Karnataka High Court
M S Narayanswamy vs Gangadhara Raju on 14 June, 2012
Bench: N.K.Patil, S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF JUNE 2012
PRESENT
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
M.F.A.NO.6527/2009(G & WC)
BETWEEN:
M.S.Narayanswamy,
S/o Shri M.N.Sampangiramaiah Shetty,
Aged about 69 years,
Residing at No.688-A, BEL Layout,
Bharat Nagar, Magadi Main Road,
Bangalore - 560 091. ...Appellant.
(By Sri Srinivasa Raghavan.V, for
M/S.Indus Law, Advs.)
AND:
Gangadhara Raju,
S/o Shri N.Narayan,
Aged about 34-35 years,
Residing at No.9/10, 4th Cross,
Raghavendra Layout,
Hosakerehalli,
Banashankari III Stage,
Bangalore - 560 085. ...Respondent.
(By Sri.G.Jairaj for
M/s.G.Jairaj & Assts. Advs.)
This appeal is filed under Section 19(1) of the Family
Courts Act, 1984 read with Section 47(C) of the Guardians
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and Wards Act, 1890, against the Judgment dated
28.08.2009 passed in G & W.C No.81/2005 on the file of the
III Additional Principal Judge, Family Court, Bangalore
allowing the petition filed under Section 25 of the Guardians
and Wards Act.
This appeal coming on for hearing this day,
S.N.Satyanarayana J., delivered the following:
JUDGMENT
The respondent in G & W C.No.81/2005 on the file of III Additional Principal Judge, Family Court, Bangalore, has come up in this appeal challenging the judgment and decree dated 28.8.2009 passed therein.
2. Brief facts leading to this first appeal are as under:
The appellant herein is respondent and respondent is petitioner in G & W C.No.81/2005 filed under Section 25 of the Guardian and Wards Act seeking custody of minor ward Master G.Ashrit. The admitted relationship between the parties to this proceedings and minor ward is, appellant herein is maternal grand father and respondent herein is father. Respondent, Gangadhara and daughter of appellant, namely Smt.N.Geetha were married on 30.11.1998. In the -3- wedlock, a male child was born to them on 17.6.2000.
Thereafter appellants daughter Geetha died on 7.2.2005 under tragic circumstance i.e., by committing suicide by hanging.
3. The said tragic incident is the genesis for this litigation. The appellant herein apprehended that death of his daughter could be murder by her husband i.e., respondent herein. In that behalf, a police complaint was lodged against the respondent and his parents, they were arrested and remanded to prison for nearly 42 days. Thereafter, respondent and his parents were enlarged on bail. Subsequent to respondent's release from jail, the litigation for custody of minor ward commenced.
4. The facts as stated by both parties to this proceedings is as under;
According to appellant, right from the day his daughter Geetha married to respondent, relationship between respondent and his wife was not cordial. In the midst of that -4- his daughter conceived and delivered a male child on 17.6.2000. Since the date of birth the minor ward was in the custody of himself, his wife and his daughter, the mother of the child. Respondent who is a Senior Executive in BSNL was not taking care of his wife and minor son properly. Immediately after the birth of the child respondent went to Kuwait on deputation, he was there from 24.5.2001 to till August 2004. During that period except for about 2 and ½ months when his daughter Geetha and her child, visited respondent in Kuwait, they were under the care and custody of appellant and his wife. Immediately after respondent came back from Kuwait, he started living with his wife and son for a short period i.e., from August 2004 to till 7.2.2005 i.e., the day when appellant's daughter died. Even during the said period though respondent was in India, the care and custody of the child was with appellant, his wife and deceased Geetha. After the death of his daughter Geetha there was nobody to take care of minor child, hence the said child which was under their care and custody continued with them. Therefore, it is stated that the custody -5- of minor ward should continue with him and his wife till minor ward attains majority.
