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2019 Supreme(Kar) 575
IN THE HIGH COURT OF KARNATAKA
B.V. Nagarathna, K. Natarajan, JJ.
M.V. Krishna Murthy - Appellant
Vs.
Arun C - Respondent
Miscellaneous First Appeal No. 9692 of 2018
Decided On : 03-07-2019
Sofiya Mansoor, Adv., Sunitha M, Adv.
Headnote:
Guardians and Wards Act, 1890 - Section 25 - Serious head injury - Appointment as legal guardian to the property - Appeal is preferred by respondent before Family Court who is maternal grand-father of minor child assailing judgment passed by said Court in G&W Case respondent-father of child filed a petition Section Guardians and Wards Act hereinafter referred to as Act for sake of brevity) seeking his appointment as guardian and for permanent custody of minor child - At this stage itself court may observe that maternal grandmother who is respondent before Family Court has not assailed said judgment –Held, Family Court granting permanent custody to respondent nevertheless visitation rights of appellant are recognized- appellant and his wife are at liberty to meet once in a month or as and when requests to meet her maternal grand-parents Court do not find it necessary to give specific directions in that regard- Court further hope and trust that appellant and respondent will make mutual arrangements so that Kushi is able to spend time during holidays and festivals with her maternal grandparents also- Above all court feel that it is interest of minor child who is aged about eight years old to be with her father as earlier child is with her father and mother it is better for child - Court hasten to add that by this court are not disregarding right of maternal grand-parents to have company of minor child but in our view parents rather than grand-parents are best guardians of a minor child particularly when there is no reason or impediment legal or otherwise coming in way of handing-over of permanent custody her father- Court also find that any delay in granting permanent custody of child to father would only create a distance in relationship between father and daughter- One cannot -estimate role of parents particularly father in life of a daughter – Appeal disposed
JUDGMENT :
K. Nagarathna, J.
Though this appeal is listed for hearing on interlocutory application namely, IA No.2 of 2018, seeking stay of the judgment dated 25/10/2018 passed in Guardians and Wards Case No.106 of 2017 by the I Additional Principal Judge, Family Court at Bengaluru, we have nevertheless heard learned counsel for the respective parties at length. We have also interviewed the respondent-father of the minor child Kumari A.Kushi and his second wife and the maternal grand-father of the minor child and thereafter, we have proposed the following judgment.
2. This appeal is preferred by respondent No.1 before the Family Court who is the maternal grand-father of the minor child Kumari A.Kushi, assailing the judgment passed by the said Court in G&W Case No.106 of 2017. The respondent-father of the child filed a petition under Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as 'the Act' for the sake of brevity), seeking his appointment as the guardian and for permanent custody of the minor child, Kushi. At this stage, itself we may observe that the maternal grand-: mother of Kushi who is respondent No.2 before the Family Court has not assailed the said judgment.
3. Briefly stated the facts are that, Smt.K.Rekha Rani-daughter of the appellant-was married to the respondent on 01/06/2009 at Bengaluru. Out of the wedlock, they were blessed with a daughter, Kushi, who was born on 29/07/2011. The family resided at Chennai. On 22/06/2014, they were proceeding from Chennai towards Bengaluru. When they were near Kanchipuram, their car met with an accident. The respondent sustained serious head and body injuries, while his wife died on the spot. Fortunately, Kushi survived the accident. According to the appellant, he and his wife requested the respondent to permit them to take care of Kushi for a few months as they had lost their only daughter Smt.Rekha Rani in the accident. The respondent was kind enough to permit them to take care of Kushi for a few months. Thereafter, they requested that until Kushi completed her Lower Kindergarten, she could be with them, which was agreed to by the respondent. Presently, Kushi is studying in Baldwin's Girls School in III Standard and till date, has been residing with her maternal grand-parents. However, on account of certain differences with regard to the custody as well as visitation rights vis-a-vis Kushi, the respondent herein filed the petition seeking appointment as guardian and for permanent custody of Kushi.
4. The said petition was contested by the respondents by filing statement of objections. It is noted that the respondent herein let-in his evidence as PW-1 and got marked eleven documents as Ex.P-1 to Ex.P-11 and closed his side of evidence. He was not cross-examined. No evidence was let-in by the appellant and his wife before the Family Court.
5. The Family Court raised the following points for its consideration:
."1. Whether the petitioner proves that he is fit and proper person to be appointed as guardian of minor child Kum.A.Kushi?
2. Whether the petitioner is entitled for permanent custody of minor daughter Kum.A.Kushi as sought in the petition?
3. What order? "
6. On the basis of the evidence on record, the Family Court answered issue Nos.1 and 2 in the affirmative and has allowed the petition filed by the respondent under Section 7 read with Section 25 of the Act and has appointed the respondent as the legal guardian of the person and property of the minor child, Kumari A.Kushi and has also granted permanent custody to the respondent-father. Being aggrieved by the said judgment, the maternal grand-father has preferred this appeal.
7. We have heard learned counsel for the appellant, Miss. Sofiya Mansoor and learned counsel for the respondent-father, Smt.Sunitha M. and perused the material on record. As already noted, the maternal grandmother has not appealed against the judgment of the Family Court.
8. Appellant's counsel contended that the Family Court could not
