title of guardian to custody of ward.- (1) If a
ward leaves or is removed from the custody of a
guardian of his person, the Court, if it is of opinion that
it will be for the welfare of the ward to return to the
custody of his guardian, may make an order for his
return, and for the purpose of enforcing the order may
cause the ward to be arrested and to be delivered into
the custody of the guardian.
(2) ..........
(3) The residence of a ward against the will of his
guardian with a person who is not his guardian does
not of itself terminate the guardianship."
25. In the case of Gautam Kumar Das4 relied upon by
the learned counsel for the appellants the Hon'ble Supreme
Court was considering the custody of 1½ years old girl. In the
said case, the parents had two children from their wedlock and
when their younger child/daughter was 10 days old, the mother
died, as a result of which the younger daughter was under the
care and custody of the sister of the mother. The father having
filed a Writ Petition and the High Court having disposed of the
said Writ Petition by grating liberty to the parties to approach
the Family Court of competent jurisdiction to seek custody of
the child, the father had approached the Hon'ble Supreme
Court. In the said fact situation, the Hon'ble Supreme Court
held as follows:
"13. In our opinion, merely because of the
unfortunate circumstances faced by the appellant
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as a result of which, respondent Nos. 5 and 6 were
given the temporary custody of the minor child
Sugandha Das and only because they looked after
her for few years, the same cannot be a ground to
deny the custody of the minor child to the
appellant, who is her only natural guardian.
14. Insofar as the allegations made against the
appellant by respondent Nos. 5 and 6 are concerned, it
appears that they have been made only as an
afterthought, and especially after the appellant started
asserting his claim for the custody of his minor daughter
Sugandha Das. Insofar as the judgments of this Court
on which respondent Nos. 5 and 6 have relied upon, we
can only say that there cannot be any straight-jacket
formula in the matters of custody.
15. Recently, this Court, in the case of Nirmala
(supra) in paragraph 16 has also observed that no hard
and fast rule can be laid down insofar as the
maintainability of the habeas corpus petition in the
matters of custody of minor child is concerned. It has
been held that as to whether the writ court should
exercise its jurisdiction under Article 226 of the
Constitution of India or not will depend on the facts and
circumstances of each case.
16. However, it is to be noted that a common thread
in all the judgments concerning the custody of
minor children is the paramount welfare of the
child. As discussed hereinabove, we find that,
apart from the appellant being the natural
guardian, even in order to ensure the welfare of
the minor child, she should live with her natural
family. The minor child is of tender age, and she
will get adapted to her natural family very well in
a short period. We are therefore inclined to allow the
appeal."
(emphasis supplied)
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26. The Hon'ble Supreme Court in the case of Shazia
Aman Khan5 relied upon by the learned counsel for the
respondents was dealing with a fact situation wherein twins
were born and the parents being unable to take care of the
twins, one of the children was left under the care and custody
of the sister of the father of the child. Since the sister refused
to handover the child, the parents filed a writ petition and the
High Court having ordered the father to handover the custody
of the child, the same was challenged before the Hon'ble
Supreme Court. Considering the said fact situation, the Hon'ble
Supreme Court after noticing the legal position by referring to
various of its earlier judgments, has held as follows:
"17. In the case in hand, vide order dated 12.12.2023,
we had called the child in Court. We had interacted with
individually in chamber. We found the child to be quite
intelligent, who could understand her welfare. She
categorically stated that she is happy with the
family where she has been brought up. She
has other brother and sister. She is having cordial
relations with them. She does not wish to be
destabilized.
19. The fact that appellant No. 1, when custody of the
child was handed over to her, was un-married and is
now married having two children will also not be a
deterrent for this Court to come to the conclusion
that best interest of the child still remains with the
appellant No. 2 as the child is living with her ever
since she was 3-4 months old and is now about 14
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years of age having no doubt in her mind that she
wishes to live with them.
20. In view of our aforesaid discussions, we find
that the welfare of the child lies with her custody
with the appellants and respondent No.10. This is
coupled with the fact that even she also wishes to
live there. Keeping in view her age at present, she
is capable of forming an opinion in that regard.
She was quite categoric in that regard when we
interacted with her. She cannot be treated as a
chattel at the age of 14 years to hand over her
custody to the respondent No.2, where she has
not lived ever since her birth. Stability of the child
is also of paramount consideration.
21. The appeal is accordingly allowed. The impugned
order passed by the High Court is set aside, as a result
of which the writ petition filed by respondent No. 2 in
the High Court is dismissed. We expect the appellants to
adhere to the stand taken by them during the course of
arguments, as noticed above."
(emphasis supplied)
27. In the case of Athar Hussain v. Syed Siraj
Ahmed8 the Hon'ble Supreme Court was considering a fact
situation wherein upon the death of the mother the minor
children were in the custody of the maternal grand-father and
maternal aunt and uncles. The father had initiated proceedings
for custody of the minor children. In the said fact situation, the
Hon'ble Supreme Court has held as follows:
"32. .................. In matters of custody, as well
settled by judicial precedents, the welfare of the
AIR 2010 SC 1417
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children is the sole and single yardstick by which
the court shall assess the comparative merit of the
parties contesting for the custody. Therefore,
while deciding the question of interim custody, we
must be guided by the welfare of the children
since Section 12 empowers the court to make any
order as it deems proper.
33. We are mindful of the fact that, as far as the
matter of guardianship is concerned, the prima facie
case lies in favour of the father as under Section 19 of
the Guardians and Wards Act, unless the father is
not fit to be a guardian, the court has no
jurisdiction to appoint another guardian. It is also
true that the respondents, despite the voluminous
allegations levelled against the appellant have not been
able to prove that he is not fit to take care of the minor
children, nor has the Family Court or the High Court
found him so. However, the question of custody is
different from the question of guardianship. Father
can continue to be the natural guardian of the children;
however, the considerations pertaining to the welfare of
the child may indicate lawful custody with another friend
or relative as serving his/her interest better. ............
35. Thus the question of guardianship can be
independent of and distinct from that of custody in
the facts and circumstances of each case.
44. ............ A plethora of decisions of this Court
endorse the proposition that in matters of custody of
children, their welfare shall be the focal point.
Once we shift the focus from the rights of the
contesting relatives to the welfare of the minor
children, the considerations in determining the
question of balance of convenience also
differ. ............"
(emphasis supplied)
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28. In the case of Mousami Moitra Ganguli v. Jayant
Ganguli9, the Hon'ble Supreme Court was considering grant of
custody of a 10 years old boy between the parents. In the said
fact situation, the Hon'ble Supreme Court has held as follows:
"19. The principles of law in relation to the custody
of a minor child are well settled. It is trite that while
determining the question as to which parent the care
and control of a child should be committed, the first and
the paramount consideration is the welfare and interest
of the child and not the rights of the parents under a
statute. Indubitably, the provisions of law pertaining to
the custody of a child contained in either the Guardians
and Wards Act, 1890 (Section 17) or the Hindu Minority
and Guardianship Act, 1956 (Section 13) also hold out
the welfare of the child as a predominant consideration.
In fact, no statute, on the subject, can ignore,
eschew or obliterate the vital factor of the welfare
of the minor.
20. The question of welfare of the minor child has
again to be considered in the background of the
relevant facts and circumstances. Each case has to
be decided on its own facts and other decided
cases can hardly serve as binding precedents
insofar as the factual aspects of the case are
concerned. It is, no doubt, true that father is presumed
by the statutes to be better suited to look after the
welfare of the child, being normally the working member
and head of the family, yet in each case the court has to
see primarily to the welfare of the child in determining
the question of his or her custody. Better financial
resources of either of the parents or their love for
the child may be one of the relevant
considerations but cannot be the sole determining
factor for the custody of the child. It is here that a
heavy duty is cast on the court to exercise its
judicial discretion judiciously in the background of
all the relevant facts and circumstances, bearing
(2008) 7 SCC 673
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in mind the welfare of the child as the paramount
consideration."
