- 1 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2025 PRESENT THE HON'BLE MR. JUSTICE JAYANT BANERJI AND THE HON'BLE MR. JUSTICE K. V. ARAVIND MISCELLANEOUS FIRST APPEAL NO. 8323 OF 2023 (GW) BETWEEN: DEVARAJU S/O LATE MARIGOWDA AGED ABOUT 51 YEARS RESIDING OF MAIDANAHALLI VILLAGE YELAWAL HOBLI MYSORE TALUK - 571 130. …APPELLANT (BY SRI. B. K. MOHAN., ADVOCATE) AND: B. K. SUDERSHAN S/O KENGEGOWDA AGED ABOUT 34 YEARS R/O BELAGOLA VILLAGE SRIRANGAPATNA TALUK MANDYA DISTRICT - 571 606. …RESPONDENT (BY SRI. H. C. SHIVARAMU., ADVOCATE) THIS MFA IS FILED U/S.47(a) OF GUARDIANS AND WARDS ACT, AGAINST THE JUDGMENT AND AWARD DATED 06.11.2023 PASSED ON G & WC NO. 67/2022 ON THE FILE OF THE III ADDITIONAL PRINCIPAL FAMILY JUDGE, MYSURU, ALLOWING THE PETITION FILED U/S 7 READ WITH SECTION 25 OF GUARDIAN AND WARDS ACT AND UNDER SECTION 64 OF MINORITY OF GUARDIANSHIP ACT. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by K G RENUKAMBA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI and HON'BLE MR. JUSTICE K. V. ARAVIND ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE JAYANT BANERJI) Heard the learned counsel for the appellant. 2. Though the matter is listed for consideration of I.A.No.1/2025 for vacating the interim stay dated 06.03.2024, however, with the consent of learned counsel for the parties, the matter is taken up for final disposal. 3. This first appeal has been filed under Section 19 of the Family Courts Act, 1984 seeking to set aside the judgment and decree dated 06.11.2023 passed by the III Additional Principal Judge, Family Court at Mysuru, in G&WC No. 67/2022, by means of which, the respondent- petitioner's application under Section 7 read with Section 25 of the Guardians and Wards Act, 18901 and Section 64 1 G&WC Act - 3 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 of the Minority and Guardianship Act, 19562 was allowed. The appellant -respondent was directed to handover the custody of the minor Rithik S. Gowda to the petitioner- respondent. 4. The contention of the learned counsel for the appellant, who appears online, is that the allegation against the petitioner-respondent, who is the father of the minor child, is that he had murdered his wife. It is further stated that the child has been staying with the appellant- respondent for the past so many years and the petitioner- respondent has never sought to meet the child. It is also stated that petitioner-respondent never tried to take back the child with him. 5. Learned counsel for the petitioner-respondent has strongly opposed the petition stating that despite three years having passed, no charge sheet is filed in the criminal case, which case was registered only on the 2 MG Act - 4 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 ground of the wife of the petitioner -respondent being missing. It is stated that for want of any charge sheet, no liability can be fixed on the petitioner-respondent that would disable him from getting custody of the child as he is legally entitled to it. 6. We have perused the judgment and also gone through the records. 7. The case of the petitioner -respondent before the Family Court was that the respondent -appellant is his father-in-law. Marriage of the petitioner-respondent and the daughter of the respondent-appellant namely, Smt. D. Chandrakala was held on 23.06.2016 as per the Hindu rights and customs. After the marriage, the husband and wife led married life for six years and a son named Rithik S. Gowda was born during the married life of the husband and wife. It was stated that the life of the petitioner- respondent and Smt. Chandrakala was normal. During September, 2021 Smt. Chandrakala secured the presence - 5 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 of her brother D. Chandan while living in her matrimonial home and sent their minor son Rithik with her brother to her parental home, saying that she will join her parents later to celebrate Gowri Ganesha festival, shortly after finishing the work related to festival in her matrimonial home. Accordingly, the brother of Smt. Chandrakala took the minor Rithik with him to his house on 05.09.2021. On the same evening, Smt. Chandrakala went to her parental home with permission of the petitioner-husband and his parents to celebrate Gowri and Ganesha festival. Subsequently, the petitioner-respondent came to know by means of a phone call from the respondent -appellant that Smt. Chandrakala did not go to her parental home on 08.09.2021. The respondent-appellant filed a missing complaint before the K.R.S. Police Station requesting for his daughter to be searched. However, the whereabouts of Smt. Chandrakala is not known till today and she is not traced. It is stated that the petitioner -respondent tried to bring back his son Rithik to his house several times by - 6 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 visiting respondent's house. But the respondent refused to hand-over the minor son to the petitioner-respondent. 8. Subsequently, it is stated that the respondent - appellant filed a suit before the Senior Civil Judge in the Court of Srirangapatna bearing O.S.No.54/2022 seeking partition of the share of the minor Rithik in joint family property of the petitioner -respondent and also filed a petition for maintenance for Rithik bearing Crl.Misc.No.962/2022. Thereafter, a case under the G&WC Act was filed. The petitioner - respondent filed his objections to the application. It was stated that since the beginning respondent-appellant had been taking care of the minor son of the petitioner -respondent. When the respondent -appellant noticed that the mobile of Smt. Chandrakala was switched off he contacted the petitioner- respondent and his father to enquire about Chandrakala. On getting evasive reply, respondent-appellant filed a missing complaint before the police requesting to trace his daughter. It is stated that the police closed the case. - 7 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 Allegations for demand of dowry and murdering Chandrakala were made against the petitioner - respondent. It was alleged that since a case registered against petitioner-respondent is under investigation, the petitioner -respondent is not entitled for custody of minor Rithik whose life is under threat at the hands of the petitioner -respondent. 