6 month child custody in an year to both father and mother: Karnataka HC

In a landmark judgment related to child custody, Karnataka high court has allowed father to have custody of his son for first 6 month of the year, and the next 6 months with the mother. One of the reasons behind the decision was that the father has fought for custody for eight years, so he must love his son very much. Very well but maybe courts need to evolve more sensible and humane criteria than the amount of time a father has spent in courts to ascertain how much father loves his child. It should be a presumption unless proven otherwise.

Excerpted:

21. The records clearly disclose that the respondent is also having utmost love and affection towards his son. From the last eight years, he is litigating for is son, which shows that he has great love and affection for him.

And the main points in end of judgment are below. Also to be noted that expenses of child to be shared equally by father and mother, there being a common misconception that the father has to pay up everything (good as an ATM machine) even if wife has income of her own , however he can’t get more than few hours visitation per month (unnecessary as a father).

At this stage, the guidance and friendliness of the father is also required. The minor child is living with the appellant from the day of his birth and she has taken care of the well-being of the child with love and affection that by itself would not entitle her the custody of child. Father’s care and love has a powerful and positive impact upon the development and health of a child.

In addition, numerous studies have found that children who live with their father are more likely to have good physical and emotional health to achieve academically and more likely to exhibit self control and pro-social behaviour. It is important that the minor has his father’s care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view father’s care is important for the child’s healthy growth. Parental touch and influence of other parent will enable the two to stay in touch and share moments of joy, learning and happiness with each other. Hence, we are of the opinion that both the appellant and respondent are entitled for custody of the child for the sustainable growth of the minor child.   We are of the view that the minor son shall be given under the custody of the respondent from 1 January to 30 June and under the custody of the appellant from 01 July to 31 December every year and they shall take care of the well-being and education of the minor son till he attains the age of majority. The education and other expenditure have to be shared equally by the appellant and respondent. Both will have visitation right on every Saturday and Sunday. When the minor is under the custody of the appellant she shall not prevent telephonic contact between the father and the son or video conferencing between the two if it is possible. She should not induce hatred towards father in the mind of minor child, though there are differences between the husband and wife. After the minor son attaining majority, it is open for him to take his own decision. This arrangement will not affect the interest of the child, since the child is acquainted with the family members of his father due to interim custody, during the pendency of the petition before the family court as well as the appeal before this court. Apart from that on the basis of the joint memo filed by the parties, the custody of the child was given to the respondent/father during Deepavali festival.

Some of the judgments relied upon by both the parties is not applicable to the facts of the present case. Hence, the order
passed by the family court is required to be modified.

Accordingly, we pass the following:

ORDER

The appeal is allowed in part. The order dated 1-2-2011 made in G & WC 106/2004 passed by the III Additional Principal Judge Family Court, Bangalore is modified. The respondent/father is entitled to the custody of the minor child from 01 January to 30 June and the appellant/mother is
entitled to custody of the child from 01   July to 31 December of every year, till the minor son attains the age of majority.

The appellant and respondent are directed to maintain education and other expenditures of their son in equal proportion and both will have visitation rights during Saturdays and Sundays.   The minor child shall be allowed to use the telephone or video conference with father or mother,as the case many be.

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Full judgment text follows:

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IN THE HIGH COURT OF KARNATAKA, BANGALORE

DATED THIS THE 13 TH DAY OF SEPTEMBER 2013

PRESENT

THE HON’BLE MR.JUSTICE N.K.PATIL

AND

THE HON'BLE MR. JUSTICE B.MANOHAR

MFA.NO.1729/2011 (G & W)

BETWEEN:

K.M.VINAYA
W/O. B.R.SRINIVAS,
AGED ABOUT 32 YEARS,
ST
R/AT 142, 1 FLOOR,
TH
15 MAIN, 3 RD STAGE,
4 BLOCK, BASAVESHWARANAGAR,
TH
BANGALORE – 560 079. …..APPELLANT

(BY SMT.LAKSHMI IYENGAR & ASSOCIATES)

AND:

B.R.SRINIVAS,
S/O.B.K.RAMANUJAM,
AGED ABOUT 37 YEARS,
R/AT NO.147, AKKIPET MAIN ROAD,
BANGALORE – 560 053. …RESPONDENT

(BY SMT.M.N.PRABHAMANI, ADVOCATE)

MFA FILED U/S 47(c) OF THE GUARDIANS AND

WARDS ACT, AGAINST THE ORDER DT.01.02.2011 PASSED

IN G & WC.NO.106/2004 ON THE FILE OF THE III
ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT,

BANGALORE, ALLOWING THE PETITION FILED U/S 25 OF

THE GUARDIAN AND WARDS ACT, FOR CUSTODY OF

MINOR SON - VATHAN FROM THE RESPONDENT THEREIN.

THIS MFA HAVING BEEN HEARD AND RESERVED

AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT

THIS DAY, B.MANOHAR J ., DELIVERED THE

FOLLOWING:

J U D G M E N T

Appellant has filed this appeal challenging the legality

and correctness of the order dated 01-02-2011 made in G &

WC No.106/2004 passed by the III Additional Principal

Judge, Family Court at Bangalore directing the appellant

herein to hand over custody of the child to the respondent

herein.

