IN THE HIGH COURT OF KARNATAKA " « x
BATED THIS THE 24?" DAY
PRE*aS ENfF A
THE HONBLE MR$_.JUS1'{C F;
THE HON?B1,E :»i.AL1MA'rH
MISCELLAN A
B.G.Mahe$h'
S/O Govindaiah =
Aged 38 V _
'
* R;§a1x:g;22, 5'rflMain Road
B.a_nga1g:e§-5§eo72.
. .AP°PELLANT
%% % (BY iiumcajc Ramamsma Bhat, Advocate)
AND "1
3 'T A
VW'/6 B.(}.Mahesh
Aged 31 years
'R/at RAJSHREE
/'
No.23, 451 Main, 6"! Cross
Navodaya Nagar,J.P.Nagar 7* Phase
Bangalore~--560 0'78. . . RESPONDENT'
(BY Sri-Vasantn miaik, Advocate.)
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was filed before the Civil Judge (Senior Division),
Court, Tumkur. The said application
dismissed as one ef the parties is.” im}{ ” =
withdrew his mnsent for {if If’ :1; ‘A
3. Meanwhile, the &ppma_ “jthc ” V
ooncemed and mm a
petition for ‘V Act. The
said case the Family Court,
1 ” fixed G 8: WC
No. 164x’/” of the child under Section
25 qf’th§ Act on the ground that he
guard” “” cf the mmor male child who is
I Therfiorc, the custody of the child
mum over to him for 3. limited period that is
.VL (121..v1__’ng’ Viécilool vacation and week ends. Dmm g the
of the said proceedings wverai applications
“came to be filed by both the parties. However, We are
only concerned with the orders on I.A.\/III wrath was
filed under Order’? Rule 11′ of UPC read witt; .,
151 of CPC for reject:rb n of the petition’ . m
complying with the c:onditions:ӎbnta1fip}a$( l:
section 25 of the Guardian _& wards. is
removing the child from the
natuml guardian by -learned Judge
after hearing to the
decisions :;IACOB v. JACOB
1973 so 2090 and
also in : fi1e- ALIAS PARIMALA v. N.
RAN’GAPP}’£ 2004 KARNA’i’AKA 299
.mt.i:i:ion filed under Section 25 by
beginning of para.-9 that the material
pxaaeci’ on did not indicate that the minor child
_ flinidithuya ixraa taken away from the custody of the father.
‘ .9}, ‘Aggievcd by this order, the present appeal is filed
” bjéfthe appellanvfathcr seeking restoration ef the matter
V . that he wouid be able to not only establish the fact of
_’5_
e 11. A person applying for
under Secttlon 25 of the Act must
guardicm am to cuemczy is not a. ere. A’
property but is in the
benefit of the chiici An
25 of the Act for retumgr
guardu:m° cannot be we
eetamshed that fibm
custody of the -ta’ enable
an ” ” Section
25 of must be
person of the
nenor of the minor and
removed the
ewe and in the opimbn of
ceurt, be in the interest and
‘ .,we_y”ere%V&bf._tIme minor thai the minor should be
._ custody ofthe guardu:m’ .
The evidence ofPW-3 who is the elder
L. _ ” sister ofthe respondent and that ofPW-2 is a
H x of the respondent wouid ciearlxy go
toshowthattheappellarttnolunecmlyleflthe
matrimonial house and went away to
Charlnrayagzmnafiwauegafionisthatfiw
we
: for the appeilant also reliml on AER
j
appellant was eioped by her
P.L9mail on 25-11–1999, Ieaving
minor was with me
registration of 1}’d;’3.$?”9’f’2§)O0&’«a1tdVAz}Lat
the minor was
when custody
bf? -:5arI.sént of the
‘ respondent has
‘ to cdiaw
_ under Section 25 of
tIAie.V_Act cméi-jkto the relief envisaged’ in
‘
paragraphs 14 8: 15 which reads as
1l}1i(i€I’I-* ‘M v
~ ‘win our opinion $.25 qfthe Guardians and
Wards Act oontempiates not only actuai
physical custody but also constructive
custody afthe guardian which term includes
ail categories afguardians. The object and
mg-
pwpase of tins pmvisfim being kt:a% .
ensure the welfare of the minor %
right of his guardian to
the warcl’s heal&’ifx,’
object not be
anowedftp qr the
dutiw and
ward so as to
M, cusma of A13-t was
alias Mary cmd it is not
_ ‘vv.;§p~¢ratta_fi1e Court under the Guardians and
to mm’ or deaeare gum-cum’ of
ofhis children under 3.19 during
” ifthe Court does not consider
ftimunjigtfnergtlzeonlypmvisiontowhich
thefc£thera1nhaveresortfarhischi£dren’s
custody is $25, Without, therefore, laying
down eachaustively the wcumstances in
wi1ichS.25canbeinvoicedinouropin£on,on
tfzefactscuzdetmzcesoftfalszxaetfae
husbands application under 3.25
competent with rwpect to the two
children. The Court was ennued to I f _
properly raised bqore it”io
cruze:mn.’ W:’£h’_r’€$pé¢t e’:gwmh’e’
Divorce Act__is ‘ éci to make
custody’
to the
‘ to Mt up mm
pee ee£’LauW thequwttam q”the
5. ., vhoffit which’ is wither” ‘ ‘ the power
eat? to the ‘s
am his ‘ – shouid be
But whether the respondent’s prayer for
custodyofthemirwrcluldrvenbeamsidered
under the Guardians and Weeds Act or
u.ndertheIndicmDivomeA<:t,asohsw'vedby
Mahartyan J., with which observation we
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right oftheirparentsi It .
