1

* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

&

*THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN

+C.M.A.No.247 OF 2023

% 10.04.2025

# Suryas Ravi Prakash Rao

……Appellant

And:

$ Mohithe Manohar Rao and

others

….Respondents.

!Counsel for the appellant : Sri K.P. Abhiram

^Counsel for the respondents 1 to 3 : Sri Vivekananda Virupaksha

<Gist:

>Head Note:

? Cases referred:

1

(2019) 7 SCC 42

2

2001 (3) ALD 454

3 2014 SCC OnLine Raj 140

4

AIR 1935 Mad 195

5

(2010) 2 SCC 654

6

(2009) 7 SCC 322

7

1984 AIR 469

8

(2008) 9 SCC 413

9

(2009) 7 SCC 322

10.

.2015 10 SCC 1

11.

(2020) SCC (online) SC 887

12

(1992) 3 SCC 573

13.(2020) 3 SCC 67

14.

2012 SCC OnLine Mad 5094

15. 2023 SCC OnLine All 4233

2

HIGH COURT OF ANDHRA PRADESH

* * * *

C.M.A.No.247 OF 2023

DATE OF JUDGMENT PRONOUNCED: 10.04.2025

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

&

THE HON'BLE SRI JUSTICE CHALLA GUNARANJAN

1. Whether Reporters of Local

newspapers may be allowed to see

the Judgments?

Yes/No

2. Whether the copies of judgment may

be marked to Law Reporters/Journals

Yes/No

3. Whether Your Lordships wish to see

the fair copy of the Judgment?

Yes/No

____________________

RAVI NATH TILHARI, J

_______________________

CHALLA GUNARANJAN ,J

3

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

&

THE HON’BLE SRI JUSTICE CHALLA GUNARANJAN

C.M.A.No.247 OF 2023

JUDGMENT: per the Hon‟ble Sri Justice Ravi Nath Tilhari:-

1. Heard Sri K.P. Abhiram, learned counsel for the appellant

and Sri Vivekananda Virupaksha, learned counsel for the

respondents 1 to 3.

FACTS:

2. This appeal under Section 47 of the Guardian & Wards Act,

1890 (for short, the G.W.Act, 1890) has been filed by the

appellant-father of the minor son Chi. Suryas Srivatsav (in short

„Ward‟) seeking his custody under Sections 9, 10 and 23 of the

G.W.Act, 1890, from the respondents‟ custody, being aggrieved

from the order of rejection of his petition G.W.O.P.No.13 of 2020

by order dated 12.12.2022 passed by the learned Principal

District Judge, Ananthapuram.

3. The respondents 1 to 3 are the maternal grandfather,

grandmother and uncle of the ward respectively.

4. The appellant was married to late Jyothi Manohar. Out of

their wedlock, the son Chi Suryas Srivatsav was born. On

4

04.09.2017, in an incident at the appellant‟s home, his wife died,

during treatment in Chandra Hospital. The respondents registered

Crime No.146 of 2017 of IV Town Police Station, Ananthapuram

under Sections 498-A, 302 and 201 read with Section 34 IPC

against the appellant and his parents. It is the appellant‟s case

that the respondents took away the Ward on pretext and against

the wish. The ward was under forceful control and custody of the

respondents. The appellant approached the respondents, but

they did not give custody. The ward was being deprived of the

love, affection and care of the appellant-father. He was falsely

implicated in the case of death of his wife alleging it to be murder

though it was a case of suicide. The appellant filed the

G.W.O.P.No.13 of 2020 for custody of the ward submitting inter

alia that the welfare of the ward was with the appellant.

5. The 1

st

respondent filed counter. The same was adopted by

the respondents 2 and 3. They admitted the relationship.

However, they submitted that there was demand of dowry,

harassment to the wife, physical and mental, and that she was

murdered. The appellant neglected the welfare of the ward. The

Sessions Case No.207 of 2018 on the file of IV Additional District

& Sessions Judge (Mahila Court) was pending against the

5

appellant and his parents. The ward deposed against the father.

The appellant assaulted the minor and his conduct was to

eliminate the child who was the only eye witness of the incident.

The endeavour of the appellant was to stop the ward from

deposing against him. The appellant never approached the

respondents to take care of the ward or to know his welfare and

wellbeing.

6. The respondents further pleaded that they admitted the

child in Euro School, White Field, Bangalore in 1

st

Grade and that,

(at the time of filing response), the ward was in 3

rd

grade. They

were evincing great interest and care for the welfare of the ward.

They had deposited Rs.5,00,000/- in fixed deposit, in the name of

the ward for his future. It was pleaded that the safety, bright

future and the welfare of the ward was not with the appellant or

his parents, but was with the respondents. They pleaded that the

2

nd

respondent had filed G & W.C.No.101 of 2018 for

appointment of Guardianship of the ward, in the III Additional

Principal Judge, Family Court at Bangalore. But, without

disclosing the same, the appellant filed G.W.O.P.No.13 of 2020

for custody of the ward in the court at Ananthpuram. In G &

W.C.No.101 of 2018, I.A.No.5 of 2019 was filed by the present

6

appellant- father, seeking custody of the minor which was

rejected.

7. During pendency of G.W.O.P.No.13 of 2020, the appellant

was acquitted in S.C.No.207 of 2018.

8. In G.W.O.P.No.13 of 2020, the appellant examined himself

as P.W.1 and got marked Ex.A.1. Joint photograph of himself with

the ward and Ex.A.2 certified copy of the Judgment of his

acquittal in S.C.No.207 of 2018 dated 12.04.2022, passed by the

IV Additional Sessions Judge, Ananthapuram.

9. The respondents in G.W.O.P.No.13 of 2020 examined

R.W.1, (3

rd

respondent) and marked Exs.B.1 to B.4 i.e original

school fee receipts, original F.D Bonds, original certificate of

participation and recognition relating to Ward and certified copy of

order in I.A.No.5 of 2019 in G & W & W.C.No.101 of 2018 on the

file of III Additional Principal Judge, Family Court, Bangalore.

10. The learned Court of Principal District Judge,

Ananthapuram framed the following points for determination:

“i) Whether the petitioner is entitled for the relief

as prayed for?

ii) To what relief?”

7

Order dated 12.12.2022 in G.W.O.P.No.13 of 2020:

11. The learned court came to the conclusion that after the

death of Jyothi Manohari-appellant‟s wife/mother of the ward, in

the year 2017, the ward was in the custody of the respondents.

In S.C.No.207 of 2018 under Sections 498-A, 302 and 201 read

with Section 34 IPC, though the appellant was acquitted, but the

ward was the witness against the appellant. His statement was

recorded under Section 164 Cr.P.C. The ward also deposed in

the Sessions Case as P.W.No.8, and though his deposition was

not relied upon by the learned Sessions Judge, while acquitting

the appellant, but the Criminal Appeal No.380 of 2022, against

the acquittal order, was pending in the High Court of Andhra

Pradesh. The learned court observed that the welfare of the

minor was of paramount consideration. It was not the rights of the

contesting parties claiming or opposing custody. The court

recorded that the petitioner/appellant was working as

Government teacher and getting sufficient salary, but the 3

rd

respondent maternal uncle of the ward was also working as

Software Engineer at Bangalore and was earning sufficiently. The

maternal grandparents were aged persons and they had

deposited amount in the name of the ward. The ward was also

8

admitted for his studies in the International School at Bangalore.

So, the ward‟s welfare was being looked after by the

respondents. The learned court also recorded that the ward did

not accept to go with the father and if all of sudden the custody of

the ward was given to the petitioner/appellant, the same would

not be in the interest of the ward for his development. The

learned court was of the view that it could not detach the ward

with the maternal-grandparents and it was also not possible for

the ward to live amicably with the appellant father. The learned

court gave due weight to the fact that the appellant admitted that,

the ward gave evidence in S.C.No.207 of 2018 against him. The

ward also stated in his statement under Section 164 of Cr.P.C,

against the appellant. The said incident, the court further

recorded that, had impact in the mind of the ward till that date and

the ward clearly refused to go along with the father when he was

examined in court. The learned court then concluded that the

interest and welfare of the ward for his education, health, welfare

and affection and development was being looked after by the

respondents who had made provision for his future as well. The

learned court recorded that the appellant though natural guardian

9

being the father, but taking overall view of the matter, he could

not be given custody.

12. The learned Court thus recorded the finding that the

appellant was not entitled for the custody of the ward and

dismissed the G .W.O.P.No.13 of 2020.

SUBMISSION OF LEARNED COUNSEL FOR THE APPELLANT:

13. The learned counsel for the appellant submitted that on the

date of the incident 04.09.2017, the appellant was in the school

and after knowing the incident, he rushed to the home and his

parents took his wife to the hospital for treatment. On that day

the elder sister of the 3

rd

respondent (the elder sister of the

deceased wife) forcefully took away the son (ward) aged about 4

years at that time, on the pretext of giving company to him and

later on she handed over the child to her brother and the parents,

the present respondents 1 to 3. They tutored the son and made

him to make statement against the appellant. The respondents

did not permit the appellant to have a single visit of his child for

the last six years, for the purpose of the criminal cases and

spoiled the child‟s mind against the appellant. He submitted that

the first respondent, (the father of the 3

rd

respondent), gave his

statement before the Sessions Court that there were no big

10

issues/quarrels between his daughter and the appellant. There

was no demand of dowry or the additional dowry. The learned

Sessions Court did not believe the child testimony, for the

reasons recorded and passed the order of acquittal. Against the

order of acquittal, the criminal appeal is pending, but that cannot

be a ground to decline the custody to the appellant.

14. Learned counsel for the appellant submitted that the

appellant is working as Government teacher in A.P. State service

and his father is a retired Tahsildar getting monthly pension. So,

the appellant is in a better financial position to take care of his

minor child. The ward lost his mother. In the absence of the

mother, for his overall development, and welfare the custody of

the child deserved to be given to the appellant-father, also being

the natural guardian, alive. The ward cannot be deprived of his

father‟s love, affection and care, nor the appellant of his son.

