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2010 DIGILAW 952 (KAR)

Bindappala Sunandamma v. K. S. Revanasiddappa

2010-09-03

B.MANOHAR, K.L.MANJUNATH

body2010
JUDGMENT Manjunath, J : The appellant who has not succeeded before the II Additional Civil Judge (Sr. Dn.), Davangere in getting the custody of the minor grand-daughter by name Anushri D/o Late Halesh and Late Usha, the present appeal is filed challenging the legality and correctness of the order passed by the Civil Judge (Sr.Dn.), Davangere dated 3.3.2010 in G & WC No.10/2006. The facts leading to this case are as hereunder: The appellant is the mother of one late Halesh. Halesh had married to Smt. Usha. Out of their wedlock, the minor child Kum. Anushri was born. The son of the appellant viz., Halesh died on 5.7.2001. After the death of Halesh, the minor child was residing alongwith her mother Smt. Usha in the house of her maternal grand-father Sri KS. Revanasiddappa, the respondent in this appeal. The mother of the child Smt. Usha also died on 1.7.2006. After the death of the mother, the child remains to be under the custody of the respondent. At the time of filing the petition, the child was studying in 3rd Standard in Smt. Parvathamma Shamanur Shivashankarappa Central Syllabus School at MCC 'A' block, Davangere. During the life time of Smt. Usha, she had instituted a suit claiming partition and separate possession of her husband's share in O.S. No.155/2005 before the Civil Judge (Sr.Dn.), Davangere. The petition was filed claiming custody of the minor child on the ground that the appellant being the paternal grand-mother of the child is entitled to the custody of the minor child and that the appellant is residing in Davangere town and that the respondent is residing in a village which is about 6 kilometers from the town Therefore the appellant contended that she being the class-I legal heir, she is entitled to claim the custody of the minor child. The appellant further apprehends that there is a danger to the minor grand-daughter Kum. Anushn in the hands of the respondent. 3. The respondent has filed his objections According to him, when Halesh died on 5.7.2001, Kum, Anushri was hardly 2 Vz years old baby and after the death of Halesh, his wife Smt. Usha and the grand-daughter Anushri were. neglected by the appellant and her family members and they did not look after deceased Usha and the minor child and also they did not give the legitimate share of the minor grand-daughter Kum. A.nushri and Usha. neglected by the appellant and her family members and they did not look after deceased Usha and the minor child and also they did not give the legitimate share of the minor grand-daughter Kum. A.nushri and Usha. After the death of Halesh, the deceased Usha as well as the minor child are under the care and custody of the respondent and they have taken care of the education and the welfare of the minor child. According to him, he is spending about Rs. 10,000/- towards educational expenses every year in addition to monthly expenditure of Rs.2,000/- on other heads. According to him, he has also paid donation to the institution while admitting the child every year and even during the life time of Usha after the death of Halesh, Usha was taken care of by the respondent only. Usha filed a suit for partition and separate possession of the share of Halesh in O.S. No.155/2005 since the appellant and others neglected to maintain her. That Usha on account of severe jaundice was admitted to Ramakrishna Nursing Home and thereafter she was admitted to Manipal hospital as an in-patient for about 17 months and the respondent being the father spent more than ~ 8.00 lakhs towards the medical expenditure of his daughter Usha and she died on 1.7.2006. Though the appellant and her sons are enjoying the entire joint family property having an income of more than Rs. 5.00 lakhs per annum, did not give any money towards medical expenditure of Usha and towards the maintenance of Kum. Anushri. Therefore the respondent requested the Court to dismiss the petition. 4. The learned trial Judge formulated the following points for his consideration: 1. Whether the petitioner is entitled for the relief sought for? 2. What order? 5. In order to prove the respective contentions, the appellant got herself examined as PW.1. She relied upon EX.P1 to P9. In addition to that, two witnesses were examined as PWs2 and 3. On behalf of the respondent, the respondent got himself examined as RW-1. He relied upon Ex.R1 to R9 and two more witnesses were examined as RW-2 and RW-3. The Trial Court after hearing the parties answered point No.1 partly in the affirmative and the relief of declaration and mandatory injunction in respect of guardianship and custody of child was rejected except granting visitation rights. This order is called in question in this appeal. The Trial Court after hearing the parties answered point No.1 partly in the affirmative and the relief of declaration and mandatory injunction in respect of guardianship and custody of child was rejected except granting visitation rights. This order is called in question in this appeal. 6. We have heard the learned Counsel for the appellant. The main contention of the appellant before us is that the appellant is residing in Davangere and she can look after the interest of the minor child better that the respondent as the respondent is living in a village which is about 6 kilometers away from Davangere. It is also his case that the child is suffering from HIV and that she needs constant treatment. Therefore he contends that the evidence of the appellant has not been property appreciated by the Court below in the circumstances, he requests the Court to allow the appeal. Having heard the Counsel for the appellant and having seen the application filed under Order 41, Rule 27 of CPC by the appellant we do not see any reason to interfere with the well considered order of the Trial Court for the following reasons. 7. At the time of filing G & WC petition the appellant was aged about 65 years. Now she is about 70 years. She is a widow. She herself depending upon her son aid daughter-in-law. It is not in dispute that the appellant's son Halesh died in the year 2001. After the death of Halesh, the child alongwith her mother Usha started living with the respondent It has come in evidence that the respondent being the father of the deceased Usha had spent me than Rs. 8 lakhs towards her medical expenditure and that the child was aged about 21/2 years when he lost her father. From the age of 21/2 years the child has been adjusted with the members of the family of the respondent The respondent has admitted the child to, a very good school in Davangere This fact is not disputed by the appellant. The distance between the house of the respondent and Davangere town is hardly six kilometers. Davangere town is developing town and six kilometers cannot be treated as a village, at best can be considered as outskirts of Davangere town. The distance between the house of the respondent and Davangere town is hardly six kilometers. Davangere town is developing town and six kilometers cannot be treated as a village, at best can be considered as outskirts of Davangere town. In addition to that the documents produced by the appellant alonf, With Order 41, Rule 27 application discloses since 1999 the child is suffering from HIV. From 1999, the respondent has taken care of the treatment to the minor child in addition to admitting the child to a very good school in Davangere. In addition to that, the evidence discloses that during the life time of Usha, the appellant did not show any inclination either to maintain Usha, the daughter-in-law of the appellant or the grandchild. It has also come in the evidence that during the life time of Usha, she filed a suit for partition claiming the share of her husband and the said suit is pending. Now this Court can only infer that to overcome the share to be given to the child, the present petition is filed seeking custody. According to us, we do not see any merits in this appeal as the child has been residing with the maternal grand-father from the age of 2'/2 years and now she is aged about 12 years and that too when she has reached the age of attaining puberty, at this juncture it would be safe for the child to be with her maternal grand parents who have showered all love and affection ail these years. The very fact that the appellant is aged about 70 years and she is a widow and she herself is depending upon her other son and daughter in-law would only give a presumption that the present petition is filed to avoid the share to be given to the minor child. In the circumstances, this appeal is dismissed.