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M V Krishna Murthy vs Sri Arun C on 3 July, 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 03rd DAY OF JULY, 2019

PRESENT

THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA

AND

THE HON’BLE MR. JUSTICE K.NATARAJAN

M.F.A. No.9692 OF 2018 (GW)

BETWEEN:

M.V. KRISHNA MURTHY
AGED ABOUT 68 YEARS
S/O. LATE VARADHARAJAN,
#227, 53RD CROSS,
4TH BLOCK, NEAR RAMA MANDIRA,
RAJAJINAGAR,
BENGALURU – 560 010.
… APPELLANT
(BY Miss. SOFIYA MANSOOR ADVOCATE FOR
SRI KAMALUDDIN AHMED ADVOCATE)
AND:
SRI ARUN .C
S/O. M. CHAKRAVARTHY,
AGED ABOUT 34 YEARS,
R/AT NO.37, 3RD CROSS,
DUO HEIGHTS LAYOUT,
BEGUR ROAD,
BENGALURU – 560 068.
… RESPONDENT
(BY SMT. SUNITHA M. ADVOCATE)

THIS MFA IS FILED UNDER SECTION 47(a) OF THE
GUARDIANS WARDS ACT, 1890 AGAINST THE JUDGMENT
DATED 25/10/2018, PASSED IN GW CASE NO.106/2017 ON
THE FILE OF THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY
COURT, BENGALURU, ALLOWING THE PETITION FILED UNDER
SECTION 7 READ WITH SECTION 25 OF THE GUARDIANS AND
WARDS ACT, 1890.

THIS APPEAL COMING ON FOR HEARING ON IA THIS
DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
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JUDGMENT

Though this appeal is listed for hearing on

interlocutory application namely, IA No.2 of 2018, seeking

stay of the judgment dated 25/10/2018 passed in

Guardians and Wards Case No.106 of 2017 by the I

Additional Principal Judge, Family Court at Bengaluru, we

have nevertheless heard learned counsel for the respective

parties at length. We have also interviewed the

respondent-father of the minor child Kumari A.Kushi and

his second wife and the maternal grand-father of the minor

child and thereafter, we have proposed the following

judgment.

2. This appeal is preferred by respondent No.1

before the Family Court who is the maternal grand-father

of the minor child Kumari A.Kushi, assailing the judgment

passed by the said Court in GW Case No.106 of 2017.

The respondent-father of the child filed a petition under

Section 25 of the Guardians and SectionWards Act, 1890

(hereinafter referred to as ‘the Act’ for the sake of

brevity), seeking his appointment as the guardian and for

permanent custody of the minor child, Kushi. At this

stage, itself we may observe that the maternal grand-
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mother of Kushi who is respondent No.2 before the Family

Court has not assailed the said judgment.

3. Briefly stated the facts are that, Smt.K.Rekha

Rani–daughter of the appellant–was married to the

respondent on 01/06/2009 at Bengaluru. Out of the

wedlock, they were blessed with a daughter, Kushi, who

was born on 29/07/2011. The family resided at Chennai.

On 22/06/2014, they were proceeding from Chennai

towards Bengaluru. When they were near Kanchipuram,

their car met with an accident. The respondent sustained

serious head and body injuries, while his wife died on the

spot. Fortunately, Kushi survived the accident. According

to the appellant, he and his wife requested the respondent

to permit them to take care of Kushi for a few months as

they had lost their only daughter Smt.Rekha Rani in the

accident. The respondent was kind enough to permit

them to take care of Kushi for a few months. Thereafter,

they requested that until Kushi completed her Lower

Kindergarten, she could be with them, which was agreed

to by the respondent. Presently, Kushi is studying in

Baldwin’s Girls School in III Standard and till date, has

been residing with her maternal grand-parents. However,
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on account of certain differences with regard to the

custody as well as visitation rights vis-à-vis Kushi, the

respondent herein filed the petition seeking appointment

as guardian and for permanent custody of Kushi.

4. The said petition was contested by the

respondents by filing statement of objections. It is noted

that the respondent herein let-in his evidence as PW-1 and

got marked eleven documents as Ex.P-1 to Ex.P-11 and

closed his side of evidence. He was not cross-examined.

