A woman commits suicide at HER FATHER’S house. As usual the husband is blamed and cases filed on him ! He runs pillar to post to get out of the mess. Meanwhile his father in law takes custody of the couple’s child, (father in law’s grand child) and tries to oust the father. Father wins custody proving that he can provide the best education and affection to the six year old child ! Classic Karnataka HC case
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MAY, 2020
PRESENT THE HON’BLE Mrs. JUSTICE B.V. NAGARATHNA AND THE HON’BLE Mr. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL No.3270 OF 2019(G&WC) BETWEEN:
SRI P. MANJUNATH S/O. H.N. PUTTEGOWDA AGED ABOUT 35 YEARS NO.42, SUNRISE LAYOUT YELECHANHAHALLI, KANAKAPURA MAIN ROAD , BENGALURU – 560 078 … APPELLANT (BY SRI C.V.SRINIVASA, ADVOCATE)
SRI JAGADISH S/O.LATE ANJANEYA GOWDA AGED ABOUT 58 YEARS, NO.1036, 10TH MAIN, 10TH CROSS BEHIND PRAGATHY SCHOOL, BOGADHI 2ND STAGE MYSURU – 570 009, … RESPONDENT (BY SRI T.N.RAGHUPATHY, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 47(a) OF THE GUARDIAN AND WARDS ACT READ WITH SECTION 19 OF THE FAMILY COURTS ACT, 1984 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 18.03.2019 PASSED IN G & WC.NO.27/2017 BY THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, MYSURU AND ALLOW THE PETITION FILED BY THE PETITIONER/APPELLANT UNDER SECTION 25 OF THE GUARDIAN AND WARDS ACT, 1890 READ WITH SECTION 6 OF THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 03.03.2020, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY PRADEEP SINGH YERUR J., DELIVERED THE FOLLOWING: JUDGMENT
1. The petitioner in G & W.No.27/2017, who is the father of the minor child Sai Pratham, has filed the present appeal being aggrieved by order dated 18.03.2019 passed by II Additional Principal Family Court at Mysuru, wherein the Family Court has rejected the prayer for permanent custody and has disposed of the guardianship petition by granting only temporary custody of the minor ward to the appellant-father during Dasara and Summer vacations and provided visitation right to him to visit the minor child at his convenience, without affecting the curricular, co-curricular and extra curricular activities whenever possible and with prior intimation to the respondent, who is the maternal grand-father of the minor child.
2. The brief facts of the case are that the appellant herein filed a petition before the Family Court under Section 25 of the Guardian and Wards Act, 1890 read with Section 6 of the Hindu Minority and Guardianship Act, 1956 praying for a direction to the respondent, the maternal grand-father of the ward, to handover the custody of Master Sai Pratham to the appellant.
3. It is the case of the appellant that he had married Smt.J.Akshatha, the daughter of the respondent herein on 20.02.2013 at Meenakshi Kalyana Mantapa, Rajarajeshwari Nagara, Bengaluru as per Hindu rites and customs. After marriage, the appellant and his wife were residing at Bengaluru in his residence but over a period of time, difference of opinion developed between the appellant and his wife Smt.Akshatha. Due to the said differences, his wife, Smt.Akshatha demanded that a separate house be made and to send his parents out of the house, so that, they alone can stay at the house. Since the appellant did not accede to the demand of his wife, she persistently taunted him and humiliated him which caused mental torture to the appellant.
4. The appellant and his wife were blessed with a male child namely, Master Sai Pratham on 26.12.2013. The appellant was happy and elated as he was under the impression that due to the birth of the child, the attitude and behaviour of his wife would change and they could lead happy matrimonial life. In fact, in order to keep his wife happy, he had even taken her to Australia on vacation by spending lakhs of rupees. Despite which, his wife did not change for the good and she persistently demanded him to throw her in-laws, parents of the appellant out of the house. It is the case of the appellant that while his wife was living with him, she had attempted to commit suicide. Though the appellant had informed this to the respondent herein, the father of his wife, no action was taken by the respondent to advice his daughter, the wife of the appellant, rather, the respondent started coming and staying with the appellant at Bengaluru in his house and started interfering with the hotel business which was run by the appellant.
5. This being the state of affairs, the wife of the appellant demanded the appellant to send her to her parents house at Mysuru, so that, she can spend some quality time with her parents along with her son. The appellant felt that this would be a good opportunity for his wife to spend some quality time with her parents along with the minor child, which would be a change in the atmosphere and that her parents could prevail on her to change her attitude with the appellant and her in laws. Accordingly, on 15.04.2016, the appellant dropped his wife and minor son to the parental house of his wife at Mysuru with a hope that she would return soon as a changed person.
6. It is the case of the appellant that when he called her after a few days to ask her as to why she has not returned, she started avoiding the appellant and his family members. When this continued, the appellant, left with no alternative, filed a petition under Section 9 of the Hindu Marriage Act, 1955 in MC.No.2341/2016 before IV Additional Principal Judge, Family Court at Bengaluru. On appearance of Smt.Akshatha on 17.10.2016, the matter was referred to mediation and it was decided that she would join her husband at the matrimonial home. But she again wanted to remain in her parental house at Mysuru and did not join the appellant immediately. It is stated by the appellant that on 02.07.2016, the wife of the appellant, Smt.Akshatha appeared before Vanitha Sahaya Vani and Spandana and expressed her willingness to join the appellant but however under the influence of her father, she continued to demand a separate house to be made with additional monthly expenses of Rs.30,000/- to be paid to her, which fact became a hindrance for her to join the appellant in the matrimonial home. It is the case of the appellant that his wife Smt.Akshatha was to join him on 11.11.2016 after attending the mediation before the Family Court. But she decided to go to her parents house at Mysuru. It is the case of the appellant that unfortunately on 12.11.2016 at 8.15 a.m. for the reasons best known to her, Smt.Akshatha committed suicide at her parents house in Mysuru. The respondent taking advantage of the situation of suicide committed by his daughter filed a false and fictitious complaint against the appellant herein and his parents before Saraswathipuram Police Station, Mysuru in Crime No.225/2016 for the offences punishable under Sections 498A and 304B read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act.
