Karnataka High Court
Sri. N. P. Rudresh vs Sri. Umashankar on 30 October, 2025
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MFA No. 8169 of 2017
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE JAYANT BANERJI
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL No. 8169 OF 2017 (GW)
BETWEEN:
1. SRI. N. P. RUDRESH,
S/O.PALAKSHAIAH,
AGED ABOUT 34 YEARS,
R/O NIDUVANDA VILLAGE,
SOMPURA HOBLI,
NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT.
...APPELLANT
(BY SRI HAVERI S. S., ADVOCATE)
Digitally signed AND:
by VALLI
MARIMUTHU
Location: HIGH 1. SRI. UMASHANKAR,
COURT OF S/O LATE LINGADEVARAIAH,
KARNATAKA AGED ABOUT 61 YEARS,
2. SMT. PRAMEELA,
W/O.UMASHANKAR,
AGED ABOUT 56 YEARS,
BOTH ARE R/O. KARNAKUPPE VILLAGE,
NIDAVALALU POST, HEBBUR HOBLI
DISTRICT & TALUK, TUMKUR-572107.
...RESPONDENTS
(BY SRI SOMASHEKHARAIAH R. P., ADVOCATE FOR C/R1 & R2)
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MFA No. 8169 of 2017
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THIS MFA IS FILED U/S.47(1) OF GUARDIANS AND
WARDS ACT,1890 AND SECTION 19(1) OF THE FAMILY COURT
ACT, AGAINST THE ORDER DATED 01.09.2017 PASSED ON
G&WC No.18/2016 ON THE FILE OF THE PRINCIPAL JUDGE,
FAMILY COURT, TUMAKURU, ALLOWING THE PETITION FILED
UNDER SECTION 8 OF GUARDIANS AND WARDS ACT.
THIS APPEAL, COMING ON FOR 'DISMISSAL' 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 learned counsel for the appellant and learned
counsel for the respondents.
2. This appeal has been filed praying for the relief to
set aside the order dated 01.09.2017 passed by the Principal
Judge, Family Court at Tumakuru in G & WC No.18/2016. By
means of the impugned order, the petitioners-respondents
herein were declared as guardians of the minor child namely,
Jaya Vibhav son of the respondent-appellant herein
N.P.Rudresh and late Shivageetha. The respondent was
restrained from removing the child from the custody of the
petitioners, during his minority.
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3. For the sake of convenience, the parties are being
referred to by their descriptions appearing in the aforesaid G &
WC case.
4. The contention of learned counsel for the
respondent is that the impugned order is without jurisdiction
inasmuch as it is not the Family Court at Tumakuru, but it was
the competent Court at Nelamangala Taluk of Bengaluru Rural
District that would have jurisdiction in the matter. It is stated
that the ordinary place of residence of the minor child was in
Nelamangala Taluk and therefore, the Court of Tumakuru would
have no jurisdiction. In support of this contention, learned
counsel has relied upon a judgment of a Single Judge of the
Orissa High Court in the matter of Konduparthi
Venkateswarlu and Others v. Ramavarapu Viroja Nandan
and Others1.
4.1 The other contention of learned counsel is that no
proper opportunity was granted for cross-examining PW.1, who
was petitioner No.1. It is stated therefore, a valuable right of
AIR 1989 ORISSA 151
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cross-examination of PW.1 was lost, which has resulted in
failure of justice and the order deserves to be set aside on this
ground alone.
4.2 Learned counsel has further stated that the Family
Court has misdirected itself in not appointing the respondent as
the guardian, despite the fact that the respondent is the natural
father of the minor child and it is the natural guardian, who is
entitled to the custody of the child under the Guardians and
Wards Act, 18902.
4.3 Learned counsel for the respondent has further
stated that there are strong chances of settlement between the
parties, and therefore, the matter be adjourned for some time,
so that the matter can be finally settled by way of a
compromise settlement.
5. Learned counsel for the petitioners has opposed the
appeal and has stated that the Family Court had justifiably
appointed the petitioners as the guardians. Given the fact that
the petitioners' daughter was found hanging in the house of the
G & W Act
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respondent, which was an unnatural death and the respondent
and his parents are facing trial before the District and Sessions
Court in Bengaluru Rural District and giving of guardianship to
the respondent would have compromised the outcome of the
trial. It is further stated that adequate opportunities were
given to the respondent to cross-examine the PW.1, which was
availed of time and again and later, the counsel for the
respondent stopped appearing before the Family Court.
