Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 1254 (KAR)

C. G. Usha v. K. Raghuram

2013-10-31

A.V.CHANDRASHEKARA, K.L.MANJUNATH

body2013
JUDGMENT : K.L. Manjunath, J. 1. The legality and correctness of the Judgment and award passed in G & W.C. 1/2013 dt. 29th August 2013 passed by the Senior Civil Judge & JMFC, Nelamangala is called in question in this Appeal. A petition u/s. 7 of the Guardians and Wards Act 1890 came to be filed by the respondent-husband. According to the petition averments, the marriage between the parties was solemnized on 22.11.207 at S.L.R. Samudaya Bhavana, Nelamangala. It is an arranged marriage. According to him, they lived together for 2 to 3 months at Marasandra village. The respondent was not interested to live in village and an attempt was made by her parents to see that the husband set up a separate house in Bangalore. According to him, he has completed only Job-oriented course which is equivalent to 12th Standard and that his wife is an Arts Graduate and has completed Beauty Parlour training. As such she was interested to open a Beauty Parlour at Bangalore. In order to avoid the harassment of the wife, the family of the petitioner decided to make a separate resident at T. Dasarahally in Bangalore. Accordingly the wife was requested to come and stay with him in Bangalore permanently, leaving his parents. In the meanwhile, she gave birth to a child who was named as Preethanya R. Ram. On the ground that the husband and wife are living separately and that the custody of the child has to be given to the husband, petition came to be filed. 2. No notice was served through court. At the request of the husband, the Trial Court had permitted to take out summons by way of hand summons. Based on the submission of the husband, it was considered as though the hand summons had been served on the respondent. Accordingly she was placed ex-parte and affidavit of the petitioner came to be filed in lieu of examination-in-chief and based on the same petition has been allowed. Challenging the same, the present petition is filed. 3. It is contended by the appellant's counsel that the appellant was not notified with the case either by the court or by the respondent and that no hand summons was served. He further contends that viewed from any angle, the Trial Court,. Challenging the same, the present petition is filed. 3. It is contended by the appellant's counsel that the appellant was not notified with the case either by the court or by the respondent and that no hand summons was served. He further contends that viewed from any angle, the Trial Court,. even without application of mind and without considering the tender age of the daughter, has directed the appellant herein to handover custody of the minor daughter to the respondent. It is further contended that the reasoning of the Trial court is only in two paragraphs namely, paragraphs 18 and 19 including the discussion of the Trial Court. It is emphatically contended that no court could have allowed the petition filed to hand over the custody of the minor daughter who was aged about 3 years only when the petition was filed. According to him, the husband is not questioning the chastity of the appellant or her conduct or character and it is also not the case of the respondent that the appellant and her family members are incapable of taking care of the minor daughter and to give better "education. Therefore, he requests the court to allow the appeal. 4. An attempt is made by the learned counsel for the respondent to support the order of the Trial Court. 5. We have heard the counsels for the parties. As rightly pointed out by the appellant's counsel that there is no document to show that hand summons was actually served upon the appellant herein by the respondent. Even if the contention of the respondent that notice was served upon the appellant is accepted, by looking into the para 18 and 19 of the order, no court can appreciate the conduct of the Trial Court in allowing the petition. It would be useful for us to refer to the reasoning portions of the Trial Court as dealt in paras-18 and 19: "18) The petitioner in his evidence by way of affidavit reiterated the facts stated in the petition and asserted that his wife and respondent after the marriage has not cooperated with him. She left the house and staying with her parents. She has not inclined take care of the child properly. She tortures the petitioner mentally. The child is in need of care of his father. The respondent is not taking care of the child. He relied upon Ex. She left the house and staying with her parents. She has not inclined take care of the child properly. She tortures the petitioner mentally. The child is in need of care of his father. The respondent is not taking care of the child. He relied upon Ex. P1 the marriage invitation, Ex. P2 is the birth certificate, Ex. P3 is admission Letter, Ex. P4 is the certified copy of the order sheet in Crl. Misc. 3/2012, Ex. P4 is the school Receipt, Ex. P5 is the deposition and Ex. P6 are three Photographs of the marriage of the Petitioner and respondent, Photograph of the Petitioner, respondent and their child and photograph of the child. 19) The oral and documentary evidence of PW 1 remains unchallenged. He being the father is a person can maintain the child. There is no resistance on behalf of the respondent pertaining to this petition. In Ex. P5, which the deposition of the Respondent in Crl. Misc. 3/2012, she has deposed before the Court that she is not earning and needs maintenance from the Petitioner for herself and the child. Hence I answer the above Pint No. 1 in the affirmative." 6. For the aforesaid reasons, we are of the view that the Trial Court has missed the link in not considering the grounds which require to be seriously considered for handing over the custody of the child to the respondent, that too while ordering for the custody of the minor daughter of 3 years. Under such circumstances the court should be very careful and cautious. It is very unfortunate that the court below has mechanically ordered for the custody of the child on the ground that the contents of the affidavit of the petitioner have remained unchallenged. 7. Be that as it as may, since an opportunity has not been given to the appellant, we are of the view that the order of the Trial Court has to be set aside and matter requires to be remanded to the Trial Court for fresh consideration in accordance with law. 8. In the result, the appeal is allowed. The Judgment dt. 29th August 2013 passed by the Senior Civil Judge, Nelamangala, passed in G & W.C. NO. 1/2013 is hereby set aside. The matter is remanded to the Trial Court for fresh consideration in accordance with law. 8. In the result, the appeal is allowed. The Judgment dt. 29th August 2013 passed by the Senior Civil Judge, Nelamangala, passed in G & W.C. NO. 1/2013 is hereby set aside. The matter is remanded to the Trial Court for fresh consideration in accordance with law. The appellant shall appear before the Trial Court on 9.12.2013 without any further intimation from the Trial Court. Thereafter the appellant shall file counter before the court. The Trial Court V. directed to dispose of the petition in accordance with law considering all the grounds which may be taken up by the respective parties. It is needless to state whenever a custody of the minor daughter or son has to be ordered, the Trial Court shall always have in its mind the paramount interest of the child and that alone can be the basis for the custody of a child. Taking into consideration the relationship of the parties, we pass no order as to costs.