- 1 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 7028 OF 2022 (GW) BETWEEN 1 . SRI AZEEMUDDIN AGED ABOUT 39 YEARS S/O LATE SHAMEEM ALAM NO.11, 1ST FLOOR, ASHA KIRAN, 6TH MAIN 2ND BLOCK, NARAYANAPPA BLOCK, R.T. NAGAR, BANGALORE 560 032 PRESENTLY R/AT 3RD FLOOR, 80 FT RAILWAY PARALLEL ROAD, B BLOCK, CQAL LAYOUT, SAHAKAR NAGAR BENGALURU 560 092 PERMANENT R/O TASLEEM MANZIL INDIRA NAGAR KARIYAKAL, PULKERI, SANOOR POST, KARKALA UDUPI DISTRICT 574 114 2 . KUMARI AZMINA ZARA AGED ABOUT 6 YEARS D/O SRI AZEEMUDDIN MINOR, REP BY HER FATHER AND NATURAL GUARDIAN, SRI AZEEMUDDIN PRESENTLY UNDER THE CARE AND CUSTODY OF HER MOTHER SMT. SUHANA PRAVEEN, Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 PRESENTLY RESIDING C/O SRI SYED SHARFUDDIN SUHAIL, S/O LATE AMEERJAN, NO.13, 3RD FLOOR, MOSQUE LANE KALASIPALYAM, BANGALORE 560 002 PERMANENTLY R/AT NO. 5/527, HAVALDAR BETTU, SALMAR POST, KARKALA TALUK, UDUPI DISTRICT 574 104 PRESENTLY R/AT HOYASAL INFANTRY TOWERS, 4TH FLOOR, FLAT NO. A402, #23, SANJAYANAGAR MAIN ROAD, OPP KARNATAKA BANK NAIDU LAYOUT, POSTAL COLONY, SANJAYANAGARA BENGALURU- 560 094 ...APPELLANTS (BY SRI IRSHAD AHMED K, ADVOCATE) AND SMT SUHANA PARVEEN AGED ABOUT 35 YEARS W/O SRI. AZEEMUDDIN, D/O SRI. MOHAMMED HUSSAIN PRESENTLY RESIDING C/O SRI. SYED SHARFUDDIN SUHAIL, S/O LATE AMEERJAN, NO.13, 3RD FLOOR, MOSQUE LANE, KALASIPALYAM, BANGALORE 560 002 PERMANENTLY R/AT HUSSAIN MANZIL, NO.5/527, HAVALDAR BETTU SALMAR POST, KARKALA TALUK, UDUPI DISTRICT 574 104 PRESENTLY R/AT HOYASAL INFANTRY TOWERS, 4TH FLOOR, FLAT NO. A402, #23, SANJAYANAGAR MAIN ROAD, OPP KARNATAKA BANK NAIDU LAYOUT, POSTAL COLONY, - 3 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 SANJAYANAGARA BENGALURU 560 094 …RESPONDENT (BY SMT MADHURI GAIKWAD V S, ADVOCATE) THIS MFA IS FILED U/S.47 OF GUARDIAN WARDS ACT, AGAINST THE JUDGMENT AND DECREE DT.17.09.2022 PASSED IN G AND WC NO.11/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE, ACJM, KARKALA, UDUPI, PARTLY ALLOWING THE PETITION FILED U/S.7 AND 17 OF THE ACT AND ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.02.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, POONACHA.J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and HON'BLE MR JUSTICE C.M. POONACHA CAV JUDGMENT (PER: HON'BLE MR JUSTICE C.M. POONACHA) The present appeal is filed under Section 47 of the Guardian and Wards Act, 18901 challenging the order dated 17.09.2022 passed in G. & W.C.No.11/2021 by the Senior Civil Judge and ACJM, Karkala, Udupi2. 2. For the sake of convenience, the parties are referred to as per their status in the relationship. 1 Hereinafter referred to as the ‘G & WC Act’ 2 Hereinafter referred to as the ‘Trial Court’ - 4 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 3. The factual matrix in a nutshell is that the marriage of appellant No.1 / petitioner No.13 and the respondent4 was solemnized on 18.01.2014 at Karkala Muslim Jamath, Salmar, Karkala as per Muslim Shariat Law. After the marriage (nikah), a valima (reception ceremony) was held on 19.01.2014 at Shadhi Mahal, Jamia Masjid, Belvai, Mudabidri. Consequent to their marriage, husband and wife resided together in their matrimonial home at Bengaluru. That the husband was carrying on the business of running a fitness centre in the name and style of “Group Ex Fitness Revolution”. From the said marriage, a daughter Azmina Zara was born on 18.07.2016 at St. Theresa Hospital Rajajinagar, Bengaluru. 4. Due to various reasons, acrimony arose in the matrimonial relationship and the wife filed a complaint on 03.05.2019 before the R.T. Nagar Police Station, Bengaluru in Crime No. 93/2019 under Section 498A of Indian Penal Code, 18605. The husband along with the daughter of parties filed G & WC No.11/2021 before the Trial Court under Sections 7 and 17 of the G & WC Act, to appoint him as guardian of the minor 3 Hereinafter referred to as the ‘Husband’ 4 Hereinafter referred to as the ‘Wife’ 5 Hereinafter referred to as the “IPC” - 5 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 daughter and to direct the wife to handover custody of the daughter to the husband. Alternatively, visitation rights were sought. The substance of the allegations made by the husband in the petition filed before the Trial Court is that wife caused obstruction in the interaction of the husband with his family members and that there was interference from the family members of the wife in the matrimonial relationship, more particularly the mother–in-law is the main cause for the discord between the parties. It is further contended that he has taken all steps to be a dutiful husband and father and that since the wife had made false allegations of infidelity against him, she is staying separately along with the child. 