(emphasis supplied)
29. In the case of Rohith Thammana Gowda v. State
of Karnataka10 the Hon'ble Supreme Court was considering a
fact situation wherein the father had filed a writ petition before
the High Court to secure the presence of his 9 year old
daughter who was in the custody of the mother. In the said
fact situation, the Hon'ble Supreme Court has held as follows:
"8. At the outset we may state that in a matter
involving the question of custody of a child it has
to be borne in mind that the question 'what is the
wish/desire of the child' is different and distinct
from the question 'what would be in the best
interest of the child'. Certainly, the wish/desire of
the child can be ascertained through interaction
but then, the question as to 'what would be in the
best interest of the child' is a matter to be decided
by the court taking into account all the relevant
circumstances. When couples are at loggerheads and
wanted to part their ways as parthian shot they may
level extreme allegations against each other so as to
depict the other unworthy to have the custody of the
child. In the circumstances, we are of the view that for
considering the claim for custody of a minor child,
unless very serious, proven conduct which should make
one of them unworthy to claim for custody of the child
concerned, the question can and shall be decided solely
looking into the question as to, 'what would be the best
interest of the child concerned'. In other words, welfare
of the child should be the paramount consideration.
............."
(emphasis supplied)
AIR 2022 SC 3511
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30. In the case of Vivek Kumar Chaturvedi v. State
of U.P11 the Hon'ble Supreme Court was dealing with a fact
situation wherein the father had filed a writ of Habeas Corpus
before the High Court claiming custody of the minor child who
was in the custody of the parents of his wife since his wife had
passed away. The said writ petition was disposed of by the
learned Single Judge of the High Court, after interacting with
the child by noticing that the child is comfortably residing and
pursuing his education at his maternal grand parents house.
Being aggrieved, the father had approached the Hon'ble
Supreme Court. In the said fact situation, the Hon'ble Supreme
Court held as follows:
"10. We cannot but observe that the learned Single
Judge has not endeavored to elicit the child's attitude
towards his father. Admittedly, the child, after his
birth, was with his parents for about 10 years till
the death of his mother. He was separated from
the father in 2021 and has been living with his
grandparents, who cannot have a better claim
than the father, who is the natural guardian. There
is no allegation of any matrimonial dispute when
the mother of the child was alive nor a complaint
of abuse perpetrated against the wife or son. The
father, the natural guardian, we reiterate, is well
employed and educated and there is nothing
standing against his legal rights; as a natural
guardian, and legitimate desire to have the
custody of his child. We are of the opinion that the
welfare of the child, in the facts and circumstances
2025 SCC OnLine SC 264
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of this case, would be best served if custody is
given to the father."
(emphasis supplied)
31. From the legal position noticed above, the principles
governing the custody of the children can be summarised as
under:
i. Custody of the child is distinct from guardianship;
ii. The paramount consideration to determine the
custody of the child is the welfare of the child and
not the rights of the litigating parties;
iii. Better financial resources and/or the love for the
child may be one of the relevant considerations, but
it cannot be the sole determining factor for the
custody of the child;
iv. "What is the wish/desire" of the child is different
and distinct from "what would be in the best
interest of the child". The wish/desire of the child
can be ascertained through interaction. The
question as to "what would be the best interest" is
to be decided by the Court taking into account all
the relevant circumstances;
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v. A heavy duty is cast on the Court to exercise its
discretion judiciously in the background of all the
relevant facts and circumstances bearing in mind
the welfare of the child as the paramount
consideration;
32. At this juncture, it is relevant to notice the
judgment in the case of S.Anand v. Vanitha Vijaya Kumar12
rendered by a learned Single Judge of the Madras High Court
(Justice V.Ramasubramaniam as he then was), wherein it has
been noticed that the concept of custody and visitation rights
has transitioned from "a rights regime" to a "responsibilities
regime". It has further been held that the weight to be
accorded to the preference of the minor, depends on various
factors and the preference of the minor could be one of the
several factors and could never be the controlling factor.
