Karnataka High Court
Prakash vs Smt. Akkamahadevi on 17 July, 2000
Equivalent citations: I(2001)DMC638, ILR2001KAR448, 2001(4)KARLJ239
Author: B.K. Sangalad
Bench: B.K. Sangalad
JUDGMENT B.K. Sangalad, J.
1. This revision petition is directed against the impugned order dated 3-2-2000 passed on LA. No. I in M.C. No. 58 of 1999.
2. The petitioner is the husband. The respondent is the wife who has tiled M.C. No. 58 of 1999 for the judicial separation and the custody of the child. Out of the wedlock, there are two children. Of the two, the first one is the daughter and the second one is the son. The respondent is in possession of the daughter. The son is in possession of the petitioner. Now there is a battle for possession of this child. The respondent is bent upon taking the custody of the child from her husband who is opposing tooth and nail. The interim application has been allowed by the lower Court with a direction to the petitioner to hand over the child. Being aggrieved by this, the present revision petition arises.
3. Mr. Hebballi, learned Counsel for the petitioner submitted that final prayer sought for in the case is almost equivalent to the interim prayer now granted. According to him, the Court ought not to have passed any order adverse to the interest of the petitioner.
4. On the other hand, Mr. K.S. Dixit, learned Counsel vehemently opposed relying upon Section 26 of the Hindu Marriage Act and also relied upon the decision in case of C.S. Reddy v Smt. Yamuna Reddy .
5. As against this, Mr. Hebballi relied upon the decision in case of S.R. Sanna Shetty v Shanthamma, and also relied upon another decision in case of Munnodiyil Peravakutty v Kuniyedath Chalil Velayud-han. In the case of S.R. Sanna Shetty, supra, it is held as follows:
"It is well-settled principle that interim relief as far as possible, should not be granted if such interim relief is the main relief asked for in a legal proceeding. There may be exceptions. But this does not appear to fall within the exceptional cases".
As against this, Mr. K.S. Dixit relied heavily upon Section 26. According to him, there cannot be any finality as far as the interim custody is concerned. Periodically, it may be changed for so many reasons and circumstances.
6. Be that as it may be. The paramount consideration that has to be taken in such cases is the welfare of the child and who is the best person? It goes without saying, normally when the child is of tender age, it is the mother who can take the care and give motherly affection. This cannot be universally applied. There may be some exceptions wherein, the father can take care of the child in a much better way than the mother. In the case on hand, already matrimonial case is filed for judicial separation. It goes to show that the relationship between the husband and wife are strained. She is now with her parents and brothers. In the absence of any income of her own, naturally she is left to the mercy of the brothers, although, the father might care more than the brothers, the father naturally will have a soft corner for his daughter who is placed under such circumstances. It is not necessary to go into detail in that aspect also.
7. As the facts stand, the wife is the custodian of the daughter. Husband is the custodian of the son. In view of the decision, for the present, I am inclined to accept the observations made in the case of S.R. Sanna Shetty, supra. The facts of this case are almost tailor made to the facts of the present case. It is also made clear in this decision that the interim custody of the child cannot be ordinarily decided only on the strength of the affidavits. The evidence has to be led in. On the basis of the evidence, the Court has to come to the conclusion that as to who is the best person to take care of the interest of the minor child. Already each one has got the custody of a child. In view of these facts and circumstances of the case and in the interest of justice, I pass the following order:
In the result, the impugned order is set aside. The lower Court is directed to dispose of M.C. No. 58 of 1999 as expeditiously as possible without giving unnecessary adjournments within six months. The petition stands disposed of accordingly.