15. The learned counsel for the appellant submitted that the

appellant had previously filed G.W.O.P No.79 of 2018 in the

Court of learned District Judge, Ananthapuram for custody and

during its pendency, there was a panchayat held by the elders of

the community at Ananthapuram. It was agreed that the custody

of the ward will be handed over to the appellant and in view

11

thereof the appellant withdrew the G.W.O.P.No.79 of 2018. But,

thereafter the respondents refused to hand over the custody of

the child, so, the present G.W.O.P was filed. The dismissal of

G.W.O.P No.79 of 2018, therefore, should not be considered

against the appellant.

16. Learned counsel for the appellant placed reliance in the

following cases in support of his contentions:

1. Tejaswini Gaud and others vs. Shekhar

Jagdish Prasad Tewari and others

1

.

2. Manchala Hushikesh v. Terala Pradeep Kumar

& others

2

3. Anuj Sharma vs. Ram Gopal

3

SUBMISSION OF THE LEARNED COUNSEL FOR THE

RESPONDENTS:

17. Learned counsel for the respondents submitted that when

the trial of the Sessions Case was pending, the appellant, had

filed G.W.O.P.No.79 of 2018 on the file of the District Judge,

Ananthapuram for the custody of the child. But he got it

dismissed for default and thereafter he got it restored and after

1

(2019) 7 SCC 42

2

2001 (3) ALD 454

3

2014 SCC OnLine Raj 140

12

cross-examination in that case, he willingly got it dismissed as

withdrawn, on 04.06.2019. The appellant, again filed

G.W.O.P.No.13 of 2020, on the file of the Principal District Judge,

Anantahapuramu. He submitted that the appellant-father did not

seek the custody of the minor bonafidely. If he had really the

bonafides and thought of the wellbeing and welfare of the child,

he would not have got G.W.O.P.No.79 of 2018 dismissed. He

submitted that there was no such compromise to hand over the

custody, which was also practically improbable in view of the

pendency of the Sessions Case against the appellant as also the

respondents had already filed G & W.C.No.101 of 2018 for

declaring them as the guardian of the ward. He submitted that

the G.W.O.P.No.79 of 2018 was filed by the appellant only to

gravel out of the criminal case in which the ward was the only eye

witness. The appellant did not visit the child in past so many

years and so, he had no interest in the welfare of the child.

18. The respondents‟ counsel further submitted that in G &

W.C.No.101 of 2018 an interim injunction was granted on

04.04.2018 by the III Additional Principal Judge, Family Court,

Bangalore, restraining the appellant from taking the minor child

from the custody of the respondents and while the said order was

13

in force, the appellant tried to take away the child from the

custody of respondents on 03.05.2023 on some pretext. A written

complaint was given to the local police on 14.05.2023 and an

application, before the Family court to punish the appellant for

disobeying the injunction order, was also filed.

19. Learned counsel for the respondents submitted that the

respondents have filed Criminal Appeal No.380 of 2022,

challenging the order of acquittal of the appellant in Sessions

Case No.207 of 2018, which is pending in this court. He

submitted that in view of the pendency of Criminal Appeal and the

child being an eye witness against the appellant, his custody

deserved not to be given to the father-appellant. The welfare of

the ward is with the respondents and they are looking after him

ensuring his welfare and interest.

20. Learned counsel for the respondents placed reliance on the

following judgments:

i) Muthuswami Chettiar and others vs. K.M. Chinna

Muthuswami Moopanar

4

ii) Nil Ratan Kundu and another vs. Abhijit Kundu

5

,

iii) Anjali Kapoor vs. Rajiv Baijal

6

4

AIR 1935 Mad 195

5

(2010) 2 SCC 654

14

POINTS FOR DETERMINATION IN APPEAL:

21. The points that arise for our consideration and

determination are:

A. “Whether the appellant-father is to be given

the custody of his minor son (ward) or it is to continue

with the respondents, considering the welfare of the

minor?

B. Whether the order dated 12.12.2022

dismissing G.W.O.P.No.13 of 2020, refusing custody

of the ward to the appellant father, is legally justified

or it calls for interference?”

THE AFFIDAVIT ETC FILED IN APPEAL:

22. In appeal, the respondents have inter alia filed the

followings:

i) the counter affidavit dated August, 2023, inter alia

annexing therewith the memo of the Criminal Appeal No.380 of

2022 filed by them against the order of acquittal.

ii) memo dated 02.08.2024 brining on record, inter alia the

order dated 23.04.2024 in I.A.No.10 of 2018 in G & W.C.No.101

of 2018 dismissing the application of the appellant for visitation

rights.

6

(2009) 7 SCC 322

15

iii) the memo dated 18.09.2024, annexing therewith the

copies of the depositions of P.Ws.1 to P.Ws.14 in S.C.No.207 of

2018, as also the copies of the statements of A.1 to A.3 under

Section 313 Cr.P.C.

iv) the memo dated 01.10.2024, annexing therewith the

photographs of the ward which were filed in G & W.C.No.101 of

2018 on the file of the III Additional Principal Judge, Family Court,

Bangalore.

v) the memo dated 09.12.2024 brining on record the copy

of the orders dated 25.09.2024 and 22.10.2024 passed in

W.P.No.16271 of 2024 by the High Court of Karnataka.

Whereas, the appellant has also inter alia filed the

followings:

i) the reply/rejoinder affidavit dated 25.08.2024 to

counter affidavit dated August, 2023, and

ii) the written pleadings with copy of the cited

judgments.

ANALYSIS:

23. We have considered the aforesaid submissions and

perused the material on record.

16

POINT-A:

24. The learned court dismissed the custody petition for the

reasons, to summarise, as recorded in para 22 of its judgment.

The same is reproduced as under:

“22. Admittedly, the petitioner (father of the ward) is

working as Govt., Teacher and getting sufficient

salary. On the other hand, the maternal-uncle of ward

is working as Software Engineer at Bangalore and

getting sufficient income. The maternal grandparents

(R1 and R.2) being aged persons and they deposited

some amount in the name of the Ward and joined the

ward in International school at Bangalore and looking

after all his welfare. As the petitioner is having

sufficient means to maintain the said ward and the

said ward has not accepted to go with his father, so all

of a sudden, if the custody of a minor child (ward) is

given to the petitioner, it is not possible to the ward to

develop love and affection upon his father (petitioner

herein), as the said ward is living with his

grandparents since the death of his mother and he is

in the care and custody of his maternal uncle as well

as maternal grandparents (R1) to R3). Therefore, all

of a sudden, the court cannot detach the ward with his

grandparents, as the welfare of the minor is a

paramount consideration as discussed in detail above.

If the ward is detached all off a sudden by this court, it

17

is not possible to live amicably by the respondents as

well as the ward. More over the petitioner himself

admitted that ward gave evidence in S.C.No.207 of

2018 that the petitioner (father) assaulted his wife

(mother of ward) when she lied on the bed and he

throttled the neck of the deceased Jyothi. The ward

also stated the said fact in his 164 Cr.P.C statement

before the court that the petitioner killed his wife

(mother of ward). The incident of death of mother of

the ward may be impacts in the mind of the ward till

date, hence he bluntly refused to go along with his

father. The petitioner himself admitted that the

respondents deposited some amount in the name of

the ward and they joined the ward in International

school and looking after his welfare with regard to

education, health with live and affection. It is not the

contention of the petitioner that he did not go for 2

nd

marriage and he wants to live with the ward only.”

25. Thus, the main reason for rejection by the learned court

was that the ward was witness against the father in Sessions

Case in the incident of death of the mother of the ward and

though the appellant was acquitted, the criminal appeal was

pending and the ward refused to go to the father. So, the welfare

of the ward was not with the appellant considering the impacts on

the mind of the ward.

18

PRECEDENTS:

26. In custody matters, the position in law, is well settled and that is

that, it is not the right of the person claiming, or opposing custody, but

the welfare of the child, as a whole, which is of paramount

consideration. It is also not the right of the natural guardian, to

have the custody of the child, if it is not in the welfare of the child.

Such consideration, i.e right, never prevails over the welfare and

interest of the minor.

27. In Laxmi Kant Pandey vs. Union of India

7

, the Hon'ble

Supreme Court held that the welfare of the child takes priority

above all else, including the rights of the parents.

28. In Nil Ratan Kundu and Others vs. Abhijit Kundu

8

, the

Hon‟ble Apex Court held that it is the welfare of the minor and of

the minor alone, which is the paramount consideration. It is apt

to refer paras 41 to 47 of Nil Ratan Kundu (supra), as under:-

"41. In Saraswatibai Shripad Ved v. Shripad Vasanji

Ved [AIR 1941 Bom 103 : ILR 1941 Bom 455] , the High

Court of Bombay stated : (AIR p. 105) "...

It is not the welfare of the father, nor the welfare of the

mother, that is the paramount consideration for the

Court. It is the welfare of the minor and of the minor

7

1984 AIR 469

8

(2008) 9 SCC 413

19

alone which is the paramount consideration; (emphasis

supplied)

42. In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1

SCC 840], this Court held that the object and purpose of the

1890 Act is not merely physical custody of the minor but due

protection of the rights of the ward's health, maintenance

and education. The power and duty of the court under the

Act is the welfare of the minor. In considering the question

of welfare of a minor, due regard has of course to be given

to the right of the father as natural guardian, but if the

custody of the father cannot promote the welfare of the

children, he may be refused such guardianship.

