Partly allowed

Sri Sunil Kumar H S v. Smt Prathima Y v

Karnataka HC2 Jul 2024MFA/1172/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the appellant's miscellaneous first appeal in part, upholding the trial court's dismissal of his custody petition but directing him to be granted temporary custody during weekly holidays and half vacations. The court also quashed the lower decision on visitation.

What did the court decide?

Appeal partly allowed; permanent custody rejection confirmed; temporary custody granted to appellant during weekly holidays and half vacations subject to consent.

Sri Sunil Kumar H S Vs Smt Prathima Y v — Child Custody and Guardianship | Karnataka HC (2024)

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NC: 2024:KHC:24613-DB MFA No.1172/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JULY, 2024

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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 VIJAYKUMAR A. PATIL

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MISCELLANEOUS FIRST APPEAL No.1172/2018 (GW)

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BETWEEN:

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SRI SUNIL KUMAR H S AGED ABOUT 44 YEARS S/O SHIVANANDA S.R. R/AT NO.503, E.W.S. 13^TH CROSS, KUVEMPU NAGAR HASSAN - 573 201 …APPELLANT

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(BY SRI P.P.HEGDE, SENIOR COUNSEL FOR SRI VENKATESH SOMAREDDI, ADVOCATE)

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AND:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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SMT PRATHIMA Y V DIVORCED WIFE OF SUNIL KUMAR H.S. AGED ABOUT 38 YEARS ASSISTANT TEACHER GOVT. P.U.COLLEGE (HIGH SCHOOL) CHAANNAITHODY, VAMADAPADAVU POST BANTWAL TALUK D.K.DISTRICT - 574 324 …RESPONDENT

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(BY SRI SANJEEV RAO.S., ADVOCATE [ABSENT])

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 47(A) OF THE GUARDIANS & WARDS ACT, 1890 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 07.11.2017 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, HASSAN IN G & W.NO.02/2015 DISMISSING THE PETITION FILED UNDER SECTION 12 OF THE GUARDIAN AND WARDS ACT.

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NC: 2024:KHC:24613-DB MFA No.1172/2018

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, K.S.MUDAGAL.J, DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging dismissal of his petition under Section 12 of the Guardian and Wards Act, 1890 (‘G & W Act’ for short) for custody of his son Rohan, the petitioner in G & W.No.2/2015 on the file of the Principal Judge, Family Court, Hassan has preferred this appeal.

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The appellant was the petitioner and the respondent was the respondent in G & W.No.2/2015. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Trial Court.

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The petitioner and the respondent are Hindus and governed by Hindu Laws. Their marriage was solemnized on 07.05.2006 at Dharmasthala. In their conjugal life, on 02.01.2008, the couple are blessed with son Rohan. There

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were some disturbances in the marriage. The couple filed M.C.No.2/2015 before the Senior Civil Judge & JMFC, Bantwal under Section 13B of the Hindu Marriage Act, 1955 (‘ the Act’ for short) seeking dissolution of the marriage by mutual

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3 - NC: 2024:KHC:24613-DB MFA No.1172/2018

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consent. However, due to differences, they did not reach consensus. Therefore, the said petition was withdrawn.

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Before that M.C.No.49/2014 was filed by the respondent against the petitioner seeking divorce on the ground of cruelty. On hearing the parties, the petition was allowed on 01.06.2017. The respondent had also filed the petition under the provisions of the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’ for short) in Crl.Misc.No.1021/2014.

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The petitioner and the respondent are working. The petitioner filed G & W No.2/2015 alleging that the respondent has illicit relationship with one Girish Ithal. For that reason, she has deserted him. He contended that the respondent is working as Teacher in a school which is situated 40 kilometers away from her residence. In her absence, the child will be unmonitored and that may affect the welfare of the child. He further claimed that he is residing with his parents, financially well off and the child’s interest will be better protected in his custody. Therefore he sought custody of the child.

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NC: 2024:KHC:24613-DB MFA No.1172/2018

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The respondent contested the petition denying the allegations made against her. She contended that the petitioner himself was an abuser, which forced her to stay separately and initiate proceedings against him under DV Act and for divorce on the ground of cruelty. She seeks dismissal of the petition.

