Smt. A.N. Revathi @ Rekha vs Vijaykumar and Smt. Prema Pattanashetti

A.V. Chandrashekara, J.—This appeal is filed against the order passed by Family< Court, Davanagere in G & W No. 1/2011 dated 10.10.2011. The appellant herein was the legally wedded wife of respondent No. 1 herein. Respondent No. 2 is the aunt of the appellant. As a result of the legal wedlock of appellant and respondent No. 1 herein, 3 children are born and two children are in the custody of respondent No. 1. Respondent No. 1-Vijaya Kumar, the husband of the appellant chose to file a petition seeking custody of his daughter Sahana. The said petition was filed u/s 7 of the Guardian and Wards Act and the same came to be allowed by considered order dated 10.10.2011 on various grounds by the appellant.

The respondent No. 1 herein was the petitioner in the said case. The appellant was the respondent No. 1 in the said case. The parties will be referred to as petitioner and respondent as per their status in the Trial Court.

The marriage that had taken place between appellant and respondent No. 1 herein has been dissolved by decree of divorce on the ground of desertion. After the marriage, the appellant had given birth to two children. Sahana is the 3rd child and she is now studying at Haveri and residing with respondent No. 2-Prema Pattanashetti, Aunt of the appellant.

The case of the petitioner is that the child has not been looked after properly by his erstwhile wife and that she has given custody of the child to her aunt at Haven and as a result of the same, the interest of the child is in jeopardy. The appellant herein had objected to the said petition stating that the child is happily living in the house of her aunt and its care is being taken and that she often goes to Haveri to look after the child. Hence, she requested for dismissal of the petition.

Vijayakumar, the petitioner is examined as PW-1 and has got marked 10 exhibits. The appellant herein has been examined as RW 1 and she has marked 3 exhibits.

After recording the evidence and arguments, the learned Judge has chosen to allow the petition and thereby directing the appellant to hand over Sahana with immediate effect and liberty has been given to her to see the child once in a month. It is this order which is called in question in this appeal.

It is contended that the Trial Court has not properly analysed the oral and documentary evidence in right perspective and it has not properly evaluated the evidence. Keeping in mind the interest of the child as paramount consideration, it is further contended that the custody of the child cannot be handed over to respondent No. 1 herein, who is living with his second wife. The Trial Court is stated to have adopted wrong approach to the real state of affairs. Hence, it is requested to allow the appeal and set aside the order dated 10.10.2011.

We have heard the learned counsel for the appellant regarding admission of the case. After hearing the arguments and perusing the record, the following points arise for our consideration:

Whether the case on hand is fit to be admitted?

We have secured the original records of the case from the Family Court at Davanagere. The marriage solemnized between the petitioner and respondent No. 1 has already been dissolved by way of decree of divorce on the ground of desertion. The case of the petitioner is that the appellant is living in adulterous life with one Shivaji Bhosle at Bagalkot, but nothing is placed on record to substantiate the same.

Be that as it may, the marriage of the parties has already been dissolved by the competent Court by granting decree of divorce. Two children born to the appellant are already in the custody of the petitioner and appellant has admitted to that effect in her cross examination. Admittedly, the appellant is working as an Aya in Government Hostel. Distance between Bagalkot and Haveri is more than 100 k.m. Now, Sahana is in the house of Aunt of the appellant in Haveri. The husband of respondent No. 2 herein is no more and their only son is also no more. Respondent No. 2 is alone in Haveri. The child Sahana is already been admitted to school at Haveri. If the child was in the custody of the appellant herself at Bagalkot, it would have been different. The petitioner has married another lady, who is none other than the own sister of the appellant herein.

Ex. P-7 is the receipt dated 3.6.2011 issued by Govt. Tool Room and Training Centre would disclose that daughter is studying in Diploma College and Ex. P-8 is the certificate which discloses that son is studying in MKET''s Lakshmanrao Kirloskar High School. During 2011, he was studying in 8th Std. There is no allegation that these children are not being looked after well by the petitioner herein. As rightly pointed out by the Trial Court, the interest of the child Sahana would be more secure with the petitioner because her elder sister and elder brother are already with her father and she will have the opportunity to get affection not only of the father but also of her sister and brother. Apart from that the lady, whom the petitioner has married is none other than the aunt of child. The petitioner is doing business in Condiments in Harihar. Thus he has his own avocation and earns money. He has sufficient time to look after the child. All these factors has been taken into consideration by the Trial Court before passing the impugned order. The discretion exercised by the Trial Court holding that the interest of the child Sahana would be more secure in the hands of the petitioner than the appellant herein, cannot be interfered with. The discretion so exercised by the Trial Court is based on proper appreciation of oral and documentary evidence. Apart from this, the petitioner has requisite financial capacity not only to look after his second wife, but also the three children and these children will have a greater opportunity to have complete growth. Apart from that, the appellant has been given visitation rights once in a month. Taking all the above facts into consideration, we are of the opinion that it is not a case to admit. Accordingly, we pass the following order:

ORDER

a) The appeal filed challenging the order passed by Family Court, Davanagere in G&W No. 1/2011 dated 10.10.2011 is dismissed.

b) The impugned order stands confirmed.

c) It is made clear that as the classes of the child Sahana will be over in the first week of the month of April 2014, the appellant herein to directed to hand over the custody of the child Sahana to the respondent No. 1 herein on or before 15.4.2014.

d) No order as to costs.