43. The Court further observed that merely because

there is no defect in his personal care and his attachment

for his children, which every normal parent has, he would

not be granted custody. Simply because the father loves his

children and is not shown to be otherwise undesirable, does

not necessarily lead to the conclusion that the welfare of the

children would be better promoted by granting their custody

to him. The Court also observed that children are not mere

chattels, nor are they toys for their parents. The absolute

right of parents over the destinies and the lives of their

children, in the modern changed social conditions, must

yield to the consideration of their welfare as human beings

so that they may grow up in a normal balanced manner to

be useful members of society and the guardian court in case

of a dispute between the mother and the father, is expected

20

to strike a just and proper balance between the

requirements of the welfare of the minor children and the

rights of their respective parents over them.

44. Again, in Thrity Hoshie Dolikuka v. Hoshiam

Shavaksha Dolikuka [(1982) 2 SCC 544], this Court

reiterated that the only consideration of the court in deciding

the question of custody of a minor should be the welfare and

interest of the minor and it is the special duty and

responsibility of the court. Mature thinking is indeed

necessary in such situation to decide what will enure to the

benefit and welfare of the child.

45. In Surinder Kaur Sandhu v. Harbax Singh

Sandhu [(1984) 3 SCC 698 : 1984 SCC (Cri) 464] this Court

held that Section 6 of the Hindu Minority and Guardianship

Act, 1956 constitutes the father as a natural guardian of a

minor son. But that provision cannot supersede the

paramount consideration as to what is conducive to the

welfare of the minor. (See also Elizabeth Dinshaw v. Arvand

M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Cri) 13]

and Chandrakala Menon v. Vipin Menon [(1993) 2 SCC 6 :

1993 SCC (Cri) 485] .)

46. Recently, in Mausami Moitra Ganguli v. Jayant

Ganguli [(2008) 7 SCC 673 : JT (2008) 6 SC 634] , we have

held that the first and the paramount consideration is the

welfare of the child and not the right of the parent.

21

47. We observed :

“The principles of law in relation to the custody of a minor

child are well settled. It is trite that while determining the

question as to which parent the care and control of a child

should be committed, the first and the paramount

consideration is the welfare and interest of the child and not

the rights of the parents under a statute. Indubitably, the

provisions of law pertaining to the custody of child

contained in either the Guardians and Wards Act,

1890 (Section 17) or the Hindu Minority and Guardianship

Act, 1956 (Section 13) also hold out the welfare of the child

as a predominant consideration. In fact, no statute, on the

subject, can ignore, eschew or obliterate the vital factor of

the welfare of the minor. The question of welfare of the

minor child has again to be considered in the background

of the relevant facts and circumstances. Each case has to

be decided on its own facts and other decided cases can

hardly serve as binding precedents insofar as the factual

aspects of the case are concerned. It is, no doubt, true that

father is presumed by the statutes to be better suited to

look after the welfare of the child, being normally the

working member and head of the family, yet in each case

the court has to see primarily to the welfare of the child in

determining the question of his or her custody. Better

financial resources of either of the parents or their love for

the child may be one of the relevant considerations but

cannot be the sole determining factor for the custody of the

22

child. It is here that a heavy duty is cast on the court to

exercise its judicial discretion judiciously in the background

of all the relevant facts and circumstances, bearing in mind

the welfare of the child as the paramount consideration."

29. In Anjali Kapoor vs. Rajiv Baijal

9

, the Hon‟ble Apex Court

observed that even though the natural guardian of the child have

the right to the custody of the child, the welfare of the minor has

to be given paramount consideration.

30. In ABC vs. State (NCT of Delhi)

10

, the Hon'ble Supreme

Court held that in the matter of appointment or declaration of

guardian of the minor, the Court is called upon to discharge its

parens patriae jurisdiction. Upon a guardianship petition, being

laid before the Court, the child concerned ceases to be in the

exclusive custody of the parents; thereafter, until the attainment

of majority, the child continues in curial curatorship.

31. In Smriti Madan Kansagra vs. Perry Kansagra

11

, the

Hon'ble Supreme Court held that it is a well-settled principle of

law that the courts while exercising parens patriae jurisdiction

would be guided by the sole and paramount consideration of

what would best subserve the interest and welfare of the child, to

9

(2009) 7 SCC 322

10

2015 10 SCC 1

11

(2020) SCC (online) SC 887

23

which all other considerations must yield. The welfare and benefit

of the minor child would remain the dominant consideration

throughout.

32. In Smriti Madan Kansagra (supra), the Hon'ble Supreme

court held, in paragraph 15, which is reproduced as under:-

“15. We have carefully considered and

deliberated upon the oral and written submissions

made by Mr Shyam Divan, Senior Advocate,

instructed by Mr P. Banerjee and Ms Nidhi Mohan

Parashar on behalf of the appellant; and the

submissions made by Mr Anunaya Mehta, Advocate

instructed by Ms Inderjeet Saroop, Advocate

representing the respondent. The issue which has

arisen for our consideration is as to what should be

the dispensation to be followed with respect to the

custody of the minor child, Aditya who is now 11

years of age, till he attains the age of majority in 7

years' time.

15.1. It is a well-settled principle of law that the

courts while exercising parens patriae jurisdiction

would be guided by the sole and paramount

consideration of what would best subserve the

interest and welfare of the child, to which all other

considerations must yield. The welfare and benefit of

the minor child would remain the dominant

consideration throughout. The courts must not allow

24

the determination to be clouded by the inter se

disputes between the parties, and the allegations

and counter-allegations made against each other

with respect to their matrimonial life. In Rosy

Jacob v. Jacob A. Chakramakkal [Rosy

Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC

840] this Court held that : (SCC p. 855, para 15)

“15. … The children are not mere chattels : nor

are they mere playthings for their parents. Absolute

right of parents over the destinies and the lives of

their children has, in the modern changed social

conditions, yielded to the considerations of their

welfare as human beings so that they may grow up

in a normal balanced manner to be useful members

of the society.…”

(emphasis supplied)

15.2. A three-Judge Bench of this Court in V.

Ravi Chandran (2) v. Union of India [V. Ravi

Chandran (2) v. Union of India, (2010) 1 SCC 174 :

(2010) 1 SCC (Civ) 44] opined : (SCC p. 194, para

27)

“27. … It was also held that whenever a question

arises before a court pertaining to the custody of a

minor child, the matter is to be decided not on

considerations of the legal rights of the parties, but

on the sole and predominant criterion of what would

serve the best interest of the minor.”

(emphasis supplied)

15.3. Section 13 of the Hindu Minority and

Guardianship Act, 1956 provides that the welfare of

the minor must be of paramount consideration while

25

deciding custody disputes. Section 13 provides as

under:

“13. Welfare of minor to be paramount

consideration.—(1) In the appointment or

declaration of any person as guardian of a Hindu

minor by a court, the welfare of the minor shall be

the paramount consideration.

(2) No person shall be entitled to the

guardianship by virtue of the provisions of this Act or

of any law relating to guardianship in marriage

among Hindus, if the court is of opinion that his or

her guardianship will not be for the welfare of the

minor.”

15.4. This Court in Gaurav Nagpal v. Sumedha

Nagpal [Gaurav Nagpal v. Sumedha Nagpal, (2009)

1 SCC 42 : (2009) 1 SCC (Civ) 1] held that the term

“welfare” used in Section 13 must be construed in a

manner to give it the widest interpretation. The moral

and ethical welfare of the child must weigh with the

court, as much as the physical well-being. This was

reiterated in Vivek Singh v. Romani Singh [Vivek

Singh v. Romani Singh, (2017) 3 SCC 231 : (2017) 2

SCC (Civ) 1] , wherein it was opined that the

“welfare” of the child comprehends an environment

which would be most conducive for the optimal

growth and development of the personality of the

child.

15.5. To decide the issue of the best interest of

the child, the Court would take into consideration

various factors, such as the age of the child;

nationality of the child; whether the child is of an

intelligible age and capable of making an intelligent

preference; the environment and living conditions

available for the holistic growth and development of

the child; financial resources of either of the parents

which would also be a relevant criterion, although

not the sole determinative factor; and future

prospects of the child.

26

15.6. This Court in Nil Ratan Kundu v. Abhijit

Kundu [Nil Ratan Kundu v. Abhijit Kundu, (2008) 9

SCC 413] set out the principles governing the

custody of minor children in para 52 as follows :

(SCC p. 428)

“Principles governing custody of minor children

52. In our judgment, the law relating to custody of

a child is fairly well settled and it is this : in deciding

a difficult and complex question as to the custody of

a minor, a court of law should keep in mind the

relevant statutes and the rights flowing therefrom.

But such cases cannot be decided solely by

interpreting legal provisions. It is a human problem

and is required to be solved with human touch. A

court while dealing with custody cases, is neither

bound by statutes nor by strict rules of evidence or

procedure nor by precedents. In selecting proper

guardian of a minor, the paramount consideration

should be the welfare and well-being of the child. In

selecting a guardian, the court is exercising parens

patriae jurisdiction and is expected, nay bound, to

give due weight to a child's ordinary comfort,

contentment, health, education, intellectual

development and favourable surroundings. But over

and above physical comforts, moral and ethical

values cannot be ignored. They are equally, or we

may say, even more important, essential and

indispensable considerations. If the minor is old

enough to form an intelligent preference or

judgment, the court must consider such preference

as well, though the final decision should rest with the

court as to what is conducive to the welfare of the

minor.”

(emphasis in original)

15.7. Section 17 of the Guardians and Wards

Act, 1890 provides:

“17. Matters to be considered by the Court in

appointing guardian.—(1) In appointing or

declaring the guardian of a minor, the Court shall,

subject to the provisions of this section, be guided

by what, consistently with the law to which the minor

is subject, appears in the circumstances to be for the

welfare of the minor.

27

(2) In considering what will be for the welfare of

the minor, the Court shall have regard to the age,

sex and religion of the minor, the character and

capacity of the proposed guardian and his nearness

of kin to the minor, the wishes, if any, of a deceased

parent, and any existing or previous relations of the

proposed guardian with the minor or his property.