6. We have perused the record of the case as well as
the impugned order.
7. It appears from the record that the daughter of the
petitioners namely, Shivageetha was married to the respondent
on 08.11.2010 at Sri Siddalingeswara Samudaya Bhavan,
Dobbaspet at Nelamangala Taluk as per customs. After the
marriage, the respondent and his family members were
harassing the daughter of the petitioners demanding additional
dowry. Their daughter came to their house when she was
pregnant and gave birth to a male child on 08.09.2011 at
Siddaramanna Hospital, Tumakuru. The naming ceremony of
the child was performed by the petitioners in a grand fashion as
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per the wish of the respondent and his family members on
31.05.2012 and the child was named as Jaya Vibhav. After the
naming ceremony, the daughter of the petitioners along with
the child joined her matrimonial home. However, the
respondent and his family members started harassing the
daughter of the petitioners demanding money. Unable to
tolerate the torture, the daughter of the petitioners called them
and intimated about the harassment on 21.07.2012. After
receipt of the call, and before reaching the house of the
respondent, the respondent and his family members murdered
the daughter of the petitioners and hanged her to the fan. A
complaint was lodged to the Dabbaspet Police and a FIR was
registered against them bearing Crime No.152/2012 under
Sections 498A and 304-B of the Indian Penal Code, 18603 read
with Sections 3 and 4 of the Dowry Prohibition Act, 19614. On
coming to know that the respondent and his family members
were making hectic efforts to pressurize the Investigating
Officers to close the case, the petitioners lodged complaint to
the State Women Commission on 28.07.2012 and to the
IPC
DP Act
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Karnataka State Human Rights Commission on 25.07.2012.
Thereafter, the police submitted charge sheet on 20.10.2012
for the offences punishable under Sections 498A, 304-B read
with Section 149 of the IPC and Sections 3 and 4 of the DP Act.
The case is stated to be pending before the District and
Sessions Judge, Bengaluru Rural District in S.C. No.107/2013.
The petitioners also filed a suit for partition on behalf of the
child and sought maintenance for the child against the
respondent in O.S. No.6187/2012.
8. In order to get sympathy from the Court and
escape his liability, it is alleged, that the respondent filed a
petition seeking custody of the child before the Senior Civil
Judge, Nelamangala. An application filed by the petitioners
seeking rejection of the petition of the respondent was
erroneously rejected on 09.02.2016, which order has been
challenged by the petitioners before the High Court by filing a
writ petition and the same is pending consideration.
9. It was stated by the petitioners that after
murdering their daughter, the respondent ran away from the
house leaving the child abruptly. The petitioners took the child
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to their custody and since then the child is being looked after
by them with love and affection and they have got the capacity
to maintain the child. It is stated that the mother of the child
died when the child was nine months old and the child was in
the house of the respondent for nine months and within one
month after going to the house of the respondent, the mother
of the child was murdered. It was stated by the petitioners
that the child was aged five years and admitted to Vipra English
School, Hebbur of Tumakuru Taluk. The child was residing with
the petitioners, who are his grandparents at Karunakuppe
village in Tumakuru and therefore, the petition.
10. Objections were filed by the respondent. The dowry
harassment was denied. However, the date of birth of the child
and the date of naming ceremony of the child was admitted. It
was also admitted that after the naming ceremony, the
daughter of the petitioners namely, Shivageetha joined the
house of the respondent along with the child. Harassment of
Shivageetha to bring money was denied and it was further
denied that she could not tolerate the torture and called upon
the petitioners and intimated them about the same on
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21.07.2012. Murder of the daughter of the petitioners was
denied. Allegation of harassment by the deceased-Shivageetha
was denied by the respondent. It was stated that she hanged
herself to the fan. The absence of the respondent in his house
at the time of the death of the daughter of the petitioners was
sought to be explained. The Police had arrested the respondent
and he was sent to jail. After obtaining bail, the respondent
filed petition under Section 25 of the G & W Act before the
Senior Civil Judge, Nelamangala. By this application, custody of
the minor child of the respondent was sought.
11. The first petitioner herein was examined as PW.1
and one witness as PW.2 and documents at Exs.P1 to P9 were
marked and the petitioners' side evidence was closed. The
respondent did not cross-examine PW.2 and did not step into
the witness box to substantiate his defence in spite of sufficient
opportunity given to him.
