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2020 DIGILAW 998 (KAR)

Huvingouda v. Ratnavva

2020-06-08

S.SUJATHA, SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - The present appeal is filed by the appellant/petitioner challenging the order dated 22.01.2018 passed by the learned Principal Senior Civil Judge and CJM, Haveri, in G & WC No.10/2015 dismissing the petition filed by the appellant under Sections 7, 8 and 11(1) of Guardian and Wards Act, 1890 (hereinafter referred to as the ' G & W' Act, for brevity) seeking custody of his 3rd son-Shivanagouda and appointing him as a guardian. 2. Brief facts of the case are that the appellant/petitioner filed petition before the trial Court contending that he is the husband of the respondent and their marriage was solemnized about 16 years back and that they happily lived together for 10-12 years. Out of their wedlock, they had 3 sons namely Dharmanagouda, Maheshgouda and Shivanagouda. All of them are minors and the appellant is looking after them. Out of the 3 sons, Dharmanagouda and Maheshgouda are residing with the appellant and studying in Goa and they are under the care and custody of the appellant. Later the respondent deserted the appellant and her children and she left to Hulasogi village at Shiggaon taluk and residing there. The respondent refused to return back to the matrimonial house despite sincere efforts made by the appellant. The respondent had taken Shivanagouda from the custody of the appellant without informing him and filed a petition for maintenance. Shivanagouda has completed 3rd standard at Anjuman Himayatul Islam High School (Primary section) at Islampur, Baina, Goa and was intended to take admission to 4th standard. In the meanwhile, the respondent took him to Hulasogi village. The appellant intended to provide good education, health and food to all the 3 children. The respondent is not in a position to maintain him and has no income of her own to look after Shivanagouda and maintain properly and provide good education. On these facts and grounds, the appellant sought for the custody of his 3rd son Shivanagouda from the respondent and appointing him as a lawful minor guardian. 3. On service of notice, the respondent appeared and filed objections admitting the marital relationship with the appellant and three children born in the said wed-lock. She has admitted that she and her 3rd son Shivanagouda have filed a petition for maintenance in Cr.Misc.No.293/2014 on the file of the learned JMFC, Shiggaon. 3. On service of notice, the respondent appeared and filed objections admitting the marital relationship with the appellant and three children born in the said wed-lock. She has admitted that she and her 3rd son Shivanagouda have filed a petition for maintenance in Cr.Misc.No.293/2014 on the file of the learned JMFC, Shiggaon. The respondent has denied that she left the matrimonial house of the appellant and living in Hulasogi village, Shiggaon taluk. The respondent denied that she has forcibly taken the custody of Shivanagouda in the absence of the appellant. She contended that the appellant cannot seek custody of Shivanagouda. She has pleaded that the appellant has got the habit of consuming alcohol and has also illicit relationship with other woman and due to bad vices of the appellant, the respondent was not able to live with him in his matrimonial house and after the death of her brother, her brother's widow used to live with them in their matrimonial house and when the respondent objected for the same, the appellant scolded and sent her out of the matrimonial house and that without any alternative, the respondent came to Hulasogi village at Shiggaon taluk along with her sons and living with them and she is doing agricultural coolie work and earning some amount and maintaining her children. The appellant took elder two sons forcibly. The respondent contended that she is maintaining Shivanagouda out of her own earnings and she has filed a petition for maintenance in Crl.No.293/2014 before the JMFC, Shiggaon. Accordingly, she prayed to dismiss the petition. 4. The appellant/petitioner, in order to prove his case, examined himself as PW-1 and got marked Exs.P-1 to P- 9. The respondent got herself examined as RW-1 but did not produce any documents. 5. After hearing the arguments on both sides, the trial Court formulated points for consideration and after appreciating the evidence on record has rejected the claim of the appellant seeking custody and guardianship of his 3rd son Shivanagouda. 6. The appellant/petitioner has challenged the said order on the ground that the impugned order passed by the trial Court is illegal, erroneous, perverse and unreasonable. The trial Court has not properly appreciated the proviso of Sections 7, 8 and 11(1) of the G & W Act. 6. The appellant/petitioner has challenged the said order on the ground that the impugned order passed by the trial Court is illegal, erroneous, perverse and unreasonable. The trial Court has not properly appreciated the proviso of Sections 7, 8 and 11(1) of the G & W Act. The trial Court has not properly assessed the oral and documentary evidence on record in its true perspective and has erred in dismissing the petition. The trial Court erred in relying on the evidence of the respondent. The trial Court ought to have considered the fact that the appellant is capable to maintain his 3rd son in respect of his good health, education and moral welfare of the child. The trial Court has not properly considered the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956 whereby it envisages that, the father is the natural guardian of the minor and the mother comes next. The trial Court has not properly considered the provisions of Section 13 of Hindu Minority and Guardianship Act, 1956, whereby it envisages the welfare of the minor to be paramount consideration. 