- 1 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 22ND DAY OF MARCH, 2025 PRESENT THE HON'BLE MR JUSTICE K NATARAJAN AND THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCL. FIRST APPEAL NO. 200286 OF 2016 (GW/WC) BETWEEN: 1. VAIJINATH S/O AMBANNA BHAVIKATTI AGE: 57 YEARS, OCC: LECTURER 2. SMT. RUKMINI W/O VAIJINATH BHAVIKATTI AGE: 48 YEARS, OCC: HOUSEHOLD BOTH R/O H.NO.D-84, AIWAN-E-SHAHI ROAD, KALABURAGI …APPELLANTS (BY SRI SHARANABASAPPA K. BABSHETTY, ADVOCATE) AND: NANDALAL S/O SHARANAPPA GAIKWAD AGE: 47 YEARS, OCC: TEACHER R/O H.NO.1-1097, TARFILE, OPP: RAILWAY STATION, KALABURAGI NOW WORKING AS GOVT. PRIMARY SCHOOL TEACHER IN SINDAGI (B), DABARABAD VILLAGE, TQ. & DIST. KALABURAGI – 585103. …RESPONDENT (BY SRI V. K. NAYAK, ADVOCATE) Digitally signed by RAMESH MATHAPATI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 THIS MFA IS FILED UNDER SECTION19(1)OF FAMILY COURT ACT & R/W 47 OF GUARDIAN AND WARDS ACT, 1890, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED IN G AND W.C. NO.04/2013 ON DATED-17.12.2015 PASSED BY THE FAMILY COURT DISTRICT JUDGE AT KALABURAGI AND FURTHER DIRECTED TO AS THE MINORS ARE RESIDING WITH THE PRESENT APPELLANT IS JUSTIFIED FOR THEIR WELFARE. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE K NATARAJAN AND HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT (PER: HON'BLE MR JUSTICE K NATARAJAN) This appeal is filed by the appellants – respondents under Section 19(1) of the Family Court Act read with Section 47 of the Guardians and Wards Act, 1890, by challenging the order of the District Judge, Family Court, Kalaburagi in Guardians and Wards Case No.4/2013 dated 17.12.2015. - 3 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 2. We have heard the arguments of learned counsel for the appellants and the respondent and perused the records. 3. The appellants are challenging the order passed by the Family Court, Kalaburagi in G & WC.No.4/2013 dated 17.12.2015 for having allowed the application filed by the respondent under Section 6 and 8 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred as ‘G and W Act’). 4. The case of the appellant before the Family Court is that, the petitioner-respondent came to be genetic father of the three wards namely Kumari Nalini aged about 9 years, Jayavardhan aged about 6 years and Harshavardhan aged about 2 years who were said to be born out of the wedlock of the petitioner with his wife, who was said to be died on 10.03.2012 by leaving behind the petitioner and three minor wards. After the death of the wife, the appellants-respondents being the grand-parents took the custody of the minor wards without the consent - 4 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 of the petitioner and also they filed petition claiming maintenance for the minor wards. Hence, the petitioner filed the case for seeking custody of the children. 5. The respondents appeared through counsel and filed objections contending that the children are within the custody of the respondents and after the death of the deceased who is the wife of the petitioner, they have taken the children and they are ready to take care of the children. Hence, they prayed to dismiss the petition. 6. In support of the case of the petitioner, he examined himself as PW-1 and also examined another witness as PW-2 and got marked 8 documents. On behalf of respondents, he examined himself as DW-1 and another witness as DW-2 and got marked 14 documents. After hearing the matter, the Family Court allowed the petition filed by the petitioner – father and granted the custody of wards to the petitioner. Being aggrieved by the same, the respondents No.1 and 2 are before this Court. - 5 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 7. The Learned counsel for the appellants has contended that the Family Court has committed an error in handing over the custody of the children as they are minors and contended that the wife of the respondent committed suicide due to the harassment made by the respondent. Therefore, it is not a fit case for handing over the children to the father though he is the biological father. It is further submitted that the appellants are taking care of the children and during the pendency of this appeal, two other children namely Kumari Nalini and Jayavardhan have attained the age of majority and only Harshavardhan now aged about 14 years studying in 9th standard is in the custody of the appellants. Harshavardhan being promoted from 9th standard to 10th standard, it is a crucial time for him to concentrate on his studies. Therefore, he should not be handed over to the custody of the respondent. Hence, prayed for allowing the appeal. - 6 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 8. Per contra, learned counsel for the respondent supported the order passed by the trial Court and during the pendency of the appeal, it is also brought to the notice of this Court that the respondent has paid the maintenance to the present ward Harshavardhan and earlier maintenance of Rs.1,000/- awarded has been enhanced to Rs.5,000/- per month and he is regularly paying the maintenance. However, inspite of the interim order passed by this Court, the appellants are not allowing him to contact the minor ward. It is submitted that he has also paid the school fees and other expenses. Even when the respondent tries to give clothes and other gifts to the minor ward, he refuses to receive the same at the instance of the appellants. Hence, prayed for dismissal of the appeal. 9. During the pendency of the appeal, this Court has granted a visitation right to the respondent on 13.04.2017 which is once again violated by the appellants. - 7 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 10. Having heard the arguments of the learned counsel for the parties, the point that arise for our consideration is: “Whether the order of the Family Court calls for interference or modification?