that under the
oon1m££mg’ canszdez-man’ ‘ iii.-_eu
under 325 was hot
pmanzy’ * wev’w~e
case with ail
‘ ” be em-:–cm
‘ of an the
;=hq$t£$E>gVdebiciédvon its ownfaczs andather
‘ ….. serve as I . i.
tlwfadts of two cases in this
seldom- if ever me
that fftiw hrusbtmd is not unfit to
guardian ofhis minor children, then,
ofthez’rweIfm’edoesnotw all
‘arise is tostate thepmpmition C2 bfl too
broadly and m@ at times be somewhat
misleading.!tdoesn.ottaIcefi1llnoticecy”the
realoom qfthestatzdorypui. Inawr
mm
% semess ajfection
the parents for their
between the mother and
about the custody qftheirchildren,
has to be somewhat dz_fl%ren1’
~ _ ;BenchqftheHighoowtinthiscase. There is
…13_…
quwtion due regard has
to the right of’tIzefat}__zer
presumption would do
their be;st’–vf:i:’~’p9’a;:1p§é’v_ children’s
wevwé not wdw
no dichom between thefitnms of the
fathertnbeentrustedwiththecustodyaffus
welfare. Tlwfatherbfitrwsshastobe
considered, determined and weighed
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predommanti’ y in terms of the weifaw of ;’; : . : _
minor children in the context of _a£I. _ t.¥;e={:: _
relevant circumstances. 9″
he cannot claim
no eat in his he
ms mrm man
every the only
two befdmiis. W" from
on the
against the wife
wiulch-%¢_;’n he was not at all
– _ decisions, had to be
custody of the children’ in the
_ pbézitofniewjzestnwnubnedomznotamrnde
children. No doubt, thefmher has been
presumped by the statutegenerally to be
betterfiztedtoiookczfierthechilclrenmbeing
nonnailytheeamingmembercmd headof
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because qf her profession and _ ‘
resources, zna3;be’wzapos£tiontogyag€”zz;1t§§e %
better health, edumsion é
Absoiute right qf the
modem clzarlgeciggielded in
beings in a normal
members of
court in case of
mother and the father,
is’ a just and proper”
ju requirements afweyhre
afrng and the rights of their
over them. The approach
afme single Judge, in our view, was
.’t”heLette1s
. “1Ffa:tentbe2whonappea1seemstousmImw
erred in reversinghimongraunds whichwe
caeunabletaappredate.
15.Atthebarrs<,:ferenoewasmadetoa
numberofdealsiedoasesontfsequmtionof
-15-
the right offazther to be appointed ordeclmed
as guwdimz and to be granted custody
minor children under 9.25 read with s.
the Guardians and Wards Act I
peculiar facts. We
considered it necessary ‘to :3
mew” we have taken ofS.25 of
and Wards Ac:-, to: be
We have gall; so also the
relevant learned oounaeis.
‘a for divorce by Inutuai
con*.se1 i£ parties the fact nzmam’ 5
one_ of proceedings -the appellant
zthflxiér””‘of the child withdrew his consent.
‘I’i;éref§_§nji was no consent decree of divorce in
pf’ said joint memo. in that View of the
mattéI’,__ i1one of the terms and conditions mentioned in
joint petition mm under Secfion 13-(B) would bind
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any of the parties. Section 25 of Guardian _
wouid be the relevant prmdsiqx; to _- «.t;1″;§: ‘ ~ V.
reasoning of the Ctaurt below for
petition on an applimazion 2 {if v
CFC. Section 25 of the_ as
under» V x j . A L , .,
* of
want %-_V isfizmoved from
the person, the
czgura, aft:-.at it will be for the
to the custody of
purpose of enfommg the
% “~~~~ethewardtobean-estedand
into the custody of the
(2) For thepurpose ofarresting the ward,
a Magzszrate ofthefizst class by Sectionlofl
ofthe Code ofcréminai Procedure, 1882110 of
1882).
…2g…
consideration and disposal on merits after
opportunity to lead evidence to both the par!:ie§.’ C
The petition shall be disposed of as
as possible not later than 6 moliths . 61′-3 K 2
receipt of copy of the order. V
Ofiicc is directed to rgmit the_,¢nt§x*e
to the Court beiow.
The parties #9″ the Court
below on 22- ‘ .’ V
saf-
judge
saJ’\…
‘$3,696