5. Per contra, respondent would submit that from the date of his marriage with Geetha his relationship with her was cordial. At the time of marriage his wife was studying in B.Com., after marriage he did not interrupt her studies. On the contrary he helped his wife to pursue her studies to complete her graduation within one year from their marriage. Thereafter, he also assisted her in getting specialisation in computer applications by encouraging her to take certificate course in computer application. That his relationship with his wife was extremely good and cordial and to the envy of appellant and other members of his family. According to him, in the family of appellant most of them are not properly educated, they are undergraduates. His wife is the first graduate in appellant's family, that she could achieve only with the help of her husband. Therefore, the allegation i.e., his relationship with his wife was not good is incorrect. He further tried to strengthen this by stating that he not only -6- got his wife educated but also saw to that she would properly make use of her qualification in giving tuition to the students and in the process she could learn further.
6. According to him, at no point of time appellant and his family members were involved in looking after his minor son. It is his specific case that right from the date of birth of his son he was in the care and custody of himself, his wife, deceased Geetha and his parents who were alive at that time and they were residing in the house in which presently the appellant and his wife are residing along with the minor ward. According to him, after the birth of his son on 17.6.2000 for nearly 11 months i.e., up to 24.5.2001 he was staying with his wife and minor ward in rented house. In the meanwhile, he got a new house constructed (in which appellant is presently residing along with his son), the house warming ceremony was celebrated on 13.5.2001. Thereafter he went to Kuwait on 24.5.2001. Even when he was in Kuwait from 24.5.2001 till August 2004 he was taking care -7- of his wife and minor ward by regularly sending funds that is required for their maintenance.
7. During the period when he was in Kuwait he got his wife and minor son to Kuwait to visit him. Since there was threat of war, he sent them back earlier than expected. Though he was deputed to work at Kuwait, he visited Bangalore at regular intervals and attended the second and third birthdays of his son at Bangalore. He never neglected either his wife or the interest of his minor son at any point of time during the period when he was in Kuwait or at any point after coming back to India. After he came back from Kuwait he lived in the same house which was constructed by him in 2001 along with his wife and minor son till 7.2.2005 i.e., the day when his wife committed suicide.
8. Immediately after the death of his wife, he was taken in to custody by the police at the instance of appellant herein i.e., his father-in-law. Thereafter, he was arrested and sent to jail for a period of nearly 42 days, along with him his -8- parents were also arrested and sent to jail. When that being the case, the only person who was at the house was his minor son and it is at that time under the pretext of taking care of minor ward appellant herein and his wife who were not in picture at any point of time with reference to said property or with reference to management of his family or taking care of his wife and daughter, took over the custody of minor ward and as well his house.
9. After he got released from jail on his application for bail, he tried to go near his house, but he was prevented by filing a suit in OS.No.911/2005 which came to be filed on 15.4.2005. The said suit is by the appellant herein, seeking declaration that he is the owner of said property and also for an order of permanent injunction restraining him from entering in to said house. In view of said litigation, he was not able to go near the house and to take its possession. He was also not able to reach his minor son, he was totally shut-out of his property and his son and was virtually on the street. Hence, he initiated proceedings for taking custody of -9- his minor son from respondent herein by filing petition under Section 25 of Guardian and Wards Act which was numbered as G&WC.No.81/2005 on the file of III Additional Principal Judge, Family Court, Bangalore. Subsequent to filing of G&WC.No.81/2005 respondent herein thought it fit to seek custody of minor ward by filing a habeas corpus petition in WP(HC).No.56/2006. In the said petition a temporary arrangement was made continuing the custody of minor ward with his maternal grand-father i.e., the appellant herein granting visitation right to respondent herein for the reason that criminal case launched by prosecution was pending consideration. With the said observation this Court permitted respondent to continue the petition in G&WC.No.81/2005 and pursue his remedy for custody of minor ward in the said proceedings. Accordingly, proceedings in G&WC.81/2005 continued.