No evidence was let-in by the appellant and his wife before

the Family Court.

5. The Family Court raised the following points for

its consideration:

“1. Whether the petitioner proves that he is
fit and proper person to be appointed as
guardian of minor child Kum.A.Kushi?

2. Whether the petitioner is entitled for
permanent custody of minor daughter
Kum.A.Kushi as sought in the petition?

3. What order? “

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6. On the basis of the evidence on record, the

Family Court answered issue Nos.1 and 2 in the affirmative

and has allowed the petition filed by the respondent under

Section 7 read with Section 25 of the Act and has

appointed the respondent as the legal guardian of the

person and property of the minor child, Kumari A.Kushi

and has also granted permanent custody to the

respondent-father. Being aggrieved by the said judgment,

the maternal grand-father has preferred this appeal.

7. We have heard learned counsel for the

appellant, Miss. Sofiya Mansoor and learned counsel for

the respondent-father, Smt.Sunitha M. and perused the

material on record. As already noted, the maternal grand-

mother has not appealed against the judgment of the

Family Court.

8. Appellant’s counsel contended that the Family

Court could not have appointed the respondent as legal

guardian of Kumari A.Kushi and her property. She

contended that the respondent is not capable of taking

care of Kushi. That there could not have been a direction

for appointment of the respondent as guardian of the
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property of the minor child. She further contended that

although the statement of objections was filed by the

appellant herein, he did not cross-examine the respondent

and neither did he let-in evidence. That the impugned

judgment is one sided and virtually an ex parte´ one. She

further contended that it may not be in the interest of the

minor child to be with the father who has since married

and the environment in the house-hold of the respondent

may not be conducive or in the interest of Kushi. She

further contended that the father of Kushi may not have

the financial capacity to educate Kushi as she is presently

studying at Baldwin’s Girls School which is one of the

prime schools in Bengaluru. Learned counsel contended

that this Court may set aside the impugned judgment and

allow the appeal filed by the appellant herein. She further

submitted that the appellant has also preferred GW case

No.76 of 2017, which is pending consideration.

9. Per contra, learned counsel for the respondent

who is the father of Kushi supported the judgment of the

Family Court and contended that the appellant and his wife

did not appear before the Family Court despite so many

opportunities being granted to them. That, when the
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Family Court directed that the child be produced before the

Court, the appellant and his wife resiled from the said

direction and virtually withdrew from the case. The child

was also not produced and no cross-examination of the

respondent took place and neither did they let-in any

evidence in support of their case. The Family Court,

therefore, has rightly allowed the petition filed by

respondent and the same would not call for any

interference at the hands of this Court. She further

contended that the appellant is none other than the father

of Kushi and he has financial capacity to educate her and

bring her up in the best possible manner and that the

appellant and his wife may not have any apprehension in

that regard.

10. By way of reply, learned counsel for the

appellant drew our attention to Section 17 of the Act and

alternatively submitted that in the event this Court is to

confirm the judgment of the Family Court, at least

visitation rights may be permitted to the appellant and his

wife.

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11. Having heard learned counsel for the

respective parties, the following points would arise for our

consideration:

“(i) Whether the Family Court was right in
appointing the respondent-the father of the
minor child as legal guardian to the person and
property of the minor child Kumari A.Kushi and
giving permanent custody to him?

(ii) What order?”

12. The detailed narration of facts and contentions

would not call for a reiteration except highlighting the fact

that the minor child-Kushi is the daughter of respondent

through his first wife Smt. Rekha Rani. They were married

on 01/06/2009 at Bengaluru. Kushi was born on

29/07/2011. It is also not in dispute that Smt.Rekha Rani

died in a road traffic accident on 22/06/2014. The

respondent was injured. As a result, Kushi was with the

appellant and his wife–the maternal grand parents–who

took care of the child. It is also on record that the

respondent was visiting the child at her maternal grand-

parents home. She has been admitted to Baldwin’s Girls

School, Bengaluru, where she is presently studying in III
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Standard. But, there appears to be some

misunderstanding between the maternal grand-parents

and father of Kushi–respondent herein, resulting him filing

the petition under Section 7 read with Section 25 of the

Act. The Family Court after recording the evidence of the

respondent has passed the judgment, the operative

portion of which reads as under:

“The petition filed by the
petitioner/father under Section 7 R/w
Section 25 of Guardians and SectionWards Act is
hereby allowed.