7. Further case of the appellant is that on the date of death of Smt.Akshatha, the respondent herein called all the tenants of the building owned by the appellant’s father and started demanding them to pay the rents to him from the following months as his daughter had committed suicide and he would be the future owner of the building. The appellant submits that he approached the respondent to take custody of the minor child, since he is the natural guardian and the child was in the custody of the respondent from the date of death of Smt.Akshatha and it was the duty of the appellant to take care and provide all love and affection and basic necessities of life to the minor child. But to the utter shock and surprise of the appellant, the respondent refused to handover the custody of the child stating that it would be difficult for the appellant to take care of the child and he refused to handover the child.
8. It is the case of the appellant that since the respondent did not handover the custody of the minor child, he filed a petition under Section 25 of the Guardian and Wards Act read with Section 6 of the Hindu Minority and Guardianship Act, 1956 for securing the custody of the minor child through process of the Court on 06.06.2017. It is the case of the appellant that in order to provide motherly love and affection to the minor child, he got married to one Smt.Chaithanya on 14.06.2017.
9. On issuance of notice from the Court, the respondent herein, who is none other than the father in law of the appellant and the father of the deceased Smt.Akshatha, appeared before the Court and filed his statement of objections.
10. It is the case of the respondent before the Family Court that the marriage of Akshatha with the appellant was arranged and celebrated by spending huge amount of money amounting to Rs.60,00,000/- and not being satisfied with the huge amount spent by the respondent, the appellant and his family members were harassing his daughter, the deceased Smt.Akshatha for more money and that for not even a single day, did the appellant and his parents treat Smt.Akshatha as their daughter and did not provide any love and affection. It is the case of the respondent that his daughter was ill- treated, abused in a filthy language, tortured, made to work like a servant by the mother and the sister of the appellant herein.
11. The respondent further submitted that the appellant herein neglected and deserted his wife Smt.Akshatha and finally, threw her out of the matrimonial home. Even after the birth of the child, not even a single day, the appellant and his family members took care of the minor child and neither did they provide minimum or basic necessities for the minor child from the date of his birth till the child stayed with the respondent, the maternal grand- father.
12. The respondent further submitted that the appellant has got married to another lady and he is leading a happy life and he has not spent a single penny for the welfare and well being of the minor child. Therefore, the appellant does not deserve the custody of the minor child and hence sought for dismissal of the petition.
13. The appellant got himself examined as PW.1 and got marked the documents as per Exs.P1 to P4. The respondent got himself examined as RW.1 and got marked the documents as per Exs.R1 to R19.
14. The evidence is lead by affidavit filed by the appellant. It is stated that after the marriage of the appellant with the deceased Akshatha, she started quarrelling and humiliating the parents of the appellant which caused mental agony to the appellant. Despite such mental torture and humiliation, the appellant strived hard to cajole his wife with an intention to have a happy married life. The appellant, in fact, had taken the deceased Akshatha to a foreign country with an intention to see that she changes her attitude and starts living with him without creating any nuisance and misunderstanding.
15. The appellant has stated in his evidence that he was thrilled with the birth of a baby boy namely, Master Sai Pratham and he was under the impression that it will be a rosy life as there was an inclusion to the family. He had brought several gifts like jewellery, clothes, gadgets etc. to the deceased Akshatha. Despite all these, the deceased Akshatha was not interested but persistently demanded the appellant to throw his parents out of the house, for which the appellant was not ready. Further, the appellant has stated that when he did not agree for such a demand in throwing his parents out of the house, his wife attempted to commit suicide and she was hospitalised.
16. The appellant informed this act of attempting to commit suicide to the father of Akshatha, the respondent herein but the same did not yield any result because no good advice was given by the respondent to his daughter, Smt.Akshatha. The appellant has further stated that since his wife Akshatha had demanded him to leave her at her parents house in Mysuru, he had agreed for the same with an intention to see that the atmosphere may be conducive for the wife and the child and accordingly, he left them in her parents house at Mysuru on 15.04.2016 with a fond hope that she would return with their son after few days. Since his wife did not return with the child, the appellant was forced to file a petition under Section 9 of the Hindu Marriage Act, 1955 in M.C.No.2341/2016 for a direction to his wife to join him at the matrimonial home. It is further stated that in the said petition, on appearance of his wife. The matter was sent for mediation and his wife Smt.Akshatha agreed to join the appellant in the matrimonial house. Since she did not join the appellant in the matrimonial home, the appellant was concerned, but to the utter shock of the appellant, on 12.11.2016 at about 8.15 a.m., Akshatha committed suicide at her parents house in Mysuru.