12. The Family Court further noted that the respondent
filed application under Order VII Rule 11 (a) and (d) of the
Code of Civil Procedure, 19085, read with Sections 9 and 13 of
CPC
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the G & W Act. In the aforesaid G & WC No.18/2016 filed by
the petitioners, the respondent filed an application seeking to
reject the petition as barred by the law of estoppel and there
was no cause of action. Objections were filed by the petitioners.
13. The points that arose for consideration before the
trial Court were as follows:
"1. Whether it is necessary to appoint the
petitioners as guardians of their minor
grand child namely Jayavibhav?
2. Whether the petitioners are entitled for
permanent injunction?
3. Whether the petition is hit by estoppel
and lack of cause of action?
4. What order?"
14. The findings of the Court were as follows:
"Point No.1: In the affirmative
Point No.2: In the affirmative
Point No.3: In the negative
Point No.4: As per the final order for the
following"
15. After noting the pleadings and evidence of the case,
the Family Court was of the opinion that though the respondent
is the biological father of the child, the respondent and his
parents were facing trial before the Sessions Court in Bengaluru
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Rural District for the dowry death of the mother of the child.
When the respondent and his parents are facing trial regarding
dowry death, the respondent is not entitled to the custody of
the child. The Court opined that in the particular case, the
Court is compelled to take a different view because the custody
of the minor child cannot be entrusted to the father; the
welfare of the child is of paramount consideration and if the
child is given to the custody of the respondent, certainly it
would come in the way of the trial the respondent is facing. The
Family Court observed that the respondent, only with an
intention to gain sympathy in the trial, had filed the petition
seeking custody of the child before the Senior Civil Judge,
Nelamangala. It was found that the petitioners who are the
maternal grandparents of the child were taking good care of
the child and had competence to maintain the child and they
were entitled to be declared as guardians of the child. It was
noted that the petitioners are giving good education, love and
affection to the child.
16. Accordingly, the petitioners were declared as
guardians of minor child with consequential orders.
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17. It has been fairly submitted by learned counsel for
the respondent that the petition filed by the petitioners against
the rejection of their application filed before the competent
Court in the application filed by the respondent in the Court at
Nelamangala seeking custody of the child under the G & W Act,
came to be disposed of with a direction to the Court concerned
to dispose of the matter within a period of six months.
18. As far as the aspect of jurisdiction of the Family
Court at Tumakuru is concerned, learned counsel has referred
to the provision of Section 9 of the G & W Act to contend that it
is the ordinary place of residence of the minor child that is to
be considered and evidently, after the birth of the child, the
child was residing with the respondent in the respondents'
house in Nelamangala and therefore, the Court having
jurisdiction would be the Court in the District of Bengaluru
Rural District.
19. A perusal of the judgment of the Family Court and
the record reveal that, admittedly, the child was born on
08.09.2011 at Tumakuru. The naming ceremony of the child
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was performed by the petitioners at Tumakuru on 31.05.2012.
After the naming ceremony, the daughter of the petitioners
along with the child joined the respondent at his house. The
allegation is that due to the harassment of the daughter of the
petitioners by the respondent and his family members, she was
not able to tolerate the torture and she called up the
petitioners' to intimate about the harassment on 21.07.2012.
Before the petitioners could reach the house of the respondent,
their daughter hanged herself on the same day. Since neither
the respondent nor his parents were residing at the site of the
alleged murder of the petitioners' daughter, the petitioners took
the child and brought him back to Tumakuru to their place of
residence. Ever since July 2012, the minor child is residing
continuously with the petitioners. In view of the aforesaid
facts, the judgment relied upon by the learned counsel for the
respondent-appellant in Konduparthi Venkateswarlu, is to
be seen. The learned Single Judge referred to several
judgments of the Rajasthan High Court6, a decision of the
Andhra Pradesh High Court7, a judgment of the Allahabad High
Smt. Vimla Devi v. Smt. Maya Devi, AIR 1981 Raj 211
Harihar Pershad Jaiswal v. Suresh Jaiswal, AIR 1978 Andh Pra 13
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Court8, a judgment of the Patna High Court9 and a judgment of
the Kerala High Court10. All the aforesaid cases of various High
Courts had considered the usage of the expression "ordinarily
resides" in Section 9 of the G & W Act. Each of the cases was
decided on the facts of each particular case and it was observed
that generally, the length of residence at a particular place
would determine the question as to where the minor ordinarily
resides.