2. The facts of the case are as follows:

The respondent-husband had filed a petition under

Section 25 of the Guardian and Wards Act, 1890 (hereinafter

referred to as ‘the Act’ for short) seeking custody of his minor

son, Vathan from the appellant-wife. It is the case of the

respondent that the appellant and respondent are the legally

wedded husband and wife and their marriage was solemnized

on 10-12-1997 at Thirumala Thirupathi Devasthanam

Choultry at Bangalore. She entered the matrimonial house

on 10-4-1998 after completion of her final year B.Sc

examination. She stayed in the matrimonial house up to 5
th

month of her pregnancy i.e. upto May 2001 and she left the

matrimonial house much against the wishes of the

respondent and his parents. She gave birth to a male child-

Vathan on 13-08-2001. It is the further case of the

respondent that during her stay in the matrimonial house,

she was looked after very well by him, his parents and other

members of the family. She was encouraged by the

respondent to prosecute her further studies in computers and

to run computer classes and there was no reason for her to

th
leave the matrimonial house during the 5 month of her
pregnancy in order to put an end to the matrimonial life.

After going to her maternal house, she started giving all

pinpricks and treated him with mental and physical cruelty.

The respondent was visiting his wife and son at her maternal

house almost everyday. During her pregnancy also he was

visiting and taking care of her. Four months after the birth of

his son, he repeatedly requested her to return to the

matrimonial house. However, she refused to come back to

the marital house. He also requested his in-laws to advise

and send her to the marital house. In spite of repeated

requests made by him as well as his parents, the appellant

bluntly refused to go back to his marital house. During his

visit to her maternal house, he used to shower his love and

affection upon his son. Neither the appellant nor her mother

and sister tolerated the child coming close to him and getting

attached to him. His son had undergone a surgery and

medical treatment when he was one year old, which was not

disclosed to the respondent or his parents. As the respondent

is the natural guardian of his son, he is legally entitled to

claim custody of his son and he was deprived of love and

affection of his son. The welfare and well-being of the minor

son lies with the father. If the child is deprived of his

parental love and affection, it will have adverse consequence

upon the emotional and psychological development of the

child. Before completion of eight months to her son, the

appellant got an appointment and she is more interested in

her job and to earn money. She has neglected to maintain

her son; she leaves the child under the custody of her mother

and she works 10 to 12 hours a day and return home late in

the night. She also works in the night shifts. She does not

have enough time to take care of his minor son. The minor

son lost love and affection of mother as well as the father and

not growing in a congenial atmosphere. Though the child was

suffering from congenital scoliosis the appellant has not given

timely treatment. In view of that, the child had to undergo

major operation. Due to the negligence on the part of the

appellant, the child had to suffer a lot. The respondent is

employed in a private company, having his own income and

he is in a position to take care of his son and his educational

expenditure. He can take care of his son more affectionately,

so that the child can grow physically, mentally and

emotionally and can be a responsible citizen of the country.

It is further alleged that in spite of issuance of legal notice on

9-2-2004 calling upon the appellant to return to the

matrimonial house along with the child, she has given reply

notice making unfounded allegations against the respondent

and deprived him of the love and affection of his son. In view

of that, a petition has been filed for custody of the minor

child.

3. The appellant herein filed objection to the said petition

denying the averments made in the petition, however,

admitted the relationship with the respondent and also

admitted that the family of the respondent is a joint family.

In view of the ill-treatment of the respondent and his family

th
members, she had to leave the matrimonial house during 5

month of her pregnancy. The respondent failed to discharge

his duties as a dutiful husband. After the marriage, the

appellant learnt that the respondent was in the habit of

stealing the household articles and jewels prior to the

marriage and it was continued even after the marriage. The

creditors of the respondent started harassing the appellant

for repayment of loan by using the language undermining the

dignity of the appellant. On account of which, the appellant

has suffered a lot. After the birth of her son in the year 2001,

the respondent remained irresponsible even towards the child

and had never taken care of her or the child. In fact, after the

birth of the child, the respondent had started doubting the

character of the appellant and started ill-treating her both

mentally and physically. He was also in the habit of

abandoning her and her son and absconding from the place

without intimating any one in the family. Once, in the month

of August 2002, he had been to Nepal and from there he sent

a mail to the appellant requesting her to arrange money for

his return journey to Bangalore. On account of intolerable ill-

treatment, she started living separately from November 2003

and in order to maintain herself and her son, she got

appointed in M.S. Ramaiah Institution. Subsequently she got

a job in Progean for maintenance of herself and to up-bring

the child since the respondent has failed to take care of them.

The respondent is an irresponsible man and he has not

generated enough confidence either for her to live with him or

for entrusting the custody of the child to him. After Naming

Ceremony, he had not visited her house even to see the

appellant nor the child. Further, a petition under Section 25

of the Guardians and Wards Act is not maintainable. From

the day of birth, the child is under the custody of the

appellant and she has taken care of her son, good treatment

has been provided and her son is admitted to one of the

prestigious schools and he is securing high percentage of

marks. Apart from that, she has filed a petition under

Section 13 of the Hindu Marriage Act seeking for divorce in

M.C.No.1234/2004. The said matter is pending consideration

before the II Additional Family Court. Hence, the respondent

is not entitled for the custody of minor child and sought for

dismissal of the petition.

4. On the basis of the pleadings of the parties, the Family

Court framed the following points for its consideration:

(i) Whether the petitioner is entitled for the
custody of the child – Vathan from the
respondent/wife?

(ii) What order?

5. The respondent/petitioner in order to prove his case

examined himself as P.W.1 and examined Dr.Mahesh B.H. as

P.W.2 and got marked the documents as Ex.P1 to Ex.P56.

The appellant/respondent examined herself as R.W.1 and got

marked the documents as Ex.R1 to Ex.R93 and also

examined Dr.B.S.Shankar as R.W.2.

6. When the said petition is pending before the Family

Court, an application for interim custody of the child was filed

by the respondent-father. The Family Court had given

interim custody of the minor son to the respondent on various

dates i.e. on 20-4-2006, 25-4-2009, 7-5-2010, 7-12-2010.

st
Further, on 16-07-2007, visitation right was also given on 1

and 4 Sunday between 3.00 p.m. to 4.00 p.m.
th

7. The Family Court on considering the oral and

documentary evidence let in by the parties and after perusal

of the evidence of the doctor who has treated the minor child

and also appreciating the opinion of Dr.B.H.Mahesh by an

order dated 01-02-2011 allowed the said petition on the

ground that the appellant has failed to implement the order

dated 15-12-2006 made on I.A.No.19 and she has neglected

in taking care of the health of the child. Further the conduct

of the appellant clearly shows that she is trying to alienate

the child from the father and declared that the

respondent/father is entitled for custody of the child-Vathan

and directed the appellant/mother to hand over the child to

the custody of the respondent within one month. Being

aggrieved by the order dated 01-02-2011, the appellant has

preferred this appeal.

8. Smt.Lakshmi Iyengar, learned counsel appearing for the

appellant contended that the order passed by the family court

is contrary to law and evidence on record. The finding

recorded by the family court on certain issues is perverse.

The family court has proceeded with an erroneous view and

came to the wrong conclusion with regard to the custody of

the minor child. One of the essential and mandatory

ingredients to maintain a petition under Section 25 of the

Guardians and Wards Act is that, the person seeking custody

of a minor should have had the custody of minor and as such

a minor should have been removed from his custody and in

the opinion of the Court it must be in the welfare of the minor

that the minor should be returned to the custody of the

person seeking so. In the present case, the above ingredients

have not been satisfied. The family court ought to have

dismissed the petition filed seeking for custody of the minor

son. It is the contention of the appellant that from the day of

birth, her child is under her custody and she has taken care

of his health and education. Within one year of the birth of

her son, he has undergone an operation in the year 2002.

Though the doctor noticed that the child was suffering from

congenital lumbar scoliosis, she was informed that there is no

problem in his health. Since the child is too young, the said

deformity will not grow along with the child. Hence, the

doctor did not advise for any operation. In year 2006, the

percentage of curvature was only 24% and it was advised by

the doctors that by conservative treatment it can be cured.

Only in the year 2008, there was substantial increase in the

curvature. Then the doctor advised for surgery. The child

was examined by more than 12 doctors who are Experts in

Spine. Some of the doctors have not suggested for surgery

and some had suggested for surgery though it has no adverse

effect on the health of the child. After consulting many expert

doctors, since the curvature was increased from 24 degrees to

46 degrees, after completion of his examinations in the year

2009, the child underwent operation on 31-3-2010. All

necessary care and precautions have been taken with regard

to the health of her son. The appellant is more concerned

about her son than the respondent. Apart from that, in the

year 2009 her son underwent abdominal surgery for

Gangrenous Meckel’s Dicerticulum with peritonitis in

Panacea Hospital. The respondent is an irresponsible man

and he has not taken care of his wife and son. In order to

take care of her son and herself and for their sustenance, she

got appointed in Ramaiah Institute, thereafter she got

appointed in Progeon and her working hours is between 1.30

p.m. to 10.30. p.m. The school timings of her son is from

8.30 a.m. to 4.30 p.m. She is taking care of her son in the

morning hours and prepare him mentally and physically to go

to the school. The School records clearly disclose that her

son has scored excellent marks and he was participating in

extra curricular activities. In spite of the same, the finding of

the family court that the appellant has not taken care of the

health of the minor child and she does not have sufficient

time to take care of her son is erroneous in law. The finding

of the family court with regard to parental alienation is

contrary to law. From the day of birth, the son is under her

care and custody and he is not inclined to go along with his

father though she had advised him to go with him. When the

appellant’s son was under the custody of respondent, he got

fractured his leg. The respondent has not taken care of her

son from the day of birth of the child in the year 2001 till the

year 2004. Only in the year 2004, a legal notice was issued

and present petition was filed for custody of the minor son.