17. The appellant has further stated that taking advantage of the situation, respondent got registered a criminal case in Crime No.225/2016 for the offences punishable under Sections 498A and 304B read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act. The appellant has been undergoing an ordeal of the criminal case from the date of its initiation despite him not being responsible for the suicide committed by his wife Akshatha. The appellant has further stated in his evidence that the minor child has continued to stay with the respondent because of the fact that his wife did not return to the matrimonial home with the child which was taken advantage of by the respondent.
18. The appellant further states that he is a Post Graduate in MBA and doing independent business earning sufficient income for himself and for the family. He further states that he is also taking care of the hotel business of his family in the name and style of ‘ESPEE RESIDENCY’ at Bengaluru and that he has got capability and potential to earn good amount of money to lead a comfortable and luxurious life. He has also stated that he is capable of spending sufficiently good amount of money for quality education of the child in the best Educational Institution, so that, his child can study in the best School at Bengaluru keeping in view the modern competitive world and when compared to Mysuru, Bengaluru is better place for such education for children and for the overall development of the child.
19. The appellant has also stated that overall development of the child will be conducive at the home of the appellant and he will be in a better position to take care of the child physically, mentally, spiritually and culturally and being a father, there is no other person in the world who could take care of him better than him in the absence of his mother. He has also stated that his parents are also staying with him and the love and affection of the grand-parents will be an added advantage for the development of the minor child.
20. The appellant has stated that, on the contrary, the respondent is an aged person and he is almost 60 years of age and he will not be in a better position to take care of the minor child; he will not be able to provide good food, clothing, education and the family bonding for the proper growth and development of the minor child.
21. The respondent herein has adduced his evidence and he has stated that the marriage between the appellant and Smt.Akshatha was celebrated in a grand manner and he spent about Rs.60,00,000/- for the celebration of the marriage and despite spending such huge amount, his daughter was harassed and ill treated and tortured by the appellant and his family. He further states in his evidence that due to such physical harassment and mental torture, his daughter, Smt.Akshatha committed suicide. The respondent has stated that the appellant ill treated Smt.Akshatha and thrown her out of the matrimonial home and never bothered to take care of her till her death. He further states that even after the birth of the child, not a single day, the appellant or his family members visited the child and neither did they provide any basic or minimum necessities for bringing up the child. The respondent has also stated that the appellant is not fit to be given the custody of the child for the reasons that within six months from the death of his daughter, namely, Smt.Akshatha, he has got married to another lady, thereby putting into jeopardy the growth and development of the minor child. The respondent has produced the copy of the chragesheet of the criminal case, the complaint made before the Women’s Commission, the order sheet, the copy of the FIR, copy of the letter written by Akshatha and the School fee receipts for having paid the fees for the child’s education to show that he is the better person to have the custody of the minor child than the father, the appellant herein.
22. Based on the above evidence, the Family Court has come to the conclusion that the appellant has not taken part in any of the activities of the ward and on the other hand, it is the respondent who is taking care of the minor child by sending the child to the School by providing financial assistance and taking care the overall development of the child till the death of his daughter.
23. The Family Court has further come to a conclusion that in view of the fact that the appellant has got married after the death of Smt.Akshatha, the said wife of the appellant may not properly take care of the child and has held that neither the parents of the appellant nor the second wife have come forward to state before the Court that they would take care of the minor child Sai Pratham and provide necessary moral and financial support. The Family Court has come to a conclusion that the respondent is an educated person and having worked as a PWD Contractor for the last thirty years, he would not have any difficulty in taking care of the minor child and he would have no problem in leading a comfortable life. Further, the respondent has also rental income which would be an added financial support to take care of the minor child.
24. The Family Court has further held that the appellant is the only son to his parents and his mother is aged and suffering from knee pain and the second wife of the appellant has given birth to a child. Therefore, the appellant may not be suitable and fit person to take the custody of the child, Master Sai Pratham. The Family Court has also held that since the minor child, Master Sai Pratham was aged 6 years, 2 months, out of which, he has spent substantial time of four years with the maternal grand-parents, therefore, in the best interest of the minor child, the respondent would be the fit person to have the custody of the minor child. With these observations and findings, the Family Court has refused to grant the custody of the minor child to the appellant-father but in order to continue the relationship of father and son has provided visitation rights and did not disturb the custody of the minor child with the respondent.
25. After hearing the parties and based on the evidence adduced by the parties and after consideration of both oral and documentary evidence, the Family Court has passed the following order: “ORDER The petition U/s 25 of the Guardian and Wards Act R/w Sec.6 of the Hindu Minority and Guardianship Act, 1956 is disposed of in the following terms: a) The petitioner is entitled to visit the minor at his convenience, without affecting the curricular, co-curricular and extra curricular activities whenever possible and with prior information to the respondent. b) He is also entitled for temporary custody of the minor ward during Dasara and Summer Holidays and he shall be completely responsible for the well being and up keep of the minor during such period. c) He shall take care that the minor’s mind is not poisoned in any manner against the respondent or his family members while exercising the visitation rights or while the minor is with him during school holidays. Having regard to the facts and circumstances of the case, there is no order as to cost.”
26. Aggrieved by the order passed by II Additional Principal Judge, Family Court at Mysuru, the appellant- father of the minor child is before this Court challenging the legality and correctness of the said order passed by the Family Court.
