S R SANNA SHETTY Vs. SHANTHAMMA

JUDGEMENT

(1.) this matter coming up for orders, by consent of counsel for parties, is taken up for final disposal and disposed of by the following order.

(2.) the appellant before us, sannashetty, is employed as a police constable and presently working at Bangalore. The appellant was married to respondent shanthamma on 17-5-1985. Thereafter, oi.it of their wed-lock, a child by name divya was born on 22-4-1986. Soon after the birth of the child, differences between husband and wifs surfaced and ultimately the respondent shanthamma left her husband and has been staying with her parents at chickballapur. She left her husband together with the child. However, it is alleged by her that on 10-4-1987, the appellant-husband came and forcibly took away the child from her custody and the child was, at the relevant time, only 2 years and 5 months old. Therefore, certain criminal proceeding were initiated against the husband by the wife which has since culminated in the acquittal of the appellant-husband and others. It was in that circumstance, a petition was filed before the civil judge, chickballapur under Section 25 of the guardian and wards act in c.m.c.1. Of 1988 seeking custody of the child. However, in the said petition under Section 25, an application i.a. 1 was filed seeking interim custody of the child. By order dated 29th august, 1989, the learned civil judge, chickbahapur has directed the custody of the child to be given to the mother pending disposal of the main petition. Aggrieved by the same, the appellant has approached this court in this miscellaneous first appeal inter alia contending that the court-below ought not have to have granted the main relief itself in the guise of granting interim relief.

(3.) before we examine the validityof this contention, we must point out, we tried our best to bring the parties together to put an end to the litigation for the sake of the welfare of the child which is, as on to-day, just about four years old. It is also submitted from the bar that the child has been in the custody of the parents of the appellant before us for a considerable time. We even spoken to the child and we found that she is more familiar with her father and her grandparents through the fatherthan the mother. Whatever that may be, the fact nevertheless remains, parties to-day reported that there is no possibility of settlement between husband and wife and that the wife is not willing to resume her marital obligations with her husband, the appellant. In these circumstances, we have to dispose of the appeal strictly on merits.