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2006 DIGILAW 782 (KAR)

BALAPPA v. AVVAKKA

2006-09-27

K.L.MANJUNATH

body2006
ORDER The petitioner herein is the petitioner before the District Judge, BagalkOt in G and W.C. NO. 14 Of 2006. The petition is filed by him under Section 8-A Of Guardians and Wards Act, 1890 to appoint him as the guardian Of the person Of minor Suresh, the adopted son Of Dyavappa Navalalli Of Kirsur Village and to appoint the petitioner as the guardian Of the properties bearing NO. RS 234 and VPC NOs. 54 and 359 Of Kirsur Village Of Bagalkot Taluk. Along with the petition an application under Section 12 Of the Guardians and Wards Act was filed to pass an ex parte Order for granting interim custody Of the minor child Suresh till the disposal Of the application. The application filed by the petitioner for grant of interim custody is rejected by the Trial Court. Challenging the same the present petition is filed. 2. Though the matter is listed for admission, Mr. Balagangadhar has filed Power for the respondent and by consent of both the parties I have heard the learned Counsels for both the parties on merits. 3. The petitioner and his wife Fakiravva have given their son Suresh in adoption to the maternal grandparents Of Fakiravva namely Dyavappa and the respondent-Avvakka under a registered adoption deed dated 31-10-1996. Thereafter Dyavappa died On 15-9-2001. Considering the relationship between the genitive parents and adoptive parents, they were all residing together in the same house at Kirsur Village. After the death Of Dyavappa, it appears dispute arose between the adoptive mother and genitive parents Of the minor which resulted in, the minor Suresh and the adoptive mother filing a suit against the petitioner and his wife for bare suit for injunction before the Civil Judge (Junior Division), Bagalkot in O.S. NO. 61 of 2006. 4. After the institution of the suit by the respondent and minor Suresh, the petitioner has filed G and W.C. No. 14 of 2006 contending that he has to be appointed as a guardian to the person and to the property of the minor Suresh, contending that the respondent being an old lady of 78 years is incapable of looking after herself and her minor son and that she has hostile attitude and ill-will towards the minor Suresh as she made an attempt to kidnap Suresh few days back. Only on these two sentences the petitioner has filed the petition to appoint him as a guardian to the minor. On the same allegations the petitioner has filed an application for grant of interim custody. 5. The respondent contested the petition. According to her she is hale and healthy and capable of managing her affairs and also capable of maintaining the minor son. She denied the allegations made in the petition and requested the Court to dismiss the petition. In the same line she contested the application filed by the petitioner for granting the interim custody of the minor. The Trial Court by its order dated 15-9-2006 has dismissed the application of the petitioner. Being aggrieved by the same, the present petition is filed by the petitioner. 6. According to Mr. Ashok B. Patil, the Trial Court has committed an error in not considering the welfare of the minor. According to him an attempt was made by the respondent to kidnap the minor child and that the respondent is incapable of managing her property and protecting the welfare of the minor. It is also his case that the mother-in-law of the petitioner who is no other than the daughter of the respondent who is residing in the same village and who has no character and who had discarded by her father, late deceased Dyavappa during his lifetime has started living with the respondent. Therefore, in the interest of minor son, the minor child should not be allowed to stay with the respondent. 7. The respondent and the petitioner along with the wife of the petitioner and the child were directed to appear before this Court in connection with W.P. No. 12560 of 2006. This Court had an occasion to see the physical condition of the respondent. Though she is 78 years old she is hale and healthy and she submitted before this Court in the aforesaid writ petition that she is even willing to stay away from her daughter and willing to live with the adopted son separately giving visiting rights to the petitioner and his wife. 8. The allegations made in the main petition by the petitioner is that the respondent is very old lady and is incapable of managing her affairs and cannot take care of the interest of the minor. 8. The allegations made in the main petition by the petitioner is that the respondent is very old lady and is incapable of managing her affairs and cannot take care of the interest of the minor. The other allegations made in the main petition is that an attempt was made by respondent to kidnap the child. But these two allegations cannot be believed by any Court for the following reasons. 9. This Court has seen the respondent in flesh and blood shows she is hale and healthy and capable of managing her affairs. Them the next contention is that she made an attempt to kidnap the minor body. If an adoptive mother is interested to take the child and to live with the minor child the petitioners who has given his son in adoption cannot say that an attempt was made by the adoptive mother to kidnap the boy if the boy is under the custody of the petitioner, the adoptive mother is entitled to take him away from the petitioner and live separately. Therefore, the contention of the petitioner cannot be accepted. It is no doubt true that when the relationship was cordial, both the adoptive parents and genitive parents were living together with the minor child but the situation has been changed. When the adoptive mother can maintain the minor child and can take care of the welfare of the minor child no Court can grant the interim custody of the child to the genitive parents. In the circumstances I do not see any merits in the said petition. 10. Accordingly, this writ petition is rejected. At this stage the learned Counsel for the petitioner submits that any observation made by this Court in this writ petition shall not weigh with the Trial Court while considering the case of the petitioner on merits. It is needless to say that any observation made by any Court while considering the I.A. cannot weigh with the Court on deciding the case on merits.