The petitioner is before this Court calling in question order dated 13-10-2022 passed by the II Additional Principal Judge, Family Court, Bengaluru in G & WC No.288 of 2018 whereby the concerned Court rejects Interlocutory Application No.XX and has further sought for a direction seeking custody of minor child in equal proportion between him and his wife.
3. Facts adumbrated are as follows:
The petitioner is the husband and respondent his wife. The two get married on 19-08-2005. From the wedlock a girl child is born on 04-01-2014. The child is now 9 years old. The relationship between the petitioner and the respondent/wife turns sour and the allegation is that the wife began to live separately along with the minor daughter. Owing to such dispute between the husband and the wife, the husband institutes proceedings before the Family Court in M.C.No.5570 of 2018 seeking judicial separation from the wife. The petitioner also files a petition invoking Section 12 of the Guardians and Wards Act, 1890 (‘the Act’ for short) before the II Additional Principal Judge, Family Court, Bengaluru in G & WC 288 of 2018 seeking an order for appointing him to be the guardian of minor child. The respondent/wife contested the matter by filing her objections in the aforesaid proceedings before the concerned Court in G & WC No.288 of 2018.
9. The afore-narrated facts are not in dispute. The relationship between the couple flounder. The petitioner and the respondent are before the concerned Court in two proceedings – one in M.C.No.5570 of 2018 and the other in G & WC No.288 of 2018. The first of the case filed by the husband was on 15-10-2018. The Family Court granted an ex-parte interim order in favour of the husband restraining the wife from interfering with the peaceful custody of the minor child by the husband reserving liberty in the wife to seek visitation rights. It is then the wife files application I.A.No.VI under Order 39 Rule 4 seeking vacation of the interim order dated 15-10-2018 and I.A.No.VII under Section 12 read with Section 25 of the Act seeking restoration of custody of the minor child to her. This was partly allowed by the concerned Court granting visitation rights to the wife on every alternative Saturday and Sunday with effect from 27-04-2019 and custody on every alternate Saturday and Sunday from 5.00 p.m. to 8.00 p.m.
13. The petitioner has himself appended several photographs to the petition seeking to demonstrate that the girl child/daughter has a good relation with the father to buttress his claim for custody of the child. Those photographs apparently are clicked by a stranger which the wife narrates in detail the manner in which the photographs are taken. It is a fact that there is nobody to take care of the child when the father is not around and the child is handed over to a male stranger by name Vijay who is also alleged to have been sleeping in the same bed while the father and the daughter would sleep only to take photographs. The mother narrates that on several occasions the child had expressed her anguish getting too anxious about a stranger continuously photographing and videographing the child. If these facts are noticed, it becomes unmistakably clear that the father has not created a congenial atmosphere to the girl child, who is now 9 years old, he cannot therefore be heard to contend that he has a right to claim custody of the child, despite the afore-noted glaring facts. The girl child, in her best interest, prefers to be with her mother and psychologically it is presumed that bond between the child and mother is the finest. In cases of this nature, where the parents are wrangling on their egos, wound is inflicted on the child. The Apex Court has cautioned such parents in the case of RAJESWARI CHANDRASEKAR GANESH. It would be apt to quote the paragraphs, which read as follows:-
“120. Before we close this matter, we would like to convey to the parties that their two minor children are watching them very closely. Showing the children that their parents can respect each other and resolve the conflict respectfully will give them a good foundation for the conflict that may, God forbid, arise in their own lives. The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between the adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children. They must not be burdened by any adult problem. Minor children do not have the coping skills or the intellectual ability to understand any issues like the financial constraints, adult relationship issues or their parents unhappiness.
121. We find the observations made by the Delhi High Court, in the case of K.G. v. State of Delhi, dated 16.11.2017 in Writ Petition (Criminal) No. 374/2017 and Criminal Miscellaneous Application No. 2007/2017, quite commendable, that the best welfare of the child, normally, would lie in living with both his/her parents in a happy, loving and caring environment, where the parents contribute to the upbringing of the child in all spheres of life, and the child receives emotional, social, physical and material support – to name a few. In a disturbed marriage, unfortunately, there is bound to be impairment of some of the inputs which are, ideally, essential for the best interest of the child.”
The Apex Court observes that the minor children are watching the parents closely. Showing the children that their parents can respect each other and resolve the conflict with respect will give such children, a good foundation. The parties – husband and wife should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between the adult problems and children and it is of utmost interest to protect the innocence of children and allow them to remain children.
14. Even in the case at hand, for the last five years the husband and the wife have been in constant squabble. The minor girl child has been watching parents right from her tender age of 4 years. The minor child does not have the coping skills or the intellectual ability to understand the issues between the adult relationship or the parents unhappiness. The parents have to contribute to the upbringing of the child on all emotions, be it social, physical, mental or material support inter alia. In a disturbed marriage, there is bound to be impairment. Therefore, in the best interest of the girl child, in the case at hand and owing to the facts as narrated hereinabove, I do not find any warrant to interfere with the order passed by the concerned Court in declining to grant custody and permitting grant of visitation rights only.
15. In the result, the petition lacking in merits stands dismissed.
Daksha Legal 