The Karnataka High Court recently set aside orders of a Family Court, effectively granting custody of a minor child to her father..While doing so, Justice B Veerappa held that courts are not strictly bound to follow statutes or rules of procedure while granting custody of a child, as it is a “human problem”..“It is a human problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child.”.The Court was adjudicating a petition filed by the father of 10-year-old Prisha, who was directed to be placed under the custody of her mother by the Family Court..Prisha’s parents had married in 2006 and had moved to Vancouver, Canada thereafter. Since the child was born in Canada, she automatically became a Canadian citizen, and also held a Person of Indian Origin (PIO) card. The petitioner father had returned to India upon completion of his project in Canada..The parents had grown estranged, with the petitioner father contending that his wife was not interested in living amicably, or returning to India. Things even took a violent turn, with the father having to go to a psychologist, who reported the incident to the Government Child Services Agency and had advised him to leave the house with the child if such behaviour persists..The respondent mother then initiated divorce proceedings against her husband, and also sought for a share in the property owned by the petitioner in India, along with financial support and permanent custody of the child..After an application for restitution of conjugal rights was declined, the petitioner father filed a petition for divorce, which was decreed in 2014. Then, in 2018, he filed a petition under Section 7 of the Family Courts Act, read with Section 17 of the Guardianship and Wards Act, seeking custody of his daughter. While the main petition was pending, he also sought interim custody of the child..However, the Family Court rejected the application and directed the petitioner father to return the child to her mother forthwith. Thereafter, the father approached the Karnataka High Court in appeal..While deciding the case, the Court noted that while granting custody to the father or the mother, the child’s welfare must be the paramount consideration..“In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings and the Court should also take the wishes of the minor child into consideration.”.It also made note of the child’s wishes, that was recorded by the Family Court. The child had expressed her intention to stay in India with her father..“…the Family Court ought to have given due consideration for the same in view of the dictums of this Court and the Supreme Court time and again that the wishes of the child is of paramount importance. But the Family court erred in holding that much importance need not be given to the wishes of the minor child.”.The High Court also made it a point to interact with the child in chambers, at which point it was found that she prefers to stay with her father and wanted to continue her studies in India..The respondent mother had contended that the father had not taken care of the child in more than nine years, and had since re-married. It was also contended that the father filed for custody only after finding out that he could not get a child from his second marriage..However, the High Court saw it fit not to go into these allegations at present, stating that these matters can be adjudicated only after a full-fledged trial. It further noted,.“When the Court told the child that her father has already married with some other lady, she quickly answered that 2nd mum is very good and close to her and she is taking care of her better than the mother.”.Therefore, the Court set aside the orders passed by the Family Court, and granted interim custody of the child to her father, pending the adjudication of the main dispute by the Family Court, which is expected to dispose of the matter within four months. While doing so, Justice Veerappa also observed that the mother is entitled to visitation rights during the pendency of the proceedings. In conclusion, it was held,.“This Court hopes and trusts that both the petitioner – father and respondent – mother being highly educated, cultured with all modern outlook and well off, would maintain cordial relations and conduct themselves decently, courteously and extend full cooperation for the well being of minor female child.”.Senior Advocate Udaya Holla appeared for the petitioner father, while Senior Advocate S Sreevatsa appeared for the respondent mother..Read the judgment:
The Karnataka High Court recently set aside orders of a Family Court, effectively granting custody of a minor child to her father..While doing so, Justice B Veerappa held that courts are not strictly bound to follow statutes or rules of procedure while granting custody of a child, as it is a “human problem”..“It is a human problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child.”.The Court was adjudicating a petition filed by the father of 10-year-old Prisha, who was directed to be placed under the custody of her mother by the Family Court..Prisha’s parents had married in 2006 and had moved to Vancouver, Canada thereafter. Since the child was born in Canada, she automatically became a Canadian citizen, and also held a Person of Indian Origin (PIO) card. The petitioner father had returned to India upon completion of his project in Canada..The parents had grown estranged, with the petitioner father contending that his wife was not interested in living amicably, or returning to India. Things even took a violent turn, with the father having to go to a psychologist, who reported the incident to the Government Child Services Agency and had advised him to leave the house with the child if such behaviour persists..The respondent mother then initiated divorce proceedings against her husband, and also sought for a share in the property owned by the petitioner in India, along with financial support and permanent custody of the child..After an application for restitution of conjugal rights was declined, the petitioner father filed a petition for divorce, which was decreed in 2014. Then, in 2018, he filed a petition under Section 7 of the Family Courts Act, read with Section 17 of the Guardianship and Wards Act, seeking custody of his daughter. While the main petition was pending, he also sought interim custody of the child..However, the Family Court rejected the application and directed the petitioner father to return the child to her mother forthwith. Thereafter, the father approached the Karnataka High Court in appeal..While deciding the case, the Court noted that while granting custody to the father or the mother, the child’s welfare must be the paramount consideration..“In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings and the Court should also take the wishes of the minor child into consideration.”.It also made note of the child’s wishes, that was recorded by the Family Court. The child had expressed her intention to stay in India with her father..“…the Family Court ought to have given due consideration for the same in view of the dictums of this Court and the Supreme Court time and again that the wishes of the child is of paramount importance. But the Family court erred in holding that much importance need not be given to the wishes of the minor child.”.The High Court also made it a point to interact with the child in chambers, at which point it was found that she prefers to stay with her father and wanted to continue her studies in India..The respondent mother had contended that the father had not taken care of the child in more than nine years, and had since re-married. It was also contended that the father filed for custody only after finding out that he could not get a child from his second marriage..However, the High Court saw it fit not to go into these allegations at present, stating that these matters can be adjudicated only after a full-fledged trial. It further noted,.“When the Court told the child that her father has already married with some other lady, she quickly answered that 2nd mum is very good and close to her and she is taking care of her better than the mother.”.Therefore, the Court set aside the orders passed by the Family Court, and granted interim custody of the child to her father, pending the adjudication of the main dispute by the Family Court, which is expected to dispose of the matter within four months. While doing so, Justice Veerappa also observed that the mother is entitled to visitation rights during the pendency of the proceedings. In conclusion, it was held,.“This Court hopes and trusts that both the petitioner – father and respondent – mother being highly educated, cultured with all modern outlook and well off, would maintain cordial relations and conduct themselves decently, courteously and extend full cooperation for the well being of minor female child.”.Senior Advocate Udaya Holla appeared for the petitioner father, while Senior Advocate S Sreevatsa appeared for the respondent mother..Read the judgment:
