Karnataka High Court
K. Chennakeshava vs Smt. Lakshmamma on 31 March, 2000
Equivalent citations: 2001(4)KARLJ287
ORDER
1. Heard.
2. This Civil Revision Petition is preferred against the order passed under the Guardians and Wards Act, in G and W.C. No. 73 of 1999 on the file of the II Additional Principal Judge, Family Court, Bangalore, under which the grandmother has been appointed as a guardian for the minor child. The mother-in-law approached the Court under Section 8 of the Guardians and Wards Act for appointing herself as guardian of the minor on the ground that after the marriage on 16-6-1997, the petitioner splited his wife the daughter of the respondent herein to humiliation and harassment and it is claimed that the petitioner poured kerosene on her and set fire and it was cold blooded murder. The case was registered under Sections 498-A and 304-B of the Indian Penal Code and SC No. 301 of 1999 and the investigation is pending. Consequently, an application was filed by way of interim measure for custody of the minor on the ground that the husband has killed the mother of the child.
3. Resistance from the husband was that the grandmother is not the proper person to take custody of the child and the mother-in-law is living in a house along with her children in a single room for tenement whereas, the husband is living in a big house.
4. Considering the rival contentions and relying upon the decision given in Bimla Devi v Subhas Chandra Yadav 'Nirala', the Trial Court appointed the mother-in-law as the guardian. Assailing such an order, this revision is filed by the husband contending that the allegation against him of the alleged murder is yet to be proved. The FIR has indicated that the deceased committed suicide. During the period of detention, the mother-in-law took illegal custody of the child and the petitioner himself has filed an application. No charge-sheet has been filed under Section 302 of the Indian Penal Code but only one under Sections 304-B and 498-A of the Indian Penal Code. As against the accommodation, the petitioner-husband is living in 500 Sq. ft. and the mother-in-law is living in 100 tenement, it is not condusive to the welfare of the child. There are other minor sons who are sent for employment by the respondent. Therefore, the husband has not believed the contention that the child's welfare will be properly looked after by the respondent-mother-in-law.
5. It is contended by the respondent relying upon the dictum in T.V. Satyanarayana v Subba Aruna Meenakshi, that the revision under 438438 is not maintainable in view of Section 4 of the Family Court Act, 1984. This is what has been held by the Division Bench:
"As can be seen from Section 19, an appeal lies to the High Court against every judgment or order made by the Family Court pro vided it is not an interlocutory order. Sub-section (4) further pro vides that no appeal or revision shall lie to any Court from any judgment or order or decree of a Family Court. If sub-section (4) had not been there, a revision petition under Section 115 would have been maintainable. But in view of sub-section (4) even a revision petition cannot be entertained by this Court against an interlocutory order made by the Family Court".
6. In matters of this nature, we are concerned with the interest of the minors. Though the case is still not over, the husband is charge-sheeted and is facing criminal trial for the allegation of having murdered his wife. In these circumstances, at least till the criminal trial is over, it is not proper to leave the custody of the minor in the hands of the husband. In fact, the dictum in Bimla Devi's case, supra, is to the following effect:
"The normal rule that father is the natural guardian cannot be followed when there was allegation of murder of his wife against him. Under such circumstances, appointment of the grandmother as guardian of the minor girl is proper and it is for the welfare of the minor".
7. The Trial Court has taken into consideration the interest of the minor and in the peculiar circumstances held that the mother-in-law is the proper person to be in custody of the minor child.
8. On the question of maintainability of the revision, this order though interim in nature, practically decides the main issue. So leaving the question open, on facts I hold that there is no merit in the civil revision petition. Consequently, the civil revision petition is dismissed.