The Karnataka High Court in its order dated January 4, 2024 refused to set aside a Trial Court order that allowed two days child custody to a separated father.
Wile dismissing the appeal filed by the mother against the two day custody of her child to her estranged husband, the High Court emphasised on the importance of a child to have love and affection of both its parents while they are alive.
Case:
Parties got married in May 2012 and were blessed with a baby girl seven years after marriage in April 2019. Owing to differences between the couple, the two have been living separately since couple of years now. In 2022, the wife initiated a divorce case against the husband which is still pending.
In the interim, the couple has also been involved in the child custody case of their 4.8 year-old daughter.
The mother is a medical doctor, while the father is a software engineer by profession.
Trial Court
The Family Court directed the appellant mother to handover the custody of the child to the respondent/father from 10am to 4pm on every Saturdays and Sundays, who shall handover the custody of the daughter back to the appellant’s custody before 5pm.
This order was challenged by the wife/mother in the High Court.
Submission by Wife/Mother
The appellant informed court that the child was extremely attached to her. She further suggested that handing over the daughter to her father for two days could result in the respondent running away or kidnapping the child.
According to the mother, the visitation order must be modified to one day in the week, that too under her supervision.
Defense by Husband/Father
The counsel for the respondent argued that parties to the appeal were natural guardians of the child, and the minor daughter could not be deprived of the love and affection of the father. The respondent further argued that he had a right to be with his child at least during day time as per Trial Court order.
Karnataka High Court
A division bench Justice Dr H.B.Prabhakara Sastry and Justice Ramachandra D Huddar reviewed the petition filed by the mother under Section 7(1)(a) and (b) and Section 17 of the Guardians and Wards Act before the Trial Court seeking relief of declaration and appointing her as the natural guardian and for granting permanent custody of the child having the complete, physical and legal custody.
While prima facie the High Court agreed that given the age of the child, the mother would be a better guardian, however, also added that in the dispute between the father and the mother, the child should not suffer. The Bench said:
The child of the age group of the baby like Ms X, which is of a very tender age, requires the love and affection, protection and company of both the parents, i.e. father and the mother. When the father and the mother, both are alive, depriving a child of its entitlement to have the love and affection of its parents i.e. both father and the mother would not be a justice that is being done to the child.
With respect to mother’s apprehension of father kidnapping his daughter, the High Court remarked:
Except a bare apprehension of the appellant that in case if the respondent (father) is given with the custody of the child during day time only at the weekends would result in he either kidnapping or running away with the child, is with no corroborative material and it is only an apprehension which probably the appellant has assumed by herself.
Adding further the High Court said:
Under the said circumstance, the apprehension of the appellant that the said custody would become a permanent custody or that the respondent (father) would run away with the child would find no basis to believe. No materials are placed to show that any such attempt was previously made by the respondent or the that the respondent has any such preparation or motive to commit any such alleged act against the child.
Dismissing the mother’s appeal, the High Court concluded:
We do not find any reason to modify the impugned order passed by the Trial Court, even to the extent of confining the said visitation right for one day, that too, under the supervision and vision of the mother.
Hence, we do not find any reason to interfere in the impugned order.
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READ ORDER | Can't Deny Love & Affection Of Father To The Child When Both Parents Are Alive: Karnataka High Court
— Voice For Men India (@voiceformenind) January 23, 2024
▪️Court granted 10am to 4pm (Sat & Sun) to father
▪️Mother challenged order stating father can be given 1 day custody under her supervisionhttps://t.co/UmpPBBjlq4
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