33. Keeping in mind the aforementioned legal position if
the present fact situation is appreciated in the said context, it is
clear that both the parents are seeking custody of their minor
son from the paternal grand mother and paternal aunts.
Further, the disputes between the parties with regard to the
(2011) 4 MLJ 494
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other aspects like property, etc., has had a detrimental effect
on the minor child resulting in the custody of the child
continuing with the paternal grand mother and paternal aunts.
34. The result of the said unfortunate situation is that
the minor child has grown up without having a free and natural
upbringing with his parents as also a complete absence of
bonding with his younger sibling. The same is definitely not in
the interest and well being of the minor child. The preference of
the minor child although being one of the aspects that has been
taken into consideration, cannot be the sole factor to determine
his custody.
35. At this juncture, it is to be noted that the
respondents claim that they have sufficient means to take care
of the education and upbringing of the child. It is relevant to
note that the compromise (Ex.P19) is primarily with regard to
the financial understanding between the parties. Although, it is
also contended by the respondents that apart from the rentals
of the property, they have an independent source of income by
virtue of the paternal aunts' giving tuition to children, there is
no material on record to indicate the same. In any event, even
if the respondents have a source of income as contended, the
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same is not a regular/structured source of income and would be
required for their day to day sustenance and the medical
requirements of the first respondent and not sufficient to meet
the educational expenses of the minor child who is at the
threshold of completing his school education. The fact that the
respondents filed Execution Petition No.830/2018 to recover
the amounts in terms of the compromise (Ex.P19) further
amplifies this position. It is noticed that the father was gainfully
employed in Bharat Heavy Electricals Ltd.,13 getting `2 lakhs
p.m., as Deputy Engineer from 1984 to 2021. Consequent to
his retirement he has also got requisite retirement benefits and
also owns various immovable properties and is financially
comfortably placed. In the said situation, it is clear that the
parents are in a better position to take care of the education
and other financial needs of the minor child.
36. The Trial Court has granted interim custody of the
minor son for three months i.e., from March to May (30%) and
during remaining nine months i.e., from June to February
(70%), the minor child is ordered to be in the custody of the
respondents. It is expedient that in the present situation the
Hereinafter referred to as 'BHEL'
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custody of the minor son is required to be with his parents and
the respondents are required to have adequate visitation rights.
However, the same is required to be ordered having due regard
to the educational curriculum of the minor child.
37. In view of the aforementioned, question Nos.(ii)
and (iii) framed for consideration are answered in the
affirmative.
38. Accordingly, the following:
ORDER
i. The above appeal is allowed and cross objection is
rejected;
ii. The order dated 21.4.2023 passed in G&WC
No.52/2019 by the II Additional Principal Judge,
Family Court, Bengaluru, is set aside;
iii. The petition in G&WC No.52/2019 by the II
Additional Principal Judge, Family Court, Bengaluru,
is allowed in part as follows:
a. The appellants/petitioners (parents of minor
child Master P.Nikhil Srinivas) shall have the
custody of their minor son. However, keeping
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in mind the academic curriculum of the minor
son, the appellants/petitioners shall be
entitled to custody from 1.5.2025;
b. The respondents shall be entitled to visitation
rights on every first and third week end from
5.00 p.m., Saturday till 6.00 p.m., the
following Sunday;
iv. Modified decree to be drawn accordingly.
SD/-
(K.S.MUDAGAL)
JUDGE
SD/-
(C.M. POONACHA)
JUDGE
ND