20. Considering the facts of the case, the learned Judge
of the Orissa High Court in Konduparthi Venkateswarlu had
opined that it was not Visakhapatnam but the ordinary place of
residence of the minor being at Berhampur and therefore, the
District Judge, Ganjam was right in his conclusion that he had
jurisdiction under Section 9 of the G & W Act to entertain the
application for custody of the child.
21. In view of the facts narrated above, we have no
doubt in our minds that the place of ordinary residence of the
Jamuna Prasad v. Mst. Panna, AIR 1960 All 285
Bhola Nath v. Sharda Devi, AIR 1954 Pat 489
Sarada Nayar v. Vayankara Amma, AIR 1957 Ker 158
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child was Tumakuru, where he had been residing from the age
of 10 months, that is, to say from 21.07.2012 till filing of the
petition under the G & W Act and, as admitted, even now.
Therefore, the objection as to jurisdiction is rejected.
22. Next coming to the contention with regard to the
respondent not being afforded an adequate opportunity to
cross-examine the witnesses, we find from perusal of the order
sheet and the testimony available in the trial Court records
that, the examination-in-chief of the PW.1 by way of an
affidavit and orally was done on 28.01.2017. Further, for
cross-examination of the PW.1, the dates viz., 18.02.2017 and
17.03.2017 were fixed, but he was not cross-examined.
Thereafter, PW.1 was cross-examined on 10.04.2017. Again
the dates were fixed for cross-examination of PW.1 on
19.04.2017, 01.06.2017 and 07.06.2017, but PW.1 was not
cross-examined. On 19.06.2017, PW.1 was cross-examined in
part.
22.1 On 19.06.2017, after cross-examining the
PW.1 in-part, the learned counsel for the respondent submitted
that he would file an application regarding the maintainability of
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the petition as G and WC case. Therefore, the cross-
examination of PW.1 was taken as 'closed'. It was observed by
the Court that the respondent was granted sufficient
adjournments for cross-examination.
22.2 On 11.07.2017, the affidavit of the witness
PW.2 was filed being his examination-in-chief. On 20.07.2017,
though petitioner No.1 and PW.2 were present, but respondent
and his counsel were absent. Hence, the cross-examination of
PW.2 was taken as 'nil'. On 27.07.2017, though the petitioner
was present, the Court noted that the respondent and his
counsel were absent continuously and there was no
representation. Hence, the evidence of the respondent was
taken as 'nil'. On 19.08.2017, both the parties were present.
An application under Order VII Rule 11(a) and (d) of CPC was
filed by the counsel for the respondent. This was orally objected
to by the counsel for the petitioners. The matter was fixed for
arguments.
22.3 On 21.08.2017, the petitioner was present
who filed the objections to I.A. No.5. An application under
Section 151 CPC was filed by the respondent. An application
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under Order XVIII Rule 12 of the CPC was also filed. Even
though PW.1 was present in Court, the counsel for the
respondent submitted that he is not ready to cross-examine
PW.1 on that day. The Court observed that since sufficient
opportunity was given to the respondent, he has not shown
interest to go-on with the further cross-examination of PW.1
and cross-examination of PW.2 and the respondent was also
not adducing evidence. Hence, IA Nos.6 and 7 were rejected
refusing the prayer of the counsel for the respondent for
adjournment and posted the matters for orders on 01.09.2017.
On 01.09.2017, the impugned order was passed.
22.4 Therefore, the aforesaid clearly reveals that
adequate opportunity was afforded to the respondent to cross-
examine the PW.1 as well as PW.2 and therefore, we see no
merit in the contention of the learned counsel for the
respondent that the respondent was not given adequate
opportunity to cross-examine the PW.1.
23. As far as the aspect regarding the validity of the
order, which is sought to be challenged, is concerned, as noted
above, the respondent is facing trial under the provisions of
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Sections 498A, 304-B, 149 IPC read with Sections 3 and 4 of
the DP Act. Even on the previous day of listing i.e.,
16.10.2025, the learned counsel for the petitioners had made
the submission regarding talks of compromise going on
between the parties for settlement and had sought an
adjournment. Noting the submissions of learned counsel for
the parties, the following order was passed:
"The counsel for the parties requests an
adjournment in the matter on the ground that
negotiations are going on between the parties and
there are chances of imminent settlement.
