Father Engaging A Stranger In House To Videograph Him With Child Not Congenial Environment: Karnataka High Court Refuses Custody

The Karnataka High Court recently declined interference with a family court order refusing custody of the minor daughter to her father as he failed to create a congenial atmosphere in his house for the child to stay.

A single judge bench of Justice M Nagaprasanna rejected the petition filed by the father and said,

“It is a fact that there is nobody to take care of the child when the father is not around and the child is handed over to a male stranger. The mother has narrated that on several occasions the child had expressed her anguish getting too anxious about a stranger continuously photographing and videographing the child. If these facts are noticed, it becomes unmistakably clear that the father has not created a congenial atmosphere to the girl child, who is now 9 years old, he cannot therefore be heard to contend that he has a right to claim custody of the child, despite the afore-noted glaring facts.”

The father had approached the court seeking interim custody of the daughter between Friday to on Sunday, equal proportion of custody during all vacations and on her birthday and also to have video call conversation with his daughter everyday.

However, the family court allowed the application in part and declared 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 on Court working days of vacations.

The husband contended that he being the father also should have access to the daughter and is entitled to have such a right of visitation/custody, in law.

The wife opposed the plea stating the child never had a healthy atmosphere whenever she was with the husband. "The child fears staying with the father, as the father has engaged one stranger by name Vijay, who even sleeps in the same bed with the father in order to take photographs to demonstrate that the child is in good relationship with the father,” it was averred.

Findings:

The bench on going through the records noted that the petitioner has himself appended several photographs to the petition seeking to demonstrate that the girl child/daughter has a good relation with him. Those photographs apparently are clicked by a stranger, which the wife narrates in detail the manner in which the photographs are taken.

In such circumstances the Court concluded the father has not created a congenial atmosphere. “The girl child, in her best interest, prefers to be with her mother and psychologically it is presumed that the bond between the child and mother is the finest.”

The bench expressed that for the last five years the husband and the wife have been in constant squabble and the minor girl child has been watching parents right from her tender age of 4 years. It opined that in cases of this nature, where the parents are wrangling on their "egos", wound is inflicted on the child.

"The minor child does not have the coping skills or the intellectual ability to understand the issues between the adult relationship or the parent’s unhappiness. The parents have to contribute to the upbringing of the child on all emotions, be it social, physical, mental or material support inter alia.”

Following which it held “In a disturbed marriage, there is bound to be impairment. Therefore, in the best interest of the girl child, in the case at hand and owing to the facts as narrated hereinabove, I do not find any warrant to interfere with the order passed by the concerned court in declining to grant custody and permitting grant of visitation rights only.”

Accordingly it dismissed the petition

Case Title: ABC And XYZ

Case No: WRIT PETITION No.23969 OF 2022

Citation: 2023 LiveLaw (Kar) 179

Date of Order: 05-04-2023

Appearance: Senior Advocate Ravi B Naik for Advocate Vijetha R Naik for petitioner.

Senior Advocate Sandesh J Chouta for Advocates Yeshu Mishra and Anoop Haranahalli for respondent.

Click Here To Read/Download Order