5. The wife entered appearance in the proceedings before the Trial Court and filed statement of objections denying the averments made by the husband. However, the matrimonial relationship and the birth of the daughter were admitted. The wife has denied various allegations made by the husband in his petition and it is further contended that the husband has not paid any amounts for maintenance of their daughter. It is also contended that under the Hanafi School of Muhammadan Law the mother is entitled to the custody of the - 6 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 child. The wife further specifically contended that the husband is having relationship with various other woman during the subsistence of their marriage and that the husband has also abused the wife both physically and mentally. Hence, she sought for dismissal of the petition. 6. The husband examined himself as PW.1 and two witnesses as PWs.2 and 3. Exs.P.1 to 69 have been marked in evidence. The wife got examined herself as RW.1. Exs.R.1 to 28 have been marked in evidence. The Trial Court by its order dated 17.09.2022 partly allowed the petition filed by the husband and passed the following order: “Application filed by the petitioner No.1 under Section 7 and 17 of the Act is partly allowed. The permanent custody of minor child Azmina Zara is given to the respondent. The petitioner No.1 shall have the visitation right. In exercise of which he can see and spend time with minor child once in month on every 1st Sunday from 10.00 a.m., to 5.00 p.m., at Bangalore in the place convenient to the child or such other place suggested by the respondent subject to both the parties keeping peace and pleasant conduct to each other keeping in view of the paramount interest of the minor child. The petitioner No.1 is allowed to use the telephone or video conferencing call with the child on every Thursday in a week between 6.00 p.m to 7.00 p.m for a period of 15 minutes. - 7 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 The Visitation right of the petitioner No.1 should not come in the way of the education of the minor child. For any reason if it is not possible for the child to meet the father on the 1st Sunday in a month, then by giving prior intimation to the petitioner No.1 the visitation day can be changed to subsequent Sundays. In the circumstances of the case, I would leave the parties to bear their own cost.” 7. Being aggrieved the husband has preferred the above appeal on his behalf as well purportedly on behalf of the minor daughter. 8. Learned counsel Sri. Irshad Ahmed K., appearing for the appellants assailing the order passed by the Trial Court contends that the finding of the Trial Court that the respondent is not entitled to be appointed as guardian and granting limited visitation rights is erroneous, having regard to the fact that whenever the visitation rights have been exercised by the father, the minor daughter is happy in his company as is forthcoming from the various material on record. It is further contended that the husband, after birth of their minor daughter, setup a Nursery School under the name and style of ‘Little Kiddo’ which itself demonstrates the love and concern that the husband has towards the daughter. It is further - 8 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 contended that the husband and wife are residing separately due to trivial issues and the conduct of the husband is without any blemish. Hence, he seeks for allowing of the above appeal and granting appropriate orders including greater visitation rights and for joint custody of the daughter of the parties. 9. Per contra, learned counsel Smt. Madhuri Gaikwad V.S., appearing for the respondent - wife justifying the impugned order contends that the Trial Court has in detail noticed the various allegations and counter allegations made by the respective parties and granted permanent custody to the wife with visitation rights to the husband which is just and proper. It is further contended that during pendency of the present proceedings when overnight custody was granted to the husband, he has taken his daughter to Mangaluru, during which time, he has introduced her to some woman by mentioning her as his sister, which has had a negative impact on the daughter of the parties and that the said aspect of the matter is forthcoming from the material on record. Hence, learned counsel for the wife seeks for dismissal of the appeal. 