Mother Prioritised Her Illicit Relationship Over Child's Welfare- Karnataka HC Grants Custody Of Minor Daughter To Father

The Karnataka High Court upheld the Family Court’s order to hand over the custody of her minor daughter to the father as the mother prioritised her illicit relationship over child's welfare.

The Bench of Justice Alok Aradhe and Justice S. Vishwajith Shetty observed that “The father is the natural guardian of the minor child and he has a equal right to claim custody of the child and if the child is more than 5 years of age, his right cannot be denied unless court is of the opinion that in the interest of the child's welfare and growth, the custody should continue with the present custodian.”

Senior Advocate R.V.S. Naik appeared for the appellant and Senior Advocate S. Srivatsa appeared for the respondent.

In the case, the appeal was preferred by the mother of the child against the order of the Family Court whereby the petition filed by the father- respondent under Section 25 of the Guardian and Wards Act, 1890, was allowed and the custody of the minor daughter was granted to the father.

It was alleged by the respondent, that the appellant quarrelled, abused and ill-treated him and his family members and that the appellant was in an illicit relationship with a colleague and used to stay overnight at her working place and continued her adulterous affair. And, when the illicit relationship came to light, the appellant left the matrimonial home along with the child.

The Court noted that the appellant not only behaved rudely with the respondent and her in-laws but also often left the child under the care of respondent and his parents while she spent most of her weekends with another man, in the guise of attending the hospital.

The Court also noted that the appellant in her petition had neither stated anything touching the character of the respondent nor had she proved that the respondent had no love and affection towards the child or that he had misbehaved badly with the child so as to raise a presumption against him. The respondent, on the other hand, had successfully proved that the relationship of the appellant with another man was beyond business meetings and that more priority was given to the said relationship.

The Court observed that if the issue regarding the relationship of the appellant with the colleague juxtaposition the welfare of the child was considered, it would appear that the appellant had given more importance to the illicit relationship of hers with another man and had neglected the child.

Therefore, the Court held that "We feel that the interest of the minor child will be best served if the custody of the child is handed over to the respondent, but with sufficient access to the appellant to visit the minor at frequent intervals."

Further, the Court expressed that though in normal circumstances, the wish/desire of the child would also play a prominent role while deciding the custody of the said child, but having regard to the material available on record and more so for the reason that the child was throughout kept away from the father and was being tutored by the appellant mother, no purpose would have been served by ascertaining from the child its desire or wish.

“Desire and wish of the child can be ascertained only if the child is mature enough to form an intelligent preference and judgment, otherwise, it is for the court to analyze the material and make a decision taking into consideration the paramount interest of the child.” said the Court.

Accordingly, the appeal was dismissed.

Cause Title- Dr. Ekta Singh v. Dr. Rajeev Giri

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