Since the minor son is not willing to go to the respondent, as

per the law laid down by the Hon’ble Supreme Court, the

welfare of the minor must be the paramount consideration of

the court and not the wishes of the parents who seeks

custody or the guardianship of the minor, the court should be

concerned with over-all development and healthy

environment and physical, emotional, financial support for

development, the doctrine of best interest of the child has to

be prevailed. Hence the order passed by the family court

ignoring the law laid down by the Hon’ble Supreme Court is

not sustainable and sought for allowing the appeal.

9. Learned counsel appearing for the appellant, to

substantiate her case placed reliance on the judgments

reported in AIR 2013 SC 102 (Gaytri Bajaj v/s Jiten Bhalla);

2010 AIR SCW 597 (Athar Hussain v/s Syed Siraj Ahmed and

Others); AIR (1973) 1 SCC 840 (Rosy Jacob v/s Jacob A

Chakramukkal); and AIR(29) 1942 CALCUTTA 215 (Jwala

Prasad Saha v/s Bachu Lal Gupta).

10. On the other hand, Smt.M.N.Prabhamani, learned

counsel appearing for the respondent argued in support of

the order passed by the family court and contended that

under Section 6 of the Hindu Minority and Guardianship Act,

1956, father is the natural guardian of a minor, however the

mother is entitled to custody of the minor who has not

completed the age of 5 years. In the instant case, the son of

the respondent is aged about more than 12 years. Hence the

appellant is not entitled for custody of the minor son. The

father is in the constructive custody of the child even though

the child is in the actual custody of the mother. In view of

that, the petition under Section 25 of the Guardians and

Wards Act is maintainable. She further contended that the

appellant went to her maternal house for confinement when

she was pregnant of 5 months. After the birth of the child,

she refused to return back to the marital house. She has

deprived her son the love and affection of his father. The

respondent being the natural father of the child is entitled to

claim custody of his son. As on today, the son has the

capacity to understand things and exercise intelligent

preference. However, the appellant intentionally alienates the

son from the love and affection of his father. She has

intentionally not allowed the son to accept the birthday gifts

and dresses provided by the respondent and developed hatred

in the mind of the son towards his father. The appellant is

more interested in her job, earning more money and she has

no time to look after the child. She works late in the night

and return home only in the midnight. In order to avoid

contact of his son, intentionally the son was got admitted to

Kumaran’s School which is about 20 Kms away from her

residence. The child has to leave the school at about 6.45

a.m. The appellant absolutely has no time to take care of the

child. Admittedly, the child was suffering spinal deformity

from the day of his birth. The radiology report dated

10-7-2002 issued by M.S.Ramaiah Hospital, Bangalore clearly

disclose that the child was suffering from Scoliosis of lumbar

spine, but no treatment was provided. In the year 2006, the

curvature was more than 24 degrees. In the year 2009, it had

grown upto 46 degrees. In view of that the child has to

undergo major surgery of spine. If the child were to be

operated in the year 2004 or 2006 itself by minor operation,

the said deformity could have been cured. The congenital

scoliosis affects the growth of the child. Against the advice of

the doctor, conservative treatment was given to the child for

the deformity of spine. The appellant is fond of earning

money and she has not taken care of the health and well-

being of the child. The family court, on the application

I.A.No.19 filed by the respondent, directed the appellant to

take the minor child to the Consultant Ortho and Spine

Surgeon once in three months for periodical check-up and to

submit a report to the court, to show whether there is any

change or growth of curvature. In spite of the court direction,

she has not submitted the periodical report to the court.

Report of the doctors in the year 2006 clearly discloses that

Master Vathan is suffering from scoliosis and blocked

vertebra. By conservative treatment, the deformity cannot be

cured. The report submitted by the doctors was not produced

before the court. When the son was under the custody of the

respondent, he had taken him to Dr.Mahesh who is an expert

surgeon in Spine, wherein the said doctor has opined that the

child has to undergo minor operation for deformity of the

spine, since there is substantial growth in the curvature and

it will hamper the growth of the child. In spite of the opinion

of the said doctor, the treatment has not been given to the

minor child. After getting the opinion of Dr.Mahesh, many

doctors who have seen the MRI scan of the child opined that

by conservative treatment, deformity of the spine cannot be

cured and recommended for surgery. The doctors at Hosmat

Hospital recommended for surgery in the year 2007 itself.

The medical certificate issued by Dr.Prakash on the basis of

the scanning report of Raghava Diagnostic Center advising for

immediate operation was also not taken serious note by the

appellant. Many expert doctors who have seen the medical

report of the minor son advised to undergo operation. There

was significant increase in the throno lumber typhocic from

24 degrees to 40 degrees. Only on 31-3-2010 without

informing the respondent she got operated her son in Sparsha

Hospital. In the hospital records and also in the school

records, the father’s name was not mentioned. No information

has been given with regard to the major operation of the

child. Further she also informed the School authorities not to

furnish necessary particulars nor allow the son to meet his

father in the school. Intentionally the school has been

changed from Venkat International, Rajajinagar to Kumaran’s

school which is situated more than 20 Kms away from the

City to deny the father’s love and affection towards his son.

