Allowed

Smt. Rekha v. Dodda Yellappa Talavara

Karnataka HC21 Dec 2023MFA/5024/2022

Case brief

AI extract

What is this about?

The High Court allowed the appeal in a custody dispute. It set aside the Family Court's order denying custody to the mother. The Court held that handing over custody to the mother, a graduate employed in a call center, would serve the minor's welfare better than keeping her with illiterate grandparents.

What did the court decide?

The appeal is allowed; the impugned order is set aside; custody of the minor child is directed to be handed over to the petitioner-mother.

Smt. Rekha Vs Dodda Yellappa Talavara — Child Custody and Guardianship | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^st DAY OF DECEMBER, 2023

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PRESENT

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THE HON’BLE MRS. JUSTICE K.S. MUDAGAL

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AND

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THE HON’BLE MR. JUSTICE K. V. ARAVIND

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MISCELLANEOUS FIRST APPEAL No.5024/2022(GW)

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BETWEEN:

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SMT. REKHA, W/O LATE BASAVARAJA , AGED ABOUT 32 YEARS, WORKING AS TELE CALLER IN HUNDAI SHOW ROOM, P. B. ROAD, NEAR AVARAGERE, DAVANAGERE - 577002.

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...APPELLANT

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(BY SRI REVANNA BELLARY, ADVOCATE)

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AND:

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DODDA YELLAPPA TALAVARA, S/O DODDA HANUMAPPA TALAVARA, AGED ABOUT 66 YEARS, AGRICULTURIST,

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NINGAVVA, W/O DODDA YELLAPPA TALAVARA, AGED ABOUT 61 YEARS, AGRICULTURIST.

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SHARANAPPA TALAVARA, S/O DODDA YELLAPPA TALAVARA,

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M.F.A.No.5024/2022

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AGED ABOUT 36 YEARS, AGRICULTURIST.

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KUMARA S/O DODDA YELLAPPA TALAVARA, AGED ABOUT 36 YEARS , AGRICULTURIST. 5. KUMARI RAJESHWARI GIRI @ RAJESHWARI TALAVAR, AGED ABOUT 11 YEARS, MINOR, REPRESENTED BY GUARDIAN No. R-1, DODDA YELLAPPA TALAVARA, S/O DODDA HANUMAPPA TALAVARA, AGED ABOUT 65 YEARS, AGRICULTURIST, RESIDENTS OF DONI MUNDARAGI TALUK, GADAG DISTRICT.

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…RESPONDENTS

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(BY SRI Y.D. TALAWAR, ADVOCATE FOR R3 (ABSENT); R1, R2, R4 AND R5 ARE SERVED; R5 IS MINOR REPRESENTED BY R1)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 47(a) OF GUARDIAN AND WARDS ACT PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 06.06.2022 PASSED IN G AND WC NO.06/2020 ON THE FILE OF THE JUDGE, FAMILY COURT AT DAVANGERE, DIRECTING RESPONDENTS No.1 TO 4 TO HANDOVER THE CUSTODY OF RESPONDENT No.5 AND ARTICLE BELONGS TO THE APPELLANT.

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THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 05.12.2023, THIS DAY K.V. ARAVIND J., PRONOUNCED THE FOLLOWING:

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M.F.A.No.5024/2022

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JUDGMENT

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This appeal is preferred challenging the order dated 06.06.2022 passed in G & W Case No.6/2020 by the Family Court, Davanagere.

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Appellant was petitioner and respondents were the respondents in G & W case No.6/2020 before the Family Court. The parties are referred to henceforth as per their ranks before the Family Court for convenience.

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3. Brief facts;

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The petitioner is married to Basavaraja. Out of their wedlock, they have two daughters namely, Miss Meghana - elder daughter and Miss Rajeshwari Giri @ Rajeshwari Talavar - younger daughter, who is respondent No.5. Respondent Nos.1 and 2 are parents of Basavaraja. Respondent Nos.3 and 4 are his brothers. Basavaraja died in the year 2017. After the death of her husband, petitioner is residing separately along with her elder daughter. At the time of separation, respondent No.5 -

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M.F.A.No.5024/2022

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younger daughter continued to reside with respondent Nos.1 to 4.

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Petitioner filed an application seeking custody of respondent No.5 from respondent Nos.1 to 4 on the ground that she was separated from the petitioner, is deprived of education, she has been ill-treated and due to illiteracy of respondent Nos.1 to 4, respondent No.5 is not provided with good education. The petitioner is working as Tele Caller and earning salary of Rs.15,000/- per month and capable of taking care of both daughters.