27. It was the contention of the learned counsel for the appellant Sri Srinivasa that the appellant is the natural guardian of the minor child and he is financially sound with a decent job to take care of the minor child. It was also contended by the learned counsel for the appellant that he is highly qualified and well placed in society and so also, his present wife is an Engineering graduate who is also having great love and affection towards the minor child and she is also working and earning good income. Therefore, she is also in a better position to take care of the minor child. It was further submitted by learned counsel for the appellant that the atmosphere would be more conducive for the minor child to stay with the appellant because there is child born to his present wife. Therefore, the mother is step mother and sister is step sister along with the appellant and his parents would build an ideal atmosphere for the proper development and growth of the minor child. It is further contended by the learned counsel for the appellant that the very purpose and reason of his getting married again was with an intention to provide motherly love and affection to the minor child Sai Pratham. Learned counsel for the appellant draws our attention to several documents produced to show the educational qualification of himself, his present wife Chaithanya C.V., office copy of the income tax return forms and other financial documents which would show that he is financially capable of taking care of the minor child which is in the interest of the child and for proper development and growth of the minor child.
28. It is the contention of the learned counsel for the appellant that the respondent will not be able to provide a similar conducive atmosphere for the proper development and growth of the minor child as is provided by the appellant in his home. He further contended that there cannot be any alternative for the love and affection of the father towards his child and none can replace love and affection i.e. showered by a father towards his child. He further contended that despite the loss of natural mother, the step mother is providing and shall provide all the love and affection as that of a mother towards proper development and growth of the minor child. Learned counsel for the appellant drew our attention to a number of photographs of the ward Sai Pratham in support of his submission that the child is happy in the company of the appellant and his family at Bengaluru and is presently studying in Delhi Public School and is also doing well in his School. That pursuant to the interim order passed in April, 2019, the child is well settled with his father and his family and it may not be the best interest of the child to handover permanent custody of the child to his maternal grand- parents as the same would hamper the growth, upbringing and development of the child at Mysuru.
29. Learned counsel for the appellant has relied on the following decisions in support of his case:
1. Ayisakkutty vs. Abdul Samad reported in AIR 2005 Ker 68: Para 5 of the said decision reads as under: “5. The Court would always respect the sentiments of the grandmother. Child’s mother has committed suicide. Father later remarried and has got children. Conduct of remarriage by the father of the child itself is not a ground to reject the prayer for custody. Welfare of the child is of paramount consideration. By giving due respect to the sentiments expressed by the grandmother, we are of the view, it is for the welfare of the child that the child be with the father.”
2. Lekh Raj Kukreja vs. Raymon reported in AIR 1989 Delhi 246: A portion of para-4 of the said decision reads as under: “(4) ……………………………………. Ordinarily custody should go to natural guardian. However, there may be cases where there is a conflict in claim of father as natural guardian of the male child and welfare of the child. Such cases are far and few. It is only in extreme case of illiteracy, poverty or delinquency of the father that his claim to the custody of child can be disregarded. Otherwise the courts would strain to reconcile the claim of the father based on his right as natural guardian of the male child with the welfare of the child the balance tilting in favor of the welfare of the child it being of paramount and supreme important.”
3. Mausami Moitra Ganguli vs. Jayanti Ganguli reported in (2008)7 SCC 673: A portion of para-15 of the said decision reads as under: “15. In Rosy Jacob Vs. Jacob A. Chakramakkal 1, a three- Judge Bench of this Court in a rather curt language had observed that the children are not mere chattels; nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of (1973) 1 SCC 840 welfare of the minor children and the rights of their respective parents over them.”
In this particular case, the Hon’ble Apex Court after hearing the parties has held that – “Under these circumstances and bearing in mind the paramount consideration of the welfare of the child, we are convinced that child’s interest and welfare will be best served if he continues to be in the custody of the father. In our opinion, for the present, it is not desirable to disturb the custody of Master Satyajeet and, therefore, the order of the High Court giving his exclusive custody to the father with visitation rights to the mother deserves to be maintained.”
4. In Om Prakash vs. Pushpa reported in 1975 RLR 29, para-14 reads as under: “(14) The provisions of the Guardian and Wards Act, and the Hindu Minority and Guardianship Act clearly point in one direction and it is this. Of a male child of 10″ years the father is the natural guardian. He does not require an appointment by any Court. His personal law gives him that right. He is entitled to the custody of the child and he can enforce his right to that custody at any time, It is true that the rules regarding guardianship and custody of the minor are not rigid and inflexible. These are also subordinate to the paramount considerations of the welfare of the minor.”
5. The next decision cited is of this Court in the case of Mr.Preetam A Eklasapur vs Smt. Vanishree in WP.No.52377/2018 [DD.08.01.2019]: Para-22 of the said decision reads as under: “22. In deciding a difficult and complex question as to the custody of a minor child, a Court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings and the Court should also take the wishes of the minor child into consideration.”
6. R.V.Srinath Prasad vs. Nandamuri Jayakrishna reported in (2001)4 SCC 71: A portion of the said decision reads as under: “The High Court appears to have overlooked the settled principle that custody orders by their nature can never be final; however, before a change is made it must be proved to be in the paramount interest of the children. In a sensitive matter like this no single factor can be taken to be decisive. Neither affluence nor capacity to provide comfortable living should cloud the consideration by the Court. Here we may refer to the decision of this Court in Jai Prakash Khadri vs. Shyam Sunder Agarwalla and another 2000(6) SCC 598. In such matters usually, Courts while granting the custody of minor children to one party extend the facility of visiting them to the other.”
