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IN THE HIGH COURT OF KARNATAKA
ALOK ARADHE, J.
Shabana B.S. - Appellant
Versus
Kevin Joseph Selvadoray - Respondent
Writ Petition No. 21735 of 2019, 22449 of 2019
Decided On : 26-08-2019
Constitution of India,1950 - Article 227 - Guardian and Wards Act, 1890 - Section 12 - Quash - Petitioner was an investment banker - Petitions briefly stated are that parties got married respondent admittedly has one girl child from previous marriage- From second marriage girl child namely Christine Zara was born - It is case of petitioner that was taken away from school by respondent - Thereafter he initiated a proceeding Section Guardian and Wards Act seeking interim custody of minor girl child -Thereupon Family Court by an ex parte order granted interim custody to respondent who is father of minor girl child- petitioner who is mother thereupon filed an application seeking vacation of ad interim order- aforesaid application has been disposed of by Family Court by impugned order –Held, Court has taken note of aforesaid principles with regard to custody of child under English Law as well as American Law in case of GAURAV NAGPAL supra and has held that mere financial affluence of father cannot be a ground to deny custody of child to mother and in appropriate cases direction can be issued to father to pay educational expenses in addition to maintenance was that principles of law in relation to custody of minor child are well settled- It is trite law that while determining question as to which parent care and control of child should be committed case in hand may be examined- In instant case order has been passed by Family Court in a perfunctory manner which suffers from vice of non-application of mind - Family Court has merely whether or not respondent has forcibly removed child from custody of petitioner it has to be considered after regular trial and at this stage only thing which is required to be considered is whether mother is entitled to interim custody of minor child- It is further been that it is just and proper to grant visitation rights and interim custody during summer and winter vacation to an extent during second half to meet ends of justice impugned order is not only cryptic but suffers from vice of non-application of mind pertinent to note that while passing impugned order Judge has no where narrated compelling circumstances warranting deviation from well settled legal proposition that custody of minor child should always be with mother- No compelling circumstances is narrated while directing custody of girl child father- Ordinarily this Court would have remitted matter to Family Court afresh for decision in accordance with law However in peculiar fact situation of case since law laid down by Supreme Court has not been taken into account by Family Court therefore order passed Family Court is per - Therefore impugned order not only suffers from jurisdictional infirmity but error apparent on face of record – Petition disposed
JUDGMENT :
Alok Aradhe, J.
Mr. Ashok Haranahalli, learned Senior counsel for Mr. Ravi Shankar A., learned counsel for the petitioner.
Mr. M.U. Poonacha, learned counsel for the respondent.
2. The petitions are admitted for hearing. With consent of the learned counsel for the parties, the same are heard finally.
3. In these petitions under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 22.04.2019 passed by the Family Court, Bangalore by which application seeking vacation of interim order granted by the Family Court has been rejected.
4. Facts giving rise to the filing of the petitions briefly stated are that the parties got married on 19.08.2005. The respondent admittedly has one girl child from the previous marriage. From the second marriage, the girl child namely Christine Zara was born on 14.01.2014. It is the case of the petitioner that the child was taken away from school by the respondent on 03.08.2018. Thereafter, he initiated a proceeding under Section 12 of the Guardian and Wards Act, 1890 seeking interim custody of the minor girl child. Thereupon, the Family Court by an ex parte order granted interim custody to the respondent who is the father of the minor girl child. The petitioner who is the mother thereupon filed an application seeking vacation of the ad interim order. The aforesaid application has been disposed of by the Family Court by the impugned order dated 22.04.2019, by which the petitioner has been denied the custody of the girl child. However, she has been granted visitation rights and interim custody during Summer, Dasara and Winter Vacations. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned Senior counsel for the petitioner submitted that in the application filed under Section 12 of the Act by the respondent, it is stated that mother, family members and maid of the respondent will take care of the girl child. It is also submitted that the mother of the respondent resides in Chennai and the impugned order has been passed in a cryptic and cavalier manner. It is also submitted that the welfare of the child is of paramount consideration and normally the custody of the girl child has to be given to the mother until and unless compelling circumstances are brought to the notice of the Court. In the instant case, no such material has been placed before the Court. It is also pointed out that the mother is already taking care of the girl child from the first marriage. It is also argued that mere financial affluence of the father cannot be the governing factor and in suitable cases, the father can be granted to bear the educational expenses of the child. It is also submitted that the petitioner was an investment banker. However, she has left the job to enable her to look after her minor daughter. In support of aforesaid submissions, reliance has been placed on the decisions of Supreme Court in 'GAURAV NAGPAL Vs. SUMEDHA NAGPAL, (2009) 1 SCC 42', 'VIVEK SINGH Vs. ROMANI SINGH, (2017) 3 SCC 231' AND 'NITHYA ANAND RAGHAVAN Vs. STATE (NCT OF DELHI) AND ANOTHER, (2017) 8 SCC 452'.
6. On the other hand, learned counsel for the respondent submitted that the order which has been passed by the Family Court is based on sound principles of law and has been passed taking into account the welfare of the child. It is also urged that the rights of the petitioner has been protected as she has been granted interim custody during vacation and visitation rights. Learned counsel for the respondent has further pointed out that the circumstances under which the respondent took away the custody of the girl child has been mentioned in para 12 of the application. In support of his submission, learned counsel for the respondent has relied on the decisions of the Supreme Court in 'GAYATRI BAJAJ Vs. JITEN BHALLA, (2013) AIR SC 102' and 'BINDU PHILIPS REPRESENTED BY HER POWER OF ATTORNEY P.T.PHILIPOSE Vs. SUNIL JACOB, (2017) AIR SC 1522'. It is further subm
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