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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF SEPTEMBER 2018
PRESENT
THE HON’BLE MR.JUSTICE A.S. BOPANNA
AND
THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR
M.F.A.NO.2498 OF 2014 (G WC)
BETWEEN:
MOHAMMED AZEEM
S/O. MOHIDEEN SAHAB
AGED ABOUT 41 YEARS
OCC: BUSINESSMAN
RESIDING AT DEVARAMANE
HARIHARAPURA POST
KOPPA TALUK
CHIKKAMAGALUR DISTRICT-577 126. … APPELLANT
(BY SRI N.S. BHAT, ADV.)
AND:
1. LUBNA ARSHIYA
D/O. LATE MOULA MUKTHIYAR ALAM
AGED ABOUT 39 YEARS.
2. MASTER MOHAMED ASHRAF RAZA
S/O. MOHAMMED AZEEM
AGED ABOUT 12 YEARS.
3. MASTER ATHEEZ RAZA
S/O. MOHAMMED AZEEM
AGED ABOUT 11 YEARS.
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ALL ARE RESIDING AT:
C/O. SHAMSHADA BEGUM
GORI ROAD, I CROSS
KUVEMPUNAGAR
GUNAVANTHE, KOPPA POST AND TALUKA
CHIKMAGALUR DISTRICT-577 126.
… RESPONDENTS
(BY SMT. GAYATHRI BHAT M., ADV., FOR
SRI P.P. HEGDE FOR R-1
R-2 3 ARE MINORS REPRESENTED BY R-1)
***
THIS MFA IS FILED UNDER SECTION 47(a) OF THE
GUARDIAN AND WARDS ACT, 1890, AGAINST THE JUDGMENT
AND ORDER DATED 04.02.2014 PASSED IN G WC
NO.5/2013 (OLD NO.10/2010) ON THE FILE OF THE PRL.
JUDGE, FAMILY COURT, CHIKMAGALUR.
THIS MFA COMING ON FOR ADMISSION, THIS DAY,
A.S.BOPANNA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant, who was the petitioner No.3 in G
W.C.No.5/2013 (Old No.10/2010) is before this Court
assailing the judgment dated 04.02.2014 passed therein.
2. The appellant herein had filed the said petition
before the Court below under Section 7 of the Guardians
and Wards Act seeking custody of the minor children of the
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parties herein. It is noted that the said children named
Master Mohamed Ashfaq Raza and Master Atheeq Raza
were also arrayed as petitioners No.1 and 2 to the said
petition, but are presently shown as respondents to this
appeal.
3. The respondent herein having appeared had
filed objections to the petition. In that view, the parties had
tendered their evidence before the Court below. The
appellant herein, apart from examining himself as PW-1
has also examined two witnesses as PW-2 and PW-3 and
the documents at Exs-P1 and P2 were marked. The
respondent was examined as RW-1, examined a witness as
RW-2 and relied upon the documents at Exs-R1 to R13.
4. The Court below while analyzing the oral and
documentary evidence has specifically referred to the
contention that had been raised by the respondent herein
with regard to the appellant herein having contracted the
second marriage and in that background, keeping in view
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the nature of the contentions urged had adverted to the
welfare of the children in that background. While taking
note of this aspect, the Court below has referred to the
evidence of RW-1 namely, the respondent, who had referred
to the document relating to Nikhanama in that regard and
also the proceedings initiated by the respondent herein
under the provisions of the Protection of Women from
Domestic Violence Act. In that background, the Court
below was of the opinion that the welfare of the children
would be protected, if the respondent herein acts as the
guardian and not the appellant.
5. Though the learned counsel for the appellant
seeks to assail the judgment passed by the Court below by
contending that the Court below had not taken into
consideration the Panchayath to which the reference was
made, whereunder the custody of the children had been
granted for a temporary period of two months to the
respondent, we are unable to accept the contention since,
the Court below, based on the evidence has rightly arrived
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at the conclusion keeping in mind the welfare of the
children and the guardianship in that regard is required to
be taken note. While taking into consideration the welfare
of the children, the Court below has also referred to the
evidence of RW-2 wherein, it was taken note that the
respondent is doing Tailoring work and eking out her
livelihood.
6. Be that as it may, even assuming for a moment
that certain maintenance would be required for the
children, the appellant in any event cannot shirk the
responsibility in the regard, but what is presently to be
taken note in a proceedings of the present nature is with
regard to the custody. In that regard, the reference as made
to the evidence both oral and documentary before the Court
below and the consideration ultimately made by the Court
below is justified.
7. That apart, at this point, it is to be taken note
that admittedly, the first son has attained the age of 18
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years and the second son is about 16 years. In that
circumstance, the position that has existed for this length
of time would not call for any alteration or modification and
the children in any event would take a decision with regard
to their future. Hence, the judgment dated 04.02.2014 does
not call for interference.
The appeal being devoid of merit stands disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
ST