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In support of his case, the petitioner got examined himself as PW.1 and got marked Exs.P1 to P27. The respondent was examined as RW.1 and on her behalf, Exs.R1 to R8 were marked.

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The Trial Court on hearing the parties, by the impugned judgment and order dismissed the petition holding that the allegations of the respondent leading adulterous life was not proved. The Trial Court further held that the couple are financially independent. The Trial Court appreciating the evidence found and on interaction with child found that the child is spending its time with both, his father and mother, though he stays with his mother. The Trial Court further held that the petitioner has migrated to Chennai for pursuing higher studies and his parents are aged. Therefore the child

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continuing in the custody of the mother serves the welfare of the child and ultimately dismissed the petition.

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Sri P.P.Hegde, learned Senior Counsel appearing for Sri Venkatesh Somareddi, learned Counsel on record for

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the appellant/petitioner submits that the child is now aged 16½ years and he is in PUC which is a crucial period. He further submits that the petitioner is meeting the educational expenses of the child. He submits that though the trial Court observed in the body of the judgment that the petitioner is enjoying the visitation rights, the same is not reflected in the final order and the petitioner will be satisfied if specific order is passed for visitation rights.

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The respondent though served did not turn up. Sri Sanjeev Rao.S., learned Counsel though undertook to appear on her behalf, subsequently he failed to appear.

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The records show that custody of the child was

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sought on the ground that the respondent mother is leading adulterous life, therefore it is injurious for the child to continue with the custody of the mother. The respondent filed M.C.No.49/2014 against the petitioner for decree of divorce on the ground that petitioner is making unfounded and false

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allegations of adultery and that amounts to cruelty. Ex.P27 the certified copy of the judgment in M.C.No.49/2014 passed by the Principal Senior Civil Judge and J.M.F.C., Bantwal, D.K. shows that the said Court accepting her contention granted decree of divorce in her favour.

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Further Ex.P26 the certified copy of the order dated 08.05.2017 in Crl.M.C.No.1021/2014 passed by the Principal Senior Civil Judge and J.M.F.C., Bantwal, D.K. shows that the respondent herein filed the said case under Section 12 of the DV Act against the petitioner alleging that he subjected her to domestic violence suspecting her fidelity and failed and neglected to maintain her and her son etc. The said Court partly allowed Crl.M.C.No.1021/2014 restraining the petitioner from subjecting her to domestic violence and awarded Rs.4,000/- per month as maintenance to their son Rohan. Those orders have attained finality. Now the child is aged 16½ years. Once he attains majority he can stay with either of the parents of his choice. Further the evidence on record shows that though the petitioner was in Hassan at the time of filing of the petition, subsequently he shifted to Chennai for pursuing higher studies and his parents were in Hassan. The Trial Court

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took that aspect also into consideration and rejected the petition.

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Moreover, the petition was filed in the year 2015. Now ten years have elapsed and the parents of the petitioner by this time should have advanced in age. Taking into consideration all these aspects, the Trial Court was justified in holding that continuation of the custody of the child with the mother serves welfare of the child. However, the Trial Court though observed that the petitioner is enjoying the visitation rights and the child is happy in the company of both parents, did not pass any orders regarding visitation rights. Therefore the order requires to be modified only to that extent. The appeal deserves to be allowed in part only to that extent. Hence the following:

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ORDER

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The appeal is partly allowed.

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The impugned judgment and order dated 07.11.2017 in G & W.No.2/2015 passed by the Principal Judge, Family Court, Hassan so far it relates to rejection of the petition for permanent custody of the child is confirmed.

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It is further directed that the petitioner is entitled to temporary custody of the ward Rohan during weekly holidays

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NC: 2024:KHC:24613-DB MFA No.1172/2018

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and half part of the vacations subject to the consent of both

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the parties and without disturbing his academics.

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No order as to costs.

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In view of disposal of the appeal, pending IAs stood

disposed of.

Sd/JUDGE

Sd/JUDGE

KSR

List No.: 1 Sl No.: 14

Sri Sunil Kumar H S v. Smt Prathima Y v

Case brief

What is this about?

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Sri Sunil Kumar H S v. Smt Prathima Y v

Case brief

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What did the court decide?

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