(3) If the minor is old enough to form an

intelligent preference, the Court may consider that

preference.

(4) [Omitted]

(5) The Court shall not appoint or declare any

person to be a guardian against his will.”

(emphasis supplied)

15.8. In the present case, the issue of custody of

Aditya has to be based on an overall consideration

of the holistic growth of the child, which has to be

determined on the basis of his preferences as

mandated by Section 17(3), the best educational

opportunities which would be available to him,

adaptation to the culture of the country of which he

is a national, and where he is likely to spend his

adult life, learning the local language of that country,

exposure to other cultures which would be beneficial

for him in his future life.

33. In Nil Ratan Kundu (supra), the Hon'ble Supreme Court

summarised the principles of the custody of minor children, and

observed that the law relating to custody of a child is fairly well

settled. It was held that in deciding a difficult and complex

question as to the custody of a minor, a court of law should keep

in mind the relevant statutes and the rights flowing there from. But

such cases cannot be decided solely by interpreting legal

provisions. It is a human problem and is required to be solved

28

with human touch. A court while dealing with custody cases, is

neither bound by statutes nor by strict rules of evidence or

procedure nor by precedents. In selecting proper guardian of a

minor, the paramount consideration should be the welfare and

well-being of the child. In selecting a guardian, the court is

exercising parens patriae jurisdiction and is expected, nay bound,

to give due weight to a child's ordinary comfort, contentment,

health, education, intellectual development and favourable

surroundings. But over and above physical comforts, moral and

ethical values cannot be ignored. They are equally, or even more

important, essential and indispensable considerations. If the

minor is old enough to form an intelligent preference or judgment,

the court must consider such preference as well, though the final

decision should rest with the court as to what is conducive to the

welfare of the minor.

CONSIDERATION IN THE FACTS OF PRESENT CASE:

34. Keeping in view the above principles, we proceed to

consider the points for determination in the facts and

circumstances of the present case.

35. The main contentions raised are acquittal of the appellant,

the ward being an eye witness; the pendency of the criminal

29

appeal; as also some other cases filed between, the parties on

the subject of custody, visitation rights with respect to the same

ward. We would deal with those aspects under different heads.

(i) S.C.No.207 OF 2018 ORDER OF ACQUITTAL OF

APPELLANT-FATHER; (WARD AS WITNESS ):

36. The appellant has brought on record the judgment of his

acquittal in Sessions Case No.207 of 2018. The respondents

have also filed the copies of deposition of P.Ws.1 to 14 and the

copies of the statement of A.1 to A.3 under Section 313 Cr.P.C.

The appeal against the order of acquittal, filed by the 1

st

respondent is pending in this court. However, we proceed to

consider certain aspects from the documents filed and in

particular with respect to the statement of the child, given in those

proceedings, in view of the submissions advanced from both the

sides referring to the judgment of acquittal. The appellant

contending that welfare of the child is with him being the father

and after acquittal he cannot be denied the custody of his son.

The respondents contending that the welfare of the child is not

with the appellant-father, as the child was the eye witness of the

incident, in which his mother died, respondents saying „murder‟

and the appellant saying „suicide‟. The submission from the

30

appellant side is that the child was not the eye witness, but

because of tutoring of the child by the respondents and the child

being in their custody, was used as a witness against the

appellant. The Sessions Court did not believe the child‟s

testimony, and therefore, after acquittal, the father being the

natural guardian should not be denied the custody.

37. In Nil Ratan Kundu (supra), the Hon‟ble Apex Court

observed that one of the material which is required to be

considered by a court of law is, the character of the proposed

guardian. It also referred to Kirtikumar Maheshanker Joshi v.

Pradip Kumar Karunashanker Joshi, (1992) 3 SCC 573) and

observed that whether the father was facing the charge under

Section 498-A IPC and was facing the allegations of attributing

death of child‟s mother, that was a relevant factor which the law

court must address.

38. Para 72 of Nil Ratan Kundu (supra) reads as under:

“72. In our considered opinion, on the facts and in the

circumstances of the case, both the Courts were duty bound to

consider the allegations against the respondent herein and pendency

of criminal case for an offence punishable under Section 498A, IPC.

One of the matters which is required to be considered by a Court of

law is the `character' of the proposed guardian. In Kirit Kumar, this

Court, almost in similar circumstances where the father was facing

the charge under Section 498-A, IPC, did not grant custody of two

31

minor children to the father and allowed them to remain with

maternal uncle. Thus, a complaint against father alleging and

attributing death of mother and a case under Section 498-A, IPC is

indeed a relevant factor and a Court of law must address to the said

circumstance while deciding the custody of the minor in favour of

such person. To us, it is no answer to state that in case the father is

convicted, it is open to maternal grandparents to make an

appropriate application for change of custody. Even at this stage, the

said fact ought to have been considered and appropriate order ought

to have been passed.”

39. The learned Sessions Court, for the reasons recorded in

the judgment of acquittal did not believe the child testimony. In

fact, it doubted the child to be an eye witness. Here, we make it

clear that, the appeal against the order of acquittal is pending. So,

whether the child was or was not the eye witness or the learned

sessions court rightly or incorrectly, did not believe the child

testimony, we are not observing, on any such aspect,

conclusively, but, what we consider in the present appeal is, what

stands as on today and that too, only for the purpose of

considering the welfare of the child for his custody issue i.e

whether, under the facts and circumstances of the case, it would

be in the interest and welfare of the child, to handover his custody

to the appellant-father, from the custody of the respondents. With

that view only, we proceed to look into the judgment of the

32

sessions court, but not with a view, either to affirm or find fault

with, the judgment of acquittal. Any observation made in this

judgment shall be only for the purpose of this appeal. It shall not

be relied upon by any of the parties in the pending criminal

appeal in which the legality of the judgment of acquittal would

certainly have an independent consideration.

40. The learned Sessions Court considered the testimony of

the child (ward). He was P.W.8. The learned Sessions Court

observed in paragraphs 22, 23, 24 and 35 which are as under:-

““22. At this juncture it is relevant to consider evidence of

P.W.8 who is son of deceased and A.1 as according to

prosecution P.W.8 is only eye witness in incident. His

statement was recorded by learned Magistrate, who is

examined as P.W.14 under Section 164 Cr.P.C statement.

When P.W.8 came to court to give evidence the boy stated

that, the accused scolded his mother and A.1 beat his mother

from behind her mother with a stick that has a blade and

bloodpool, and thereafter, his mother fell on the floor and

accused tightening her neck with her chunny and after she

died, they escaped by cleaning room. Neighbours came and

saw dead body and left. After half an hour, P.W.2 and P.W.5

came and shifted his mother to hospital. Police examined him

four days later and the Magistrate examined him 1 ½ months

later. During his cross-examination, it is elicited that, he was

examined by police at the house of P.W.2. P.W.2 and L.W.5

shifted deceased to hospital and he is residing with his

33

grandparents after the death of his mother. P.W.3 who is his

maternal uncle took him to the Magistrate when his statement

was recorded. He deposed that he did not state before police

and Magistrate that, stick had iron blade, so also that, the

accused tightened chunny around the neck of his mother and

that, blood was cleaned by accused. At relevant time, he was

studying LKG and used to go to school in van. He does not

remember for how many times, he was brought from

Bangalore to give his evidence in this case. Earlier he had

love and affection towards his father but not now. First when

his mother was taken to Chandra Hospital, Ananthapuram by

P.W.2 and L.W.5 along with his mother he also went. He does

not know for how many hours he was at that hospital and so

also he does not remember whether, P.W.2 and L.W.5 have

brought police to Chandra Hospital, but he denied the

suggestion that, basing on the information given by P.W.2 and

P.W.3, he is giving evidence.”

23. When we look at the evidence of P.W.14 who

recorded Sec.164 Cr.P.C Statement of P.W.8, the

witness/P.W.8 stated before him that, during morning hours,

accused beat his mother with a stick on the back of her head

and also on her chin in the presence of himself. According to

P.W.14, witness stated that, he voluntarily gave his statement

and he recorded statement of P.W.8 in the presence of P.W.3.

During cross-examination of P.W.14, it is elicited that, the

witness was studying LKG as per records. Witness was

questioned by him in Telugu and he answered in Telugu

language. It took about twenty minutes to record his

statement. Date and time of offence is not stated by the

witnesses.

34

24. Therefore a perusal of evidence of P.W8 coupled

with evidence of P.W.14 got to show that the boy does not

remember as to what happened for the reason that, he stated

that he does not remember for how many times he was

brought to court from Bangalore to give evidence, when he is

aged about 8 years and that to just a few days prior to his

giving evidence. He was brought to court before giving

evidence several times. So also that, he does not remember

whether police came when deceased was brought to Chandra

Hospital by P.W.2 and L.W.5. There is a discrepancy

regarding weapon used for commission of offence before this

court and before P.W.14. Further his statement was recorded

by the investigating officer four days after incident and the

reason for delay is not explained in giving his statement.

Since in this case, the witness also came to court on several

occasions, but did not give evidence also go to show that, he

was more prone to tutoring during his young age. Further, he

was residing at Bangalore with his grandparents and P.W.3,

who accompanied him several times to court along with

P.W.2.

35. Regarding presence of P.W.8 at relevant time by the

side of his mother who was in pool of blood is considered

doubtful for the reason that if the child is by the side of his

mother, who was in pool of blood, definitely his clothes should

have drenched in blood. Non-seizure of blood stained clothes

of P.W.8 is a missing link in this case. Further non-

examination of P.W.8 on the very same day or on the next day

when P.W.1 to P.W.3 were examined along with other blood

35

relatives non showing name of P.W.8 as eye witness in

inquest report is also a missing link.”