7. The next decision of the Hon’ble Apex Court is in the case of Lahari Sakhamuri vs. Sobhan Kodali in Civil Appeal No(s).3135-316/2019 (Arising out of SLP(Civil)No(s).15892-15893/2018)[DD.15.3.2019] Paras-52 and 53 of the said decision reads as under: “52. Before we conclude, we would like to observe that it is much required to express our deep concern on the issue. Divorce and custody battles can become quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The eventful agreement about custody may often be a reflection of the parents’ interests, rather than the child’s. The issue in a child custody dispute is what will become of the child, but ordinarily the child is not a true participant in the process. While the best-interests principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself or does he have representation in the ordinary sense.
53. The child’s psychological balance is deeply affected through the marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children. To focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights.”
8. The decision of this Court in the case of M.V.Krishna Murthy vs. Sri Arun C. in MFA.No.9692/2018 [DD.03.07.2019] is also relied upon: Paras-19 and 25 of the said decision read as under: “19. That apart, howsoever affectionate the maternal grand-parents may be and they may take every care to bring up Kushi, the same cannot be a substitute for the father (parents) bringing up the daughter. The void created by the death of the mother of Kushi, though is an important fact in the mind of the maternal grand-parents, who seem to fulfill that void by bringing up Kushi, this Court at the same time must also take into consideration that the void on account of the death of biological mother of Kushi would be erased by Kushi having a mother in the form of second wife of the respondent. We have also interviewed the appellant / maternal grand-father of Kushi, the respondent-father of Kushi as well as second wife of the respondent, in our chamber and we are satisfied that the respondent and his second wife would look after Kushi and bring her up in the best possible manner. 25. We hasten to add that by this we are not disregarding the right of the maternal grand- parents to have company of the minor child but, in our view the parents rather than the grand-parents are the best guardians of a minor child, particularly when there is no reason or impediment, legal or otherwise, coming in the way of handing-over of permanent custody of Kushi to her father. We also find that any delay in granting permanent custody of the child to the father would only create a distance in the relationship between the father and the daughter. One cannot under-estimate the role of parents, particularly the father in the life of a daughter.”
30. On the contrary, Sri T.N.Raghupathy, learned counsel for the respondent contended that due to harassment and torture by the appellant, the natural mother of the child committed suicide and that he is not a fit person to take the custody of the minor child. He further contended that a criminal case has been filed against the appellant for the offences punishable under Sections 498A and 304B read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, in which the appellant has been chargesheeted and the said criminal case is under trial. When such being the case, the custody of the minor child cannot be given to the father. Learned counsel further contended that the appellant has got re-married and there is a child born from the second marriage. Therefore, the love and affection of the present mother would be towards the biological child rather than the step son. Therefore, to handover the custody of the minor child to the step mother would be detrimental to the interest, development and growth of the minor child.
31. Learned counsel for the respondent contended that the child’s view and opinion has to be ascertained by this Court before deciding the question of custody of the child. He contended that the minor child was happily living with the maternal grand-parents from the date his mother died till the interim custody was given to the appellant by this Court last April. There was absolutely no problem and the child was very happy and joyful in the company of his maternal grand-parents and the atmosphere provided therein. It was also the contention of the learned counsel for the respondent that the respondent is financially sound and capable of taking care of the welfare and development of the minor child and that the respondent was paying the entire School fee of the minor child till he took admission to Delhi Public School, Kanakapura Road, Bengaluru last April. Under these circumstances, he contended that the welfare, development and growth of the minor child would be more suitable in the custody of the respondent. Learned counsel for the respondent sought for dismissal of the appeal.
32. Learned counsel for the respondent has relied on the following decisions in support of his case:
1. NIL RATAN KUNDU v. ABHIJIT KUNDU reported in (2008)9 SCC 413: Para-20, a portion of para-52 and paras-62, 63, 71 and 72 of the said decision read as under:
“20. In the instant case, the trial court decided the matter on 15-7-2006 when Antariksh was more than six years of age. But neither were his wishes ascertained, nor was his preference even enquired by calling him. It was also submitted that though “character” of the proposed guardian has to be taken into account, the courts below did not appreciate in its proper perspective the fact that a criminal case was pending against the respondent which related to the death of the mother of the minor Antariksh involving the respondent himself and his mother, and by observing that if he would be convicted, appropriate action could be taken thereafter. The High Court also committed the same mistake. Both the orders, therefore, are liable to be set aside.
52. ………………………………………In selecting proper guardian of a minor, the paramount consideration should be the welfare and well- being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.
62. Now, it has come in evidence that after the death of Mithu (mother of Antariksh) and lodging of first information report by her father against Abhijit (father of Antariksh) and his mother (paternal grandmother of Antariksh), Abhijit was arrested by the police. It was also stated by Nil Ratan Kundu (father of Mithu) that mother of accused Abhijit (paternal grandmother of Antariksh) absconded and Antariksh was found sick from the house of Abhijit.
63. In our considered opinion, on the facts and in the circumstances of the case, both the courts were duty-bound to consider the allegations against the respondent herein and pendency of the criminal case for an offence punishable under Section 498-A of IPC. One of the matters which is required to be considered by a court of law is the “character” of the proposed guardian. In Kirtikumar [(1992)3 SCC 573], this Court, almost in similar circumstances, where the father was facing the charge under Section 498-A IPC, did not grant custody of two minor children to the father and allowed them to remain with the maternal uncle.
71. In the instant case, on overall consideration we are convinced that the courts below were not right or justified in granting custody of minor Antariksh to Abhijit, the respondent herein without applying relevant and well-settled principle of welfare of the child as the paramount consideration. The trial court ought to have ascertained the wishes of Antariksh as to with whom he wanted to stay.
