The Karnataka High Court in its order dated April 13, 2023 allowed a divorced man to retain visitation rights of his minor daughter, eventhough he has remarried.
This was a case where a family court granted visitation rights of the daughter to her father, however, the mother of the child had objected to it on the grounds that her ex-husband had remarried twice after being divorced from her.
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The appellant wife and the respondent husband got married in the year 2001. The couple was blessed with a son in 2002 and a daughter in 2007. However, soon the two had matrimonial disputes and the husband filed for divorce on grounds of desertion and cruelty by wife.
Additional Civil Judge, Mangalore by Judgment and Decree dated 23.11.2010 dissolved the marriage between the appellant and the respondent.
The son is in the custody of the respondent/husband.
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Submissions by Husband
The husband was seeking the custody of the second child (daughter aged 15) stating that he is capable of maintaining and taking care of her and that he has made arrangements to admit her to English medium School. The father further claimed that the daughter’s future is safe in his hands. On the aforesaid grounds, the respondent filed petition to appoint him as guardian and further seeking custody of the minor daughter.
Defense by Wife
The appellant/wife has filed statement of objections opposing the petition stating that her ex-husband has remarried and staying with another woman after dissolution of marriage with her. The second child being a daughter and the appellant being the natural guardian is entitled to retain the custody. The appellant denied other averments and allegations made in the petition and seeked dismissal of the petition filed for custody of the child. The ex-wife contended:
It is also submitted that the minor child is a school going child, does not have any time to meet the respondent and the visitation rights are conferred against her wishes.
It is stated that the Family Court has erred in appreciating the evidence on record as the respondent has married twice after obtaining the divorce and allowing the respondent to visit the child would be contrary to the best interest of the child.
If the child is allowed to meet the respondent it would affect the health and well being of the child, and therefore seeks to allow the appeal.
The Family Court based on the evidence adduced by the parties vide judgment dated September 2015 partly allowed the petition filed by the respondent. The wife subsequently filed the present appeal.
Karnataka High Court
A division bench of Justice Alok Aradhe and Justice Vijaykumar A Patil heard the parties and observed,
The assertion of the appellant is that the respondent has married twice after getting divorce from the appellant and his second wife has a child out of her earlier wedlock and son is in custody of the respondent, the grant of any visitation rights would affect the health, well being of the minor daughter.
The apprehension of the appellant has been taken care of by the Family Court, keeping in mind that the minor child being the female child of the appellant and respondent, the permanent custody is given to the appellant-mother.
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The High Court added,
The Family Court has recorded a finding that the respondent cannot be declared as a natural guardian of the female child, however the respondent being the father of the child, the child needs love, care and affection of the father, hence, proceeded to grant visitation rights as well as permitted the respondent to take the minor daughter to his residence during the vacations.
The bench further noted that the Family Court has specifically giving directions to the respondent about the safety of the minor daughter. The High Court said,
The Family Court while granting the visitation rights has kept in mind the welfare and wellbeing of the minor daughter, there is no error in the said finding calling for interference in the present appeal.
The High court, however, modified the order regarding period of visitation and directed that while taking custody of the daughter, the father should be accompanied with daughter’s elder brother. The Court also ordered that the respondent father shall transfer the expenses and educational fees of daughter to the account of the appellant wife.
The Karnataka High Court concluded:
The respondent is entitled to take interim custody of the child every alternate Sunday from 9.00 a.m to 5.00 p.m. The respondent has to pick up the child from the appellant’s house and drop the child back to the same place. While taking custody of the daughter he should be accompanied with the elder son.
The respondent shall transfer the expenses and educational fees of daughter to the account of the appellant. The appellant shall intimate the expenses and fees to the respondent. The visitation right shall be exercised by the respondent with prior intimation to the appellant and the appellant in turn shall intimate to the School Authorities about the visit of the respondent.
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READ ORDER | Child Needs Father's Love, Can't Deny Visitation Rights Even If He Has Remarried: Karnataka HC— Voice For Men India (@voiceformenind) May 18, 2023
▪️Mother, Ex-Wife: "Minor child is school going child, doesn't have any time to meet father & visitation rights are conferred against her wisheshttps://t.co/ubs2p7f4hL
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