Consequently, the petitioner
Sri.Arun C., father of the minor child is
hereby entitled for permanent custody
and also he is appointed as legal
guardian to the person and property of
the minor child Kumari A.Kushi, who is
born on 29-07-2011.

Issue guardian certificate
accordingly.”

13. The first contention of learned counsel for the

appellant is that the Family Court did not give sufficient

opportunity to the appellant to contest the case. In that

regard, learned counsel for the appellant contended that

though statement of objections was filed in the matter, the
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respondent was not cross-examined by the appellant and

neither did the appellant let-in any evidence in support of

his case. Therefore, the impugned judgment is one-sided.

In response to this argument, learned counsel for the

respondent contended that the Family Court directed the

child to be produced. Since then, the appellant and his

wife did not participate in the proceedings. For that, the

respondent cannot be blamed nor can the judgment

impugned be set aside. Learned counsel for the

respondent further submitted that even in the absence of

any evidence on record from the side of the appellant

herein, this is a case where the Family Court has rightly

granted the custody of the minor child to the respondent

herein having regard to Section 17 of the Act which deals

with the aspect of welfare of the minor. She contended

that the judgment impugned would not call for interference

at the hands of this Court on account of the appellant not

participating in the proceedings before the Family Court.

14. We have considered the rival submissions with

regard to opportunity not being granted to the appellant

before the Family Court in light of Section 17 of the Act.

As already noted, the appellant herein filed statement of
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objections. But, for reasons best known to the appellant,

he did not cross-examine the respondent who let-in

evidence as PW-1. Further, the appellant also did not let-

in any contra evidence. However, the point to be

considered is whether the judgment passed by the Family

Court is in accordance with Section 17 of the Act. Section

17 of the Act reads 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 Courts 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.

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(3) If the minor is old enough to form an
intelligent preference, the Court may consider
that preference.

*(4) xxx

(5) The Court shall not appoint or declare
any person to be a guardian against his will.

*[Sub-section (4) omitted by Act 3 of 1951, sec.3
and Sch.] “

15. The Court, which is considering a proceeding

for declaring the guardian of a minor, has to bear in mind

the welfare of the minor. The Court also has to take into

consideration 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. The

Court may also consider the preference of the minor and

the Court cannot appoint any guardian against the will of

the minor child.

16. Bearing in mind the facts of the present case in

light of what has been stated in Section 17 of the Act, it is

noted that the minor child-Kushi was with her parents. It
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is on account of the unfortunate road traffic accident that

occurred on 22/06/2014 resulting in the death of her

mother and serious head injury to her father, which

resulted in Kushi residing with her maternal grand-parents.

It was on account of the precarious conditions in which her

father was placed and on account of the death of her

mother that the maternal grand-parents were handed-over

the custody of Kushi and she continued to remain there

since then, i.e., for about five years now, by way of a

temporary custody. Since there was a misunderstanding

which developed between the maternal grand-parents of

Kushi and the respondent, the latter was constrained to file

the petition before the Family Court. But for the

unfortunate accident and the repercussions it had, that

Kushi had to be with her maternal grand-parents. She

was, at that time, about three years old and she is

presently about eight years old.

17. The question that arises for our consideration

is whether the respondent could be denied custody of his

daughter-Kushi, even though it may be assumed that

Kushi is comfortably placed and is living with her maternal

grand-parents. Bearing in mind the facts and
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circumstances of the present case and the fact that the

best interest of the minor child is to be taken into

consideration, we find that Kushi being of a tender age of

eight years, must be with her lawful guardian i.e., her

father, as any delay in handing over her custody to her

father would only create a distance in the relation between

the father and daughter. Even though the respondent-

father of Kushi has married again, it has come on record

that his second wife cannot conceive and therefore, any

apprehension in the mind of the maternal grand-parents

that Kushi may be neglected in the event of birth of

children to the second wife of her father is removed and

unwarranted.

