Karnataka High Court
Joseph Kevin Selvadoray V. Shabana Bukht
Bench- HON’BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.23969 OF 2022 (GM – FC)
Decided On 05-04-2023
Facts of the case-
The petitioner, who is the husband, and the respondent, his wife, were married on August 19, 2005. They have a nine-year-old daughter from their marriage, born on January 4, 2014. Due to a deteriorating relationship, the wife began living separately with their minor daughter. As a result, the husband filed a petition for judicial separation from his wife in M.C.No.5570 of 2018 before the Family Court. Additionally, the husband filed a petition under Section 12 of the Guardians and Wards Act, 1890, seeking appointment as the guardian of the minor child, in G & WC 288 of 2018 before the II Additional Principal Judge, Family Court, Bengaluru.
The respondent, the wife, contested these proceedings by filing objections in G & WC No.288 of 2018. During the proceedings, the husband filed an application seeking interim custody of the minor daughter for three days a week, starting from Friday at 4:00 p.m. and ending on Sunday at 8:00 p.m. of the second week. The husband also requested equal custody during vacations and on the daughter’s birthday, among other reliefs. The wife contested this application by filing a statement of objections.
The Court, considering the husband’s application, passed an interim order stating that maintenance and other expenses must be paid by the husband before any orders regarding custody could be issued. The husband complied with this requirement. Later, on April 22, 2022, the Court partially allowed the husband’s application and granted him custody of the child during the second half of the summer vacation in 2022.
The wife challenged this order before the higher court in Writ Petition No.8929 of 2022, which was disposed of since the summer vacation had already ended by then. Subsequently, the husband filed another application before the Family Court seeking interim custody of the daughter on Fridays from 4:00 p.m. to 8:00 p.m., equal custody during all vacations and on the daughter’s birthday, and video call conversations with his daughter daily from 7:00 p.m. to 8:00 p.m.
The concerned Court, in its impugned order dated October 13, 2022, partially allowed the husband’s application, granting him visitation rights in the visitation room of the Family Court for three days between 1:00 p.m. and 5:00 p.m. on working days of vacations.
It is this order that has led the petitioner/husband to approach the current court in the subject petition.
Relevant Provision
| Guardians and Wards Act, 1890 | Related to |
| Sec. 12 | Power to make interlocutory order for production of minor and interim protection of person and property. |
Judgement
The Court observed that the petitioner had included several photographs in the petition to demonstrate his good relationship with the daughter. However, the respondent (wife) provided a detailed explanation stating that these photographs were taken by a stranger. The Court concluded that the petitioner had not created a conducive environment and noted that the girl child preferred to be with her mother, as it is presumed that the bond between the child and mother is the strongest and in the best interest of the child.
The Court further noted that the husband and wife had been constantly quarrelling for the past five years, and the minor girl child had been witnessing their disputes since the age of four. The Court expressed that in such cases, where parents are engaged in ego-driven conflicts, the child suffers emotional harm.
The Court emphasized that the minor child lacks the coping skills and intellectual ability to comprehend the issues in the parents’ relationship or their unhappiness. It emphasized that both parents have a responsibility to contribute to the child’s upbringing in all aspects, including social, physical, mental, and material support.
Based on the aforementioned considerations, the Court held that in a troubled marriage, there is likely to be adverse effects on the child. Therefore, in the best interest of the girl child and considering the facts presented, the Court found no reason to interfere with the order of the lower court, which had denied custody to the petitioner and granted visitation rights only. Consequently, the Court dismissed the petition.
JUDGEMENT REVIEWED BY ABHAY SHUKLA
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