10. In the said proceedings the appellant herein who is respondent, filed objections in the same lines as stated earlier and sought for exclusive custody of minor ward, for
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the reason that the petitioner in said proceedings is accused of murdering his wife. It was also contended that the minor ward being in care and custody of his maternal grand- parents is admitted to school, they are showering all the love and affection required for his growth in his formative tender age which the father of the child could not have given in the facts and circumstances of the case with the allegation of murder against him.
11. In the said proceedings the following points were framed for consideration:
1. Whether the petitioner has made out sufficient grounds to appoint him as the legal custodian of the minor ward Ashrith till he attains majority?
2. Whether the petitioner is entitled for custody of the minor ward Ashrith?
3. What order?
As could be seen from records, in the said proceedings, respondent herein who is petitioner examined himself as PW.1 and also examined another witness, namely, Jagadish
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S.T. as PW.2, who was a former tenant of the shop premises which is a portion of the property in which respondent was residing along with his wife immediately prior to her death. He produced in all 54 documents and marked them as Exs.P1 to P54. So far as appellant herein who is respondent in said proceedings examined himself as RW.1 and examined his another daughter as R2 who is immediate neighbour of the house in which Smt.Geetha died, in support of his defence, he produced in all 42 documents and marked them as Exs.R1 to R42. It is needless to say that many of the documents produced and marked by both sides are common documents. They are with reference to marriage, birth of minor ward and his education and also documents related to criminal prosecution launched against respondent herein in SC.No.284/2005 and other consequential litigation which have arisen between the parties in that behalf.
12. In the meanwhile, it is seen that criminal prosecution against respondent herein launched in SC.No.284/2005 came to be dismissed on merits holding that respondent herein is not guilty of the offence alleged
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against him by prosecution. Against which an appeal was also filed by prosecution in Criminal Appeal No.1449/2006, which also came to be dismissed confirming the judgment of acquittal granted in favour of respondent herein. With this the accusation so far as respondent herein is guilty of committing murder of his wife is put to rest in giving a clean chit to respondent on merits, the said acquittal not being on the ground of benefit of doubt was also considered by family court in deciding the case on merits in G&WC.No.81/2005.
13. The family court on appreciation of pleadings, oral and documentary evidence proceeded to answer the said points in the affirmative i.e., in favour of father of minor ward. Consequently, allowed the petition appointing him as guardian of minor ward, Master G.Ahsrith till he attains majority. There was also a direction to respondent in the said proceedings to hand over the custody of minor ward to its father within 15 days from the date of said judgment. While doing so, family court also reserved visitation right to grand father permitting him to visit the minor ward once in a month. He was permitted to take the minor ward at 5.30
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pm., from the house of respondent herein on any Saturday evening and to return him to his father on next day i.e., Sunday at 5.30 pm. In effect, every month appellant herein was permitted to have visitation right of minor ward for 24 hours from the evening of Saturday to the evening of Sunday once in a month. It was also made clear that if the minor ward wants to visit his grand parents on any festival day, the father of the ward to take him to the house of his grand father or in the alternative with prior permission grand father was permitted to take the minor ward on any festival day and to return him to his father the next day. Further said visitation right was not restricted only to grand father but also was extended to his grand mother and whenever they wish to visit the minor ward father was directed to permit them to do so. While fixing visitation right a condition was also put on grand father that he should not take the minor ward outside the jurisdiction of the family court when it is in his custody on visitation right.
