Depriving Child Of Either Parent's Love During Their Lifetime Unjust: Karnataka High Court Upholds Shared Custody Of 4-Yr-Old

The Karnataka High Court while refusing to set aside an order of the trial court granting two-days custody of a minor child to his father observed, “When the father and the mother, both are alive, depriving a child of its entitlement to have the love and affection of its parents i.e. both father and the mother would not be a justice that is being done to the child.”

A division bench Justice Dr H.B.Prabhakara Sastry and Justice Ramachandra D Huddar dismissed the appeal filed by mother challenging trial court order granting custody of the toddler to her father from 10:00 a.m. to 4:00 p.m. on every Saturdays and Sundays.

The mother argued that the child is greatly attached to her and handing over the child to the father for two days in a week would amount to handing over permanent custody of the child. She prayed that the visitation right be confined to a single day in a week, that too under her supervision.

The father opposed the plea saying that in the interest of the welfare of the child, the father should have a right to custody.

Court noted that the child is only 4.5 years old and agreed that the mother would be a good care-taker for such a young child. However, it opined that the role of the father of the child with respect to his offspring, particularly of a minor child, cannot be ignored.

“...allegations should not come in the way of the parents giving their love and affection to their child and building a better future for it. In the dispute between the father and the mother, the child should not suffer...Being the parents and natural guardians of the child, the husband and wife both should repose confidence inter-se and should have trust between themselves. It is that a relationship built upon trust and love and affection only would give a full-fledged love and affection and sense of protection to the child.”

Rejecting the claim of the wife that the husband would kidnap or run away with the child, the court said “No corroborative material (is placed on record) and it is only an apprehension which probably the appellant has assumed by herself.”

Court also rejected mother's apprehension that the two-days custody would become permanent, it said, "No materials are placed to show that any such attempt was previously made by the respondent or that the respondent has any such preparation or motive to commit any such alleged act against the child. Under the said circumstance, mere assumption and presumption of a party to the litigation cannot acquire the place of fact. On the contrary, for the grievance between the parents, the child shall not be a prey for it and cannot be made to suffer.”

Accordingly it dismissed the appeal saying.

Appearance: Advocate Rashmi George for Appellant.

Advocate Nethravathi K for Respondent.

Citation No: 2024 LiveLaw (Kar) 30

Case Title: ABC AND XYZ

Case No: Miscellaneous First Appeal No 7082 OF 2023

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