72. We have called Antariksh in our chamber. To, us he appeared to be quite intelligent. When we asked him whether he wanted to go to his father and to stay with him, he unequivocally refused to go with him or to stay with him. He also stated that he was very happy with his maternal grandparents and would like to continue to stay with them. We are, therefore, of the considered view that it would not be proper on the facts and in the circumstances to give custody of Antariksh to his father, the respondent herein.”
2. K.Chennakeshava vs. Smt.Lakshmamma reported in (2001)4 Kant LJ 287: Para-5 of the said decision reads as under: “5. Considering the rival contentions and relying upon the decision given in Bimla Devi v. Subhas Chandra Yadav ‘Nirala‘ [AIR 1992 Pat. 76] , the Trial Court appointed the mother- in-law as the guardian. Assailing such an order, this revision is filed by the husband contending that the allegation against him of the alleged murder is yet to be proved. The FIR has indicated that the deceased committed suicide. During the period of detention, the mother-in-law took illegal custody of the child and the petitioner himself has filed an application. No charge-sheet has been filed under Section 302 of the Penal Code, 1860 but only one under Sections 304-B and 498-A of the Penal Code, 1860. As against the accommodation, the petitioner-husband is living in 500 Sq.ft. and the mother-in-law is living in 100 tenement, it is not condusive to be welfare of the child. There are other minor sons who are sent for employment by the respondent. Therefore, the husband has not believed the contention that the child’s welfare will be properly looked after by the respondent-mother-in-law.“
33. Having heard the learned counsel for the respective parties, the following points would arise for our consideration: “i) Whether the impugned judgment and decree passed by I Additional Principal Family Court at Mysuru in G & W No.27/2017 would call for any interference by this Court? ii) What order?” 34. The admitted facts of the case are as under:
It is not in dispute that the appellant is the father of the minor child Sai Pratham. It also not disputed that during the pendency of this appeal, an interim order was passed by this Court vide order dated 24.04.2019 based also on an application made by the appellant under Order XLI Rule 27 of CPC, wherein it is stated that pursuant to the direction of the Family Court, Mysuru, the interim custody of the minor child was taken by the appellant and that the appellant in order to admit the child to Delhi Public School, Kanakapura Road, Bengaluru which is in the vicinity of the appellant-father’s house, sought for continuation of the said interim order, so that the child could be admitted to the said School. This Court considering the child’s education permitted the child to be admitted to Delhi Public School, Kanakapura Road and the interim custody has been continued with the appellant- father since then. Thereafter, this Court vide its order dated 20.06.2019, after hearing both the parties, passed an order on the application seeking vacating of the said interim order by continuing the order dated 24.02.2019 by granting interim custody of the minor child to the appellant-father and the visitation rights to the respondent herein and his wife. Therefore, the minor child Sai Pratham is presently in the care and custody of the appellant- father.
35. It is not in dispute that the daughter of the respondent, the erstwhile wife of the appellant namely, Smt.Akshatha committed suicide in the house of her parents at Mysuru. It is also not disputed that now, the minor child Sai Pratham is attending to Delhi Public School at Bengaluru since April, 2019 and the entire education expenses have been borne by the appellant herein. The educational qualifications of the appellant and his present wife and the financial status of the appellant are also not disputed by the respondent.
36. After giving our anxious thoughts and on careful consideration of the welfare of minor child, it is now necessary to decide whether the permanent custody of the child namely, Sai Pratham is to be given to the father, the appellant herein or the maternal grand- father, the respondent herein.
37. In order to consider the above question, we hereby answer point No.(i) as follows:
The consideration for deciding the custody of minor children cannot be by a straight jacket formula, it depends upon the facts and circumstances of each case although the principles governing the custody of the minor children are well settled. It is, but, trite law that the custody rights regarding a minor child cannot be solely decided by interpreting legal provisions as the same is a human problem and will have to be dealt with a humane touch and by considering the status of the parties to the litigation and surrounding facts and circumstances. It is also very well settled law that in selecting the proper guardian of a minor, the paramount consideration should be the welfare and well-being of the minor child. In selecting a guardian, the Court is also exercising the jurisdiction of parens patriae and shall give due weight to the child’s ordinary comfort, contentment, health, educational and intellectual development, physiological and mental development and along with this, physical comforts, moral and ethical values for the proper growth and development of the minor child. It is the duty of this Court to see as to what would be conducive for the welfare of the minor child and as to what would be in the best interest of the minor child while deciding the application for custody of the child.
“6. Natural guardians of a Hindu minor.―The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are―
(a) in the case of a boy or an unmarried girl―the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl―the mother, and after her, the father;
(c) in the case of a married girl― the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section―
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).”
Section 13 of the Hindu Minority and Guardianship Act, 1956 considers the welfare of minor to be paramount consideration. “13. Welfare of minor to be paramount consideration.―(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.”
Section 7 of the Guardians and Wards Act, 1890 deals with power of Court to make order as to guardianship. It reads as under: “7. Power of the Court to make order as to guardianship.―(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made― (a) appointing a guardian of his person or property or both, or (b) declaring a person to be such a guardian the Court may make an order accordingly. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court ; (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.”
Section 8 of the Guardians and Wards Act, 1890 enumerates the persons entitled to apply for an order as to guardianship and it is extracted as under: “8. Persons entitled to apply for order.― An order shall not be made under the last foregoing section except on the application of― (a) the person desirous of being, or claiming to be, the guardian of the minor; or (b) any relative or friend of the minor; or (c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property; or (d) the Collector having authority with respect to the class to which the minor belongs.”