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In response to notice, respondent Nos.1 to 4 appeared before the Family Court. Respondent No.3 filed objections and the same was adopted by respondent Nos.1, 2 and 4. The respondents denied the petition averments and alleged that petitioner has no good conduct and due to her harassment, Basavaraja committed suicide.

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The petitioner examined herself as PW.1 and got marked documents at Exs.P1 to P10. Respondent No.3

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M.F.A.No.5024/2022

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examined himself as RW.1 and got marked documents at Exs.R1 to R5.

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The Family Court, on consideration of

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pleadings and evidence on record, formulated the following points for consideration;

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"i) Whether the petitioner proves that the custody of minor respondent No.5 is to be delivered to her for the welfare and well being of the minor respondent No.5?

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2) Whether the petitioner is entitled for the reliefs claimed in the petition?

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The Family Court held that the petitioner did

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not seek custody of respondent No.5-minor girl from 2017 till 19.08.2020, as respondent No.5 is studying in V Standard change of custody would affect her education and welfare. The Family Court further held that the respondents have sufficient income, child has no acquaintance with the petitioner and cannot adjust to strange environment. The petitioner has been provided visitation rights in view of order of this Court in

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M.F.A.No.5024/2022

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W.P.No.101082/2021 (GM-CPC), dated 09.08.2021 and concluded that the petitioner is not entitled for custody of minor girl.

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Insofar as the second point regarding handing over of school records, silk sarees, valuable gold ornaments, the Family Court held that school records are not in custody of respondent Nos.1 to 4. It was observed that petitioner can take appropriate legal proceedings to get back the gold ornaments. With the above findings, the petition filed under Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as 'G & W Act' for short) was dismissed.

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Though notice of the appeal was served on respondent Nos.1 to 4, they are unrepresented. Considering that the matter pertains to custody of minor daughter, this Court by order dated 22.08.2023 directed the District Legal Services Authority/Taluk Legal Services Authority to visit the respondents and inform them of the pendency of the appeal. In compliance of the order, the

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M.F.A.No.5024/2022

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District Legal Services Authority has submitted report about notifying the respondents regarding pendency of this. As there was no representation from the respondents, by order dated 14.09.2023, one more opportunity was given, offering them free legal aid from the Legal Services Committee for which they did not respond. The respondents failed to avail the enormous opportunities provided to them.

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Sri Revanna Bellary, learned counsel appearing for the appellant submits that respondent Nos.1 to 4 are holding the custody of respondent No.5 for the sake of the share of her deceased father in the family properties. Respondent Nos.1 to 4 are rustic illiterates and unaffordable, continuation of respondent No.5 in their custody would deprive her of better education and welfare. The petitioner earns monthly salary of Rs.15,000/- from her job, has provided good education to her elder daughter, if custody of second daughter is also handed over, she would continue to provide the same standard of

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M.F.A.No.5024/2022

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education to her also. Considering the paramount welfare and interest of the minor girl, he prays to handover the custody to the petitioner.

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On examination of the pleadings, evidence and contentions of parties, the following point would arise for our consideration;

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"Whether the Family Court was right in denying the custody of respondent No.5-minor girl to the petitioner the natural guardian?"

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Analysis

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The fact of petitioner having custody of her elder daughter and providing her quality of education are not in dispute. She is working and earning salary of Rs.15,000/- per month as per Ex.P.5 - Salary Certificate with further enhancement. She is pursuing graduation in law. Respondent No.5 - minor daughter remained in the custody of respondent Nos.1 to 4 in view of sudden death of petitioner's husband Basavaraja and due to age of respondent No.5. Custody of respondent No.5 - minor

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M.F.A.No.5024/2022

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daughter continued with respondent Nos.1 to 4 not because of financial incapacity of the petitioner, but due to need of moral support and care to be given to respondent No.5 due to her age.

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Respondent Nos.1 to 4 have not disputed the financial capacity of the petitioner to provide quality education to respondent No.5 as has been provided to her elder daughter Kumari Meghana. Respondent Nos.1 to 4 have not placed any material to show that comparatively they are in better financial position than the petitioner to provide quality education and better life condition to respondent No.5. Undisputedly, respondent Nos.1 to 4 are illiterates residing in a village. On the other hand, the petitioner is a graduate working in Call Centre earning reasonably handsome salary, settled in Davanagere having comparatively far better access to educational, medical and other facilities, than place of respondent Nos.1 to 4. Under the above facts and circumstances irresistible conclusion is that the welfare of respondent No.5 - minor

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girl, would be served entrusting her custody to the petitioner - mother and natural guardian.

