Welfare of the child is paramount in custody disputes, superseding technical legal arguments; ongoing litigation must prioritize child’s emotional and mental well-being.

ORDER :

N.S. SANJAY GOWDA, J.

1. These appeals are filed against two orders, which are verbatim the same, but which have been passed on an application filed by the husband under Section 9 of the Guardians and Wards Act and also an on an application filed under Section 26 of the HINDU MARRIAGE ACT by the husband in the joint proceedings which had been initiated by husband and wife under Section 13B of the Hindu Marriage for dissolution of their marriage by mutual consent.

2. The Family Court by the impugned orders has permitted the husband to keep the custody of the minor girl and has also directed the wife not to take away the custody of the minor girl without following due process of law.

3. The following facts are not in dispute:

i. On 14.2.2021, the marriage was solemnized between the appellant and the respondent.

ii. On 10.9.2021, a baby girl who was, named as Tejaswi, was born out of this wedlock.

iii. On 3.3.2023, due to marital discord, the husband and wife filed a petition under Section 13B of the HINDU MARRIAGE ACT seeking to dissolve their marriage by way of a decree of divorce by mutual consent. In this petition filed under Section 13B, as regards the custody of the minor child, who was aged about 2 years as on the date of filing of 13B petition, it was stated as follows:

“3. The parties to the petition submit that they have one child out of their wedlock named Tejaswi on date:- 10.9.2021 and the permanent custody of child will be with petitioner no.2 and petitioner no.1 have visiting rights of minor daughter whenever both parties convenient and petitioner no.2 is not pregnant at present.”

iv. It is also admitted in the said petition that the husband and the wife were living separately since 10.1.2022 and both of them had stated that no order regarding maintenance and/or alimony was necessary.

v. It was also stated that either of the parties would not claim any future maintenance or alimony mutually and it was also admitted that the articles/ ornaments of each other were handed over to each of them and there was no dispute regarding custody of any articles.

vi. After this petition under Section 13B was filed, things however overtook a turn for worse and complaints were lodged by the wife alleging commission of offences under Section 498A of the INDIAN PENAL CODE in the month of July 2023 and in the same month, there was also a complaint filed by the brother of the husband, complaining that the wife had committed a theft.

vii. In the month of July 2023, a petition seeking for issuance of a writ of Habeas Corpus was also filed by the wife before this High Court and it is the case of the husband that the wife during the pendency of this petition took custody of the child illegally and went to West Bengal.

viii. In the month of August 2023, a complaint was given by the wife that the husband had forcibly taken the custody of the child. This assertion is however refuted by the husband. The husband and his brother have also initiated criminal proceedings against the wife in Kolkata between August 2023 and December 2023 and the same are pending.

ix. On 16.12.2023, the first date of hearing for conciliation of the petition filed under Section 13B was scheduled. However, in the same month, it is alleged that the husband took the child with the permission of the wife to Ahmedabad and a police complaint was also lodged by the wife contending that the custody of the child was forcibly taken by the husband.

x. In January 2024, the wife initiated proceedings under the Protection of Women from Domestic Violence Act