41. Thus, the presence of P.W.8 (child), at the relevant time by

the side of his mother, who was said to be in pool of blood, was

considered doubtful. Non-seizure of blood stained clothes of

P.W.8, the non-examination of P.W.8 on the very same day or on

the next day, when P.W.1 to P.W.3 were examined, along with

other blood relatives, and non-mentioning the name of P.W.8 as

eye witness, in the inquest report, were the factors considered as

a missing link. The statement of the child was recorded by the

investigating officer four days after the incident. The reasons for

such delay were not explained. The child‟s evidence was

recorded after 1 ½ months gap by P.W.14, under Section 164

Cr.P.C. The court found discrepancy regarding the weapon used

for commission of offence in the statement of the child recorded

as P.W.8 and the one recorded before P.W.14. It observed that

there was change in the statement of the child witness, from the

one recorded under Section 164 Cr.P.C. He had stated that the

father, beat the mother with a stick. But, as P.W.8, he deposed

that his father beat his mother behind her head with a stick that

had iron blade and blood oozed out, which was never stated

36

before the police or the Magistrate. P.W.8 also stated that the

blade was inserted by the accused father, but the same was not

stated before the police, and the Magistrate. The sessions court

observed that the child witness came to the court on several

occasions but did not give evidence. He was residing with his

grandparents and P.W.3 (Kalyan Kumar) (respondent No.3

herein), accompanied him several times to the court along with

P.W.2 (2

nd

respondent herein). The child was more prone to

tutoring during his young age. The learned sessions court clearly

recorded that, the evidence of the child witness was not totally

reliable for want of corroboration.

42. Though, the learned Sessions Court has doubted the

presence of the child at the time of the incident, and thus to be an

eye witness and did not rely on the child testimony for want of

corroboration. Its appreciation of evidence may be correct, but

still we are not inclined to weigh this factor in favour of grant of

custody to the father. The child may or may not be the eye

witness of the incident and may or may not have deposed

correctly or truthfully or deposed due to tutoring, but still the fact

remains that the child actually deposed under Section 161

Cr.P.C in investigation, under Section 164 Cr.P.C before the

37

Magistrate, and also as a witness as P.W.8 in the Sessions Court,

against the appellant-father implicating him to have murdered his

wife (mother of the child) and the appeal against the order of

acquittal is pending.

43. Learned counsel for the appellant placed reliance on the

judgment in Tejaswini Gaud (supra) to contend that the custody

of the child was given to the father being the only natural

guardian alive, and therefore in the present case also the father

being the natural guardian alive and mother having died the

custody should be given to the appellant father.

44. In Tejaswini Gaud (supra), the facts were that the

marriage of the 1

st

respondent therein was solemnized with one

Zelam. She gave birth to a child. During the period of her

treatment for cancer, the child was with the father but when she

had to be hospitalized suddenly for her treatment, the sisters of

Zelam took the child to their residence. Later on she died. The

child continued to be in the custody of the sisters. The father was

denied custody, giving raise to the proceedings for child custody.

Finally, the matter approached the Hon‟ble Apex Court, wherein

the Hon‟ble Apex Court observed that, the father was the only

natural guardian alive and he had neither abundant nor neglected

38

the child. Only due to the peculiar circumstances of the case, the

child was taken care by the sister of Zelam. So the facts were

different. The father had given custody of the child therein under

the peculiar circumstances. There were no charge of murder or

demand of dowry. There was no criminal case against the father.

That is not a case of the father facing the criminal trial in respect

of the unnatural death of the mother of the ward nor the ward was

produced as a witness. Consequently, based on the judgment in

Tejaswini Gaud (supra), the custody cannot be directed to be

given to the father, on the ground of the father being the natural

guardian. To reiterate its not the right of the natural guardian but

the welfare of the ward which is of paramount consideration.

45. Learned counsel for the appellant placed much reliance in

Manchala Rushikesh (supra) to contend that the appellant being

the natural guardian unless there was something to show that he

was unfit to be given the custody of the minor wards, the order of

the learned court declining to grant custody cannot be sustained.

He submitted that in Manchala Rushikesh (supra), a case was

registered against the father, and the members of his family

under Section 304-B IPC. The mother of the minor had

committed suicide, as in the present case. He submitted that the

39

father was not found to be unfit, inspite of the case under Section

304-B IPC, being registered against him and the custody was

given to the petitioner being the natural guardian.

46. In Manchala Rushikesh (supra), the Co-ordinate Bench of

this court reiterated that the power of the court under Section 25

of the G.W.Act is to be governed primarily by the consideration of

the welfare of the minor. The judicial discretion is to be exercised

judiciously, in the background of all the relevant factors and

circumstances. Each case has to be decided on its own facts,

and other cases hardly serve as binding precedent, the facts of

two cases, in this respect being seldom-if ever, identical. This

Court further observed that in considering the question of the

welfare of the minor, due regard has to be paid to the right of the

father to be the guardian and also to all other relevant factors

having a bearing on the minor‟s welfare. There is a presumption

that a minor‟s parents would do their very best to promote the

children‟s welfare and, if necessary would not grudge any

sacrifice of their own personal interest and pleasure. This

presumption arises because of the natural, selfless affection

normally expected from the parents for their children. The father

is the guardian of the minor until he is found unfit to be guardian

40

of the minor. The welfare of the minor is paramount

consideration while ordering his custody. In view of Section 25 of

the Act, the onus is on the person who opposes the application by

a guardian for the custody of a ward to make out that the welfare

of the ward be better served by its being kept out of the custody

of its guardian and retained in the custody of the person against

whom the application is made. This onus is particularly heavy

when the guardian is the father of the child. It was observed that

the burden of proof to deny the natural father the custody of his

ward would be very heavy to establish his unfitness and the court

will require very strong reasons for interference with the father‟s

right to custody.

47. Manchala Rushikesh (supra), is a case seeking custody

by the natural guardian, father. The learned trial court without

giving any finding that the natural guardian was unfit to be the

guardian of the minor child, had dismissed the petition. The

Coordinate Bench of this Court found that there was nothing, out

of the entire material on record, regarding unfitness of the father

to be the guardian and no instance was indicated so as to deny

the custody to the natural guardian, or to show that the interest of

the minor would not be served if the custody was given to the

41

father. On such consideration, in totality of the facts and

circumstances of that case, the order of the trial court was

reversed and the custody of the minor was allowed to the father.

A perusal of the judgment in Manchala Rushikesh (supra),

shows that, the police after investigation had filed a final report.

There appears to be a dispute of partnership business. The

mother of the ward had demanded to settle the affairs of the

factory. Being disgusted, she committed suicide. There was no

dispute with the husband. The complaint was filed by the mother

of the deceased against the father of the ward, in which, after

completion of the investigation, the police came to the conclusion

that the father was falsely implicated and filed the final report

stating that it was a mistake of fact. We are therefore of the view

that the facts of Manchala Rushikesh (supra) are distinguishable

from the facts of the present case. Here, the mother of the minor

died in the incident occurred at the house of the father, and the

minor was produced as the eye witness against the father.

48. So far as the proposition of law in Manchala Rushikesh

(supra) is concerned, there is no dispute that, it is not the right of

the parties, to have the custody of the minor but the paramount

consideration is the welfare of the minor. It is also not in dispute

42

that while considering the custody of the minor, the right of the

natural guardian to have the custody is one of the factors to be

considered, but in a correct perspective. The welfare of the minor

shall always prevail over the right of the parties, in custody

matter. If the welfare is not with the party having the right, the

right of the party by itself cannot be the sole consideration or

determinative, factor for giving custody even to the natural

guardian.

49. Learned counsel for the appellant relied in Anuj Sharma

(supra), and contended that after the death of the mother of the

minor, he was forcibly abducted by the respondent therein. The

father immediately filed the criminal complaint and also the

proceedings for getting back the custody of the child and the

custody was handed over to the father by the Court.

50. In Anuj Sharma (supra), the Rajasthan High Court

observed that the appointment of a person as the guardian of the

person of the minor is different from handing over the custody of

the minor to a particular person. It refered to the judgment of the

Hon‟ble Apex court in Athar Hussain vs. Syed Siraj Ahmed & Ors

(AIR 2010 Supreme Court 1417), and observed that the matter of

guardianship lies in favour of the father under Section 19 of the

43

Act of 1890. Unless the father was not fit to be a guardian, the

Court had no jurisdiction to appoint another guardian. The

question of custody was said to be different from the question of

guardianship. It was held that what is important and paramount is

the welfare of the child, which would include material welfare;

both in the sense of adequacy of resources to provide a pleasant

home and a comfortable standard of living, in the sense of an

adequacy of care, to ensure that good health and due personal

care are maintained. The welfare of the child should not be

measured by money or by physical comforts alone and while

considering the welfare of the child, the ties of the affection of the

father, who is the natural guardian could not be disregarded.

51. The proposition of law in Anuj Sharma (supra) that the

case of custody is to be decided having regard to the totality of

the facts and circumstances of the case, keeping in view of the

paramount consideration of the interest and welfare of the minor,

is not in dispute and is a settled proposition of law, reiterated all

the times. But, based on the judgment in Anuj Sharma (supra),

the appellant cannot claim custody as of right being the natural

guardian. In Anuj Sharma (supra), the mother died on account of

burn injuries. It was the case of the appellant therein that she

44

committed suicide. It does not appear to be a case of an FIR

being lodged against the father of the ward. In the present case

there is criminal case against the appellant and the minor was

produced as an eye witness against the appellant.

52. We deem it appropriate to refer to the judgment of Hon‟ble

Apex Court in Kirtikumar Maheshankar Joshi vs. Pradipkumar

Karunashanker Joshi

12

. The father of the minor children was

facing criminal trial under Section 498-A IPC in connection with

the death of the mother of the children and as per the postmortem

report, the cause of death was cardiac respiratory arrest due to

some chemical poison. The police had recoded the statements of

the children and after the death of the mother, the children had

left father‟s house and went to live with their maternal uncle. The

application for custody of children was filed by the father. The

minor children were bitter about their father and narrated various

episodes showing ill-treatment of their mother at the hands of

their father. They categorically stated that they were not willing to

live with their father. They also stated that they were very happy

with their maternal uncle who was looking after them very well.

