Telangana High Court
J. Kavitha Purna vs J. Kumaraswamy on 13 June, 2022
Bench: Shameem Akther, Juvvadi Sridevi
High Court for the State of Telangana
The Hon'ble Sri Justice Raghvendra Singh Chauhan
and
The Hon'ble Sri Justice T.Amarnath Goud
F.C.A. Nos.111 & 112 of 2006
Date: 26-03-2019
Between:
Sri Jitender Agarwal
...Appellant
and
Sri Radheshyam Kedia
...Respondent
Counsel for the appellant: Mr. Shyam S. Agarwal
Counsel for the respondent: Mr. Rupendra Mahendra
The Court made the following:
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F.C.A.Nos.111
& 112 of 2006
Dt: 26-03-2019
Common Judgment: (per Hon'ble Sri Justice Raghvendra Singh Chauhan)
Since common issue is involved in both these appeals,
they are being disposed of together with the consent of the
learned counsel for both parties.
Mr. Jitender Agarwal, the appellant, has filed these two
appeals challenging the legality of two separate orders, dated
29-07-2005 and 16-02-2006, passed by the Judge, Family
Court, Hyderabad, in O.P.No.96 of 2004 and O.P.No.832 of
2004 respectively.
By the aforesaid orders, the learned Judge has
dismissed OP.No.96 of 2004 filed by the appellant seeking
custody of the minor child, Khushi, and allowed OP.No.832
of 2004 granting the custody of Khushi to her maternal
grand father, Mr. Radheshyam Kedia, the respondent herein.
The brief facts of the case are that on 19-04-2000, the
appellant was married to Sangeeta, the respondent's
daughter, in accordance with the Hindu customs and rites.
During the wedlock, on 18-09-2002, Khushi was born.
However, due to the differences that arose between the
couple, Sangeeta left the matrimonial home along with her
3 RSC, J & TA, J
F.C.A.Nos.111
& 112 of 2006
Dt: 26-03-2019
daughter, and returned to her parental home. Ultimately, on
22-05-2003, she expired. After her death, Khushi has been
brought up by the respondent, who happens to be her
maternal grandfather, and his joint family. Subsequently, the
appellant filed O.P.No.95 of 2004 before the learned Family
Court seeking Khushi's custody. Meanwhile, the respondent
filed O.P.No.832 of 2004 before the said Court seeking his
appointment as Khushi's guardian.
In order to buttress his case in O.P.No.95 of 2004, the
appellant examined himself as P.W.1 and his mother as
P.W.2 and submitted two documents. On the other hand,
the respondent examined three witnesses.
In order to buttress his case in O.P.No.832 of 2004,
the respondent examined himself as P.W.1, and submitted
three documents. The appellant examined himself as R.W.1
and submitted one document.
After appreciating the evidence, by the impugned
orders, the learned Family Court, as mentioned herein above,
declared the respondent as the Khushi's guardian, and
dismissed the petition filed by the appellant for seeking
4 RSC, J & TA, J
F.C.A.Nos.111
& 112 of 2006
Dt: 26-03-2019
Khushi's custody filed by the appellant. Hence, these two
appeals before this Court.
Mr. Shyam S. Agarwal, the learned counsel for the
appellant, has vehemently contended that even if the grand-
father has been declared as the guardian, during the
pendency of the present appeals, he has expired. Therefore,
the custody of the child should be given to the appellant. In
the alternative, even if the custody cannot be given to him,
the appellant, being the biological father, should be granted
visitation rights by this Court.
On the other hand, Mr. Rupendra Mahendra, the
learned counsel for the respondent, submits that after the
death of the respondent, Khushi is being looked after by her
maternal uncles, aunts and sisters-in-law. Therefore, the
child is absolutely comfortable within a joint family. Hence,
it will be unjust to the child to force her to interact with a
person, who has been a total stranger to her. According to
the learned counsel, for many years, the appellant has never
enquired about the welfare of the child. Therefore, the child
has never interacted with the appellant. Hence, the learned
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F.C.A.Nos.111
& 112 of 2006
Dt: 26-03-2019
counsel has vehemently opposed even the grant of visitation
rights to the appellant.
On 18-03-2019, this Court had an occasion to interact
with Khushi in the chambers. She informed this Court that
she is being looked after by her uncle, Mr. Ramesh Kedia
and his wife, Snehalatha Kedia. They have three children of
their own, out of whom two of her elder cousin brothers are
married. She further informs this Court that she has two
other elder uncles, who were also married and have children
of their own. According to her, she is staying in a joint
family consisting of her elder maternal uncle and aunt, their
two grown up children, who are married, and two uncles,
who are also married and have children of their own. She
further informs this Court that she is happy and comfortable
with her maternal side of the family. According to her, she
is studying in the IXth class at the Rainbow School. Her
favourite subject is Fine Arts; she wants to become an artist
when she grows up.
When this Court asked her whether she is aware of the
fact that the appellant, Mr. Jitender Agarwal, happens to be
her biological father, she informed that she has been told so
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F.C.A.Nos.111
& 112 of 2006
Dt: 26-03-2019
by her aunt. But as she has never met Mr. Jitender Agarwal,
he is a total stranger to her. As far as she is concerned, she
has treated Mr. Radheshyam Kedia and his wife, Snehalatha,
as her own parents.
Needless to say the interest of the child is paramount.
Therefore, this Court will have to consider the issue, whether
this Court would be justified in granting either her custody,
or the visitation right to the appellant, who, according to
Khushi, happens to be a total stranger to her ?
It is, indeed, trite to state that once a child is happy and
comfortable being cocooned in a joint family, once she has
interacted with the members of the family for large number
of years, it would be highly unfair to extricate her from the
comfortable living, and from the people with whom she has
strong emotional bonds. Moreover, according to Khushi
herself, she has never met or interacted with the appellant,
her biological father. Hence, it would be highly unjust to
thrust upon her a person, who is a stranger to her, and to
hope that she would be comfortable with the said person.
Moreover, as the child is not matured enough to decide as to
whom to love, and whom to trust, especially without her
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F.C.A.Nos.111
& 112 of 2006
Dt: 26-03-2019
interaction with her biological father, the appellant, it may
pull her in two different directions. On the one hand, her
natural love and affection for her uncles, aunts and the
family, and on the other hand, an emotional tug being given
by the appellant for being her biological father. It is too
much to expect a child to walk on this tight rope without
hurting her psychological and emotional well being.
Therefore, this Court is of the firm opinion that it
would not be in the interest of the child, Khushi, to grant
either her custody, or the visitation rights to the appellant.
Presently, Khushi happens to be a seventeen-year-old young
woman. Within a short period of one and a half year, she
will attain majority. Perhaps, the decision, whether she
would go back and interact with her biological father or not,
is best left for her to decide rather being forced by this Court
to develop a bond, which has never existed for the last
seventeen years.
For the reasons stated above, this Court does not find
any merit in the present appeals. Both the appeals are,
hereby, dismissed.
8 RSC, J & TA, J
F.C.A.Nos.111
& 112 of 2006
Dt: 26-03-2019
As a sequel, Miscellaneous Petitions, pending if any,
stand disposed of as infructuous.
___________________________
(Raghvendra Singh Chauhan, J)
___________________
(T.Amarnath Goud, J)
Dt: 26th March, 2019
lur