Section 17 of the Guardians and Wards Act, 1890 enumerates the matters to be considered by the Court in appointing guardian as under: “17. Matters to be considered by the Court in appointing guardian.―(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If minor is old enough to form an intelligent preference, the Court may consider that preference. [*** omitted] (5) The Court shall not appoint or declare any person to be a guardian against his will.”
Section 26 of the Hindu Marriage Act, 1955 also provides for custody of children and declares that in any proceeding under the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of the minor children, consistently with their wishes, wherever possible.
Therefore, the principles in relation to custody of a minor child are well settled. In determining the question as to who should be given the custody of a minor child, there is no doubt that the paramount consideration is the welfare of the child and not rights of the parents under a statute for the time being in force.
39. On a consideration of the aforesaid case law, it becomes evident that the welfare of the child is a paramount consideration. Ordinarily, custody should go to the natural guardians, unless there is a conflict in the claim of the father as a natural guardian. Merely because on the death of the mother of the child (by suicide or otherwise), the father has re-married and begotten a child would not by itself be a negative factor while considering the claim of the father to have guardianship of the child. Many a time, the father has been handed over custody of the minor child when it is in their interest to do so as against their mother. While considering the paramount consideration of the minor child, the Court would be exercising parens patriae jurisdiction which should always lean in favour of the child and in its best interest.
40. In fact, in the case of M.V. Krishna Murthy (Supra), this Court has observed that howsoever affectionate the maternal grand-parents may be, the same cannot be a substitute for the father (parents’ bringing up the daughter). Keeping in mind the aforesaid parameters, we have considered the facts in the present case.
41. On consideration of the entire evidence on record both oral and documentary, we find that in the instant case, the Family Court has shut its eye towards the basic principle of the ‘welfare of the minor child’ being of the paramount consideration rather than the right of the parties. The approach of the Family Court has been towards conducting a negative test rather than appreciating the positive aspects of the parties with whom the welfare of the child would be more suited as it is the welfare of the minor child, which is material and not the negative test of disqualification. In the present case, the Family Court has focused on the negative aspects of the appellant so as to be unfit to have the custody of the minor child though being a natural guardian. This is in substance negating the aforesaid principle of best interest of the minor child in the instant case. The Family Court has further considered the aspect that the minor child having been with the maternal grand-parents since 15.04.2016 and on that basis granted the child custody to the maternal grand-parents. Since the child was of very tender age, the custody was continued with the respondent pursuant to the death of the daughter of the respondent i.e. the biological mother of the child. The same was inevitable and by default.
42. The other aspect of the negative test applied to the case of appellant for rejecting his custody rights is the pendency of the criminal case filed by the respondent against the appellant and his parents for the offences punishable under Sections 498A and 304B read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act. The learned Family Court Judge has lost sight of the fact that the minor child along with the natural mother was living with the appellant till the child’s age was two years and it is only thereafter, when the natural mother shifted to her parents house at Mysuru, the minor child started residing with respondent. On 12.11.2016, the daughter of the respondent, the natural mother of the minor child committed suicide. After the death of the natural mother, since the minor child was less than three years he continued to reside with his maternal grand- parents. Thereafter, the appellant herein filed the petition for seeking custody of the minor child from the respondent as the latter did not handover the custody to the appellant. It is also pertinent to note here that the learned Judge of the Family Court has held that the appellant has failed to elicit any adverse situation existing in the respondent’s house affecting the ward’s comfort, health, education and intellectual development. As stated earlier, the learned Family Judge has misdirected by considering the negative aspect of the parties in order to grant the custody rights of the minor child whereas the fundamental principles while granting the custody rights of the child should depend upon the welfare, well being and conducive atmosphere of the minor child.
43. In the case on hand, presently, the minor child is aged 6 years 2 months and pursuant to the interim order passed by this Court, the child has been in care and custody of the appellant-father when he started residing with him during last summer vacation. Learned counsel for appellant has produced several photographs of the child along with his father, mother (step mother) and sister (step sister). It is noted that the minor child is happy and is enjoying the conducive atmosphere of a happy family with his father, mother and sister. It is also borne by records and an admitted fact that the minor child is presently attending Delhi Public School which is located on Kanakapura Road, Bengaluru and the same is close to appellant’s house. In the case on hand, the minor child Sai Pratham, for almost a year has been in the settled care and custody of the appellant-father and all the requirements of a happy family and the conducive atmosphere for physical growth, mental development and emotional conduciveness are available for the minor child in the custody of the appellant.
44. The learned Family Court Judge has refused to grant the custody of the minor child to the appellant for the reason that there is a criminal case pending against him and his parents on the guise of the allegations made by the respondent that the appellant and his parents are responsible for the death of Smt.Akshatha, the natural mother of the child. However, it is pertinent to note that there is no allegation of murder against the appellant/ father. Merely because, the allegation is made by the respondent against the appellant for the offences punishable under Sections 498A and 304B read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, that alone cannot deprive the appellant herein of having the custody of the minor child.
45. It is necessary to note here that in view of the fact that the minor child is of a tender age, it would be all the more important that the minor child gets used to his family with his mother and sister which would, over a period of time erase the memory of the natural mother, if any and the nurturing, development and upbringing of the minor child in a congenial atmosphere of the family with father, mother and sister will be an ideal condition for the growth and development of the minor child in the instant case. Therefore, we are constrained to observe that the orders passed by II Additional Principal Family Court at Mysuru are short of the fundamental principles on more than one ground and orders passed therein certainly call for interference by this Court.