7. We have heard the arguments of the learned counsel for the appellant. Respondent though served remained unrepresented. 8. Learned counsel for the appellant argued that father is the natural guardian of minor child as per Section 6 of the Hindu Minority and Guardianship Act, 1956. He further contended that welfare of the minor to be the paramount consideration as per Section 13 of the Hindu Minority and Guardianship Act, 1956; that he is residing in Goa and he can look after his 3rd son Shivanagouda and provide him good education than that of the respondent, who is the mother of the Shivanagouda and hence, sought for allowing the appeal. 9. On looking to the grounds raised and the arguments, the points that arise for our consideration are: i. Whether the finding recorded by the trial Court is illegal, erroneous, perverse and unreasonable? ii. Whether the trial Court has erred in dismissing the petition filed by the appellant/petitioner? Our answer to the aforesaid points is in the negative for the following reasons: 10. The undisputed facts are that the appellant married the respondent about 16 years back and they lived happily for 10-12 years and out of their wedlock they have 3 sons by name Dharmanagouda, Maheshgouda and Shivanagouda. Our answer to the aforesaid points is in the negative for the following reasons: 10. The undisputed facts are that the appellant married the respondent about 16 years back and they lived happily for 10-12 years and out of their wedlock they have 3 sons by name Dharmanagouda, Maheshgouda and Shivanagouda. There arose a dispute between the appellant and the respondent and the respondent left Goa and started residing at Hulasogi village, Shiggaon taluk. According to the respondent, she has been sent out by the appellant and therefore she is residing in Hulasogi village. On considering the evidence of PW-1 and RW-1, two sons namely Dharmanagouda and Maheshgouda are residing with the appellant in Goa and he is looking after them and the 3rd son Shivanagouda is residing with the respondent at Hulasogi village, Shiggaon taluk wherein he has been admitted to a Government School. The appellant is doing coolie work in Goa and the respondent is doing coolie work in Hulasogi village, Shiggaon taluk. Learned counsel for the appellant argued that Shivanagouda will not get good education in the Government School at Hulasogi village wherein he is studying in 6th standard and the respondent is not able to maintain him and look after his needs. The respondent, who has been examined as RW-1 has stated that she is an agricultural coolie and she is able to maintain her son Shivanagouda and provide him education in Government School at Hulasogi village as the appellant is already looking after two children who are residing with him at Goa. 11. In the case of Anjali Kapoor v. Rajiv Baijal, (2009) 5 CTC 283 (SC), the Hon'ble Apex Court has held that it is not the material welfare of children alone which counts. More important are the stability and security, the loving and understanding, care and guidance, the warm and compassionate relationship that are essential for the full development of the child's own character, personality and talent. 12. The appellant who is looking after his two sons cannot be able to give more love and care to his 3rd son Shivanagouda. The respondent is taking care of Shivanagouda, who is studying in 6th standard at Governmment School at Hulasogi village. The respondent can take the utmost care of her son, as he alone is residing with her. 12. The appellant who is looking after his two sons cannot be able to give more love and care to his 3rd son Shivanagouda. The respondent is taking care of Shivanagouda, who is studying in 6th standard at Governmment School at Hulasogi village. The respondent can take the utmost care of her son, as he alone is residing with her. The trial Court in its order sheet dated 27.08.2016 recorded that "child Shivanagouda is willing to reside with his mother." At that time said Shivanagouda was 11 years old and was able to understand and take decision as to with whom he wants to reside. The minor child-Shivanagouda had desired to reside with his mother. He will be having warm and compassionate relationship with his mother. The respondent-mother is doing agricultural coolie work and earning her livelihood and apart from that, she is getting maintenance of Rs.4,000/- per month from the appellant for herself and her minor son Shivanagouda. Therefore, the respondent can take utmost care of her son Shivanagouda and provide good education at Government School at Hulasogi village, where they are residing. The trial Court has rightly come to the conclusion that the appellant is not entitled for the custody and guardianship of his 3rd son- Shivanagouda. Therefore, we hold that the trial Court was justified in passing the impugned order and the same does not suffer from any illegality or perversity so as to call for interference by this Court. Accordingly, we answer the points for consideration and pass the following order. Appeal dismissed.