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2015 DIGILAW 1361 (KAR)

M. Srinivas v. Ashok Babu alias N. Babu

2015-12-17

N.K.PATIL, PRADEEP D.WAINGANKAR

body2015
JUDGMENT : Pradeep D. Waingankar, J. This appeal is directed against the order dated 19.2.2014 in G WC No.4/2012 on the file of the Prl. Judge, Family Court, Mysore, whereby the application filed by the respondent-father for the custody of the ward under Section 24 of the Guardian Wards Act came to be allowed. 2. The facts in a nutshell which gave rise to this appeal are as under:- One Shalini-the daughter of the appellant was married to the respondent Ashok Babu. Their marriage was performed on 28.11.200 at Mysore. Out of the wedlock, she gave bird to a female child on 12.5.2009 named at Yuktha. It appears that after the birth of the child, she was subjected to harassment and ill-treatment by her husband and in-laws, which drove her to commit suicide in the matrimonial house by hanging herself on 22.11.2011. A case came to be registered against her husband and in-laws in Cr.No. 176/2011, Metagalli police station for the offences punishable under Sections 498-A, 302 r/w 149 IPC and Sections 3 and 4 of the Dowry Prohibits Act. Her husband and in-laws were arrested and taken to custody. While they were in custody, they entered into a settlement with the parents of deceased Shalini in pursuance of which, it is alleged that the parents of Shalini were paid cash amount of Rs. 10.00 lakh and thereby they turned hostile, which resulted in acquittal of the respondent husband and other members of the family, who were arrayed as accused. After the death of Shalini, when her husband and in-laws were arrested and taken to custody, child Yuktha aged about 1½ years was brought by maternal grandparents to the house and ever since then, she was in their custody. After the criminal case ended in a quittal, the respondent husband asked for the custody of the child Yuktha with the appellant. They refused to hand over the custody. After the criminal case ended in a quittal, the respondent husband asked for the custody of the child Yuktha with the appellant. They refused to hand over the custody. Thereby, respondent Ashok filed a petition under Section 24 of the Guardian and Wards Act before the court below contending that he being the father is the natural guardian who is entitled for the custody of the child, that he commands respect from all the corners, he is doing business having sufficient income to maintain and look after the welfare of the child, that he has got his father, mother and sisters who will be in a position to take care of his minor child and provide love and affection. It also contended that the appellants-maternal grandparents, particularly the grandfather has no financial capacity to maintain and look after the welfare of the child, he is indebted to so many persons, a number of criminal cases for the offence punishable under section 138 of the N.I. Act are pending against him, he was also convicted in some other cases. The petition was opposed by the appellant/maternal grand parents contending that ever since the child was brought by them after the death of her mother, they have been maintaining and looking after the welfare of the child. They are providing education, the child is not inclined to go with her father. Hence they sought for dismissal of the petition. 3. The petition came up for consideration before the court below before whom, respondent Ashok Babu was examined as PW-1, Exs.-P1 to P14 were marked. The appellant-Sri. M. Srinivas maternal grandfather was examined as RW-1, Exs.-R 1 to 4 were marked. The Family Court upon appreciation of evidence placed on record by both the parties, both oral and documentary, and keeping in mind interest of the minor as paramount consideration, allowed the petition filed by the father of the minor child holding that he is entitled for custody and that the appellants were directed to hand over the custody of the minor child within one month from the date of the order. Questioning the legality and correctness of the order, this appeal is preferred. 4. We have heard both the learned counsel appearing for the parties. Perused the records. We have also perused the photographs of the minor child and the video from the mobile of the respondent Ashok Babu. 5. Questioning the legality and correctness of the order, this appeal is preferred. 4. We have heard both the learned counsel appearing for the parties. Perused the records. We have also perused the photographs of the minor child and the video from the mobile of the respondent Ashok Babu. 5. The point that would arise for our consideration is:- "Whether the impugned order passed by the Family Court is sustainable in law." 6. During the course of the arguments, learned counsel appearing for the respondent has taken us through Exs.-Pl and P2 the photographs of the minor child that were taken when attempt was made to take the custody of the minor child from the father Ashok Babu by the police in pursuance of the complaint given by the maternal grandfather. The photographs show that the child was reluctant to part with the company of her father-the respondent herein and in fact the child is seen weeping. The video of the child was also shown to us through the mobile phone of the respondent-her father which shows that when an attempt was made to snatch the child from the custody of the father, the child was crying. Therefore, it is evident that the child is more inclined towards her father. 7. Moreover, it is evident from the records that during the pendency of the criminal case, the maternal grandfather entered into a settlement where under he received an amount of Rs. 10.00 lakh as admitted by him in his cross-examination and turned hostile in criminal case forgetting the death of his daughter. That speales volume about his attitude and what type of person he is. His economic conditions also appears to be not good so as to maintain and look after the welfare of the child. It is borne out from the records that he was convicted for the offence punishable under Section 138 of the N.I. Act. The child is hardly aged about five years. The respondent-father of the child is economically well-of. He was chairman of the panchayath for some time. He has got his family consisting of father, mother and sister, who will be in a better position to take care of the child. Moreover, the respondent has not married again after the death of his wife Shalini. The respondent-father of the child is economically well-of. He was chairman of the panchayath for some time. He has got his family consisting of father, mother and sister, who will be in a better position to take care of the child. Moreover, the respondent has not married again after the death of his wife Shalini. Taking into consideration all these facts and circumstances, the family court has rightly held that the respondent-father of the child is entitled for custody. Moreover, he being father is a natural guardian, who is entitled for the custody of the child. Thus on re-appreciation of evidence, we are in agreement with the finding recorded by the family court. After all, the paramount consideration in a case of this nature is the welfare of the child. As such, we do not find any good ground to interfere in the impugned order passed by the family court. 8. For the forgoing reasons, the appeal is dismissed as devoid of merits. The appellants-maternal grandparents shall have visiting rights to visit the child once in a fortnight on Sunday between 9 a.m. and 5 p.m. They are entitled for the custody of the child Yuktha during summer and winter vacation. Appeal dismissed.