IMPORTANT POINT
Minor child needs love, affection, company and protection of both parents, which is his basic human right.

ORDER

Ravi Nath Tilhari, J.—Heard Sri Sivaprasad Reddy Venati, learned counsel for the petitioner and Ms. Ayesha Azma S, learned counsel for the respondent.

2. The petitioner/appellant is the father of the minor ward, aged about 7 years, namely, Ayaan Latheef, and the respondent is the mother of the minor.

3. The petitioner/appellant herein shall be referred as ‘father’ and the respondent as ‘mother’ of the minor ward, hereinafter.

4. G.W.O.P.No.03 of 2020 was filed by the father under Sections 7, 8, 9 and 10 of the Guardian and Wards Act 1890 to declare the petitioner as Guardian to the minor ward being natural guardian (father) and for other reliefs. After contest by the respondent (mother), the petition was dismissed by the Principal District Judge, Ananthapuram on 15.09.2023, recording that there were no sufficient and cogent reason to give the custody of the minor ward to the father.

5. Challenging the Order dated 15.09.2023, CMA No.453 of 2023 has been filed.

6. The petitioner has filed I.A.No.1 of 2023 for direction to grant visiting rights to the petitioner-father to see the minor ward Ayaan Latheef at the house of the respondent or any other place mutually agreed or decided by the Court and grant interim custody of the child during school holidays for the full time, on such terms and conditions, as may be imposed by this Court.

7. The respondent has put in appearance through counsel and has filed counter affidavit to I.A.No.1 of 2023.

8. The petitioner was present. The maternal grandfather of the minor ward was also present. The respective counsels for the parties were present. The minor ward Ayaan Latheef was present with maternal grandfather, namely, M. M. Shakeel. The respondent (mother) was not present. It was informed by the learned counsel for the respondent that the mother was abroad in Saudi Arabia.

9. Learned counsel for the appellant/petitioner submitted that the custody petition was dismissed by the trial Court. The learned Principal District Judge, Ananthapuram must have considered the father-petitioner’s right to visit the minor ward. But the visitation right aspect has not been considered. He further submitted that the mother remarried one Yakhoob Khan Lavani who is working in Gulf countries, leaving the minor child in India in the custody of her father (maternal grandfather of ward). He further submitted that in terms of “Declaration of Khulla by the respondent” Ex.A1, which was filed before the learned Principal District Judge, one of the declarations made by the respondent was that

“.........the said child will be under her care and custody till she get remarried and subsequent to her second marriage, the child will be handed over to Mr. Aslam Latheef (petitioner) for upbringing his education, his well being etc.,”

He further submitted that the declaration of ‘Khulla’ was accepted vide declaration of acceptance for Khulla by the petitioner, in which it was inter alia accepted that

“........the said child will be under the care and custody of my wife Madanapalli Shafia Mariyam, D/o. M.M. Shakeel till her next marriage, and once when Madanapalli Shafia Mariyam was remarried, the custody of Ayaan Latheef, my son, shall be handed over to me for upbringing his education and future care”.

He further submitted that the petitioner-father is entitled for the custody and for the time being visitation rights.

10. Learned counsel for the respondent submitted that the petitioner had extra-marital affair with one lady and for that reason, the respondent left him. She further submitted that a criminal case was registered against the petitioner in Crime No.208 of 2018 on file of K.R.Puram Police Station, Bangalore for the offences under Sections 405, 504, 498A, 323, and 307 r/w. Section 34 IPC and Sections 3 and 4 of Dowry Prohibition Act. Since 2018, the petitioner and the respondent were living separately and the minor ward was with the mother and the appellant/petitioner never made any attempt to bring them ba