The court observed that it would not be in the interest and welfare

12

(1992) 3 SCC 573

45

of the children to hand over their custody to their father. In the

context of the father being a natural guardian and a preferential

right to the custody of his minor children, the Hon‟ble Apex Court,

observed that, keeping in view the facts and circumstances of the

case and wish of the children, it was not inclined to hand over the

custody of the minor children to their father, at that stage. So, the

father, though natural guardian was denied custody which was

continued with the maternal uncle, in the interest and welfare of

the child.

53. Para 7 of Kirtikumar Maheshankar Joshi (supra), is

reproduced as under:

“7. Pursuant to our order dated March 27, 1992 the

children namely, Vishal and Rikta are present before

us in these chamber-proceedings. Their maternal

uncle Kirtikumar and their father Pradipkumar are also

present. Vishal and Rikta both are intelligent children.

They are more matured than their age. We talked to

the children exclusively for about 20/25 minutes in the

chamber. Both of them are bitter about their father and

narrated various episodes showing illtreatment of their

mother at the hands of their father. They categorically

stated that they are not willing to live with their father.

They further stated that they are very happy with their

maternal uncle Kirtikumar who is looking after them

very well. We tried to persuade the children to go and

46

live with their father for some time but they refused to

do so as at present. After talking to the children, and

assessing their state of mind, we are of the view that it

would not be in the interest and welfare of the children

to hand over their custody to their father Pradipkumar.

We are conscious that the father, being a natural

guardian, has a preferential right to the custody of his

minor children but keeping in view the facts and

circumstances of this case and the wishes of the

children, who according to us are intelligent enough to

understand their well-being, we are not inclined to

hand over the custody of Vishal and Rikta to their

father at this stage.”

ii) G & W.C.No.101 of 2018:

54. G & W.C.No.101 of 2018 was filed by the respondents in

the court of the III Additional Principal Judge, Family Court at

Bangalore, to appoint them as guardian of the ward, and is said

to be pending. In that case, the appellant (respondent therein)

filed I.A.No.10 of 2018 under Section 12 of the G & W. Act,

seeking visitation rights which was opposed by the respondents

herein and was dismissed vide order dated 23.04.2024, recording

at least two material aspects. One is the photographs of the child

(ward) and the other, unwillingness of the child to go with the

father. The first we would consider under the present head and

the second under the head of preference of child.

47

55. Relevant part of paras 11 and 12 of the order dated

23.04.2024 reads as under:

“11. It is an admitted fact that the criminal case was

registered against the respondent for the offense punishable

u/section 498-A, 302, 201 R/w Sec. 34 IPC and it has ended

in acquittal. The fact that the mother of the ward Surays‟s

Jyothi Manohar suffered to the severe head injury and

succumbed to the severe injury. The certified copy of the

judgment passed in S.C.No.207/2018 has been produced

before the court and the contents of the said judgment

clearly shows that she suffered grievous injury on the back

of her head and later succumbed to the injuries. Merely, for

the reason that the respondent is acquitted in the criminal

case registered against him in SC No.207/2018, as a matter

of right he will not become entitled for having visitation rights

to the child for the reason that he is biological father of the

child. Welfare and wellbeing of the child is the paramount

point for consideration and not rights of father. Admittedly

the respondent withdrawn the petition filed by him in GWOP

No.79/2018 during the pendency of the criminal case against

him in SC No.207/2018. Admittedly, after the disposal of SC

No.207/2018 the respondent filed the petition in GWOP

No.13/2020. Certified copy of the orders passed in GWOP

No.13/2020 dated 12.12.2022 is produced before the court

and it is marked as Ex.P.14. The copy of the order shows

that the petition filed by the respondent u/sec.9, 10 and 25 of

G & W Act, seeking for direction to the respondent (petitioner

in this case) to hand over the custody of the minor child in

his favour and it came to be dismissed. The observation

48

made in the orders passed in GWOP No.13/2020 clearly

shows that the court after holding interaction with the child

clearly concluded that the child expressed his unwillingness

to go with his biological father and expressed his willingness

to stay with his maternal grandparents and uncle.

The observation made by the court in the judgment

passed in GWOP No.13 of 2020 in para No.18 also needs to

be taken into consideration. The ward expressed his

unwillingness to meet his father from that date to till date.

12. The learned advocate for petitioner during the course

of arguments submitted that on the date of incident in which

his mother was killed i.e on 4.9.2017, the child was with his

mother, even an attack was also made to strangulate the

child. Luckily the child survived. The learned advocate for

petitioners referred to the photographs produced before the

court in support of their case along with para No.5 of the

affidavit filed in support of I.A.No.10. In the facts and

circumstances of the case on hand, welfare and wellbeing of

the child is the paramount. Merely for the reason that the

respondent is the biological father of the child, he will not

become entitled to visit the child against the will and wish of

the child in the facts and circumstances of the case on hand.

The rights of the parties will not prevail over the welfare and

wellbeing of the child. Importance shall be given to the

comfort, health, wellbeing, likes and dislikes of the child in

the present facts and circumstances of the case on hand.

Though, the respondent being biological father will have

preferential right to the child. In view of his close relationship

with the ward, request and willingness of the child to stay

with his maternal grandparents and uncle and his

49

unwillingness to even to see the respondent needs to be

taken into consideration. Likes and dislikes of the child

cannot be ignored. Merely for the reason that the

respondent is the biological father, the child cannot be

pressurized or compelled to visit the father against the will

and wish of the child. The unwillingness of the child to visit

the father needs to be taken into consideration, in the

circumstances of the case on hand, the gravity of allegations

made against the respondent with respect to the death of his

wife/mother of the child, photographs relied upon by the

petitioners to substantiate their allegations, the strangulate

marks that can be seen in the photographs of the child also

needs to be taken into consideration. Custody and visitation

of the minor child cannot be decided on the basis of the

rights of the parties, ignoring the welfare and well being of

the child.”

56. The photostat of the photo of the child, filed in G &

W.C.No.101 of 2018, considered in the order dated 23.04.2024,

have been brought on record, of this appeal by memo dated

01.10.2024. The said photographs, as printed, bear date

09.09.2017. The death of the child‟s mother is in the incident

dated 04.09.2017. Whether, these photographs were filed, in the

criminal case S.C.No.207 of 2018 on the file of IV Additional

Sessions Judge, Ananthapuram, or/and any complaint against

the father for the alleged strangulation, causing such marks on

the neck of the child as in the photographs, was lodged, and

50

whether the child was given any treatment by any doctor for any

such alleged injury to the child, has not been pointed out to us, in

the present appeal. But, on bare seeing of the photographs there

appears to be marks of injury round the neck of the child. There

is proxity between the dates of incident and of the photographs.

The possibility of the marks being the marks of strangulation as

observed by the Family Court, Bangalore cannot be ruled out.

We, however, make it very clear that, we are not expressing any

conclusive opinion neither with respect to the observations made

by the Family Court, Bangalore, nor with respect to the nature of

the marks on the neck of the ward, as can be seen in the

photographs, to be the strangulation marks. We are also not

observing that those marks are real nor that not real. But, only for

the purposes of this appeal considering the custody matter, the

photographs of the child as they are, we take it as a relevant

factor and cannot ignore the same, which prima facie goes

against the appellant for giving custody to him and being

considered as against the welfare of the minor.

iii) G.W.O.P.No.79 of 2018:

57. So far as the submission of the learned counsel for the

respondents that the father appellant did not show interest, in the

51

minor is concerned, the facts show that the appellant previously

filed G.W.O.P.No.79 of 2018 for custody of the child, which was

got withdrawn, for the reason as submitted by the appellant‟s

counsel that, the assurance was given by the respondents, to

hand over the custody of the ward to the appellant, though any

such assurance was disputed by the respondents counsel. The

appellant then filed G.W.O.P.No.13 of 2020 for custody, which

having been dismissed, the present appeal has been filed.

Previously, he also filed I.A.No.10 of 2018 seeking visitation right,

in G.W.O.P.No.101 of 2018 filed by the present respondents. The

appellant, filed W.P.No.16271 of 2024 which was dismissed by

the High Court of Karnataka. So, since 2018, the appellant is

making efforts for custody/visitation rights of his son. Further,

with respect to the contention of the respondents‟ counsel that the

appellant did not visit the child in past many years, it is obvious

that when the criminal case filed by the respondents was pending

against the appellant and the ward was in the custody of the

respondents, the appellant could not be expected to visit the

respondents to see his child. What he could do, he did by taking

recourse to the legal proceedings. We therefore, do not find force

in the submission of the respondents‟ counsel that the appellant

52

did not show any interest in the child, for his custody or to meet

him or that there was want of bonafides.

58. In Muthuswami Chettiar (supra) upon which learned

counsel for the respondents placed reliance the Madras High

court observed that if a minor has for many years from a tender

age lived with grandparents or other near relatives and has been

well cared for and during that time the minor‟s father did not show

interest in the minor, those circumstances were of great

importance. They bear both upon the question of the interests

and welfare of the minor and on the bona fides of the person

seeking custody. Muthuswami Chettiar (supra) was laid much

emphasis to contend that the appellant had not shown any

interest in the minor, for last so many years. We for the

consideration made above, are of the view that Muthuswami

Chettiar (supra) is not applicable on the point cited, though, on

law there cannot be any dispute.

iv) CHILD’S PREFERENCE:

59. In Nil Ratan Kundu (supra), the Hon‟ble Apex Court

observed that the examination of the minor also helps the court in

performing onerous duty in exercising discretionary jurisdiction

and in deciding delicate issue of custody of a tender-aged child.

53

The court must consider the preference of the child if he is old

enough to form an intelligible preference. The Apex Court,

however, further added that, the final decision rests with the

Court, which is bound to consider all questions and to make an

appropriate order keeping in view the welfare of the child.

60. In G.W.O.P.No.13 of 2020 on 30.08.2020, which is

recorded in the impugned order dated 12.12.2022 in para No.18,

the child stated that “…….. he wants to stay with the respondents

and he do not want to go with the petitioner………. The court

tried to convince the ward to go along with the father but the ward

not convinced.”

61. As per the order dated 23.04.2024 in I.A.No.10 of 2018 in

G & W.C.No.101 of 2018, during the interaction with the child, he

stated that he was comfortable with his maternal uncle and

maternal grandparents and expressed his willingness not to see

the father, stating that, the father killed the mother. The ward

expressed danger and asked the court not to send him with his

father and started crying. Considering the unwillingness of the

child to visit the father and the gravity of the allegations made

against the father with respect to the death of his mother, the

learned court rejected the I.A.No.10 of 2018.

54

62. The relevant part in para 11 of the order reads as under:

“In this case also during interaction with the child the ward

Master Surya Srivastav clearly stated that he is comfortable

with his Mama and grandparents and the child expressed his

willingness even to see the respondent/father stating that he

killed his mother hitting her with the hind portion of the axe

on the hind portion of her head. The ward apprehends

danger from the respondent and humbly requested the court

not to send him with his father and started crying.”

63. The appellant filed W.P.No.16271 of 2024 on the file of the

High court of Karnataka, challenging the order dated 23.04.2024

of dismissal of his application for visitation rights. The High Court

of Karanataka, on 25.09.2024 directed the maternal grandparents

to produce the child, to interact with him. The child was produced

on 22.10.2024. The High Court, passed the order dated

22.10.2024, that the child refused to go with his father and when

his father was called, he started crying not to call his father. The

child was not willing to go with the father.

64. The orders dated 25.09.2024 and 22.10.2024 in

W.P.No.16271 of 2024, read as under:

25.09.2024:

“The Trial Court had dismissed the application

filed by the father seeking visitation. Learned counsel for

the respondents submits that the boy is not interested to

see the father as he has been an eye witness to the

55

incident where the mother had lost her life. Considering

all this, this Court deems it appropriate to interact with the

child.

Post this matter on 22.10.2024 at 2.00 p.m. in the

chambers.

The grandparents, father and the child shall be

present before the Court on the next date of hearing.”

22.10.2024:

“Pursuant to the order dated 25.09.2024, the

grandparents, father and child appeared inChamber. The

Court asked the child whether the child is willing to go

with the father. He stated that the father killed his mother

and he is an eye witness to the said incident and also

gave an evidence in Sessions Case No.207/2018 on the

file of IV Additional District and sessions Judge-cum-Spl.

Judge for Trial of Offences against Women,

Anantapuramu. He refused to go with his father and

when his father was called, he started crying not to call

his father. From the conduct of the child, the child is not

willing to go with the father.”

65. Under the aforesaid circumstances, we did not consider it

appropriate nor necessary to call the child again to know the

child‟s preference, which is evident. However, as observed by

Hon‟ble the Apex Court in Nil Ratan Kundu (supra), the court

exercising parens patriae jurisdiction is the final authority to best

56

consider the welfare of the minor on weighing of the various

circumstances.

v) OTHER RELEVANT FACTORS:

66. The learned trial court has recorded that the respondents

are very well looking after the child for his needs, education,

health and future. The child is also happy in the company of the

respondents. The respondents have financial capacity. On the

above aspect any contrary submission has not been made. With

respect to the appellant, having financial capacity to maintain the

child, also, no contrary submission has been made by the

respondents. Consequently, on the above aspect it cannot be

said that the welfare of the child is not in the custody of the

respondents.

67. The appellant may be in a position to maintain the child and

to look after his welfare and may be in a better position as was

argued, but keeping in view the overall factors, and being

concerned about the safety and security of the child, in our view it

would not be in the welfare of the child at least, at present, to

hand over his custody to the appellant. The impression in the

child‟s mind for the last seven years is against his father. The

57

child is in the custody of the maternal grandparents, and uncle

without any complaint.

CONCLUSION POINT -A:

68. We thus conclude on Point-A, that i) the welfare of the child

is being looked after by the respondents. ii) they have got the

child admitted in a good school where he is studying. iii) the child

is with the respondents for the last more than seven years and is

living happily. iv) the maternal-grandfather has fixed an amount of

Rs.5,00,000/- for his future in Fixed Deposit Receipts, evidencing

concern about the child‟s care, welfare and future, v) the

respondents have the financial capacity to maintain the child vi)

there is nothing on record to show that the respondents are not

taking care of the child properly, and vii). the child expressed his

unwillingness to go with the father a) before the III Additional

Principal Judge, Family Court, Bangalore in G & W.C.No.101 of

2018 which has been recorded in the order dated 02.04.2018, b)

before the learned single Judge of the Karnataka High Court in

W.P.No.16271 of 2024, and c) in G.W.O.P.No.13 of 2020. In

consideration of the above factors, with that i) the child deposed

against the father in the incident of his mother‟s death under

Section 161 Cr.P.C, under Section 164 Cr.P.C and as witness

58

(P.W.8) in Sessions Case; ii) the photographs of the child and, iii)

Criminal Appeal against the order of acquittal is pending, we hold

that, the welfare of the child will not be in the custody of the father

appellant. He cannot be given custody of the ward from the

custody of the respondents.

POINT-B:

69. In view of our conclusions of Point-A, we hold on Point-B,

that, the order dated 12.12.2022, passed by the learned Principal

District Judge, Ananthapuram, does not suffer from any illegality

on the point of custody.

70. But, we would add that the learned Principal District Judge,

Ananthapur must have considered about the visitation rights of

the father-appellant. We therefore proceed to consider the same.

VISITATION RIGHTS:

71. In Yashita Sahu v. State of Rajasthan

13

the Hon‟ble Apex

Court held that even if the custody is given to one parent, the

other parent must have sufficient visitation rights to ensure that

the child keeps in touch with the other parent and does not lose

social, physical and psychological contact with any one of the two

parents. It is only in extreme circumstances that one parent

13

(2020) 3 SCC 67

59

should be denied contact with the child. Reasons must be

assigned if one parent is to be denied any visitation rights or

contact with the child. Courts dealing with the custody matters

must while deciding issues of custody clearly define the nature,

manner and specifics of the visitation rights.

72. It was observed that the child is the victim in custody

battles. In this fight of egos and increasing acrimonious battles

and litigations between two spouses, the parents who otherwise

love their child, present a picture as if the other spouse is a villain

and he or she alone is entitled to the custody of the child. The

Hon‟ble Apex Court in Yashita Sahu (supra) emphasized that a

child, especially a child of tender years requires the love,

affection, company, protection of both parents. This is not only

the requirement of the child, but is his/her basic human right.

Just because the parents are at war with each other, does not

mean that the child should be denied the care, affection, love or

protection of any one of the two parents. A child is not an

inanimate object which can be tossed from one parent to the

other. Every separation, every reunion may have a traumatic and

psychosomatic impact on the child.

60

73. The Hon‟ble Apex Court further observed that most Courts

while granting custody to one spouse do not pass any orders

granting visitation rights to the other spouse, and also that a child

has a human right to have the love and affection of both the

parents and courts must pass orders ensuring that the child is not

totally deprived of the love, affection and company of one of

her/his parents.

74. In Yashita Sahu (supra), the Hon‟ble Apex Court further

observed that in addition to the visitation rights, contact rights are

also important for development of the child. The concept of

contact rights in the modern age would be contact by telephone,

e-mail or in fact, the best system of contact, if available between

the parties should be video calling. It was emphasized that the

courts dealing with the issue of custody of children must ensure

that the parent who was denied custody of the child should be

able to talk to her/his child as often as possible. Unless there are

special circumstances to take a different view, the parent who

was denied custody of the child should have the right to talk to

his/her child for 5 to 10 minutes every day. This will help in

maintaining and improving the bond between the child and the

parent who was denied custody. If that bond is maintained, the

61

child will have no difficulty in moving from one home to another

during vacations or holidays. The purpose of this is, if one cannot

provide one happy home with two parents to the child then let the

child have the benefit of two happy homes with one parent each.

75. Paras-20 to 24 of Yashita Sahu (supra) deserve reproduction

as under:

“20. It is well settled law by a catena of judgments that

while deciding matters of custody of a child, primary and

paramount consideration is welfare of the child. If welfare of the

child so demands then technical objections cannot come in the

way. However, while deciding the welfare of the child, it is not

the view of one spouse alone which has to be taken into

consideration. The courts should decide the issue of custody

only on the basis of what is in the best interest of the child.

21. The child is the victim in custody battles. In this fight

of egos and increasing acrimonious battles and litigations

between two spouses, our experience shows that more often

than not, the parents who otherwise love their child, present a

picture as if the other spouse is a villain and he or she alone is

entitled to the custody of the child. The court must therefore be

very wary of what is said by each of the spouses.

22. A child, especially a child of tender years requires the

love, affection, company, protection of both parents. This is not

only the requirement of the child but is his/her basic human

right. Just because the parents are at war with each other, does

not mean that the child should be denied the care, affection,

love or protection of any one of the two parents. A child is not

an inanimate object which can be tossed from one parent to the

62

other. Every separation, every reunion may have a traumatic

and psychosomatic impact on the child. Therefore, it is to be

ensured that the court weighs each and every circumstance

very carefully before deciding how and in what manner the

custody of the child should be shared between both the

parents. Even if the custody is given to one parent, the other

parent must have sufficient visitation rights to ensure that the

child keeps in touch with the other parent and does not lose

social, physical and psychological contact with any one of the

two parents. It is only in extreme circumstances that one parent

should be denied contact with the child. Reasons must be

assigned if one parent is to be denied any visitation rights or

contact with the child. Courts dealing with the custody matters

must while deciding issues of custody clearly define the nature,

manner and specifics of the visitation rights.

