Karnataka High Court
Smt Bindappala Sunandamma, vs K S Revanasiddappa on 3 September, 2010
Equivalent citations: 2011 AIR CC 57 (KAR), 2010 (4) AIR KANT HCR 470, (2011) 1 HINDULR 379, (2012) 1 MARRILJ 798, (2011) 2 ICC 574, (2011) 1 KCCR 835
Bench: K.L.Manjunath, B.Manohar
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." Respondent
This Miscellaneous First Appeal is filed under Section 4(e) of G & WC Act, against the order dated:O3.03.2{}1O passedin G & wc No.10/2006 on the file of the II Additioi'ia:hlf"--«.VgCi,yil Judge(Sr.Dn) Davanagere, partly allowing the under Section 10 of the Guardian and Wards act,..fo_rj"tlecA§.aration".., This Miscellaneous First Appeal is'»i:4cor_hing on this day, K L MAXJUNATH J.,V.delivered the sodiivell-4,-.;h'g' : 1:'; The appellant who A before the 11 Additional Civil }udge_={S_.r.Ont);"'i:¥a:va'ng:'er.e..Vi.nVtzgetting the custody of the minor D/o Late Haiesh and Late filed challenging the legality and correctnessgéof by the Civil Eddge (Sr.li>n.), Davaiigera-gda.ted in (3 8L WC No.10/2006.
' ":"~h_e"vfyactysrlleading to this case are as hereunder:
The--.ap--_pei~l.a'nt is the mother of one late Halesh. Halesh """had:g»n1.arr_ied "to Smt. Usha. Out of their wedlock, the minor child was born. The son of the appeiiant viz., Halesh 'died-»vs--h 5.7.2001. After the death of l-ialesh, the minor child H, W3- was residing atongwith her mother Srrit. Usha in the house of her maternal grand--father Sri l<.S. Revanasiddappa, the respjondent in this appeai. The mother of the child Smt. Usha ion.' 1.7.2006. After the death of the mother, the be under the custody of the respondent.' the:'t.ilme_of"tilVii"1§i the petition, the chitd was StLlClyi_l'lg i4ri--.g::9§"'--'3_ Stagndajrd Parvathamrria Shamanur Shivash"atn:l<arappa'._V_C'en-trait' "syllabus School at MCC 'A' block, Dav~a_ngelr.e'._ l§'u..ring life time of Smt. Usha, she had instituted' partition and separate possessioh"o"f.c:h'er O.S. E\|o.1SS/2005 before theZifiiiiit"3u:1ge'::(VSr.'t3~n';'}, Davanvgere. The petition was filed claiming child on the ground that the appeliantbeingtt'he"paVterri*al 'grand-mother of the chiid is entitled :_toV'«--t_he of tVhe"---~m'i'nor child and that the appettant is res'tEdirigT_'ln. town and that the respondent is residing a'vii'ilage_.'v\i'lf_iirch is about 6 kilometers from the town
-i.t.t'_j:v.."!The.refore "the. appetlant contended that she being the class-I liegal heifl; she is entitted to claim the custody of the minor child.
. appellant further apprehends that there is a danger to the Q"
minor grand--daughter Kum. Anushri in the hands of the respondent.
3. The respondent has filed his objections.
him, when Halesh died on 5.7.2001, Ku,m..._Anus'hri"w:a;Vs V2 years old baby and after the deatlrfzof »yi'fei_i"~SVnit:. Usha and the granddaughter Anushri were the-L' appeliant and her family me.mbers____axn'd__ they idiid'-nyotflyliook after deceased Usha and the did not give the legitimate share4_of,_the Kum. Anushri and Usha-gfiffteriv Usha as well as the care and custody of the respondent of the education and the welfare oi-fitiiie "According to him, he is spending educational expenses every year in addit"ion7't_oA mo'_n»Vt'h'l.y'v'expenditure of Rs.2,000/-- on other heads. VV'v:--,VAc;:ordin"g- to--..':him:, he has also paid donation to the institution =a.dmitti'n.g the child every year and even during the life ti':%ne"oiV"'U'sha after the death of Halesh, Usha was taken care of iby:"t'i'1e respondent only. Usha filed a suit for partition and <3"
separate possession of the share of Halesh in OS. No.3i55/2805 since the appellant and others neglected to maintain her. That Usha on account of severe jaundice was admitted to Ramakrishna Nursing Home and thereafter she was adiriiitteid._ to Mahipai hospital as an in-patient for about 17 inon3ths"'a'ifi'id__f respondent being the rain-er spent more th3§'¥"'R~S:."8.UO 'lakhs "
towards the medical expenditure of hisda_ughteiqUisi"'a"an'r:l_Ashe died on 1.7.2086. Though the -.a_ppel'la._nt ElvTl(,i¥"1l"'lLA":":i".l.§VCV)HTl.é5 enjoying the entire joint family protpegrtygg l'la\/.iI"ig:¢'E3.i'i ifncome of more than Rs.S.OO lakhs p'e.r_":ann-i_VJi':"a;V,i,t"d~-i.cia_n'ot_ give any money towards me'd'i'"c'ali..ViiiexpeVn'ditu.re o1'._""L}sha and towards the lTiE3iE'itel1aflCE§x'_0l""4.KLJRW."..»'f5'wlfibt1'S.|fltl"i.l!,= Therefore the ressporédent requested the Co"urt_"toVd--isn:_isVs"the petition. "%hei--.iiea'r'ned triattlwjéudge formulated the following points fo r ' his téiogiji;
it petitioner is entitled for the relief SOUQht for ?