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The allegation of respondent Nos.1 to 4 that petitioner was in illicit relationship with one Laxman Gosi, due to which, petitioner's husband Basavaraja committed suicide has not been proved. In the cross-examination of PW.1, she has denied that she is residing in Davanagere along with Laxman Gosi. No evidence has been brought on record by respondent Nos.1 to 4 to prove that the petitioner is in such illicit relationship, therefore entrusting custody of respondent No.5 to her is unsafe.

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Ex.R.4 - FIR registered on the complaint filed by Sharanappa Talavar, brother of the deceased Basavaraja, against the petitioner and Laxman Gosi has resulted in charge sheet. S.C.No.47/2017 before the Principal Civil Judge, Mundargi, Gadag, in which the petitioner and Laxman Gosi were sought to be prosecuted for the offence punishable under Section 306 read with 34 of IPC resulted in their discharge on the ground that

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charge sheet does not disclose instigation of the petitioner and Laxman Gosi to Basavaraja to commit suicide and there was no sufficient material in the charge sheet to prove that the trial for offence punishable under Section 306 read with 34 of IPC. In view of discharge of the petitioner in the criminal case, nothing can be attributed towards the character or conduct of the petitioner.

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It is not disputed that out of two daughters, elder daughter is in the custody of the petitioner and she has been provided with quality of life and education. Further, the evidence on record would indicate that the petitioner is in better financial position. Whereas, respondent Nos.1 to 4 have not placed any evidence to prove financial resource to educate respondent No.5 or to provide better life condition to her as compared to the one provided by the petitioner to her another daughter.

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Petitioner is pursuing her law graduation. Her educational qualifications would definitely influence and help education of respondent No.5 and she would be in a

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better position in the society. It is the law of universe that for a child nothing is parallel to the mothers love and concern. In the custody of respondent Nos.1 to 4, child has lost the company of her sibling, emotional and moral support of the petitioner and sibling which is essential for sound development of a child.

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Further, considering the seriousness of dispute and allegations made by respondent Nos.1 to 4 against the petitioner, it is not in the welfare and interest of respondent No.5 to continue the custody with respondent Nos.1 to 4. The possibility of misunderstanding between the petitioner and respondent Nos.1 to 4 reflecting on respondent No.5 cannot be ruled out. This view is further justified in view of reluctance shown by respondent Nos.1 to 4 in defending the custody of respondent No.5. The notices issued by the Court are not responded, though considering the welfare of respondent No.5, an intimation regarding pendency of this matter and legal assistance was offered to respondent Nos.1 to 4, they have failed to avail

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the same to defend the custody of respondent No.5. This conduct and attitude would further show that they have no regards for Courts and legal process. Therefore the welfare of the minor girl is likely to suffer in the hands of such persons. In view of Section 19 of G & W Act, it is the mother natural guardian of minor girl.

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The legal Notice issued by petitioner as per Ex.P2 has not been rebutted by respondent Nos.1 to 4. No reply to legal notice is placed on record. This would further show the interest and responsibility of respondent Nos.1 to 4 in continuing to take welfare of minor girl.

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Respondent Nos.1 and 2, the grandparents of

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the minor girl being aged 68 and 63 years respectively are in the evening of their lives. The minor girl is aged 13 years. The age of respondent Nos.3 and 4 who are uncles of respondent No.5 are 35 years. Considering the age of grandparents and welfare of the minor girl, it is appropriate to handover the custody of minor girl to her mother natural guardian.

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In the light of discussion in the preceding

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paragraphs, we hold that the findings of the Family Court are not sustainable. Hence, the following:

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Order

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(i) Appeal is allowed.

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(ii) The order dated 06.06.2022 in G & W Case No.6/2020 passed by the Family Court, Davanagere, is hereby set aside.

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(iii) Petition filed by the petitioner under Section 25 of G & W Act is hereby allowed.

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(iv) Respondent Nos.1 to 4 shall produce the child Kumari Rajeshwari Giri @ Rajeshwari Talavar (respondent No.5) along with her clothes, school records and medical records etc on 02.01.2024 at 11.00 a.m. before the trial Court. On such production the trial Court shall handover the custody of the same to the petitioner.

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(v) If respondent Nos.1 to 4 fail to comply this order, the trial Court shall execute this order and see that the custody of the child is restored to the petitioner.

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(vi) In case the petitioner faces any difficulty in collecting school transfer certificate of the child, the Member Secretary, District Legal Services Authority, Davanagere shall coordinate with the concerned authorities to enable the petitioner in getting the transfer certificate

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No order as to costs.

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Sd/JUDGE

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Sd/JUDGE

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Smt. Rekha v. Dodda Yellappa Talavara

Case brief

What is this about?

What did the court decide?

Smt. Rekha v. Dodda Yellappa Talavara

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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