18. We are fortified with the view that we have

taken by a judgment of the Division Bench of the Madras

High Court in the case of (Kode) Atchayya Vs. Kosaraju

Naraharai, reported in AIR 1929 Madras 81. In the

said case, it has been held that the even if grounds are

made out against the father so as to oppose the custody

being given to him, then considering the case from the

point of view of the welfare of the minor, it would not be in
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the minors’ welfare to estrange the child–the daughter in

the instant case–from his father at this tender age.

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 factor 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.

20. In the circumstances, we do not find it of

significance or importance to consider the contention of
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the learned counsel for the appellant to the effect that the

appellant did not cross-examine the respondent nor did he

let-in any evidence and therefore, the impugned judgment

being virtually one-sided would have to be set aside and

the matter would have to be remanded to the Family

Court. In fact, the appellant has not explained the reasons

as to why he did not cross-examine the respondent nor

let-in any evidence in the matter. In the circumstances, it

is inferred that he stayed away from the proceedings

before the Family Court since a direction was issued to him

to produce the child, which he did not do so and

consequently discontinued his participation in the

proceedings before the Family Court. Therefore, it cannot

be held that there was no fair opportunity given to the

appellant to contest the matter or to participate in the

proceedings.

21. The next contention of the learned counsel for

the appellant is that the respondent does not have the

financial capacity to bring up Kushi as she is presently

admitted at Baldwin’s Girls School, Bengaluru, which is one

of the prestigious schools, where the fee is of a high order

and education of Kushi at Baldwin’s Girls School would
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require considerable financial expenditure and incidental

expenditure in bringing up Kushi. When the same was put

to the respondent, he submitted that he indeed has the

financial capacity to bring up his daughter in the best

possible manner and that he would continue Kushi in

Baldwin’s Girls School and that he has financial

wherewithal to bear the school fees and other educational

expenditure. We are satisfied that the respondent who

had sought for permanent custody of Kushi and he, being

her father, would take all possible care and make the

necessary financial outlay for providing the best possible

education and upbringing of his daughter.

22. In the circumstances, we find that the Family

Court was justified in allowing the petition filed by the

respondent herein and handing-over permanent custody of

minor child Kushi to her father and appointing him as the

legal guardian of Kushi. To that extent the judgment of

the Family Court is justified. But, the respondent cannot

be appointed as the legal guardian to the property of the

minor child. Therefore, that portion of the judgment only

is set aside.

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23. But, the matter does not end. The feelings of

the maternal grand-parents cannot be ignored. Kushi is

their grand-daughter and they have lost their daughter.

Therefore, to fulfill the void caused on account of the death

of their daughter, Kushi is the only way in which they could

assuage their feelings. Therefore, despite confirming the

judgment of the Family Court granting the permanent

custody of Kushi to the respondent, nevertheless the

visitation rights of the appellant are recognised. The

appellant and his wife are at liberty to meet Kushi once in

a month or as and when Kushi requests to meet her

maternal grand-parents. This liberty is reserved with them

despite there being no claim made by them in that manner

before the Family Court.

24. However, the appellant and his wife shall not

meet Kushi in the educational institution. As far as

holidays and festivals are concerned, there can be mutual

arrangement as regards Kushi spending time with her

maternal grand-parents. We do not find it necessary to

give specific directions in that regard. We further hope

and trust that the appellant and respondent will make

mutual arrangements so that Kushi is able to spend time
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during holidays and festivals with her maternal grand-

parents also. Above all, we feel that it is in the interest of

the minor child-Kushi who is aged about eight years old to

be with her father as, the earlier the child is with her

father and mother, it is better for the child.

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.

26. In the result, the appeal is allowed in part

and disposed of in the aforesaid terms.

In the circumstances, a direction is issued to the

appellant as well as his wife, though not a party in this
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appeal but who was respondent No.2 before the Family

Court, to hand-over the permanent custody of Kushi to her

father on Saturday, 06/07/2019 at 11.00 a.m.

Parties to bear their respective costs.

The operative portion of this judgment shall be

handed-over to the learned counsel for the appellant and

learned counsel for the respondent for implementation of

the same.

Sd/-

JUDGE

Sd/-

JUDGE

RK/-

1 thought on “M V Krishna Murthy vs Sri Arun C on 3 July, 2019

  1. I am Arun, this is my personal case. My inlaws are now absconding with my daughter. I have filed execution of the order, but am scared what might happen to my daughter. Please help

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