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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF JUNE 2012
PRESENT
THE HON’BLE MR.JUSTICE N.K.PATIL
AND
THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA
M.F.A.NO.6527/2009(G & WC)
BETWEEN:
M.S.Narayanswamy,S/o Shri M.N.Sampangiramaiah Shetty,Aged about 69 years,Residing at No.688-A, BEL Layout,Bharat Nagar, Magadi Main Road,Bangalore – 560 091. …Appellant.
(By Sri Srinivasa Raghavan.V, forM/S.Indus Law, Advs.)
AND:
Gangadhara Raju,S/o Shri N.Narayan,Aged about 34-35 years,Residing at No.9/10, 4th Cross,Raghavendra Layout,Hosakerehalli,Banashankari III Stage,Bangalore – 560 085. …Respondent.
(By Sri.G.Jairaj forM/s.G.Jairaj & Assts. Advs.)
This appeal is filed under Section 19(1) of the FamilyCourts Act, 1984 read with Section 47(C) of the Guardians
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and Wards Act, 1890, against the Judgment dated28.08.2009 passed in G & W.C No.81/2005 on the file of theIII Additional Principal Judge, Family Court, Bangaloreallowing the petition filed under Section 25 of the Guardiansand Wards Act.
This appeal coming on for hearing this day,S.N.Satyanarayana J., delivered the following:
JUDGMENT
The respondent in G & W C.No.81/2005 on the file of
III Additional Principal Judge, Family Court, Bangalore, has
come up in this appeal challenging the judgment and decree
dated 28.8.2009 passed therein.
2. Brief facts leading to this first appeal are as under:
The appellant herein is respondent and respondent is
petitioner in G & W C.No.81/2005 filed under Section 25 of
the Guardian and Wards Act seeking custody of minor ward
Master G.Ashrit. The admitted relationship between the
parties to this proceedings and minor ward is, appellant
herein is maternal grand father and respondent herein is
father. Respondent, Gangadhara and daughter of appellant,
namely Smt.N.Geetha were married on 30.11.1998. In the
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wedlock, a male child was born to them on 17.6.2000.
Thereafter appellants daughter Geetha died on 7.2.2005
under tragic circumstance i.e., by committing suicide by
hanging.
3. The said tragic incident is the genesis for this
litigation. The appellant herein apprehended that death of
his daughter could be murder by her husband i.e.,
respondent herein. In that behalf, a police complaint was
lodged against the respondent and his parents, they were
arrested and remanded to prison for nearly 42 days.
Thereafter, respondent and his parents were enlarged on
bail. Subsequent to respondent’s release from jail, the
litigation for custody of minor ward commenced.
4. The facts as stated by both parties to this
proceedings is as under;
According to appellant, right from the day his daughter
Geetha married to respondent, relationship between
respondent and his wife was not cordial. In the midst of that
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his daughter conceived and delivered a male child on
17.6.2000. Since the date of birth the minor ward was in
the custody of himself, his wife and his daughter, the mother
of the child. Respondent who is a Senior Executive in BSNL
was not taking care of his wife and minor son properly.
Immediately after the birth of the child respondent went to
Kuwait on deputation, he was there from 24.5.2001 to till
August 2004. During that period except for about 2 and ½
months when his daughter Geetha and her child, visited
respondent in Kuwait, they were under the care and custody
of appellant and his wife. Immediately after respondent
came back from Kuwait, he started living with his wife and
son for a short period i.e., from August 2004 to till 7.2.2005
i.e., the day when appellant’s daughter died. Even during
the said period though respondent was in India, the care and
custody of the child was with appellant, his wife and
deceased Geetha. After the death of his daughter Geetha
there was nobody to take care of minor child, hence the said
child which was under their care and custody continued
with them. Therefore, it is stated that the custody
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of minor ward should continue with him and his wife till
minor ward attains majority.
5. Per contra, respondent would submit that from the
date of his marriage with Geetha his relationship with her
was cordial. At the time of marriage his wife was studying in
B.Com., after marriage he did not interrupt her studies. On
the contrary he helped his wife to pursue her studies to
complete her graduation within one year from their marriage.
