'Mother Gave More Importance To Her Illicit Relationship, Moral Values Important For Child': Karnataka HC Orders Custody Of 7-Yr-Old Girl To Father

In appeal, the mother argued that she and the child were "thrown out" of the matrimonial home but the child is now growing in a good atmosphere and pursuing her studies. Moreover, she argued that there is nobody to take care of the girl child in the house of the respondent whereas she herself is a doctor having good income and she is capable of taking care of the child.

The respondent-father on the other hand contended that the appellant developed an illicit relationship at work in 2016, a year after the child's birth. She used to be away with her parmour during weekends while he and his parents with the help of a housemaid took care of the child. Thereafter, she left the matrimonial house along with the child in 2018. He claimed that the child was growing in a "unholy atmosphere" in the midst of an illicit relationship between the appellant and her paramour, apprehending that the welfare of the child and its future was not safe.

At the outset, the High Court observed that the respondent-father successfully proved that the relationship of the appellant with S (name redacted) was beyond business meetings. “If the meetings were in relation to any business transaction, they were required to be held in the coffee shop or in the lobby of the hotel or in a meeting room. However, Ex.P-15 document clearly shows that the appellant and the said S (name redacted) had checked into the hotel room and they had stayed in the room on certain occasions even overnight.”

It expressed that though in normal circumstances, the wish/desire of the child would also play a prominent role while deciding the custody of the said child. However, having regard to the material on record and the fact that the child was throughout kept away from the father and was being tutored by the appellant mother, Court said no purpose would be served by ascertaining from the child its desire or wish.

“Desire and wish of a child can be ascertained only if the child is mature enough to form an intelligent preference and judgment, otherwise, it is for the court to analyse the material and make a decision taking into consideration the paramount interest of the child,” it added.

The Court continued,

“When the child is deprived of a proper parenthood, its overall growth and happiness gets effected and in such situation, the Courts are not only required to consider the comforts and attachments of the child but should also take into consideration the surroundings in which the child is growing, the moral and ethical values which the child learns by observation, availability of care and affection when the child needs it most and thereafter strike a balance which would be more beneficial for the child's welfare and interest.”

Further noting that the appellant had filed cases against the husband after leaving his house, the bench said, “All these aspects would clearly go to show the attitude and hostility of the appellant towards the respondent, in spite of she continuing her illicit relationship with the aforesaid S (name redacted) after leaving the matrimonial house.”

Further the bench said the woman had not honoured several orders of the court providing visitation rights to the respondent and she had successfully kept the child away from the respondent.

The court also junked the contention of the woman that since respondent has not produced the necessary certificate under Section 65B of the Indian Evidence Act, 1872, the photographs of the appellant in the company of her paramour relied on by him cannot be accepted as evidence.

It said “In view of Section 14 of the Family Courts Act, 1984, the Family Court is authorised or empowered to receive as evidence any report, statement, documents, information if any, in its opinion, the same would assist it to deal effectually with a dispute, irrespective of whether it is relevant or admissible under the Indian Evidence Act, 1872.”

Further noting that the woman had after leaving the matrimonial house handed over the custody of the child to her parents in Chandigarh the bench said “Therefore, it is very clear that prior to the appellant leaving her matrimonial house as well as after she left the matrimonial house, she had not taken care of the child and it was the respondent and his parents who were taking care of the child while she was staying from the matrimonial home.”

Accordingly, the Court upheld the family court order. It also granted visitation rights to the mother and said, “We feel that the interest of the minor child will be best served if the custody of the child is handed over to the respondent, but with sufficient access to the appellant to visit the minor at frequent intervals.” Thus it laid down certain situational criteria for the couple to follow.

Case Title: ABC And XYZ

Case No: M.F.A.NO.2786/2022

Citation: 2023 LiveLaw (Kar) 42

Date of order; 31-01-2023

Appearance: Senior Advocate R.V.S.NAIK, for Advocate Omar Shariff for appellant.

Senior Advocate S.Srivatsa for Advocate N.Gowtham Raghunath for respondent.

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