10. After the submissions of the learned counsels were heard, this Court interacted with the child as well as the parties - 9 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 in chambers on 06.02.2025. It is relevant to place on record that the child is enthusiastic and interactive. It was noticed that the child is comfortable with the current arrangement of her staying along with her mother and father having visitation rights on two Sundays a month during the course of the day. 11. Before noticing the contentions put forth by both the learned counsels on the merits of the matter, it is pertinent to note the various arrangements made by this Court for visitation of the daughter of the parties during the pendency of the present appeal: i. Vide order dated 18.11.2022, this Court has modified the visitation rights granted by the Trial Court by permitting the husband to have visitation rights on two Sundays a month and also permitted the husband to have a video call with their daughter on Tuesday and Thursday of every week. ii. Vide order dated 16.05.2024, while considering I.A.No.1/2024, this Court permitted the husband to take custody - 10 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 of the daughter from 17.05.2024 at 10.00 a.m., upto 31.05.2024 at 10.00 a.m., and that during the said period, the wife shall be entitled to make video calls with their daughter every day. iii. Vide order dated 25.09.2024, this Court while considering I.A.No.5/2024 has disposed of the same, by rejecting the request of the husband to take custody of the child for ten days during Dasara vacation by noticing the opposition to the said application by the wife. 12. The question that arises for consideration is: ‘Whether the order passed by the Trial Court granting the visitation rights is erroneous and is required to be interfered with?’ Analysis 13. The marital relationship between the parties and the fact that they have a daughter (appellant No.2) who is currently aged more than 8 years (date of birth 18.7.2016) is - 11 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 undisputed. It is further undisputed that the wife is currently staying at Bengaluru and is gainfully employed. The custody of the daughter of the parties is with the wife and husband is exercising visitation rights in terms of the order dated 18.11.2022 passed by this Court in the present appeal. 14. It is forthcoming from the records that the husband filed OS No.211/2019 (subsequently renumbered as OS No.86/2021 and later as OS.No.70/2021) for restitution of conjugal rights which has been dismissed on 17.9.2022. The wife filed OS.No.124/2019 (subsequently renumbered as OS No.32/2022) for grant of divorce which has been decreed on 17.9.2022, being aggrieved by which the husband has preferred RFA No.810/2023 before this Court. 15. The Trial Court while considering the various allegations made by both the parties in their pleadings has noticed that the same allegations were made in the proceedings for restitution of conjugal rights and divorce filed by the respective parties and findings have been recorded in the said proceedings with regard to the said allegations. The course of action adopted by the Trial Court with regard to adjudication of the allegations is just and proper as in the present proceedings - 12 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 it is unnecessary to adjudicate upon the correctness or otherwise of the various allegations made against each other by the respective parties. 16. Suffice to note that in the present case the child is in the custody of the wife and pursuing her education. It is specifically contended by the wife that the husband has not financially contributed in any manner for the educational and other day to day expenses of their daughter. However, the said assertion is denied by the husband and it is contended that the he has opened a bank account as well as made certain investments in the name of their daughter and has produced Exs.P25 to P29 in that regard. Considering the aspect with regard to maintenance, the Trial Court has noticed that in the cross-examination, PW.1 (husband) he has stated that he has not paid any money for the maintenance of the child and the wife since there is no necessity to pay money to either of them. 17. It is forthcoming that apart from Exs.25 to P29, no other documents have been produced by the husband to demonstrate that he has paid any money for the education and day to day expenses of their daughter. Hence, it is clear that even during the pendency of the proceedings before the Trial - 13 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 Court as well as this Court the husband has not paid any money for the education and day to day expenses of the daughter. 18. Although it is the contention of the husband that while exercising visitation rights he has given various gifts and has spent money for their daughter, the same is not equivalent to the husband shouldering the responsibility of paying for the education and day to day expenses of their daughter. 