Financially also, father is in a position to take care of the son

and also his educational expenditure. The respondent is living

in the joint family and his sisters’ children are also staying

along with him. In view of that, the son is having more

congenial atmosphere in his residence, whereas the child will

be alone along with his maternal grand parents, which would

adversely affect the substantial growth of the child. The

appellant is purposefully keeping the child away from the

father, though the father has equal love and affection towards

the child. During the pendency of the petition in the family

court, the interim custody was given to the respondent from

2-5-2006 to 8-5-2006, 4-5-2009 to 11-5-2009, 18-5-2010 to

23-05-2010, 16-12-2010 to 12-10-2010. Further visitation

right has also been given to the respondent on every second

Saturday from 11.00 a.m. to 6.00 p.m. The child has

developed love and affection with the father and mingling with

the children of respondent’s sister. The family court taking

note of all these aspects of the matter, held that the child can

be developed mentally and physically under the custody of

the respondent and on the other hand, the appellant has

neglected to take care of the health of the child and her

attitude shows that she is trying to alienate the child from his

father and passed the order. There is no infirmity or

irregularity in the said order. She also relied upon the

judgments reported in (2009) 1 SCC 42 (Gaurav Nagpal v/s

Sumedha Nagpal), 2004(3) KLJ 458 (Smt.Radha alias Parimala

v/s N.Rangappa); 2007(4) CTC 566 (J.Selvan v/s N.Punidha) ;

AIR 1996 RAJ 162 (Prakash Chandra Jain v/s

Smt.Chandrawati Jain) and sought for dismissal of the

appeal.

11. We have carefully considered the arguments addressed

by the learned counsel for the parties and perused the orders

passed by the family court and also the oral and documentary

evidence adduced by the parties.

12. The records clearly disclose that the appellant and

respondent are legally wedded wife and husband. The son

was born on 13-8-2001 due to their wedlock. The allegation

of the husband is that the wife has left the marital house

against the wishes of the respondent and his parents and she

has not taken care of the health and education of his son.

She is trying to alienate the child from his father. She has

deprived the love and affection of his son, he being the

natural father of the child is entitled to claim custody of his

son. The wife has not taken care of the health of the child

and she is very much interested in her job. The working

hours of the appellant is from 1.30 p.m. to 10.30 p.m., hence

she is not in a position to take care of the child. On the other

hand, the wife has contended that the husband was in the

habit of stealing the household articles and jewels prior to the

marriage and the same attitude was continued even after the

marriage. He was an irresponsible man and he is in the habit

of absconding from the place without intimating anybody and

taking loans for his bad habits. After the birth of the child,

he has never taken care of his wife and child and he has

started doubting her character and ill-treating her both

mentally and physically. Hence, the husband is not in a

position to take care of the child.

13. The respondent/husband in order to prove his case,

examined himself as P.W.1 and reiterated the averments

made in the petition. In his evidence he deposed that, against

the wishes of the husband and other members of his family,

the appellant left the marital house when she was five

months’ pregnant. After the birth of his child, everyday he

was visiting his wife and child; however, the appellant, her

sister and mother were not tolerating the child coming close

to him or getting attached to his father. She bluntly refused

to come back to the marital house. The first operation

undergone by the child when he was only one year old was

not made known to him. The gift articles and cycle given by

the father to his child were returned back by the appellant.

All the time she is trying to alienate the child from her father.

Though the appellant is aware that the child is suffering from

congenital scoliosis in the year 2002 itself, no timely

treatment was given. Due to that, growth of the child was

hampered. In the year 2006 Dr.M.S.Shivaprasad, who has

seen the X-ray and scanning reports of the child has given his

opinion that the child has to undergo surgery during the

summer vacation itself. However, the appellant has not

yielded to the advice of the said doctor with regard to the

health of the child. She has no time to take care of the health

of his son. In view of negligence on the part of the appellant,

the child had to undergo major operation in the year 2010.

The appellant has not informed anything about the major

operation of his son in the year 2010 to the

respondent/father. The father being the natural guardian is

entitled for custody of his son and he is financially capable of

maintaining the educational and other expenditures of his

son. There is suitable atmosphere to his son in his house for

his sustainable growth.

14. In the cross-examination, he has admitted that till

2004, he was living along with his wife and child. He also

deposed that the appellant is trying to alienate the child from

him. He has examined Dr.Mahesh B.H, to show that in spite

of the advice of the doctor, the timely treatment was not given

to the minor child and the deformity in the spine cannot be

treated by the conservative treatment and the child has to

undergo operation. In support of his case, he got marked the

X-ray report, MRI report and opinion of the doctors as Ex.P9

to Ex.P13.