“ 11. Having perused the records and hearing the arguments, it is seen from the records that it is not in dispute that the respondent is the genetic father of the three children and the appellants are the parents-in-law of the respondent. Their daughter was married to the respondent who committed suicide on 10.03.2012. After the death of the wife, the children were in the custody of the appellants. Accordingly, the respondent filed the petition for seeking the custody of the children which was allowed by the trial Court after recording evidence of both sides. At the time of pendency of the appeal, this Court by interim order, granted visitation rights to the respondent at paragraph – 8 which is extracted herein below: - 8 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 “8. Accordingly, I.A.No.2//2017 is disposed of with the following directions: (a) The minor children shall continue to reside with the appellants in accordance with the wishes expressed by the minor children in the Chambers on 13.04.2017 at about 1.30 p.m. (b) The visitation rights are granted to the respondent – father to visit the minor children at Flat No.284, GDA Garden, GDA lay-out, MSK Mill Area, Kalaburagi, once in 15 days i.e., twice in a month, preferably on every alternative Saturday between 4 p.m. and 6 p.m. as agreed by the appellants-grand parents, beginning from 15.4.2017. This arrangement shall continue till the disposal of the present appeal. (c) While visiting the children, either the respondent- father or the appellants-grand parents should not disturb the minds of the minor children. Both the appellants and the respondent-father should make all efforts to educate the minor children properly, which is the paramount interest. (d) The appellants-grand parents should not unnecessarily interfere with the visitation rights of the respondent. (e) The respondent-father is directed to pay tuition fee of the children and take care of basic needs of children like books, clothes etc., and at the same time, he should not try to disturb the mindset of the children. - 9 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 (f) The appellants-grand-parents shall ensure that the children should be made available to the respondent- father on 15.4.2017 and on every alternative Saturdays in the place stated supra. (g) The appellants-grand parents and the respondent- father shall maintain cordiality during the visitation hours stated supra in the paramount interest of the children.” 12. It is submitted by the learned counsel for the appellants that the respondent was not paying maintenance properly and there was huge arrears. On the other hand, respondent also submitted that recently he has deposited the amount before the execution Court. It is also brought to the notice of the Court that the maintenance awarded to the minor ward - Harshavardhan is enhanced with Rs.5,000/- per month. It is also stated that the other two children who have already attained majority, one of them is studying in Russia and the other in Bengaluru. 13. Subsequently, after raising the objections by the respondent, once again this Court modified the order - 10 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 directing the appellants to hand over the custody of the child Harshavardhan to the respondent on every Sunday between 11.00 a.m. and 3.00 p.m. and the respondent is permitted to pick up the child at 11.00 a.m. in front of the appellants’ house on every Sunday and take him to his house and drop back at 3.00 p.m. until further orders. Pursuant to that, the learned counsel for the respondent submits that once again the appellants are not allowing the child to see the father. 14. It is submitted by the learned counsel for the appellants that now the minor child is going to coaching centre either at Bengaluru or Dharwad for two months for the purpose of coaching for 10th standard. The said submission is placed on record. 15. However, the learned counsel for the respondent also admits that the child may go to the coaching centre, but the respondent may be permitted to go and visit the child on every Sunday either at Benagluru or at Dharwad. Both the counsels also admit that the - 11 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 visitation rights may be continued until the child attains majority. 16. Considering the fact and circumstances, the child is now aged about 14 years and completed 9th standard and if the child is given total custody of the father, the future of the child will be definitely put in hardship and inconvenience is caused to his higher studies. However, respondent being the genetic father and natural guardian, the child’s custody cannot be denied in total. Therefore, looking into the fact and circumstances, we are of the opinion that the interim order passed by this Court in respect of the visiting right given to the respondent to visit the minor ward atleast once in a week on every Sunday between 11 a.m. and 3 p.m. will meet the ends of justice. 17. It is also needless to observe that the appellants shall not deny the custody of the child to the natural father. If custody of the child is denied, they are held for contempt of Court in future. Accordingly, the - 12 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 respondent also should not harass the child or quarrel with the appellants. If any dispute arises or if the appellants refuse to give custody of the child without any reasonable cause, he can approach the trial Court or Family Court for modification of maintenance. 18. Accordingly, we proceed to pass the following: ORDER (i) The appeal is allowed in part. (ii) The order of the Family Court granting custody in G & WC.No.4/2013 is set aside and modified as under: (a) The respondent is permitted to take the custody of the child on every Sunday between 11.00 a.m. and 3.00 p.m. He shall pick up the child from the residence of the appellants at 11.00 a.m. and permitted to take the child to his house or any other places as per child’s wish and drop back the child. - 13 - NC: 2025:KHC-K:1845-DB MFA No. 200286 of 2016 (b) The respondent is also at liberty to provide any clothes, gifts or mobile, according to the wishes of the child. Pending I.As. if any, do not survive for consideration, hence, they are disposed of. Sd/- (K NATARAJAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE MCR List No.: 1 Sl No.: 25 CT: PS