GUNDAMMA Vs. SHIVSHARANAPPA

JUDGEMENT

(1.) THE wife, being aggrieved by the judgment and order dated 21-9-2001 passed by the Civil Judge (Sr. Dn.), gulbarga, in G. and W. C. No. 18/1997, has preferred this appeal under S. 47 (c) of the guardian and Wards Act (for short "the Act")whereby the said Court allowed the petition filed by the respondent under S. 25 of the act directing the appellant to give custody of the ward Satish alias Santosh to the respondent-father forthwith, mainly on the ground that the Court below has not considered the welfare of the ward and his willingness as to whether he wishes to reside with mother or father and thus misdirected itself in coming to a wrong conclusion. It is contended that admittedly, the ward is aged about 10 years and is capable of knowing residing with whom his welfare and interest is more secured, but, the trial Court has not done any exercise to ascertain wish of the ward.

(2.) THE facts of the case, in brief, are that the marriage of the appellant was performed with the respondent in the year 1976 and they lived together for a period of 13 years and from out of the wedlock they got two male issues, Basavaraj and Satish alias Santosh by name. Their relationship became strained in 1989 when the second child was about 3-4 months older. The eldest son, namely, basavaraj is residing with the respondent, whereas Satish alias Santosh is residing with the appellant. Since the appellant was residing with her parents at Ingankal village in Chittapur taluk. The respondent filed an application under S. 25 (c) of the Act for custody of Satish alias Santosh contending that he has sufficient means to provide comfortable living and good education to the ward.

(3.) ON the basis of the pleadings the trial court framed the following points for its consideration : 1) Whether it will be for the welfare of the ward to return the custody of the ward to the father? 2) To what order? the trial Court after considering the evidence and hearing the arguments answered the point No. 1 in the affirmative and directed the appellant to give the custody of the ward satish alias Santosh to the respondent.