It must be mentioned before mentioning anything else that in a very major development, the Karnataka High Court has in a most learned, laudable, landmark and latest judgment titled ABC And XYZ in M.F.A. No. 2786/2022 (GW) and cited in 2023 LiveLaw (Kar) 42 that was pronounced as recently as on January 31, 2023 has upheld a family court order which directed the mother of a seven years old girl child to hand over the custody to child’s father after observing clearly that she herself was more attentive towards her illicit relationship at work rather than welfare of her child. We thus see that the Division Bench of Hon’ble Mr Justice Alok Aradhe and Hon’ble Mr Justice S Vishwajith Shetty dismissed the appeal filed by the woman. Very rightly so!

At the very outset, this brief, brilliant and balanced judgment authored by Hon’ble Mr Justice S Vishwajith Shetty for a Division Bench of the Karnataka High Court comprising of Hon’ble Mr Justice Alok Aradhe and himself sets the ball in motion by first and foremost putting forth in para 1 that:
This miscellaneous first appeal is filed under Section 47(C) of the Guardian and Wards Act, 1890 (for short, ‘the Act’), against the judgment and decree dated 03.03.2022 passed by the IV Addl. Prl. Judge, Family Court, Bengaluru (hereinafter referred to as ‘the Family Court’), in G & WC.No.128/2018, wherein the Family Court has allowed the petition filed by the respondent-father under Section 25 of the Act and directed the appellant-mother to hand over the custody of the minor child to the respondent and further restrained the appellant from removing the child from the jurisdiction of the Family Court till the custody of the child is handed over to the respondent.

To put things in perspective, the Division Bench then envisages in para 3 that, Brief facts of the case as revealed from the records which would be necessary for the purpose of disposal of this appeal are, the marriage of the appellant with the respondent was solemnized as per the Hindu rites and customs on 23.10.2011 and from the said wedlock, a girl child who was named Mayra Giri was born on 26.04.2015. Both the parties are Doctors by profession. It appears that the parties had come across each other through a marriage portal, and thereafter got married. At the time of marriage, the respondent’s parents and his sister with her two years old daughter were staying with him and the appellant was fully aware of the same and she had allegedly consented for the marriage knowing that she had to reside with the respondent along with his family members.

While elaborating further, the Division Bench then mentions in para 4 that, After the marriage, the appellant allegedly started quarrelling with the respondent’s family members and she also used to abuse them and created unpleasant atmosphere in the house. The ill-treatment to the family members by the appellant continued inspite of the respondent advising her and being unable to bear the ill-treatment, the family members of the respondent were constrained to leave the house and they started residing separately. After the family members had left the house, the appellant had told the respondent that her plan to throw out his family members had worked out and the same trick was played by her mother to get rid of her in-laws.
 

Even after the family members of the respondent started residing separately, the appellant continued her hostile attitude towards them and she even objected the respondent visiting them or supporting them. The appellant allegedly had grown up in her maternal grandparents house, and therefore, she did not value the family relationship and the bondage, and therefore, she always attempted to separate the respondent from his family members.

Be it noted, the Division Bench points out in para 54 that:
From the oral and documentary evidence available on record, it can be gathered that after the child was born to the appellant, the respondent's parents had initially taken care of the child and after the appellant joined Columbia Asia Hospital, the respondent, his parents and the housemaid were taking care of the child. Exs.P-1 to P-4 would go to show that it is the respondent who has taken care of the health and medical needs of the child. Even PW-2 - housemaid has clearly deposed that it was the respondent and his parents who were taking care of the child in the absence of the appellant in the house.

It has also come on record that after she joined Columbia Asia Hospital, she developed illicit relationship with Shivanand who was working in the said hospital and the material on record would prima facie show that after she joined Columbia Asia Hospital till she left the matrimonial home in the month of April 2018, she had stayed in various hotels and lodges in and around Bengaluru along with the said Shivanand and the material on record would also go to show that they had checked into the hotels as husband and wife and they were punching in and out in the work place always together and they were also absent from duty on the same dates and timings and the said dates and timings tallied the dates on which they had stayed together in the hotels.

