Point of Law - It has been well settled that the act of a Muslim in espousing a second wife during the subsistence of first marriage per se amounts to cruelty and that not only the first wife can stay away from the matrimonial home but seek divorce too on that ground.

ORDER :

This is a legal battle between the estranged spouses for the custody of a minor child. petitioner, being the husband of respondent is knocking at the doors of Writ Court for assailing the order dated 17.12.2018, a copy whereof is at Annexure-E whereby, the learned IV Addl. Family Court Judge, Bangalore, having rejected his application in I.A.No.3 for custody of the child in his G & WC No.77/2017; however, has accorded visitation rights to the petitioner.

2. The operative portion of the impugned order reads as under:

“ORDER

I.A.No.3 filed by the petitioner under section 12 of Guardians and Wards Act is rejected.

However, the petitioner is granted visitation rights/parenting time on 1st and 3rd Saturdays of every month from 11.30 a.m. to 3.30 p.m. at Bengaluru Mediation Center in respect of the minor child Mohammed Shahraan Hussain.

The respondent is directed to bring the child to Bengaluru Mediation Center on 1st and rd Saturdays of every month and handover the child to the petitioner at 11.30 a.m. The petitioner after exercising his visitation rights/parenting time, shall return the child to the respondent at 3.30p.m.”

3. After service of notice, the respondent wife having entered appearance in person, opposes the Petition making submission in justification of the impugned order and the reasons on which it has been structured; she also narrates several tormenting acts allegedly perpetrated by the petitioner and the same eventually leading to the breakdown of marriage, despite there being a pretty child.

4. BRIEF FACTS:

(A) Parties are Sunni Muslims; both they are highly educated; they have a greater exposure to the outer world; petitioner – husband, is well placed in the employ of an MNC namely Honeywell Technology Solutions, at Bangalore; their nikah was solemnized on 30.4.2009 at Bangalore; a child is born on 1.8.2013 and it is named as Mohammed Shahraan Hussain; however, because of the apparent temperamental differences, their marriage has broken down and *respondent’s suit in O.S.No.154/2016 for the decree of its dissolution is pending; it hardly needs to be stated that *respondent’s suit for dissolution of marriage being pending, it is open to the *petitioner-husband to file a Counter Claim too.

(B) Respondent-wife alleges dowry harassment and claims to be an abject victim of physical assault & mental cruelty; several civil & criminal cases filed by the parties against each other are pending; their long list is as under:

(i) “Divorce petition in O.S.No.154/2016 pending before 6th Addl. Family court at Bangalore.

(ii) G & WC.No.77/2017 pending before 6th Addl. Family Court at Bangalore.

(iii) C.Misc.53/2017 pending before 6th MMTC at Bangalore.

(iv) Defamation Suit O.S.No.8743/2017 pending before CCH-65 at Bangalore.

(v) C.C.No.27620/2018 pending before 2nd ACMM at Bangalore.

(vi) C.C.No.29577/2019 pending before 4th ACMM at Bangalore.

(vii) C.C.No.26059/2018 pending before 32nd ACMM at Bangalore.

(viii) Crl.Pet.No.721/2019 before this Hon’ble High Court of Karnataka at Bangalore.”

(C) It is also relevant to state that after the marriage, this couple had resided in the State of Arizona in US for some time; petitioner is extensively traveled; he has espoused a second lady and that a child too is begotten from the second marriage; admittedly, he has been residing with the second wife and a female child begotten from her; he admits that he is happily living; the second spouse has given an Affidavit that the child from the first marriage should come & stay with this family.

(D) Petitioner has filed the subject G&WC seeking exclusive custody of the child inter alia contending that it is desirable to bring up the child in his exclusive custody since “he is in a better position to take care of his child from a financial perspective and provide him the best upbringing education and