Point of Law: Minor child does not have coping skills or intellectual ability to understand issues between adult relationship or parents unhappiness.

ORDER :

The petitioner is before this Court calling in question order dated 13-10-2022 passed by the II Additional Principal Judge, Family Court, Bengaluru in G & WC No.288 of 2018 whereby the concerned Court rejects Interlocutory Application No.XX and has further sought for a direction seeking custody of minor child in equal proportion between him and his wife.

2. Heard Sri Ravi B Naik, learned senior counsel appearing for petitioner and Sri Sandesh J Chouta, learned senior counsel appearing for respondent.

3. Facts adumbrated are as follows:

The petitioner is the husband and respondent his wife. The two get married on 19-08-2005. From the wedlock a girl child is born on 04-01-2014. The child is now 9 years old. The relationship between the petitioner and the respondent/wife turns sour and the allegation is that the wife began to live separately along with the minor daughter. Owing to such dispute between the husband and the wife, the husband institutes proceedings before the Family Court in M.C.No.5570 of 2018 seeking judicial separation from the wife. The petitioner also files a petition invoking Section 12 of the Guardians and Wards Act, 1890 (‘the Act’ for short) before the II Additional Principal Judge, Family Court, Bengaluru in G & WC 288 of 2018 seeking an order for appointing him to be the guardian of minor child. The respondent/wife contested the matter by filing her objections in the aforesaid proceedings before the concerned Court in G & WC No.288 of 2018.

4. In the aforesaid proceedings, the husband files an application seeking grant of interim custody of the minor daughter for three days in a week, which would commence on every Friday at 4-00 p.m. and would end on Sunday at 8-00 p.m. of the second week; grant of equal proportion of custody during all vacations and on the events of her birthday and all other reliefs inter alia. The wife again contests the application by filing statement of objections. The Court, on the application, passes an interim order observing that before any orders could be passed on the issue of custody, the maintenance and other expenses should be paid by the husband. Accordingly, it is claimed that the husband fulfilled the demand of the wife and the order of the Court. In terms of an order dated 22-04-2022 the concerned Court passes an order partly allowing the application filed by the petitioner and grant the husband custody of the child during second half of summer vacation of 2022.

5. This is challenged by the wife before this Court in Writ Petition No.8929 of 2022 which came to be disposed of observing that by the time the case could come up for consideration summer vacation was already over. The petitioner then files another application before the concerned Court seeking interim custody of the daughter again on every Friday from 4.00 p.m. up to 8.00 p.m. on Sunday, equal proportion of custody during all vacations and on her birthday and also to have video call conversation with his daughter everyday between 7.00 p.m. and 8.00 p.m. The concerned Court in terms of the order impugned dated 13-10-2022 allows the application in part and declares that the petitioner is entitled to visitation of the minor child in the visitation room of the Family Court during all vacation periods for three days between 1.00 p.m. and 5.00 p.m. on Court working days of vacations. It is this order that drives the petitioner/husband to this Court in the subject petition.

6. The learned senior counsel appearing for petitioner would vehemently contend that the petitioner being the father, also should have access to the daughter and he is entitled to have such right of visitation/custody, in law. He would contend that the order of the concerned Court which denies equal proportion of custody, as sought for, is on the face of it erroneous and there is no warrant for the Court to deny the claims of the petitioner. He would seek that the application filed before the concerned Court dated 16-06-2022 be allowed in its entir