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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/-
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