15. The appellant in her evidence reiterated her defense and

deposed that due to the harassment by the husband and his

family members, she has to leave the matrimonial house and

was under the mercy of her father, who is a retired

government employee. She has admitted that her husband

is residing in the joint family along with his aunts. In the

cross-examination she has deposed that she has given best

treatment to her son who was suffering from congenital

scoliosis. Dr.Shankar, who has treated her son stated that

the deformity can be cured by conservative treatment and

immediate operation is not required since the curvature is

only 24 degrees. There is no progress in the curvature and it

will not come in the way of growth of the child. In the year

2006, she got done the scanning and X-ray of spine of her son

and there was no much progress in the curvature and as per

the advice of the doctors, she has given treatment to her son.

Her son was examined by the doctors at Hosmat Hospital,

Manipal Hospital, Mallige Medical Center and other doctors

who are experts in the field. Only in the year 2009, there was

progress in the curvature. Dr.C.B.Prabhu, who has seen the

X-ray and Scanning reports of her son advised for operation.

Accordingly, her son had undergone operation on 31-3-2010.

All possible care has been taken to treat her son and there is

no negligence on her part. From the day of birth, the child is

under the custody of the appellant and no attachment has

been developed with the respondent and her son has refused

to go with the respondent/father. She has denied the

allegations with regard to the alienation of the child from the

father.

16. In support of her case, she examined Dr.B.S.Shankar,

who is an orthopedic surgeon. In his evidence he deposed

that the deformity in the spine will not affect the day to day

activities and the growth of the child. There is no progress of

curvature from 2002 to 2008. Accordingly, he had advised

for conservative treatment. Since the child was too young, he

did not suggest for surgery at that young age.

17. The evidence on record clearly discloses that the

appellant has taken due care of her minor son. She has given

all possible treatment as per the advice of the doctors.

Initially, she had given treatment to her son in M.S. Ramaiah

Hospital, thereafter, her son was taken for periodical

scanning and X-rays at Padmashree and Raghav Diagnostic

Centers. Dr.Shankar who has treated her son has advised

for the conservative treatment since there was no progress in

the curvature. During the year 2006, the curvature was only

24 degrees and there was some increase in the curvature

from 24 to 26 degrees in the year 2007. Dr.C.B.Prabhu, after

examining the X-Ray and Scanning reports, opined that the

child has multiple lumbar vertebra, 1, 2, 3 and 4 are the hemi

vertebra. The doctor advised that the child requires surgery.

The other doctors at Manipal Hospital who have treated the

minor child opined that immediate surgery is not required.

The deformity in the spine has not come in the way of natural

growth except that the child does not have any other

complaint, either of back or leg pain. Only in the year 2009,

the percentage of development of curvature was increased

from 26 degrees to 40 degrees. As per the advice of the doctor,

treatment was given in the best hospitals in the State. After

the operation, her son is doing well and he is participating in

extra-curricular activities. The respondent has also not

disputed with regard to the treatment given. The only

allegation is that the operation ought to have been conducted

in the year 2006 itself. It is difficult to appreciate the

contention of the respondent. The mother also has the very

same concern about her son. The records clearly disclose

that she has given best treatment to her son and periodical

check up is also made. However, she has failed to report the

same to the Court as per the order on 15-12-2006. The

family court, while passing the order on I.A.No.19 clearly

directed the appellant to submit the report once in three

months, to state whether there is any change or growth in the

curve. Since there was no change in the curve, she has not

submitted the report. The child has undergone operation in

the year 2002 and 2009 and also major operation of the spine

on 31-3-2010. The Scanning reports clearly disclose that

sufficient care has been taken by the appellant. It is difficult

to accept the finding of the family court that the appellant is

negligent in taking care of the health of her child.

18. The records produced by the appellant clearly disclose

that she has taken sufficient care in respect of education of

her son. For the purpose of better education, the child was

admitted in Kumaran’s School which was situated near Silk

Board and now it has been shifted to the new Campus. The

progress reports clearly disclose that the child has secured

excellent marks and also participating in extra curricular

activities.

19. Both the appellant as well as the respondent are

financially capable of taking care of their child. The appellant

is working in Progeon Company and the working hours is

from 1.30 p.m. to 10.30 p.m. One hour is required for

travelling from the office to her residence. Her office is having

holidays on Saturdays and Sundays. The specific case of the

appellant is that, in the morning hours as well as on

Saturdays and Sundays, she is taking care of her son.

During her absence, her son will be with her parents and they

are also educated and can take care of her son. The

respondent is also working in a Private Company and his

working hours is from 5.30 a.m. to 2.30 p.m. He also claims

that he can devote more time towards his son and he is in a

position to take care of medical and educational expenditure

of his son. Further, on an application filed by the appellant

seeking for educational and medical expenditures, the

respondent has paid sum of Rs.1,72,000/- towards the

medical and educational expenditures. He claims that he is

staying in a joint family, his brother and sister’s children are

also staying with him. There is congenial atmosphere for

sustainable growth of his son. On the other hand, the child

has to stay alone, along with the appellant’s age old parents

which would affect the over-all development of the child.