9. The Court posted the matter for reconciliation. Since the parties did not show any interest in the settlement, the case was posted for evidence. 10. The petitioner-respondent testified as PW-1 and PWs-2 and 3 were also examined. Exs.P.1 to P.6 were marked on behalf of the petitioner. The respondent- appellant also testified as RW-1 and got marked Ex.R.1 to R.9 documents. Since the minor child was aged below 8 years, the Court opined that he would not be able to form intelligent opinion regarding his custody. Hence, the Family Court did not interact with the minor. - 8 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 11. The following points were stated to arise for consideration: 1. Whether petitioner has made out case to allow petition? 2. What order? Point No.1 was answered in the affirmative. 12. The Family Court noted the testimony of PW-1 as well as the testimony of PWs-2 and 3, who were the elders of his village to prove that Panchayat was held in the village to sort out the dispute between the petitioner- respondent and respondent-appellant. 13. The petitioner-respondent denied all suggestions made against him during the cross- examination, like, murdering his wife and spoiling evidence, ill-treating his wife for dowry and neglecting the welfare of the minor child. However, the fact that criminal complaint filed by the respondent-appellant against the petitioner-respondent for offences punishable under - 9 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 Sections 498-A, 302 of Indian Penal Code, 1860 read with Sections 3 and 4 of the Dowry Prohibition Act, 1961 was pending investigation, was admitted. 14. In the cross-examination of RW-1, he denied the suggestion that with the intention to grab property belonging to the family of the petitioner-respondent, he had detained custody of the minor and filed several false cases against the petitioner-respondent. 15. After noting facts and evidence of the case, and considering the various judgments of High Courts and Supreme Court, the Family Court noticed the contention of the respondent -appellant that the petitioner-respondent never met the child and never tried to take the child with him and thus was not entitled to take custody of the child, and observed was not sufficient to deny the relief to the petitioner. The Court noted that except pleadings of the respondent-appellant, there was no material on record to believe that the petitioner-respondent was not looking - 10 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 after Rithik and that the respondent-appellant had been taking care of the child. It was noted that the till the respondent filed civil and criminal cases against the petitioner-respondent, there was no dispute between the petitioner-respondent and respondent-appellant. That being the case, the Court held, that no fault can be found with the petitioner -respondent if he allowed his son to live with his father-in-law. It was opined that that fact itself would not take away right of the petitioner-respondent to claim custody of the child. The Court held that mere filing of criminal case is not sufficient to come to a conclusion that the accused had committed the alleged offence. It was noted that no charge sheet was filed and the petitioner being the father of the minor could not be denied the custody of the minor on the ground of pendency of criminal case. 16. Ex.P.6 was the school identity card of the child, which was admitted by the respondent-appellant in his cross-examination. In that the respondent -appellant had - 11 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 given his name in place of father's name of the child. The Court found that evidence supports the case of the petitioner -respondent that the respondent -appellant was trying to separate the child permanently from the petitioner -respondent. 17. During his cross-examination the respondent - appellant also admitted that he filed a criminal case against the petitioner-respondent for kidnapping the child just because the petitioner - respondent tried to meet the minor near the school. The Court concluded that this fact supports the case of the petitioner- respondent that the respondent-appellant trying to fill hostility in the mind of the child towards the petitioner-respondent. The Court noted that the conditions under which the child was being brought up would not provide moral and ethical values of life which are important for overall development of the child. Hence, the petition was allowed. - 12 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 18. Nothing has been pointed out by the learned counsel for the respondent from the record that would lead this Court to hold that the evidence was not properly considered by the Family Court or the fact that any finding of the Family Court was not based on evidence. We have also considered the documents that are part of the trial Court record. Learned Brother (Hon'ble Mr. Justice K.V. Aravind) has carefully perused the testimony in Kannada of the respondent -appellant which is part of the trial Court record and has translated and discussed the testimony on record for the benefit of the Bench, and we find that the Family Court has accurately discussed the evidence. 19. For the reasons aforesaid we find no merit in the appeal and it is accordingly dismissed. 20. Pending I.A.s stand disposed of. 21. In case the respondent -appellant seeks visitation rights, it shall be open for him to move appropriate application before the Family Court concerned, - 13 - HC-KAR NC: 2025:KHC:41759-DB MFA No. 8323 of 2023 but only after handing over the custody of the minor child to the petitioner -respondent. 22. Respondent -appellant is directed to handover the custody of the minor child within one month from today. Sd/- (JAYANT BANERJI) JUDGE Sd/- (K. V. ARAVIND) JUDGE BVK List No.: 1 Sl No.: 38