The instant case is an appeal arising out of
an order dated 01.09.2017 passed by the
Principal Judge, Family Court at Tumakuru in G &
WC No.18/2016. The respondents are the
petitioners and grandparents of the ward, in the
aforesaid G & WC No.18/2016. The ward is stated
to be now of 14 years of age.
The petition was allowed by the Principal
Judge despite noticing that the
appellant/respondent being the father is the
natural guardian and he should not ordinarily be
denied his natural right to keep his child with him,
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but the facts and circumstances of the case
compelled the Court to take a different view.
Noticing the paramount consideration of the
welfare of the child, the trial Court noted that the
appellant/respondent is facing a criminal trial in a
Sessions Case bearing SC No.107/2013 filed
under Sections 498A, 304-B IPC, read with
Sections 3 and 4 of the DP Act and 34 IPC, Police
Station, Dabbaspet in which the appellant is
accused of killing his wife. The aforesaid sessions
trial is pending before the Court concerned in
District Bengaluru Rural. The Principal Judge
noted that if the child is given in the custody of
the appellant/respondent, certainly it will come in
the way of the trial the appellant/respondent is
facing. The finding was that the appellant-
respondent, only with an intention to gain
sympathy in the trial he is facing, has filed
petition seeking custody of the child. Therefore,
the respondents/petitioners, who are the
maternal grandparents of the child, were found to
be entitled to be declared as guardians of the
child. The petition was accordingly allowed.
In the facts and circumstances of the case,
and noticing prima facie that a compromise as is
being sought to be entered into between the
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parties may jeopardise the outcome of the trial,
this Court asked the counsel for the appellant to
proceed with the argument of the case.
Learned counsel for the appellant sought an
adjournment to enable him to prepare the case.
As such, list the matter in the week after the next
for dismissal.
The PDJ/Judge-in-charge of Bengaluru Rural
District is directed to furnish a status of the trial,
which shall be made available prior to the next
date of listing of the case.
List this matter on 30.10.2025.
The Registrar concerned is directed to
communicate the instant order forthwith to the
District Judge."
24. The report from the office of the Principal District
and Sessions Judge, Bengaluru Rural District dated 25.10.2025
is available on record. From perusal of that and its enclosures
it appears that proceedings in the Sessions trial were going on
before the trial Court and on 16.09.2025, an application was
filed by the Public Prosecutor under Section 311 of the Code of
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Criminal Procedure, 197311 to permit recall of the CW.1-
complainant and for leading evidence in the interest of justice.
The Court noted that, the charges were framed and the matter
was set for recording the evidence of the prosecution. The
complainant is the father of the deceased and, as noted by the
trial Court, he was not keeping good health and a memo was
submitted by him to drop him from giving evidence. The trial
Court noted, and in our opinion correctly so, that CW.1 is the
father of the deceased whose evidence is very much important
to prove the case of the prosecution. The application under
Section 311 of the CrPC was therefore, allowed.
25. The order of 23.10.2025 reflects that the file of the
case was misplaced and it was not sent to the Court on that
day. However, thanks to the efforts of the trial Court, the file
was traced. The matter has now been fixed for 22.11.2025.
26. Perjury eats into the entrails of any system of
judicial administration. Any attempts at compromise in the
facts and circumstances, would be an incentive to the accused
to ensure by whatever means available at his disposal, to turn
CrPC
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witnesses hostile. The consequences of that would likely lead to
compromising the interest of justice. Therefore, the request for
adjournment made on 16.10.2025 to enable the parties to
enter into a compromise, militates against the interest of
justice in the facts and circumstances of the instant case. In
exercise of our inherent powers of supervision under Article 227
of the Constitution of India, we direct the trial Court to proceed
in the matter independently and in accordance with law. It is
well within the trial Court's competence that should any witness
turn hostile, suitable steps be taken against that witness under
the relevant provisions of the Bharatiya Nyaya Sanhita, 202312
and the Bharatiya Nagarik Suraksha Sanhita, 202313.
27. We find that the Family Court has delved on the
issue of the father of the minor child being implicated in the
case of murder of his own mother, and justifiably held that
custody of the child to the father would compromise the
outcome of the trial.
BNS
BNSS
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28. For the reasons aforesaid, we see no merit in the
instant appeal. The appeal is therefore, dismissed.
The Registrar concerned is directed to send a copy of the
instant order to the Sessions Court where the trial is pending
for placing the same on record of the S.C. No.107/2013.
Sd/-
(JAYANT BANERJI)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
VBS
