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2021 DIGILAW 839 (KAR)

SANJAY v. PRIYA JOSHI

2021-09-01

J.M.KHAZI, K.S.MUDAGAL

body2021
JUDGMENT : 1. Aggrieved by the rejection of his application for his appointment as guardian of his minor son, the appellant has preferred the above appeal. 2. The marriage of the appellant and the respondent was solemnized on 7/7/2014. Out of their wedlock, son by name Akul is born on 11/5/2015. The marriage of the appellant and the respondent did not sail well. The respondent along with her minor son is living separately since December, 2015. 3. The appellant got issued notice to the respondent alleging willful withdrawal from his society without any excuse and demanded the restitution of conjugal rights. She replied the said notice denying his allegations. In the reply she alleged that he himself subjected her to ill-treatment in connection with his unlawful demands and he was an alcohol addict, etc. 4. The respondent filed Crl.Misc.No. 158/2016 before the Family Court, Kalaburagi seeking maintenance for herself and for her child on the ground that the appellant despite having sufficient means has failed and neglected to maintain them. 5. The appellant filed M.C.No. 87/2016 against the respondent before the Family Court, Bengaluru seeking restitution of conjugal rights. Later he filed M.C.No. 4104/2016 against the respondent before the Family Court, Bengaluru for decree of divorce on the ground of desertion and cruelty. 6. Pending all such proceedings, he filed G and W.C. No. 10/2017 against the respondent under Sec. 7 r/w Sec. 25 of the Guardian and Wards Act seeking his appointment as guardian and custody of his minor child Akul Deshpande. 7. The respondent contested the said proceedings. The parties adduced the evidence. The trial court by the impugned order dismissed the petition holding that the ground set up by the appellant are not proved. The trial court further held that the welfare of the child is better protected under the care and custody of the respondent. 8. The appellant sought his appointment as guardian and custody of the child on the following grounds: (i) The respondent is suffering from a mental health disorder called narcissistic personality disorder. Having regard to her mental health condition the custody of the child with her is injurious to the development of the child. (ii) The environment in the parental family of the respondent having regard to the nature of respondent and her parents is not conducive for the welfare of the child. Having regard to her mental health condition the custody of the child with her is injurious to the development of the child. (ii) The environment in the parental family of the respondent having regard to the nature of respondent and her parents is not conducive for the welfare of the child. (iii) Though the Family Court in the matrimonial proceedings has granted right of visitation of the child to him, respondent is illegally depriving him of such rights and she has gone under-ground with the child to deprive such rights. 9. Though the appellant sought to project much about the matrimonial proceedings between him and the respondent for the purpose of the petition under Sec. 7 r/w Sec. 25 of the Guardians and Wards Act, they are not much irrelevant. To succeed in his petition, he was required to establish the grounds set up by him. Needless to state that respondent denied all those grounds. Reg. Mental health of respondent: 10. The allegations of mental health disorder is a serious allegation. The burden of proving the said allegation was on the appellant. To substantiate the mental health condition of the respondent, except his self serving testimony the appellant did not chose to examine any doctors or the specialist in the field. His self serving testimony in that regard was denied by the respondent. 11. Referring to Ex.P.7, the copy of text messages allegedly sent to him by the respondent, the appellant contended that respondent has unstable mental health. The respondent disputed the genuineness of the said document. Ex.P.7 being the secondary evidence of electronic record, unless the conditions mentioned in Sec. 65-B of the Evidence Act, 1872 (for short, 'the Act') are complied the same is inadmissible in the evidence and cannot be relied. The appellant did not produce the certificate as required under Sec. 65-B of the Act to prove the said document. 12. The Hon'ble Supreme Court in the judgment in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Others, (2020) 7 SCC 1 has held that unless the certificate as required under Sec. 65-B of the Act is produced such electronic evidence is inadmissible. Having regard to the above said provisions and the judgment and non-compliance of Sec. 65-B of the Act, Ex.P.7 has no evidentiary value. 13. Kailash Kushanrao Gorantyal and Others, (2020) 7 SCC 1 has held that unless the certificate as required under Sec. 65-B of the Act is produced such electronic evidence is inadmissible. Having regard to the above said provisions and the judgment and non-compliance of Sec. 65-B of the Act, Ex.P.7 has no evidentiary value. 