20. With regard to the parental alienation is concerned,

admittedly the appellant has filed M.C.No.1234/2004 seeking

for divorce against her husband. From the day of birth of her

son, he is under the custody of the appellant. She has taken

care of the medical and educational expenditure. The

respondent has not spent any money towards his son till the

court passed the order directing him to pay medical and

educational expenditures of his son on 25-4-2009. In view of

that, she has refused to accept the birthday gifts given to her

son by the respondent. That itself cannot be treated as

parental alienation. Apart from that the interim custody of

the minor son was also given to the respondent as per various

orders passed by the family court on 20-4-2006, 25-4-2009,

7-5-2010, 15-12-2010. The visitation right was also given.

During the pendency of this appeal, interim custody has been

given as per the orders dated 21-4-2011, 25-11-2011,

25-12-2011, 16-04-2012 and 11-12-2012. Further the

visitation right was also given as per the order dated

28-07-2011. Hence, the finding of the family court that the

appellant is trying to alienate the child from his father cannot

be acceptable.

21. The records clearly disclose that the respondent is also

having utmost love and affection towards his son. From the

last eight years, he is litigating for his son, which shows that

he has great love and affection for him. The child is aged

about 12 years as on today. The child is not capable of

expressing any intelligent preference. In view of the interim

custody of the child, the child has acquaintance with both the

family. He can stay along with the family members of the

father as well as the mother. The respondent has paid more

than Rs.1,72,000/- towards medical and educational

expenditure of his son. Hence, the respondent can also take

care of his son as the appellant is taking. Under Section 6 of

the Hindu Minority and Guardianship Act, 1956, father is the

natural guardian, however, the custody of a minor who has

not completed the age of 5 years shall ordinarily be with the

mother. Thereafter, the father is also entitled for custody of

the child.

22. The Hon’ble Supreme Court in various judgments held

the welfare of the child as paramount consideration while

determining the issues relating to the custody of the child.

There should be a proper balance between the rights of the

respective parents and the welfare of the child. The moral

and ethical welfare of the child must also weigh with the

court as well as its physical well being. The child requires

love and affection of both father and mother. The Hon’ble

Supreme Court further held that the court has to give due

weightage to the child’s ordinary contentment, health,

education, intellectual development and favourable

surrounding, but over and above physical comforts. When

the court is confronted with the conflicting demands made by

the parents, the court has not only to look at the issue on

legalistic basis, but human angles are also relevant for

deciding such issues. The object and purpose of the Act is

not merely physical custody of the minor, but due protection

of the right of the Ward, health, maintenance and education.

23. The Hon’ble Supreme Court in the judgment reported in

AIR 2013 SC 102 (supra) has observed that an order of

custody of minor children is required to be made by the Court

treating the interest and welfare of the minor to be the

paramount importance. It is not the better right of either

parent that would require adjudication while deciding their

entitlement to custody. The desire of the child coupled with

the availability of a conducive and appropriate environment

for proper upbringing together with the ability and means of

the concerned parent to take care of the child are some of the

relevant factors that have to be taken into account by the

court while deciding the issue of custody of the minor. What

must be emphasized is that while all other factors are

undoubtedly relevant, it is the desire, interest and welfare of

the minor which is crucial and ultimate consideration that

must guide the determination required to be made by the

court.

24. In order to ascertain the desire of the child, personal

interaction was made in our Chamber. The child expressed

his desire to go along with his mother which may be due to

the pressure of the mother or that the child is all along with

the mother and also that the child is only 12 years old. The

evidence of the parties clearly discloses that both the

appellant as well as the respondent are in a position to take

care of the minor child. Admittedly, the respondent is residing

in the joint family along with his parents, brother and sister’s

children. The child can grow in the warmth atmosphere of the

joint family. It will help in the sustainable growth of the

child, whereas the minor has to stay alone with his maternal

grand parents in the appellant’s house. The father is a

friend, philosopher and guide to the child. The overall

development of the child can be possible with the love and

affection of the father. No allegation has been made regarding

ill-treatment of the child in the father’s house and congenial

atmosphere is available in the house of the respondent for the

sustainable growth and grooming of the child.

25. The Hon’ble Supreme Court in a judgment reported in

2008 AIR SCW 4043 in the case of Mausami Moitra Ganguli

V/S Jayant Ganguli held as under :

“The principles of law in relation to the

custody of a minor child are well settled. It is trite

that while determining the question as to which

parent the care and control of a child should be

committed, the first and the paramount

consideration is the welfare and interest of the child

and not the rights of the parents under a statute.