Thereafter, he also assisted her in getting specialisation in
computer applications by encouraging her to take certificate
course in computer application. That his relationship with
his wife was extremely good and cordial and to the envy of
appellant and other members of his family. According to
him, in the family of appellant most of them are not properly
educated, they are undergraduates. His wife is the first
graduate in appellant’s family, that she could achieve only
with the help of her husband. Therefore, the allegation i.e.,
his relationship with his wife was not good is incorrect. He
further tried to strengthen this by stating that he not only
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got his wife educated but also saw to that she would properly
make use of her qualification in giving tuition to the students
and in the process she could learn further.
6. According to him, at no point of time appellant and
his family members were involved in looking after his minor
son. It is his specific case that right from the date of birth of
his son he was in the care and custody of himself, his wife,
deceased Geetha and his parents who were alive at that time
and they were residing in the house in which presently the
appellant and his wife are residing along with the minor
ward. According to him, after the birth of his son on
17.6.2000 for nearly 11 months i.e., up to 24.5.2001 he was
staying with his wife and minor ward in rented house. In the
meanwhile, he got a new house constructed (in which
appellant is presently residing along with his son), the house
warming ceremony was celebrated on 13.5.2001. Thereafter
he went to Kuwait on 24.5.2001. Even when he was in
Kuwait from 24.5.2001 till August 2004 he was taking care
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of his wife and minor ward by regularly sending funds that is
required for their maintenance.
7. During the period when he was in Kuwait he got his
wife and minor son to Kuwait to visit him. Since there was
threat of war, he sent them back earlier than expected.
Though he was deputed to work at Kuwait, he visited
Bangalore at regular intervals and attended the second and
third birthdays of his son at Bangalore. He never neglected
either his wife or the interest of his minor son at any point of
time during the period when he was in Kuwait or at any
point after coming back to India. After he came back from
Kuwait he lived in the same house which was constructed by
him in 2001 along with his wife and minor son till 7.2.2005
i.e., the day when his wife committed suicide.
8. Immediately after the death of his wife, he was taken
in to custody by the police at the instance of appellant herein
i.e., his father-in-law. Thereafter, he was arrested and sent
to jail for a period of nearly 42 days, along with him his
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parents were also arrested and sent to jail. When that being
the case, the only person who was at the house was his
minor son and it is at that time under the pretext of taking
care of minor ward appellant herein and his wife who were
not in picture at any point of time with reference to said
property or with reference to management of his family or
taking care of his wife and daughter, took over the custody of
minor ward and as well his house.
9. After he got released from jail on his application for
bail, he tried to go near his house, but he was prevented by
filing a suit in OS.No.911/2005 which came to be filed on
15.4.2005. The said suit is by the appellant herein, seeking
declaration that he is the owner of said property and also for
an order of permanent injunction restraining him from
entering in to said house. In view of said litigation, he was
not able to go near the house and to take its possession. He
was also not able to reach his minor son, he was totally
shut-out of his property and his son and was virtually on the
street. Hence, he initiated proceedings for taking custody of
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his minor son from respondent herein by filing petition
under Section 25 of Guardian and Wards Act which was
numbered as G&WC.No.81/2005 on the file of III Additional
Principal Judge, Family Court, Bangalore. Subsequent to
filing of G&WC.No.81/2005 respondent herein thought it fit
to seek custody of minor ward by filing a habeas corpus
petition in WP(HC).No.56/2006. In the said petition a
temporary arrangement was made continuing the custody of
minor ward with his maternal grand-father i.e., the appellant
herein granting visitation right to respondent herein for the
reason that criminal case launched by prosecution was
pending consideration. With the said observation this Court
permitted respondent to continue the petition in
G&WC.No.81/2005 and pursue his remedy for custody of
minor ward in the said proceedings. Accordingly,
proceedings in G&WC.81/2005 continued.
