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)

2

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.

3

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

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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

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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

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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,

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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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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).

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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

17

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

18

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

19

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

20

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

21

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

22

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

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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.

24

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

25

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

26

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

27

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.

28

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

29

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

30

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

31

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

32

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

33

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

34

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

35

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

36

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

37

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

38

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

39

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

40

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

41

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

42

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

43

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

44

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

Sd/-
Judge

mpk/-*