46. Having considered the submissions of the learned counsel for the appellant and learned counsel for the respondent and on perusal of the material documents, the oral evidence and the authorities relied upon by the parties, we are of the opinion that in the case on hand, what is important to be noted is that the minor child Sai Pratham is 6 years and 2 months of age and it is no doubt that the child is of the very tender age. But what needs to be considered at this point of time as a paramount consideration is none other than the welfare and best interest of the minor child. It is very much necessary to note here that for the proper growth and development of any child, the basic requirement is love and affection and cognitive physical, psycho-social development which will enhance the overall development and growth of the child and considering the age of the minor child herein, it is of utmost importance that the minor child gets abundant love and affection from his father and so also from the mother, which role would be played by Smt.Chaithanya, the wife of the appellant, in the absence of the biological mother of the child. Since the minor child is of a tender age, certainly there will be no scar in the mind of the child with regard to his biological mother, as there is a saying that “time is the best healer”. The love and affection and the upbringing by the appellant and his wife would create a better atmosphere to the minor child. It is also important to mention here that the appellant would be in a better position to provide all the necessities of life and comforts for the development of the child including education in a good School and several extra curricular activities which would play an important role in shaping the overall personality, development and growth of the minor child. We have also taken into consideration the age of the respondent and also the fact that the respondent is staying with his wife at Mysuru and both are very much older than the minor child and there are no other children or peer group for the proper growth and development of the minor child at Mysuru. The generation gap between the minor grand child and his grand-parents would be too wide and would definitely have a negative impact on the growth and development of the child in the instant case.
47. At the same time, we hasten to add that we are not disregarding and discrediting the right of the maternal grand-parents to shower their love and affection on their grand son. We are also conscious of the fact that there is a scar in the mind of the respondent that his daughter has committed suicide and certainly, he would have some kind of ill-will and personal grievance against the appellant herein and the fact that he has made allegation against the appellant for the cause of death of his daughter. However, we are of the opinion that such allegation alone cannot be taken into consideration for discrediting and dislodging the appellant-father to have the custody of the minor child. In our opinion, there cannot be a substitute to the love and affection of the father who is the natural guardian.
Now, what has to be considered is the future of the minor child. Considering the age of the minor child and the status of the appellant, the conducive atmosphere for proper growth, development, nurture, upbringing and holistic development of the minor child would be in the care and custody of the appellant-father. As stated by this Court in the judgment referred to supra, which we reiterate herein that, one cannot underestimate the role of parents, in this case, the role of the father in the life of a minor son.
48. There is one other aspect of the matter which requires consideration. Learned counsel for the respondent, Sri.T.N.Raghupathy, submitted that this Court ought to interview the child Master Sai Pratham before passing the judgment in this appeal.
49. We do not think the same necessary as we have closely perused the material on record which includes a number of photographs which have been filed along with an application by the appellant showing the child in very happy circumstances with his father, mother (step-mother) and step-sister. On perusal of the said photographs, we are satisfied and are confident that the child does not think his father to be a stranger and has bonded well with his mother (step-mother) and step-sister. In fact, on looking at the photographs, we do not get an impression that the child Sai Pratham is a stranger to his mother (step- mother) and sister (step-sister). The photographs express jovial feelings amongst the members of the family, a close bond and it does not in any way reveal that Master Sai Pratham was not born to the second wife of the appellant. The reasons for the same are not far to see. Firstly, the child has no conflict with his father and they have a wholesome bonding with each other and there is no negative aspect which emanates from the said relationship. The excellent relationship between the father and son is transferred to the relationship of the child with his mother (step-mother) and sister (step-sister). That is why we have observed that Master Sai Pratham fits very well with the family. Therefore, we do not find it necessary to interview the child in order to ascertain as to whether he wants to reside with his maternal grand-parents or with his father. In fact, we have given reasons as to why if he resides with his father, it would be in his paramount interest. For the sake repetition, we may say that it would be not only psychological interest of Sai Pratham but also from the point of view of his education, physical and mental development and to be a good citizen that he continues to be in the custody of the father. The support which the father, the mother (step-mother) and sister (step-sister) are presently giving and to be given in future to Sai Pratham would make him confident and the same would be of important factor for him to grow up into a normal adolescent and thereafter as a confident adult. Hence, for the aforesaid reasons, the request made by learned counsel for the respondent is not accepted.
50. In the result, we pass the following order:
i) The appeal is allowed.
ii) The order dated 18.03.2019 passed by II Additional Principal Family Court at Mysuru in G & W.No.27/2017 is hereby set aside. The appellant is hereby granted the custody of the minor child namely, Sai Pratham;
iii) The respondent and his wife i.e. the maternal grand-parents of the minor child namely, Sai Pratham shall be at liberty to visit the minor child at Bengaluru by giving prior intimation to the appellant during the School holidays and on LAVANYA B Digitally signed by LAVANYA B Date:
2020.05.14 13:29:37 +0530 such intimation, the appellant shall make arrangements for the child to meet his maternal grand-parents without any hesitation;
iv) The respondent and his wife i.e. the maternal grand-parents shall be entitled to visitation rights of the minor child namely, Sai Pratham on second and fourth Saturday from 10.00 a.m. to 5.00 p.m. They are permitted to take Sai Pratham at 10.00 a.m. from the house of the appellant and handover the child back at 5.00 p.m. to the appellant. We direct both the parties to cooperate during execution of visitation rights. The same shall come into force after the Covid-19 lockdown;
v) Parties shall bear their own costs.