10. In the said proceedings the appellant herein who is
respondent, filed objections in the same lines as stated
earlier and sought for exclusive custody of minor ward, for
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the reason that the petitioner in said proceedings is accused
of murdering his wife. It was also contended that the minor
ward being in care and custody of his maternal grand-
parents is admitted to school, they are showering all the love
and affection required for his growth in his formative tender
age which the father of the child could not have given in the
facts and circumstances of the case with the allegation of
murder against him.
11. In the said proceedings the following points were
framed for consideration:
1. Whether the petitioner has made out sufficient
grounds to appoint him as the legal custodian of the
minor ward Ashrith till he attains majority?
2. Whether the petitioner is entitled for custody of
the minor ward Ashrith?
3. What order?
As could be seen from records, in the said proceedings,
respondent herein who is petitioner examined himself as
PW.1 and also examined another witness, namely, Jagadish
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S.T. as PW.2, who was a former tenant of the shop premises
which is a portion of the property in which respondent was
residing along with his wife immediately prior to her death.
He produced in all 54 documents and marked them as
Exs.P1 to P54. So far as appellant herein who is respondent
in said proceedings examined himself as RW.1 and examined
his another daughter as R2 who is immediate neighbour of
the house in which Smt.Geetha died, in support of his
defence, he produced in all 42 documents and marked them
as Exs.R1 to R42. It is needless to say that many of the
documents produced and marked by both sides are common
documents. They are with reference to marriage, birth of
minor ward and his education and also documents related to
criminal prosecution launched against respondent herein in
SC.No.284/2005 and other consequential litigation which
have arisen between the parties in that behalf.
12. In the meanwhile, it is seen that criminal
prosecution against respondent herein launched in
SC.No.284/2005 came to be dismissed on merits holding
that respondent herein is not guilty of the offence alleged
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against him by prosecution. Against which an appeal was
also filed by prosecution in Criminal Appeal No.1449/2006,
which also came to be dismissed confirming the judgment of
acquittal granted in favour of respondent herein. With this
the accusation so far as respondent herein is guilty of
committing murder of his wife is put to rest in giving a clean
chit to respondent on merits, the said acquittal not being on
the ground of benefit of doubt was also considered by family
court in deciding the case on merits in G&WC.No.81/2005.
13. The family court on appreciation of pleadings, oral
and documentary evidence proceeded to answer the said
points in the affirmative i.e., in favour of father of minor
ward. Consequently, allowed the petition appointing him as
guardian of minor ward, Master G.Ahsrith till he attains
majority. There was also a direction to respondent in the
said proceedings to hand over the custody of minor ward to
its father within 15 days from the date of said judgment.
While doing so, family court also reserved visitation right to
grand father permitting him to visit the minor ward once in a
month. He was permitted to take the minor ward at 5.30
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pm., from the house of respondent herein on any Saturday
evening and to return him to his father on next day i.e.,
Sunday at 5.30 pm. In effect, every month appellant herein
was permitted to have visitation right of minor ward for 24
hours from the evening of Saturday to the evening of Sunday
once in a month. It was also made clear that if the minor
ward wants to visit his grand parents on any festival day, the
father of the ward to take him to the house of his grand
father or in the alternative with prior permission grand
father was permitted to take the minor ward on any festival
day and to return him to his father the next day. Further
said visitation right was not restricted only to grand father
but also was extended to his grand mother and whenever
they wish to visit the minor ward father was directed to
permit them to do so. While fixing visitation right a
condition was also put on grand father that he should not
take the minor ward outside the jurisdiction of the family
court when it is in his custody on visitation right.
14. The grand father being aggrieved by the said order
in appointing the father of minor ward as his guardian and
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also with the limited visitation right given to him has come
up in this appeal contending that impugned judgment and
decree passed by family court is contrary to the facts and
provisions of law and also the ratio laid down by Apex Court
and various other Courts in catena of cases under similar
circumstances. The guardianship of minor ward should have
been given to him and his wife and not to respondent.
Further ground that is urged is that there is an error on the
part of family Court in not appreciating the evidence
properly, inasmuch as, right from the day the child was born
till the date of judgment pronounced in G& WC.81/2005, the
custody of minor child continued with appellant and his
wife, at no point of time he was in the custody of respondent.