Indubitably the provisions of law pertaining to the

custody of child contained in either the Guardians
and Wards Act, 1890 (Section 17) or the Hindu

Minority and Guardianship Act, 1956 (Section 13)

also hold out the welfare of the child are

predominant consideration. In fact, no statute on

the subject, can ignore, eschew or obliterate the

vital factor of the welfare of the minor. The

question of welfare of the minor child has again to
be considered in the back ground of the relevant

facts and circumstances. Each case has to be

decided on its own facts and other decided cases

can hardly serve as binding precedents insofar as

the factual aspects of the case are concerned. It is,

no doubt, true that father is presumed by the

statutes to be better suited to look after the welfare
of the child, being normally the working member

and head of the family, yet in each case the Court

has to see primarily to the welfare of the child in

determining the question of his or her custody.

Better financial resources of either of the parents or

their love for the child may be one of the relevant

considerations but cannot be the sole determining

factor for the custody of the child. It is here that a

heavy duty is cast on the Court to exercise its

judicial discretion judiciously in the background of
all the relevant facts and circumstances, bearing in

mind the welfare of the child as the paramount

consideration.”

26. The Hon’ble Supreme Court had an occasion to consider

the legal position regarding the father’s right for the custody

of the child vis-à-vis the welfare of the minor in : Rosy Jacob

V/S A.Chakramukkal case reported in AIR 1973 SC 2090 and

it has been held as under:

“In our opinion, the dominant consideration

for making orders under Section 25 is the welfare of

the minor children and in considering this question,

due regard, of course, has to be paid to the right of

the father to be the guardian and, also, to all other
relevant factors having a bearing on the minor’s

welfare…………. The father’s fitness has to be

considered, determined and weighed pre-

dominantly in terms of the welfare of his minor

children in the context of all the relevant

circumstances. If the custody of the father cannot

promote their welfare equally or better than the

custody of the mother then, he cannot claim

indefeasible right to their custody under Section 25
merely because there is no defect in his personal

character and he has attachment for the children –

which every normal parent has …… The father’s

fitness from the point of view just mentioned cannot

override consideration of the welfare of the minor

children. No doubt, the father has been presumed

by the statute generally to be better fitted to look
after the children - - being normally the earning

member and head of the family - - but the Court

has, in each case, to see primarily to the welfare of

the children in determining the question of their

custody, in the background of all the relevant facts

having a bearing on their health, maintenance and

education.”

27. The appellant has produced the latest report from

Dr.Gowrishankar of BGS Hospital which clearly discloses that

the minor son is maintaining very good health and he is

taking participation in the extra curricular activities, sports

and games. He is also one of the participants of the Football

team in the school. As on today, he is aged about 12½ years

and reaching the age of adolescence. At this stage, the

guidance and friendliness of the father is also required. The

minor child is living with the appellant from the day of his

birth and she has taken care of the well-being of the child

with love and affection that by itself would not entitle her the

custody of child. Father’s care and love has a powerful and

positive impact upon the development and health of a child.

In addition, numerous studies have found that children who

live with their father are more likely to have good physical and

emotional health to achieve academically and more likely to

exhibit self control and pro-social behaviour. It is important

that the minor has his father’s care and guidance, at this

formative and impressionable stage of his life. Nor can the

role of the father in his upbringing and grooming to face the

realities of life be undermined. It is in that view father’s care

is important for the child’s healthy growth. Parental touch

and influence of other parent will enable the two to stay in

touch and share moments of joy, learning and happiness with

each other. Hence, we are of the opinion that both the

appellant and respondent are entitled for custody of the child

for the sustainable growth of the minor child. We are of the

view that the minor son shall be given under the custody of

th
the respondent from 1 January to 30 June and under the
st
st
custody of the appellant from 01 July to 31 December every
st
year and they shall take care of the well-being and education

of the minor son till he attains the age of majority. The

education and other expenditure have to be shared equally by

the appellant and respondent. Both will have visitation right

on every Saturday and Sunday. When the minor is under the

custody of the appellant she shall not prevent telephonic

contact between the father and the son or video conferencing

between the two if it is possible. She should not induce

hatred towards father in the mind of minor child, though

there are differences between the husband and wife. After the

minor son attaining majority, it is open for him to take his

own decision. This arrangement will not affect the interest of

the child, since the child is acquainted with the family

members of his father due to interim custody, during the

pendency of the petition before the family court as well as the

appeal before this court. Apart from that on the basis of the

joint memo filed by the parties, the custody of the child was

given to the respondent/father during Deepavali festival.

Some of the judgments relied upon by both the parties is not

applicable to the facts of the present case. Hence, the order

passed by the family court is required to be modified.

Accordingly, we pass the following:

ORDER

The appeal is allowed in part. The order dated 1-2-2011

made in G & WC 106/2004 passed by the III Additional

Principal Judge Family Court, Bangalore is modified. The

respondent/father is entitled to the custody of the minor child

th
from 01 January to 30 June and the appellant/mother is
st
st
st
entitled to custody of the child from 01 July to 31

December of every year, till the minor son attains the age of

majority.

The appellant and respondent are directed to maintain

education and other expenditures of their son in equal

proportion and both will have visitation rights during

Saturdays and Sundays. The minor child shall be allowed to

use the telephone or video conference with father or mother,

as the case many be.

Sd/-
Judge

mpk/-*

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