13. The appellant at one stretch contends that he took care of all the needs of the respondent still she deserted him. At the same time in his cross-examination he admits that he did not take her to any doctor saying that she has mental health issue. The application filed by him for referring her to the medical examination was rejected by the trial court. He did not challenge that order. Therefore that order attained finality. 14. The appellant himself suggests to the respondent in her cross-examination that she completed her degree education in Bengaluru and lived in Bengaluru for 15-20 years. He also suggested that she has studied Master of Arts and she is taking care of education of the child. Further, in his cross-examination he has admitted that without his aid respondent got the child admitted to English medium school paying his school fee, text book fee, school van fee, etc. All such admissions of the appellant in his evidence and suggestion to P.W.1 go contrary to his allegation of she suffering from mental health disorder. They go to show that she is mentally stable. 15. The proceedings in Crl.Misc.No. 158/2016 and the depositions of the parties in the said case were admitted facts. The certified copy of the order in Crl.Misc.No. 158/2016 and the depositions in the said case were marked as Ex.R-51 and R-52. Those records reveal that the appellant himself suggested to respondent in those proceedings that respondent was doing job in a private school and she was earning Rs.20,000.00 per month. 16. The trial court took into consideration such suggestion to reject the allegations of the appellant that respondent is suffering from narcissistic personality disorder. This court does not find any error in the trial court rejecting the allegations of the appellant regarding mental health condition of the respondent. Reg. the welfare of the child: 17. The next allegation was that the environment in the parental family of the respondent is not conducive to the welfare of the child having regard to the nature of the respondent and her parents. Reg. the welfare of the child: 17. The next allegation was that the environment in the parental family of the respondent is not conducive to the welfare of the child having regard to the nature of the respondent and her parents. The contention of the appellant that respondent is suffering from mental ill- health is already rejected. As already pointed out the evidence on record shows that respondent without the aid of the appellant is looking after the needs of the child and her parents are supporting her. Therefore, the said contention is also not acceptable. 18. So far as the welfare of the child in his company, the respondent contended that he was an abusive husband and was assaulting her in the presence of child. The appellant himself in his cross-examination admitted that on 19/8/2016 respondent filed complaint before Kodihalli Police alleging cruelty to her by him. He further admitted that police summoned him and he executed a bond before the Police undertaking that he will not harass the respondent. He is making unfounded allegations of psychological disorder against the respondent without seriousness of proving the same. He admits that despite the order of the court to pay maintenance he has not paid maintenance to his wife and child. 19. The above facts go to show that the appellant himself is an abuser and has no regards to the court's order. Apart from that, he admits in his cross-examination that he is a tobacco smoker and consuming non-vegetarian food contrary to their family practices. He himself admits that his mother is not alive, father is living separately and his siblings are also living separately. Therefore, it can be inferred that if the child is given to his custody there will be no care taker for the child or to support the appellant for such care taking. 20. When the petition was filed, the child was just 2 and 1/2 years old. As per Sec. 6 of the Hindu Minority and Guardianship Act, 1956 upto the age of 5 years, the son shall ordinarily be with a mother. The appellant was not able to make exceptions to that. 21. Considering the aforesaid aspects, the trial court rightly rejected the contention of the appellant that the welfare of the child will not be promoted in the custody of the respondent. Reg. Breach of order granting visitation rights: 22. The appellant was not able to make exceptions to that. 21. Considering the aforesaid aspects, the trial court rightly rejected the contention of the appellant that the welfare of the child will not be promoted in the custody of the respondent. Reg. Breach of order granting visitation rights: 22. The other allegation was that the respondent was not permitting him to meet the child as per the order of the Family Court regarding his right of visitation. The respondent denies such allegation. The appellant has not initiated any enforcement proceedings for the alleged violation of the order of the Family Court. 23. Even in the impugned order the trial court has granted him the visitation rights. This court does not find any illegality or impropriety in the impugned order. Therefore, the appeal is dismissed.