at order .7 <6;/V JlA()flLA S. In order to prove the respective contentlons,__ the appellant got herself examined as PW.1. She re'l[ited.:"_:'Lig:pon Ex.P1 to P9. In addition to that, two witnesses were as PWs~2 and 3. On behalf of the revsipondentj, it got himself examined as RW--1. He relied two more witnesses were examiVne_d"'~.as RW.-__2'a_rid: The"
trial Court after hearing the partiesl-a*n:s'wered point-§\lo..~i partly in the affirmative and the rlellief' mandatory injunction in respe.ct.Lof._guardiar'r:sl*ri:p-giijdlvl'cti.st'o'dy of child was rejected except order is called in question in t"n:'sap:p;e'a:l':.*§:.: _
6. We have counsel for the appellant.
The main conxtentiolnvAoli'..'A'th4é"'----:élibellant before us}is that the apgpellangtfiis' resiclm-g,.g_V_lVn"'Davangere and she can look after the :h*i':..nor better than the responcientlas the 1' respond-ent is:'l'ix.4_lrlgjl~l'i a village which is about 6 kilometers away 'r.;--g'llr7rom Dal;-..,ang_'ere._4""" It is also his case that the child is suffering HI,\/f and that she needs constant treatment. Therefore he con__te':ld's'*i"that the evidence of the appellant has not been £1.
_3_ appellant. The distance between the house of the respondent arid Davangere town is hardly six kilometers. Davangereiatown is developing town and six kilometers cannot be village, at best can be considered as outskirts__o'fi...Dayvagngercau towri. In addition to that the docu;rhen:ts«rV appeiiant alongwith Order--41 Ruler27 ap'pglicationgd-i.s.c§vos'es°}sihce'=up 1999 the child is suffering from l~*EI\'/".'g:.F'rt»orri 19'9.9fth:e respoiident has taken care of the treatrhent tolhlthet'~njiirro'r_cliild in addition to admitting the chitd to a very go_od'f'_scho--o.l:V"inf_'Qavangere. In addition to that, tlje"e;vifdentf_e dis'clo'se.s'that_..durmg the life time of Usha, thellappelflanth/d'id:"not shovvvahy inclination either to maintain Usha,'«.the-:da§2g_hte:r>inslaw of the appellant or the grand«child_._ lléthas.alsol'z:onie in the evidence that during the lite'ti.me7:o'f'U_sha,. she tile"d"'aV suit for partition claiming the share of their"hus':3a'r'*i.«;l'iari'd_Vt'he said suit is pending. Now this Court can ''"»._..only int'e_rwtha_t'tot-__oivercome the share to be giver: to the child,
-..l."_jt..h.4e'present"petition is filed seeking custody. According to us, we "n'ot._>s'e'ga any merits in this appeal as the chiid has been H with the maternal grandfather from the age of 2 V:
and now she is aged about 12 years and that too when she <*/ -9- has reached the age of attaining puberty, at this jun(_:_t__ure it wouid be safe for the child to be with her maternai granti"ga--«r:e'€3Ats who have showered ail iove and affection ail these very fact that the appeiiant is aged about. 70 yeiargnii widow and she herself is depending typo-.n *hVei'l'ot'he'r ciaughterwinwiaw would only give ai._;'jresurri'ption that"t_h'e~.p:'esent-L' petition is filed to avoid thefshare to..e§'e._g'é'x4en to'"the ifniinor chéici.
In the circumstances, this abpeal is _
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