When that being the case, at this stage if the custody of child
is removed from appellant and his family members and given
to respondent, it will have an adverse effect on the growth of
the child psychologically and as well as on his well being,
which may affect his growth and also education. Therefore,
keeping the paramount interest of minor child in mind,
family court ought to have continued his custody with
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appellant and his wife. The same ought not to have given to
respondent who is accused of murdering his wife. It is also
contended that, though criminal appeal filed by prosecution
challenging the judgment passed in SC.No.284/2005 is
dismissed, question of granting custody of minor ward to
respondent is opposed to principles and ratio laid down by
this Court and also Apex Court in similar circumstances.
15. In this appeal when it was taken up for final
disposal after hearing the counsel for both parties at length,
this Court suggested, since interest of both appellant and
respondent is to see that minor child should grow in an
atmosphere which is conducive for his over all growth and
that the litigation should not come in the way of minor ward
having continuity of care of both father and grand parents.
Therefore, suggested to the parties to explore the possibility
of settlement. In that behalf, both the parties were
summoned to chambers including the minor ward by the
presiding member of this bench, who had interaction with
each of the parties including the minor ward. Thereafter,
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parties were also called upon to file draft joint memo to see if
parties could come to an amicable settlement so far as
custody and welfare of minor ward.
16. Though both parties submitted draft memos, the
fact that whether minor ward should continue his education
in the same school and during the said period whether he
should stay with appellant or respondent, whether he should
be in the regular school or in a residential school and what
should be visitation right for each of them was again bone of
contention between the parties, wherein they could not come
to a consensual arrangement. At that time counsel for the
appellant brought to the notice of this Court that in the light
of ratio laid down by Apex Court in series of decisions
pertaining to minor ward the Apex Court has always felt that
what is to be decided is not whether father is fit or unfit to
claim custody of minor ward but what is to be looked in to is
paramount interest of minor ward. In support of that he
relied upon the following decisions:
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1. Nil Ratan Kundu vs. Abhijit Kundu,reported in (2008) 9 SC 413
2. Kiritkumar Maheshshankar Joshi v. PradeepkumarKarnashankar Joshi,
reported in (1992) 3 SCC 573.
3. Anjali Kapoor v. Rajiv Baijal,reported in 2009 (6) SCALE 597
4. In re:Mutthuswami Moopanar,reported in AIR 1935 Mad 195
5. V.V.Narsaiah v. C P Raju,reported in AIR 1971 AP 134
6. Mangu Ram v. Puran Mal,reported in 1997(3) WLC 597.
7. Maria Pushpa Janet Rajan v. G Anantha Jayakumar,reported in (2003) 3 MLJ 305
8. Ashok Kumar Pal v. Sawan Pal,reported in (2008) 3 CALLT 437 (HC)
9. Suresh v. State of Rajasthan,reported in I (2000) DMC 201
17. The learned counsel further submitted that
continuity of relationship of minor ward with reference to
persons in whose custody he has lived for all these years and
also circumstances and surroundings in which he is brought
up should as far as possible continue in the interest of minor
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ward and in respect of that he relied upon the judgment in
the matter of Athar Hussain v. Syed Siraj Ahmed & Ors.,
reported in AIR 2010 Supreme Court 1417 and suggested
that in the light of the arguments which were already
submitted by them on merits keeping in mind the draft joint
memo and in the light of decisions relied upon by him the
custody of minor ward should be continued with appellant
with visitation right to respondent herein.
18. Per contra, counsel for respondent also relied upon
the same set of judgments on which appellant relied upon
tried to distinguish each one of them saying that the same
would not apply to the facts and circumstances of the case
and pleaded for confirming the judgment and decree passed
by family Court in declaring respondent herein as guardian
of minor ward. He also fairly submitted that he has no
objection for visitation right to be modified. Further he
stressed upon the finding of family court regarding who was
in the care and custody of minor ward from the time of his
birth and also the period from which appellant came in to
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picture in taking custody of minor ward, which is at page
Nos.51 and 78 of the impugned judgment, which read as
under:
Page No.51The petitioner believing the words of the
respondent and thinking that his son will be incare and custody of the respondent who aregrand parents and as he was also acquaintedwith them, agreed to send the child with therespondent. It is further contended by him,that since there was no primafacie evidenceagainst the petitioner and also there was noincriminating materials against him thepetitioner was enlarged on bail. Thereafter thepetitioner requested the respondent tohandover the custody of his son to him therespondent refused to send back his son. It isfurther contended by him that the respondentdoes not have any interest on the child. He ishaving eye on the property purchased by himin the name of his wife late Geetha –Therespondent wanted to grab the property at anycost and for that purpose he has filed adeclaration suit wherein he has prayed thecourt to declare him as the owner of theproperty.