14. The grand father being aggrieved by the said order in appointing the father of minor ward as his guardian and
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also with the limited visitation right given to him has come up in this appeal contending that impugned judgment and decree passed by family court is contrary to the facts and provisions of law and also the ratio laid down by Apex Court and various other Courts in catena of cases under similar circumstances. The guardianship of minor ward should have been given to him and his wife and not to respondent. Further ground that is urged is that there is an error on the part of family Court in not appreciating the evidence properly, inasmuch as, right from the day the child was born till the date of judgment pronounced in G& WC.81/2005, the custody of minor child continued with appellant and his wife, at no point of time he was in the custody of respondent. When that being the case, at this stage if the custody of child is removed from appellant and his family members and given to respondent, it will have an adverse effect on the growth of the child psychologically and as well as on his well being, which may affect his growth and also education. Therefore, keeping the paramount interest of minor child in mind, family court ought to have continued his custody with
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appellant and his wife. The same ought not to have given to respondent who is accused of murdering his wife. It is also contended that, though criminal appeal filed by prosecution challenging the judgment passed in SC.No.284/2005 is dismissed, question of granting custody of minor ward to respondent is opposed to principles and ratio laid down by this Court and also Apex Court in similar circumstances.
15. In this appeal when it was taken up for final disposal after hearing the counsel for both parties at length, this Court suggested, since interest of both appellant and respondent is to see that minor child should grow in an atmosphere which is conducive for his over all growth and that the litigation should not come in the way of minor ward having continuity of care of both father and grand parents. Therefore, suggested to the parties to explore the possibility of settlement. In that behalf, both the parties were summoned to chambers including the minor ward by the presiding member of this bench, who had interaction with each of the parties including the minor ward. Thereafter,
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parties were also called upon to file draft joint memo to see if parties could come to an amicable settlement so far as custody and welfare of minor ward.
16. Though both parties submitted draft memos, the fact that whether minor ward should continue his education in the same school and during the said period whether he should stay with appellant or respondent, whether he should be in the regular school or in a residential school and what should be visitation right for each of them was again bone of contention between the parties, wherein they could not come to a consensual arrangement. At that time counsel for the appellant brought to the notice of this Court that in the light of ratio laid down by Apex Court in series of decisions pertaining to minor ward the Apex Court has always felt that what is to be decided is not whether father is fit or unfit to claim custody of minor ward but what is to be looked in to is paramount interest of minor ward. In support of that he relied upon the following decisions:
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1. Nil Ratan Kundu vs. Abhijit Kundu, reported in (2008) 9 SC 413
2. Kiritkumar Maheshshankar Joshi v. Pradeepkumar Karnashankar Joshi, reported in (1992) 3 SCC 573.
3. Anjali Kapoor v. Rajiv Baijal, reported in 2009 (6) SCALE 597
4. In re:Mutthuswami Moopanar, reported in AIR 1935 Mad 195
5. V.V.Narsaiah v. C P Raju, reported in AIR 1971 AP 134
6. Mangu Ram v. Puran Mal, reported in 1997(3) WLC 597.
7. Maria Pushpa Janet Rajan v. G Anantha Jayakumar, reported in (2003) 3 MLJ 305
8. Ashok Kumar Pal v. Sawan Pal, reported in (2008) 3 CALLT 437 (HC)
9. Suresh v. State of Rajasthan, reported in I (2000) DMC 201
17. The learned counsel further submitted that continuity of relationship of minor ward with reference to persons in whose custody he has lived for all these years and also circumstances and surroundings in which he is brought up should as far as possible continue in the interest of minor
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ward and in respect of that he relied upon the judgment in the matter of Athar Hussain v. Syed Siraj Ahmed & Ors., reported in AIR 2010 Supreme Court 1417 and suggested that in the light of the arguments which were already submitted by them on merits keeping in mind the draft joint memo and in the light of decisions relied upon by him the custody of minor ward should be continued with appellant with visitation right to respondent herein.
