Dismissed

Murthy N v. Smt. Kalavathy Alias Gangamma

Karnataka HC25 Mar 2024MFA/364/2021

Case brief

AI extract

What is this about?

This court dismissed the first appeal filed under Section 47 of the Guardians and Wards Act, 1890. The High Court held that financial capacity is not the sole ground for deciding custody and found no illegality in the Family Court's refusal to grant permanent custody to the divorced father.

What did the court decide?

The appeal is dismissed. The appellant is free to approach the Family Court seeking visitation rights.

Murthy N Vs Smt. Kalavathy Alias Gangamma — Child Custody and Guardianship | Karnataka HC (2024)

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NC: 2024:KHC:12156-DB MFA No. 364 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF MARCH, 2024

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PRESENT

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THE HON'BLE MRS JUSTICE ANU SIVARAMAN

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AND

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THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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MISCELLANEOUS FIRST APPEAL NO. 364 OF 2021 (GW)

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BETWEEN:

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MURTHY N S/O LATE H. NARASIMHAIAH AGED ABOUT 42 YEARS R/NO.256, 2^ND CROSS KADABAGERE VILLAGE AND POST DASANAPURA HOBLI BANGALORE NORTH TALUK PIN-562 130 …APPELLANT

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(BY SHRI. HANUMANTHAPPA HARAVI, ADVOCATE)

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AND:

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Digitally signed by MADHUSHREE H Location: High Court of Karnataka

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SMT. KALAVATHY ALIAS GANGAMMA D/O ASHWATHAPPA AGED 38 YEARS RESIDING AT C/O ASHWATHAPPA NO.359, 8^TH WARD VANNIGARAPET NEAR RANGAPPA CIRCLE DODDABALLAPURA TOWN AND TALUK DODDABALLAPURA -561 203 …RESPONDENT (BY SHRI. M.R. HARISH KUMAR, ADVOCATE)

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THIS MFA IS FILED U/S.47(a) OF GUARDIAN AND WARDS ACT, 1890 AGAINST THE JUDGMENT AND DECREE DT.19.12.2019 PASSED IN G AND WC NO.3/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA, REJECTING THE PETITION FILED U/S.7,8,9(1),10 AND 25 OF THE GUARDIANS AND WARDS ACT, 1890.

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NC: 2024:KHC:12156-DB MFA No. 364 of 2021

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THIS MFA, COMING ON FOR ADMISSION, THIS DAY, ANU SIVARAMAN J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard the learned counsel appearing for the appellant

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as well as the learned counsel for the respondent.

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The appeal is preferred against the judgment dated 19.12.2019 in G & WC No.3/2012 passed by the Senior Civil Judge at Nelamangala rejecting the petition filed under Sections 7, 8, 9 (1), 10 and 25 of the Guardians & Wards Act, 1890. It is submitted by the learned counsel for the appellant that the appellant is father of a minor child aged 14 years and that he had filed the petition before the Family Court seeking permanent guardianship as well as custody of his minor daughter. It is submitted that the Family Court had wrongly dismissed the petition. It is contended that the appellant has a well paid job and that he is financially more competent to look after the child and the best interest of the child would be served by handing over the permanent guardianship of the child to the appellant.

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3 - NC: 2024:KHC:12156-DB MFA No. 364 of 2021

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However, we notice that the marriage between the parties had been conducted on 27.04.2008 and child was born on 29.09.2009. It appears that the wife was living separately from the appellant from the year 2010 onwards and M.C.No.1248/2011 has been filed before the Family Court. We notice from the judgment that the marriage had been dissolved by a decree of divorce in 2012.

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The respondent - wife had contended that the appellant had remarried on 12.02.2013. The Family Court had considered the pleadings and evidence on record and had come to the conclusion that it was only when a suit was filed by the wife on behalf of the daughter seeking partition of the property belonging to the appellant that the petition was filed seeking custody and guardianship of the daughter. It appears from the judgment that there was no petition seeking visitation rights filed by the father.

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Having heard learned counsel appearing on either side, we are of the opinion that the finding of the Family Court that financial capacity alone is not a ground to decide on question of custody of the child cannot be said to be

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4 - NC: 2024:KHC:12156-DB MFA No. 364 of 2021

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illegal. Since there is nothing on record to show that the child was in any way familiar with the father, we find no illegality or perversity in the order of the Family Court declining the prayer pressed by the appellant - father for permanent custody. However, we make it clear that the appellant - father is free to approach the Family Court seeking visitation rights and is also free to make financial arrangements for proper education of the child if he is so inclined.

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The appeal fails and stands dismissed with the above observations.

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Sd/JUDGE

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Sd/JUDGE

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MH/List No.: 1 Sl No.: 31

Murthy N v. Smt. Kalavathy Alias Gangamma

Case brief

What is this about?

What did the court decide?

Murthy N v. Smt. Kalavathy Alias Gangamma

Case brief

What is this about?

What did the court decide?

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