Page No.78
18. It is admitted by the respondent in hiscross examination that the petitioner was notprovided with any quarters at Kuwait to keephis family. He admits that the petitioner wasdeputed to Kuwait and he served there. Hedoes not know if an employee deputed toKuwait have been provided with temporaryaccommodation for their families whenever
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they visit. It is the contention of the petitionerthat accommodation was not available to himat Kuwait and therefore, he could not take hisfamily in this regard, a suggestion was put tothe respondent, but the respondent is not ableto dis own the same. On the other hand, hesays that he does not know such quarters areavailable in Kuwait. It is also admitted by himthat in the year 2002, war was in progress atKuwait. According to the respondent, thepetitioner had not looked after his wife andchild when they had gone to Kuwait to acceptthe said contention, the respondent has notplaced any evidence as such nor nothing waselicited in the cross examination of PW-1 toaccept the same in this regard.
19. He also submitted that, but for the fact
respondent/father and his parents were arrested on
7.2.2005 and sent to jail they would not have lost custody of
minor ward which was with respondent/father from the date
of his birth till date of death of his wife on 7.2.2005 and the
very fact that his wife Geetha died in a tragic situation in
committing suicide, he was made to undergo criminal
proceedings, which resulted in he loosing custody of minor
ward and also house which belonged to him which was in
the name of his deceased wife, which according to him, now
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belongs to his son after the death of his wife. Therefore, he
submitted that judgment impugned should be confirmed.
20. On going through the grounds of appeal in the light
of finding of court below in the judgment impugned dated
28.8.2009 passed in G&WC.No.81/2005 and also decisions
relied upon by counsel for appellant and respondent, it is
seen that the finding of family court so far as points for
consideration is unassailable, inasmuch as, the finding that
respondent herein who is natural father of minor ward and
that he was having custody of minor ward right from the
date of his birth till date of death of his wife on 7.2.2005.
The fact that he has shown all diligence, care and caution
that a father was required to take in respect of his minor
ward is rightly appreciated by family court. It is also seen
that family court on going through the evidence available on
record has rightly come to the conclusion that until the date
of death of Geetha i.e., mother of minor ward appellant
herein had no role to play in the upbringing of minor ward.
The minor ward was in the care and custody of his parents
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i.e., respondent herein and his wife, late Geetha. It is also
seen that even from the date of birth of minor ward till
7.2.2005 ie., date of death of Smt.Geetha, at no point of time
either the minor ward or his mother stayed with appellant.
21. As could be seen that the minor child and his
parents were residing in a rented house. In the meanwhile,
the respondent herein constructed a house in the name of
his wife, which is situated next to the house of the sister of
deceased Geetha. The respondent performed house warming
of said house on 13.5.2001 and thereafter, moved in to the
said house and continued to live in the said house till the
date of death of his wife. It is only from the date of death of
Geetha, the appellant and his wife moved in to the house of
respondent under the guise of taking care of the minor ward
is clearly seen. Infact, there is nothing on record to show
that prior to the death of Geetha appellant and his wife had
any association with the family of respondent and also in the
upbringing of minor ward. Infact in the court below it is also
not brought on record what was the association of
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appellant with the minor ward or his mother at any point of
time prior to 7.2.2005. In fact even when respondent herein
was away in Kuwait, on his official duty from 2001 to 2004,
there is nothing on record to show that either the wife of
respondent or the minor ward was taken care of by appellant
herein and as rightly observed by family court the appellant
came in to picture only on 7.2.2005 and the fact that
respondent lost custody of minor ward is only because of the
complaint that was filed by appellant herein accusing him of
murdering his daughter. But for that, probably respondent
would not have to go through this ordeal which has lasted
for nearly seven years and separated him from his minor
ward for no fault of him.