18. Per contra, counsel for respondent also relied upon the same set of judgments on which appellant relied upon tried to distinguish each one of them saying that the same would not apply to the facts and circumstances of the case and pleaded for confirming the judgment and decree passed by family Court in declaring respondent herein as guardian of minor ward. He also fairly submitted that he has no objection for visitation right to be modified. Further he stressed upon the finding of family court regarding who was in the care and custody of minor ward from the time of his birth and also the period from which appellant came in to
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picture in taking custody of minor ward, which is at page Nos.51 and 78 of the impugned judgment, which read as under:
Page No.51
The petitioner believing the words of the respondent and thinking that his son will be in care and custody of the respondent who are grand parents and as he was also acquainted with them, agreed to send the child with the respondent. It is further contended by him, that since there was no primafacie evidence against the petitioner and also there was no incriminating materials against him the petitioner was enlarged on bail. Thereafter the petitioner requested the respondent to handover the custody of his son to him the respondent refused to send back his son. It is further contended by him that the respondent does not have any interest on the child. He is having eye on the property purchased by him in the name of his wife late Geetha -The respondent wanted to grab the property at any cost and for that purpose he has filed a declaration suit wherein he has prayed the court to declare him as the owner of the property.Page No.78
18. It is admitted by the respondent in his cross examination that the petitioner was not provided with any quarters at Kuwait to keep his family. He admits that the petitioner was deputed to Kuwait and he served there. He does not know if an employee deputed to Kuwait have been provided with temporary accommodation for their families whenever
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they visit. It is the contention of the petitioner that accommodation was not available to him at Kuwait and therefore, he could not take his family in this regard, a suggestion was put to the respondent, but the respondent is not able to dis own the same. On the other hand, he says that he does not know such quarters are available in Kuwait. It is also admitted by him that in the year 2002, war was in progress at Kuwait. According to the respondent, the petitioner had not looked after his wife and child when they had gone to Kuwait to accept the said contention, the respondent has not placed any evidence as such nor nothing was elicited in the cross examination of PW-1 to accept the same in this regard.
19. He also submitted that, but for the fact respondent/father and his parents were arrested on 7.2.2005 and sent to jail they would not have lost custody of minor ward which was with respondent/father from the date of his birth till date of death of his wife on 7.2.2005 and the very fact that his wife Geetha died in a tragic situation in committing suicide, he was made to undergo criminal proceedings, which resulted in he loosing custody of minor ward and also house which belonged to him which was in the name of his deceased wife, which according to him, now
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belongs to his son after the death of his wife. Therefore, he submitted that judgment impugned should be confirmed.
20. On going through the grounds of appeal in the light of finding of court below in the judgment impugned dated 28.8.2009 passed in G&WC.No.81/2005 and also decisions relied upon by counsel for appellant and respondent, it is seen that the finding of family court so far as points for consideration is unassailable, inasmuch as, the finding that respondent herein who is natural father of minor ward and that he was having custody of minor ward right from the date of his birth till date of death of his wife on 7.2.2005. The fact that he has shown all diligence, care and caution that a father was required to take in respect of his minor ward is rightly appreciated by family court. It is also seen that family court on going through the evidence available on record has rightly come to the conclusion that until the date of death of Geetha i.e., mother of minor ward appellant herein had no role to play in the upbringing of minor ward. The minor ward was in the care and custody of his parents
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i.e., respondent herein and his wife, late Geetha. It is also seen that even from the date of birth of minor ward till 7.2.2005 ie., date of death of Smt.Geetha, at no point of time either the minor ward or his mother stayed with appellant.
21. As could be seen that the minor child and his parents were residing in a rented house. In the meanwhile, the respondent herein constructed a house in the name of his wife, which is situated next to the house of the sister of deceased Geetha. The respondent performed house warming of said house on 13.5.2001 and thereafter, moved in to the said house and continued to live in the said house till the date of death of his wife. It is only from the date of death of Geetha, the appellant and his wife moved in to the house of respondent under the guise of taking care of the minor ward is clearly seen. Infact, there is nothing on record to show that prior to the death of Geetha appellant and his wife had any association with the family of respondent and also in the upbringing of minor ward. Infact in the court below it is also not brought on record what was the association of
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appellant with the minor ward or his mother at any point of time prior to 7.2.2005. In fact even when respondent herein was away in Kuwait, on his official duty from 2001 to 2004, there is nothing on record to show that either the wife of respondent or the minor ward was taken care of by appellant herein and as rightly observed by family court the appellant came in to picture only on 7.2.2005 and the fact that respondent lost custody of minor ward is only because of the complaint that was filed by appellant herein accusing him of murdering his daughter. But for that, probably respondent would not have to go through this ordeal which has lasted for nearly seven years and separated him from his minor ward for no fault of him.
