H.S. ARUNA Vs. K.N. PRAKASH

JUDGEMENT

(1.) A short question that arises for consideration in this appeal is: Whether the Family Court is justified in allowing the petition in G and WC No. 176 of 2006 and directing the appellant -mother to give the custody of the ward viz., K.P. Ashwin Kumar to the custody of the respondent -father?

(2.) OUR answer to the above point is in the negative for the following reasons: Learned Counsel for the appellant -mother submits that after dissolution of marriage, the respondent was given visiting rights, but later on the respondent got married for the second time and the ward was not willing to go and therefore the appellant did not send the boy against his will to the respondent -father. On that score, the respondent filed a petition in G and WC No. 176 of 2006 and the Trial Court, without taking into consideration the welfare of the child and the circumstances under which the ward refused to go, as per the earlier visiting arrangement, the Trial Court has mechanically allowed the petition. On the other hand, learned Counsel for the respondent submits that as the boy was not sent as per the visiting rights given earlier, the respondent -father filed a petition seeking custody of the minor ward and the Trial Court taking into consideration all the materials placed on record, has rightly allowed the petition directing the appellant to give the custody of the child with visiting rights to the appellant and there is no illegality or infirmity in the impugned order. The learned Judge of the Trial Court formulated a point viz. - - Whether the petitioner -father had made out a sufficient ground to appoint him as guardian of the minor child K.P. Ashwin Kumar? If so, whether the petition was maintainable? The point formulated for consideration by the Family Court was regarding appointment of a guardian of the minor child. Since the father is a natural guardian, the question of appointing father as a guardian does not arise. The marriage of the appellant with the respondent has been dissolved by mutual consent. The Trial Court has not gone into the question as to whether there was any need for change of custody of the ward from mother to father. On our request, the boy was produced before us and we enquired with the boy in camera. The boy categorically said that he is willing to go to the respondent -father once in two months. He also stated that he is studying and comfortably living with his mother. As on today, the boy is aged about 11 years 1 month 18 days. Welfare of the minor shall be the sole criteria for giving custody of the child. The respondent has not made out any good ground to disturb the custody of the ward. Therefore, the impugned order calls for interference by this Court.

(3.) LEARNED Counsel for the respondent submits that since visiting rights were not given, as agreed upon, he has not paid the maintenance amount of Rs. 500/ - per month from January, 2006.