IN THE HIGH COURT OF KARNATAKA AT BANGALQ.RF;"- -.,
DATED THIS THE 15? DAY OF SEPTEMBER zdojg ,;:: " '
PRESENT
THE HON'BLE MR. JUSTICE V <§tJPA.LAGOvI1 5A.,V A
THE HON'BLE DR. JUSTICE
MISCELLANEOUS FIRST A§15iéA:; :1.i%7'{3[:;':/"2008 (G & WC}
MISC,C§V'1L§'If:1S§Qs;'7{é13Ei[.20Q9; .7570/"20o9.
1 k7:rj73/2009' and "7437/~2oo9
BETWEEN :
Srnt. H S Arufia, ' ' _ 'V
Age: 39 years. A ' _ --
D / 0 late H S Sath'yanaraya1ia,"
R/0 N0.354;'.' 4"? 'B' C;-'.0ASS'," V
Bar; 111 Stag.e,: _3'1-'1 Phase; . _____ H ,
5'm_B1ock, '*
Bangalore -.560» 08E'), Appellant
V * T' " " (Common in all the cases]
Sri" 'F_§rea'e(:ivf1a'«13.",g'\SA:as.(ifiv:iates, Adv., for appellant)
"=SI'*i N'E.3,rakash,
"g ._S Nagaraj aiah,
V a *.:'X''"'-::; {J58} years,
' R'/Q No.84/2, 731 Main,
l\.)
21% Block, BSK I Stage,
Bangalore-560 050. Respondent
(Common in all the cases) _
(By Sri K S Harish, Adv., for Sri P M Vasudev, Adv.,
for respondent}
Miscellaneous First Appeal is filed un_cler__Section "ofvthe " "
Guardian 8:: Wards Act, 1890. against f
4.12.2008 passed in o & we No.176/200f3'».on--_1:he ofvthe
Judge, Family Court, Bangalore. allowing the"Petition-.:filed"under
Sections 7 and 17 of the Guardian and_W'ards..Act.." «. O O
Misc.Cv1. 310.7436/2008is'li1ed'--ur;l.d}:rlO1fder=XXV1 Rule 10-A
of CPC r/w Sections 45.46 and~--l_1:2 o--fA&F.videnoe'i._Ai:t. praying for
further orders regardi:_nglfli.rection.ip _
Misc.Cvil. under Order 8 r/W Order 6
Rules 7,8 and¥9l ofVC "praying to permit the appellant to
include additional " V
J V' «--.Misc4:._jOvl;....No.._777t§/'20--Q9' is filed under Order 41 Rules 2 and
3 oi'._VC p_ra.yin_g~.to permit the appellant to raise additional
grounds. .
--V Misel'CVlL*--V :l\.lo'."l'487 / 2009 is filed under Section 151 of C P C,
O topvacate the interim order dated 6.4.2009.
'l"'£1eseA cases coming on for Orders this day, Dr.
lE£lijaltth.aVatsala, J., delivered the following:
JUDGMENT
A short question that arises for consideration
is:
Whether the Famiiy Court .’
allowing the Petition in o Nae; 75./zoos-[__=–v.
and directing the appe11ant–i:no«theru to give: the V
custody of the ward Ashtiyinfiumarvvto
the custody of the .respondentr.lfa§Lhet’cv?f, _
2. Our answef point in the negative for the
following reasons: .
Learned Counsel’ fof Va{§:pe.1i’ant–mother submits that after
dissolution of. mariciagve,’ the i”es15ondent was given visiting rights,
but iater onathe respondentgot married for the second time and
the to go and therefore the appellant did not
the boy her W111 to the respondent–father. On that
“score;-».the respondent filed a Petition in G 8: W C No.17/6/2006
hand Court, without taking into consideration the Welfare of
H and the circumstances under which the ward refused to
L
go, as per the earlier visiting arrangement, the trial Court has
mechanically allowed the Petition.
On the other hand, learned Counsel for the _
submits that as the boy was not sent as per it
given earlier, the respondent–father filed :aa _.lPeti.tion”- it
custodian of the minor ward andVgtln_.e trial_
consideration all the materials place:d~.Vl’Von. rightly
allowed the Petition directing ..to.v.dl’§ive theldiciistody of
the child with visiting Arightsvgtoihthe there is no
illegality or infirmity” reds or_der§”l.’ ”
The learned Judgegof formulated a point
lwhetheiathe petitionepfather had made
slufficient lllll “ground to appoint him as
the minor child K P Ashwin
“.iiamat so, whether the petition was
rriairitainable :2
formulated for consideration by the Family Court
.. regarding appointment of a guardian of the minor child.
L
Since the father is a natural guardian, the question of appointing
father as a guardian does not arise. The marriage of the appellant
with the respondent has been dissolved by mutual coniseiitl,’ _
trial court has not gone into the question asmto whet1’1erifthere was ”
any need for change of custody of the wardfrornlrno”ther.lto lfathelrhvs f
On our request, the boy was produced befo_re’lus’:§and we
enquired with the boy in–carne1*a..”Tl1e{l§boy yoategorieallyvsaild that he
is willing to go to the respondenthjiatiierilorieehl jviifvo months. He
also stated that he land living with his
mother. As on v’:ablo’s§it’l ll years 1 month 18
days. Welfare of sole criteria for giving
custody of thelchildl. has not made out any good
ground toydisturl)’ hcustodly of the ward. Therefore, the
ifnypugned”‘*ordei1* calls for interference by this Court.
3.’ ».Iylearnedi’:*.yClounsel for the appellant submits that the
“–«l’fte’.splondent ” agreed to pay Rs.500/- per month as
but since January 2006 upto date’ (August 2009),
Comes to Rs.22,000/ -, has not been paid yet.
L/s
4. Learned counsel for the respondent submits that since
visiting rights were not given, as agreed upon, he has not paidithe
maintenance amount of Rs.500/~ per month from January’ it
5. The marriage of the appellant
dissolved by mutual consent and the.4_appe1lant, who–“–lis.v’worl{in”gi
and earning, has not sought for any rnain*tenanee._for–l1erself: The
contention of the learned Coiinsel _for_ respondent “that the
appellant has not filed any applicationseeki_ng”n*§ain.tenance is not
a good ground to deiiyllsuch e. in of the minor
child. Keeping.lvi1’1’eview’. powefand jurisdiction of this
Court, it wouldmeet to direct the respondent to
pay a sum of Rs’.?,p0O0f–. Inltznth as maintenance with effect
from. 5
for the appellant does not press
V771M1sr:,cive:.’*7.136}2069, 7770/2009 and 7773/2009.
.l llnllview of the above, the Appeal is allowed and the-
‘ .,’1img3:dgn’ed order dated 4.12.2008 passed in G 81 we No.l76/2006
L
Misc.Cvi.No. 7487 / 2009 filed the Counsel for the responderit»
does not survive for consideration and is accordingly rejectegim.’ ‘ .,
No costs.
_
315 V .