22. As could be seen from the judgment rendered in SC.No.284/2005, which is confirmed by this Court in Criminal Appeal No.1449/2006, wherein respondent is acquitted of the accusation of murdering his wife on its merits and declared that he is innocent of the offence alleged. It is needless to say that said judgment not being the one, wherein acquittal is not being on the ground of
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benefit of doubt, the judgment and finding therein cannot be ignored and the false complaint and baseless accusation made by appellant herein could be given much importance. Be that as it may.
23. The fact remains for whatever it is worth respondent had to undergo the ordeal of losing the care, love, affection and company of his minor ward for no fault of his. Under the circumstances, it is seen that the finding of family court in granting custody of minor ward to his natural father, respondent herein is justifiable on all counts including the fact that appellant herein who is aged 69 years as on 2009 has already undergone open heart surgery and is having serious ailments including paralysis stroke, hence, at this stage it will be difficult for him to take care of himself. Under the circumstance granting the onerous of upbringing of minor ward to appellant/grand father would not be in the interest of minor ward. Therefore, judgment denying custody of minor ward to appellant herein cannot be considered as
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erroneous decision on the part of family court in the facts and circumstances of the case.
24. In that view of the matter, this Court feel that the finding of family court resulting in awarding custody of minor ward to his natural father, respondent herein appears to be just and proper which does not call for interference of this court. However, in the facts and circumstances of case one more thing will have to be taken into consideration i.e., whether rightly or wrongly minor ward has lived with his grand father whether on his volition or otherwise from 2005 to 2012 as stated earlier.
25. Senior member of this Bench has individually spoken to each one of the parties to this appeal including the minor ward. After discussion with each one of them, this court has come to the conclusion that there is some amount of influence being there on the minor ward by the appellant and his wife who had exclusive care and custody of minor ward for a period of seven years continuously. It is not in
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dispute that appellant herein and his wife have lost their daughter. Whether respondent has committed crime of murdering his wife or not is immaterial to them inspite of decision of Sessions Court and this Court in holding the respondent herein as innocent of alleged offence, still they feel the death of their daughter is because of the conduct of respondent herein. Their animosity towards respondent being expressed day in and day out in the presence of minor ward, it is natural to make its impact on the mind of minor ward in definitely prejudicing the mind against his father.
26. Therefore, the statement made by minor ward before this court during interaction with him to ascertain his intention regarding his wish so far as his continuance with appellant or respondent will have to be appreciated in the light of the aforesaid aspects. Further, keeping in view the manner in which minor ward answered the questions of court, this court feel the answers are more in the nature of well tutored answers. Hence, the opinion of minor ward will have to be considered in the background of the facts and
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circumstances of the case. At the same time, while considering all these aspects this Court cannot also in totality reject the claim of appellant and his wife to have access to the minor ward to monitor his education and upbringing while he is in the care and custody of his father i.e, natural guardian, respondent herein. As stated earlier all the judgments though do not directly apply to the facts and circumstances of the case and do not directly support the case of appellant in the manner in which it is tried to be projected, in view of the facts and circumstances under which each of the judgment is rendered, it is seen that one thing which is common in all the above judgments are that irrespective of the allegations made by each of the rival claimants who are claiming custody of the minor ward, what is to be borne in the mind of the Court is the paramount interest of minor ward and his future upbringing and also his education prospects. In doing so it is observed that there is continuity of relationship between the parties who are claiming custody of minor ward and that minor ward should not be deprived of any of their affection to the detriment of
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his growth and well being. Keeping this in mind, this Court feel that though exclusive custody is given to father, right of appellant and his wife who have taken care of minor ward for the past seven years could not be ignored or to be taken lightly. In that view of matter, keeping the paramount interest of minor ward in mind, this Court would pass the following order so far as his education and visitation right.