22. As could be seen from the judgment rendered in
SC.No.284/2005, which is confirmed by this Court in
Criminal Appeal No.1449/2006, wherein respondent is
acquitted of the accusation of murdering his wife on its
merits and declared that he is innocent of the offence
alleged. It is needless to say that said judgment not being
the one, wherein acquittal is not being on the ground of
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benefit of doubt, the judgment and finding therein cannot be
ignored and the false complaint and baseless accusation
made by appellant herein could be given much importance.
Be that as it may.
23. The fact remains for whatever it is worth respondent
had to undergo the ordeal of losing the care, love, affection
and company of his minor ward for no fault of his. Under
the circumstances, it is seen that the finding of family court
in granting custody of minor ward to his natural father,
respondent herein is justifiable on all counts including the
fact that appellant herein who is aged 69 years as on 2009
has already undergone open heart surgery and is having
serious ailments including paralysis stroke, hence, at this
stage it will be difficult for him to take care of himself.
Under the circumstance granting the onerous of upbringing
of minor ward to appellant/grand father would not be in the
interest of minor ward. Therefore, judgment denying custody
of minor ward to appellant herein cannot be considered as
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erroneous decision on the part of family court in the facts
and circumstances of the case.
24. In that view of the matter, this Court feel that the
finding of family court resulting in awarding custody of
minor ward to his natural father, respondent herein appears
to be just and proper which does not call for interference of
this court. However, in the facts and circumstances of case
one more thing will have to be taken into consideration i.e.,
whether rightly or wrongly minor ward has lived with his
grand father whether on his volition or otherwise from 2005
to 2012 as stated earlier.
25. Senior member of this Bench has individually
spoken to each one of the parties to this appeal including the
minor ward. After discussion with each one of them, this
court has come to the conclusion that there is some amount
of influence being there on the minor ward by the appellant
and his wife who had exclusive care and custody of minor
ward for a period of seven years continuously. It is not in
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dispute that appellant herein and his wife have lost their
daughter. Whether respondent has committed crime of
murdering his wife or not is immaterial to them inspite of
decision of Sessions Court and this Court in holding the
respondent herein as innocent of alleged offence, still they
feel the death of their daughter is because of the conduct of
respondent herein. Their animosity towards respondent
being expressed day in and day out in the presence of minor
ward, it is natural to make its impact on the mind of minor
ward in definitely prejudicing the mind against his father.
26. Therefore, the statement made by minor ward before
this court during interaction with him to ascertain his
intention regarding his wish so far as his continuance with
appellant or respondent will have to be appreciated in the
light of the aforesaid aspects. Further, keeping in view the
manner in which minor ward answered the questions of
court, this court feel the answers are more in the nature of
well tutored answers. Hence, the opinion of minor ward will
have to be considered in the background of the facts and
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circumstances of the case. At the same time, while
considering all these aspects this Court cannot also in
totality reject the claim of appellant and his wife to have
access to the minor ward to monitor his education and
upbringing while he is in the care and custody of his father
i.e, natural guardian, respondent herein. As stated earlier
all the judgments though do not directly apply to the facts
and circumstances of the case and do not directly support
the case of appellant in the manner in which it is tried to be
projected, in view of the facts and circumstances under
which each of the judgment is rendered, it is seen that one
thing which is common in all the above judgments are that
irrespective of the allegations made by each of the rival
claimants who are claiming custody of the minor ward, what
is to be borne in the mind of the Court is the paramount
interest of minor ward and his future upbringing and also
his education prospects. In doing so it is observed that there
is continuity of relationship between the parties who are
claiming custody of minor ward and that minor ward should
not be deprived of any of their affection to the detriment of
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his growth and well being. Keeping this in mind, this Court
feel that though exclusive custody is given to father, right of
appellant and his wife who have taken care of minor ward for
the past seven years could not be ignored or to be taken
lightly. In that view of matter, keeping the paramount
interest of minor ward in mind, this Court would pass the
following order so far as his education and visitation right.
