Partly allowed

Machineni Venakteswara Rao , Subah Rao , Venkat Rao v. Machineni Swapna

Telangana HC25 Oct 2013FCA/180/2012

Case brief

AI extract

What is this about?

The High Court partly allowed appeals against a Family Court order dismissing a custody petition and restricting maternal access to court. The Court fixed the age of ten years as the threshold for the father to attempt custody or access, citing the child's current reluctance and the mother's absence of independent income as factors.

What did the court decide?

G.O.P. No.55 of 2010 disposed of; appellant can attempt to get custody or access only after the child crosses the age of ten years.

Machineni Venakteswara Rao , Subah Rao… — Child Custody and Guardianship | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND

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THE HON’BLE SRI JUSTICE M.S.K.JAISWAL

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F.C.A.No.180 of 2012 & C.M.A.No.414 of 2012

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COMMON JUDGMENT: (Per the Hon’ble Sri Justice L. Narasimha

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Reddy)

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Both the appeals under Section 19 of the Family Courts Act and Section 47 of the Guardian and Wards Act are filed against the order dated 28-02-2012 passed by the Family Court-cum-Additional District and Sessions Judge, Karimnagar. For the sake of convenience, the parties are referred to, as arrayed in F.C.A.No.180 of 2012.

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The appellant married the 1^st respondent herein on 30-07-2006 and the 2^nd respondent was born in 2007, out of their wedlock. However, the relationship between them deteriorated, and since March, 2009, they are living separately. It appears, some proceedings under the Hindu Marriage Act have also ensued between the parties.

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The appellant filed Guardian and Wards O.P.No.55 of 2010 under Section 25 of that Act for custody of the 2^nd respondent. He pleaded that he has already filed F.C.O.P. No.55 of 2009 under Section 13 of the Hindu Marriage Act for dissolution of marriage against the 1^st respondent, pleading the grounds of cruelty and mental disorder on the part of the 1^st respondent and that there is a danger for the safety of the child in the hands of the 1^st respondent. He pleaded that the 1^st respondent was not having independent source of income, and that she cannot provide better educational facilities to the 2^nd respondent.

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The O.P was opposed by the 1^st respondent. She stated that it is the appellant, who subjected her to cruelty and he cheated not only her, but also the society at large by claiming to be a medical Doctor. She contends that the appellant has no love or affection for the child, and even the child did not evince any interest, at any point of time, to meet the appellant.

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Through its order under appeal, the trial Court dismissed the O.P., but directed that the appellant shall be entitled to meet the child on every second Saturday of a month, between 11:00 a.m. and 2:00 p.m., in the Court premises. The 1^st respondent was permitted to produce the child at that time. While the appellant feels aggrieved by the dismissal of the O.P., the 1^st respondent filed C.M.A.No.414 of 2012, challenging the condition as to production of the child, in the Court, every month.

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Heard the learned counsel for the appellant and learned counsel for the 1^st respondent. We have also interacted with the parties, as well as the child.

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The appellant, on the one hand, and respondents 1 and 2, on the other hand, are living separately for the past four years. Estrangement of relationship is so strong that the OP for divorce was filed by the appellant, pleading the grounds of mental illness on the part of the 1^st respondent. It is not known as to what happened to F.C.O.P. No.55 of 2009 filed by the appellant.

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Being the natural father of the child, the appellant is certainly entitled to meet her, and in a given case, to have the custody of the child, if it is established that it is not at all safe for the child to be with

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the mother.

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Before the trial Court, on behalf of the appellant, PWs 1 to 4 were examined, and he filed Exs.P-1 to P-5. On behalf of the 1^st respondent RWs 1 to 3 were examined, and Exs.R-1 and R-2 were filed. The trial Court recorded a finding to the effect that the 1^st respondent is earning a sum of Rs.15,000/- per month, as an employee, and the child has been admitted to a reputed school. The mother of the 1^st respondent is supporting her. When the trial Court made an attempt to ensure that the child spends time with the appellant, the same did not fructify, since the child was not only reluctant, but also raised cries. Same situation prevailed before us also. Any attempt to compel the child to be with the appellant is likely to have serious impact upon her. For all practical purposes, the appellant is a stranger to the child, as of now. Added to that, the child is finding the appellant to be the opponent of her mother. At this stage, where the child cannot be expected to have any discretion or independent thinking, it is not at all safe to provide any access for the appellant, to be with the child. The appellant can make his effort after the child becomes 10 years of age.

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Hence, we partly allow both the appeals, and set aside the order under appeals. We direct that the O.P.No.55 of 2010 shall stand disposed of with an observation that the appellant herein i.e., the petitioner in the O.P, can make his effort to get the custody of the child, or to have access to her, only after the girl crosses the age of ten years.

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The miscellaneous petitions filed in the appeals shall also stand disposed of.

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There shall be no order as to costs.

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__________________________ L. NARASIMHA REDDY, J

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__________________________ M.S.K. JAISWAL, J Dt. 25-10-2013 KO

Machineni Venakteswara Rao , Subah Rao , Venkat Rao v. Machineni Swapna

Case brief

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Machineni Venakteswara Rao , Subah Rao , Venkat Rao v. Machineni Swapna

Case brief

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