It cannot be certainly glossed over that the Division Bench observes in para 57 that:
The respondent who had taken care of the child prior to the appellant leaving the matrimonial house, has diligently initiated these proceedings seeking custody of the child without there being any delay. The material on record would also go to show that the respondent all along during the pendency of the proceedings before the Family Court was ready and willing to take care of the child and he also had filed multiple applications seeking visitation rights of the child and though repeated orders were passed in his favour, the appellant had successfully seen that the said orders were not complied with and the respondent was denied visitation rights on most of the occasions. Out of 52 dates of visitation rights, the respondent was able to exercise his rights only on 12 dates.

The Trial Court as well as this Court while disposing of the contempt proceedings has taken note of the conduct of the appellant and have observed that she was in the habit of tutoring the child and filled the child’s mind with negativity as against the respondent. This Court had in fact deprecated the conduct of the appellant as found in the order dated 16.10.2020 passed in CCC.No.1013/2019. The material on record would also go to show that the appellant was in the habit of behaving rudely in the house with the respondent as well as with his parents and sister and in fact her rude behaviour during the course of cross-examination was taken note of by the learned Judge of the Family Court who had the occasion to note the demeanour of the appellant while she was in the witness box.

It is noteworthy that the Division Bench points out in para 59 that:
Therefore, it is very clear that prior to the appellant leaving her matrimonial house as well as after she left the matrimonial house, she had not taken care of the child and it was the respondent and his parents who were taking care of the child while she was staying from the matrimonial home. After appellant left the matrimonial home, she had handed over custody of the child to her parents at Panchkula and she continued her stay in Bengaluru and the material on record would go to show that she was constantly moving with the aforesaid Shivanand during the said period.

Therefore, it can be safely presumed that the appellant bothered least about the welfare and interest of the child and she had taken the child away from the respondent only out of vengeance. She has not stated anything touching the character of the respondent nor has she proved that the respondent had no love and affection towards the child or that he had misbehaved badly with the child so as to raise a presumption against him.

The respondent, on the other hand, has successfully proved before the Court that the relationship of the appellant with the said Shivanand was beyond business meetings as sought to be contended by the appellant and she had given more priority to the said relationship of her’s when compared to the welfare and well-being of the child.

It is worth noting that the Division Bench mandates in para 65 that:
Though in normal circumstances, the wish/desire of the child would also play a prominent role while deciding the custody of the said child, having regard to the material available on record and more so for the reason that the child was throughout kept away from the father and was being tutored by the appellant-mother, we are of the view that in the present case, no purpose would have been served by ascertaining from the child its desire or wish.

Desire and wish of the child can be ascertained only if the child is mature enough to form an intelligent preference and judgment, otherwise, it is for the court to analyze the material and make a decision taking into consideration the paramount interest of the child. The Family Court, in our opinion, has properly exercised its jurisdiction and discretion, and therefore, we are of the considered opinion that the Family Court was fully justified in directing to hand over the custody of the child to the respondent-father.

In sum, we thus see that the Karnataka High Court stands fully justified in ordering the custody of 7 year old girl to her father and in holding that moral values are important for child. The Court very rightly held that:
If the issue regarding the relationship of the appellant with the said S (name redacted) juxtaposition the welfare of the child is considered, it appears that the appellant has given more importance to the illicit relationship of hers with the said S (name redacted) and has neglected the child….she had handed over custody of the child to her parents who were residing at Panchkula in Chandigarh while she continued to stay at Bengaluru with S (name redacted). It was also made amply clear by the Division Bench in holding most commendably that:
The Courts are not only required to consider the comforts and attachments of the child but should also take into consideration the surroundings in which the child is growing, the moral and ethical values which the child learns by observation, availability of care and affection when the child needs it most and thereafter strike a balance which would be more beneficial for the child’s welfare and interest. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.