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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, forM/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 forM/s.G.Jairaj & Assts. Advs.)

This appeal is filed under Section 19(1) of the FamilyCourts Act, 1984 read with Section 47(C) of the Guardians

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and Wards Act, 1890, against the Judgment dated28.08.2009 passed in G & W.C No.81/2005 on the file of theIII Additional Principal Judge, Family Court, Bangaloreallowing the petition filed under Section 25 of the Guardiansand 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

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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

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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

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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

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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

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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

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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

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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. PradeepkumarKarnashankar 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.51The petitioner believing the words of the

respondent and thinking that his son will be incare and custody of the respondent who aregrand parents and as he was also acquaintedwith them, agreed to send the child with therespondent. It is further contended by him,that since there was no primafacie evidenceagainst the petitioner and also there was noincriminating materials against him thepetitioner was enlarged on bail. Thereafter thepetitioner requested the respondent tohandover the custody of his son to him therespondent refused to send back his son. It isfurther contended by him that the respondentdoes not have any interest on the child. He ishaving eye on the property purchased by himin the name of his wife late Geetha –Therespondent wanted to grab the property at anycost and for that purpose he has filed adeclaration suit wherein he has prayed thecourt to declare him as the owner of theproperty.

Page No.78

18. It is admitted by the respondent in hiscross examination that the petitioner was notprovided with any quarters at Kuwait to keephis family. He admits that the petitioner wasdeputed to Kuwait and he served there. Hedoes not know if an employee deputed toKuwait have been provided with temporaryaccommodation for their families whenever

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they visit. It is the contention of the petitionerthat accommodation was not available to himat Kuwait and therefore, he could not take hisfamily in this regard, a suggestion was put tothe respondent, but the respondent is not ableto dis own the same. On the other hand, hesays that he does not know such quarters areavailable in Kuwait. It is also admitted by himthat in the year 2002, war was in progress atKuwait. According to the respondent, thepetitioner had not looked after his wife andchild when they had gone to Kuwait to acceptthe said contention, the respondent has notplaced any evidence as such nor nothing waselicited in the cross examination of PW-1 toaccept 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/-