27. During the course of arguments it is brought to the notice of this Court by the appellant that minor ward is presently studying in Vidya Nikethan school in Ullal, Bangalore. It is also stated that the said school also have hostel facility for the students, therefore the minor ward can continue in the same environment where it has been studying for all these year. So far as respondent is concerned, he has given the name of four educational institutions wherein there is availability of admission for the minor ward for the current year where he could admit minor ward. By doing so minor ward will continue to study in a good institution in the midst of students studying in the said
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school with limited access to his family members and also other persons. According to respondent, this would help in the minor ward getting over the animosity which he has developed towards his father over a period of time due to tutoring which has taken place by the grand parents and other close relatives of grand parents who are residing next to the house where minor ward is residing.
28. On giving anxious consideration to the submissions of both parties this Court feel that there is valid reason in the submission of counsel for respondent in saying that minor ward should stay away from the place where he had lived all these years and had developed a sort of animosity towards his father at the behest of appellant and others who unintentionally, unwittingly in their anxiety and in their anguish due to the loss of their dear one i.e., mother of minor ward must have said many things which might have created a lasting impression in the mind of minor ward about his father giving an impression that he is not a man worthy of living with. This can be erased only if he is
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removed from the surroundings in which he is presently residing and if he is put in an environment which is totally different from all this, where the minor ward in his new surrounding with the help of his friends and the teachers may think on positive lines over rebuilding his relationship with his father, respondent herein who had no occasion to get closer to his son for the past seven years as stated earlier. Therefore, this Court feel that respondent shall be entitled to choose the school of his option to get his son admitted. This Court further try to strengthen its view on this point for these reasons.
29. Admittedly, respondent who has lost his wife in the year 2005 has remained unmarried and according to him, he has no intention of getting married and as submitted by him now, he has only aged mother who is residing with him and she will not be able to take burden of the minor ward who has lived away from her for past seven years. Therefore, under the circumstances, it would be ideal to put the minor ward in a residential school where both respondent, father of
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minor ward and also his grand parents could visit him at regular intervals and take care of minor ward. Therefore, this Court feel that respondent should have option of choosing the school in which minor ward should be admitted and it is made clear that school should be residential school. So far as visitation right during the period when minor ward comes from residential school on vacation or on other holidays; if vacation is minimum four weeks, first half of two weeks of said vacation minor ward shall live with appellant, his wife; the rest of two weeks i.e., in the second half of the vacation he shall stay with his father, respondent herein. Assuming for a moment if vacation is beyond four weeks, the excess period minor ward shall spend with his father, during which period father should make sure that his son will have the opportunity to be taken out with him to the place of choice of ward. In any event, visitation right that is given to appellant i.e., grand parent of ward should not be reduced to less than two weeks at any point of time during the vacation until minor ward attains majority. In the event where the period of vacation is less than four weeks then custody of the
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ward shall be with the respondent and the appellant being divided equally between them and first half of such vacation shall be with appellant and his wife and the later half of vacation shall be with respondent. It is further made clear that right of grand parent of minor ward shall be to keep the minor ward in their house only i.e, within Bangalore and not to take him to the house of other relatives and they should also not take the minor ward to the house of their relatives or to any other place outside Bangalore during the period when minor ward is staying with them on visitation right. It is also made clear that during the said period they should not create an atmosphere to develop dislike or hatred in the mind of minor ward towards his father.
30. With these observations, appeal filed by respondent in G&WC.No.81/2005 is dismissed. Consequently, judgment and decree dated 28.8.2009 passed in G&WC.No.81/2005 on the file of III Additional Principal Judge, Family Court, Bangalore, is modified as above so far as visitation right is concerned. The appellant shall forthwith deliver custody of minor ward to respondent to
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enable him to take appropriate steps for his admission to the school of respondent's choice. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE nd/-