19. In the proceedings before the Trial Court, the husband had contended that wife was unemployed and has no source of income and that he is pursuing his business and is in a better financial position to provide for the maintenance, education and other expenses of their daughter. Admittedly, presently the respondent/wife is gainfully employed and is solely shouldering the burden of the education and day to day expenses of their minor daughter. The assertion made by the husband before the Trial Court that the wife is not gainfully employed is not seriously put forth in the present appeal. 20. It is forthcoming that the husband is carrying on business of running a Fitness Center both at Mangalore and - 14 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 Bengaluru and he stays in both the said places for a few days every week. It is further forthcoming that the husband is living alone at Bengaluru and his family members i.e., his mother and sisters are residing at Karkala, Udupi District. It is forthcoming from the records that along with the respondent/wife her mother and brother are residing at Bangalore. 21. It is the assertion of the wife that as per Muslim Law, the mother is entitled to have custody of the daughter till she attains puberty. The Trial Court has considered the said legal position and after noticing various judgments has upheld the contention put forth by the wife that she is entitled to the custody of the daughter until she attains puberty. The said legal position is also not seriously disputed by the learned counsel for the appellant/husband. 22. It is relevant to note that the Trial Court while disposing of the proceeding in G&WC No.11/2021 vide its final order dated 17.9.2022 had granted visitation rights to the husband to visit the child once in a month on every first Sunday from 10.00 a.m., to 5.00 p.m., at Bengaluru or at a place convenient to the child and also permitted telephone or - 15 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 video conferencing call with the child every Thursday in a week between 6.00 p.m., to 7.00 p.m. This Court vide order dated 18.11.2022 has permitted visitation rights on the same terms as granted by the Trial Court on first and third Sundays of the month and also permitted video call on Tuesday and Thursday of every week, which is being continued till date. 23. It is further relevant to note that pursuant to the order dated 16.5.2024, considering IA No.1/2024 the husband was entitled to have custody of the daughter between 1.5.2024 and 30.5.2024 during summer vacation. Thereafter, this Court vide order dated 25.9.2024, considering IA No.5/2024 denied the request of the father to have custody of their daughter for 10 days during vacation, inter alia having regard to the objection by the wife that the husband is having an affair with an another woman and hence, it is not safe to grant interim custody as sought for in the said application. 24. It is relevant to note that the daughter of the parties is at a tender and impressionable age of growing up and would in a short period of time likely to attain puberty. Hence, in the considered opinion of this Court it is just and proper that - 16 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 visitation rights granted by this Court vide order dated 18.11.2022 be continued. 25. The appellant has failed in demonstrating that the findings recorded by the Trial Court are in any manner erroneous and contrary to any specific oral or documentary material on record. Having regard to the totality of the facts and circumstances, the appellant have failed in demonstrating that the order passed by the Family Court in any manner erroneous and liable to be interfered with. Hence, the question framed for consideration is answered in the negative. 26. In view of the aforementioned, the following: ORDER i) The above appeal is partly allowed; ii) The order dated 17.09.2022 passed in G. & W.C.No.11/2021 by the Senior Civil Judge and ACJM, Karkala, Udupi, is modified only to the extent of holding that the appellant shall have visitation rights of the minor daughter of the parties on first and third Sunday of every month between - 17 - NC: 2025:KHC:9897-DB MFA No. 7028 of 2022 10.00 a.m., to 5.00 p.m., and shall have a video call on Tuesday and Thursday of every week between 6.00 p.m., to 7.00 a.m., for 30 minutes subject to the comfort of the child; iii) The order of the Trial Court in all other respects is affirmed. 27. In view of the disposal of the main appeal, all pending applications stood disposed of. SD/- (K.S.MUDAGAL) JUDGE SD/- (C.M. POONACHA) JUDGE BS,ND List No.: 19 Sl No.: 8