27. During the course of arguments it is brought to the
notice of this Court by the appellant that minor ward is
presently studying in Vidya Nikethan school in Ullal,
Bangalore. It is also stated that the said school also have
hostel facility for the students, therefore the minor ward can
continue in the same environment where it has been
studying for all these year. So far as respondent is
concerned, he has given the name of four educational
institutions wherein there is availability of admission for the
minor ward for the current year where he could admit minor
ward. By doing so minor ward will continue to study in a
good institution in the midst of students studying in the said
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school with limited access to his family members and also
other persons. According to respondent, this would help in
the minor ward getting over the animosity which he has
developed towards his father over a period of time due to
tutoring which has taken place by the grand parents and
other close relatives of grand parents who are residing next
to the house where minor ward is residing.
28. On giving anxious consideration to the submissions
of both parties this Court feel that there is valid reason in
the submission of counsel for respondent in saying that
minor ward should stay away from the place where he had
lived all these years and had developed a sort of animosity
towards his father at the behest of appellant and others who
unintentionally, unwittingly in their anxiety and in their
anguish due to the loss of their dear one i.e., mother of
minor ward must have said many things which might have
created a lasting impression in the mind of minor ward
about his father giving an impression that he is not a man
worthy of living with. This can be erased only if he is
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removed from the surroundings in which he is presently
residing and if he is put in an environment which is totally
different from all this, where the minor ward in his new
surrounding with the help of his friends and the teachers
may think on positive lines over rebuilding his relationship
with his father, respondent herein who had no occasion to
get closer to his son for the past seven years as stated
earlier. Therefore, this Court feel that respondent shall be
entitled to choose the school of his option to get his son
admitted. This Court further try to strengthen its view on
this point for these reasons.
29. Admittedly, respondent who has lost his wife in the
year 2005 has remained unmarried and according to him, he
has no intention of getting married and as submitted by him
now, he has only aged mother who is residing with him and
she will not be able to take burden of the minor ward who
has lived away from her for past seven years. Therefore,
under the circumstances, it would be ideal to put the minor
ward in a residential school where both respondent, father of
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minor ward and also his grand parents could visit him at
regular intervals and take care of minor ward. Therefore,
this Court feel that respondent should have option of
choosing the school in which minor ward should be admitted
and it is made clear that school should be residential school.
So far as visitation right during the period when minor ward
comes from residential school on vacation or on other
holidays; if vacation is minimum four weeks, first half of two
weeks of said vacation minor ward shall live with appellant,
his wife; the rest of two weeks i.e., in the second half of the
vacation he shall stay with his father, respondent herein.
Assuming for a moment if vacation is beyond four weeks, the
excess period minor ward shall spend with his father, during
which period father should make sure that his son will have
the opportunity to be taken out with him to the place of
choice of ward. In any event, visitation right that is given to
appellant i.e., grand parent of ward should not be reduced to
less than two weeks at any point of time during the vacation
until minor ward attains majority. In the event where the
period of vacation is less than four weeks then custody of the
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ward shall be with the respondent and the appellant being
divided equally between them and first half of such vacation
shall be with appellant and his wife and the later half of
vacation shall be with respondent. It is further made clear
that right of grand parent of minor ward shall be to keep the
minor ward in their house only i.e, within Bangalore and not
to take him to the house of other relatives and they should
also not take the minor ward to the house of their relatives
or to any other place outside Bangalore during the period
when minor ward is staying with them on visitation right. It
is also made clear that during the said period they should
not create an atmosphere to develop dislike or hatred in the
mind of minor ward towards his father.
30. With these observations, appeal filed by respondent
in G&WC.No.81/2005 is dismissed. Consequently,
judgment and decree dated 28.8.2009 passed in
G&WC.No.81/2005 on the file of III Additional Principal
Judge, Family Court, Bangalore, is modified as above so far
as visitation right is concerned. The appellant shall
forthwith deliver custody of minor ward to respondent to