23. The concept of visitation rights is not fully developed

in India. Most courts while granting custody to one spouse do

not pass any orders granting visitation rights to the other

spouse. As observed earlier, a child has a human right to have

the love and affection of both the parents and courts must pass

orders ensuring that the child is not totally deprived of the love,

affection and company of one of her/his parents.

24. Normally, if the parents are living in the same town or

area, the spouse who has not been granted custody is given

visitation rights over weekends only. In case the spouses are

living at a distance from each other, it may not be feasible or in

the interest of the child to create impediments in the education

of the child by frequent breaks and, in such cases the visitation

rights must be given over long weekends, breaks and holidays.

In cases like the present one, where the parents are in two

63

different continents, effort should be made to give maximum

visitation rights to the parent who is denied custody.”

76. We are not oblivious that Yashita Sahu (supra) is a case

for custody between father and mother of the ward. But still the

principles laid down would apply with equal force to the present

case as well, as they pertain to the welfare and wellbeing of the

ward considering his overall development and not to be deprived

of love and affection of any one of the parents, which is his basic

human right. So, even if there is one parent alive and the contest

is between that parent and third person, the visitation rights to the

party denied custody, deserves to be considered.

77. In Kirtikumar Maheshanker Joshi (supra), the custody of the

children was denied to the father, who was facing the criminal

charge under Section 498-A IPC, in which the statement of the

children was recorded by the police. The Hon‟ble Apex Court

granted visitation rights to the father. Those directions in para 7

are as follows:

“……….We, therefore, dispose of the appeal by issuing

the following directions:

(I) We hand over the custody of Vishal and Rikta, the

minor children of Pradipkumar and Kumudlata deceased,

64

to the appellant Kirtikumar who is the maternal uncle of

the children.

(II) Pradipkumar, father of the children, shall be permitted

by the appellant to meet the children on holidays or on

any other day with prior notice to the appellant.

Pradipkumar can take the children out of the appellant's

house for recreation, entertainment or for shopping with

the concurrence of the children.”

78 In Tejaswini Gaud (supra), though the custody was denied

to the appellants therein and was given to the father but the

appellants therein were granted the right to access to the child

initially for three months for a specified time with the directions

and the conditions imposed. Paras 36 and 37 of Tejaswini Gaud

(supra) read as under:

“36. The appellants submit that handing over of the

child to the first respondent would adversely affect her and

that the custody can be handed over after a few years. The

child is only 1½ years old and the child was with the father

for about four months after her birth. If no custody is

granted to the first respondent, the court would be depriving

both the child and the father of each other‟s love and

affection to which they are entitled. As the child is in tender

age i.e. 1½ years, her choice cannot be ascertained at this

stage. With the passage of time, she might develop more

bonding with the appellants and after some time, she may

be reluctant to go to her father in which case, the first

respondent might be completely deprived of her child‟s love

and affection. Keeping in view the welfare of the child and

the right of the father to have her custody and after

consideration of all the facts and circumstances of the case,

we find that the High Court was right in holding that the

welfare of the child will be best served by handing over the

custody of the child to the first respondent.

37. Taking away the child from the custody of the

appellants and handing over the custody of the child to the

65

first respondent might cause some problem initially; but, in

our view, that will be neutralized with the passage of time.

However, till the child is settled down in the atmosphere of

the first respondent-father‟s house, the appellants No.2 and

3 shall have access to the child initially for a period of three

months for the entire day i.e. 08.00 AM to 06.00 PM at the

residence of the first respondent. The first respondent shall

ensure the comfort of appellants No.2 and 3 during such

time of their stay in his house. After three months, the

appellants No.2 and 3 shall visit the child at the first

respondent‟s house from 10.00 AM to 04.00 PM on

Saturdays and Sundays. After the child completes four

years, the appellants No.2 and 3 are permitted to take the

child on every Saturday and Sunday from the residence of

the father from 11.00 AM to 05.00 PM and shall hand over

the custody of the child back to the first respondent-father

before 05.00 PM. For any further modification of the

visitation rights, either parties are at liberty to approach the

High Court.”

79. In S. Nishath vs. S. Shajila Beevi alias Shasila

14

, the

Madras High Court granted the limited visitation rights under the

supervision in the court premises of Sub-court/District Munsif

Court at Kuzhithurai. Relevant part of para No.7 in S. Nishath

(supra) reads as under:

“7……………………. In Black's Dictionary step-up-visitation

theory is contemplated and the same is extracted hereunder

for ready reference:

“Visitation.

1. Inspection; superintendence; direction; regulation.

2. A relative's esp. a noncustodial parent's, period of access

to a child. - Also termed parental access; access; parenting

time; residential time.

14

2012 SCC OnLine Mad 5094

66

3. The process of inquiring into and correcting corporate

irregularities.

4. Visit.

Grandparent visitation. A grandparent's court-approved

access to a grandchild. The Supreme Court recently limited a

grandparent's right to have visitation with his or her

grandchild if the parent objects, citing a parent's fundamental

right to raise his or her child and to make all decisions

concerning the child free from state intervention absent a

threat to the child's health and safety.

Restricted visitation. See Supervised visitation.

Stepped-up visitation. Visitation, usu. For a parent who has

been absent from the child's life, that begins on a very limited

basis and increases as the child comes to know the parent. -

Also termed step-up visitation.

Supervised visitation. Visitation, usu. Court-ordered, in which

a parent may visit with the child or children only in the

presence of some other individual. A court may order

supervised visitation when the visiting parent is known or

believed to be prone to physical abuse, sexual abuse, or

violence. - Also termed restricted visitation.”

80. In Master Vedant Mishra Thruh, Father Amritanshu

Mishra vs. State of U.P Thru Prin. Secretary, Home

Department, Lucknow and others

15

, the Allahabad High Court

though denied the custody to the father facing trial for the murder

of the mother of the ward, but allowed the visiting rights.

81. Recently, in Ruhi Agrawal and another vs. Nimish S.

Agrawal

1

, the learned Family Court granted sole custody of the

15

2023 SCC OnLine All 4233

67

child to the mother, and the father was awarded limited visitation

rights. The High Court, maintained the sole custody with the

mother but extended the father‟s visitation rights and allowed

longer meeting hours, physical meetings on a fortnight basis,

shared vacation time, and regular video calls to promote a

meaningful bond between the father and the child. The modified

arrangement made by the High Court was challenged. The

Hon‟ble Apex Court, emphasised the need for both the parents to

cooperate and communicate effectively to ensure the smooth

implementation of the visitation arrangements. Observing that,

the mutual respect and collaboration are essential for the child‟s

wellbeing, the Hon‟ble Apex Court made visitation arrangements,

keeping in view the safety and welfare of the child.

82 Paras 13 to 19 of Ruhi Agrawal (supra) read as under:

“13. We emphasize the need for both parents

to cooperate and communicate effectively to

ensure the smooth implementation of the visitation

arrangement. Mutual respect and collaboration are

essential for the child‟s well-being.

14. Since both the parties have made severe

allegation against each other to bring forth their

individual concerns for the physical safety and

68

mental wellbeing of the child while in the company

of the opposite parent, we will not go into the merits

of these allegations as several cases are still

pending between the parties and we are yet to hear

the petition on merits. But, keeping the safety and

welfare of the child as paramount, we believe that

these submissions cannot be taken lightly.

Petitioner no.1 has urged before us that she should

be allowed to be present during the meetings to

ensure the child‟s safety, whereas the respondent

has contested against such arrangement on the

grounds that petitioner no.1 tends to control

petitioner no.2 and thus does not allow the visits to

go smoothly and without interruption.

15. Owing to the circumstances and the allegation

in the present case, we do not deem it appropriate

to allow petitioner no.1 to be present during the

visitation meetings that will take place during the

pendency of this petition. But we understand the

concerns of a mother of a teenage daughter,

especially one who has made serious allegations

against her husband. Thus, as urged by petitioner

no.1 that the safety of the child be ensured and as

suggested by the respondent, we deem it

appropriate that a Court appointed Commissioner,

who shall be a female, shall be present at all times

during the visitation meetings.

16. Such an arrangement strikes a fair balance

between the child’s need for stability, her safety

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and welfare, and the respondent’s right to

meaningful involvement in the child’s life. Both

parents are reminded of their duty to prioritize

the child’s welfare and work collaboratively to

create a nurturing and supportive environment

for the child.

17. After careful consideration of the submissions,

we find no reason to not allow the abovementioned

visitation rights to continue in the interim.

18. During the pendency of the petition before this

Court, we deem it appropriate to allow the following

visitation arrangements made by the High Court to

continue:

i. The father or grandparents would be able to

engage with the child on a suitable video

conferencing platform for one hour every Saturday

and Sunday and 5- 10 minutes on other days.

ii. Both the father and the mother in order to

facilitate the video conferencing in between shall

procure smart phones which would facilitate the

inter-se video calling.

iii. Since both the parties are living in the same

district, it is directed that on a fortnight basis on the

working Saturday the child would be produced

before the Family Court, Durg at about 10:30 AM to

11:00 A.M. by the wife. Wherefrom the child may

be taken by the husband for the entire day and

shall be returned in between 4:30 PM to 5:00 pm

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before the family Court to enable the mother to get

back the custody.

iv. During the vacation, the child would be entitled

to be in the company of father/grandparents,

initially for a period of one day from 9.00 a.m. to

9.00 p.m.

It is directed that the visitation rights mentioned

in clause (iii) and (iv) above shall be exercised only

in the presence of a court appointed

Commissioner, who shall be a female. The

custody of the child shall be taken by the

respondent in the morning and returned to the

petitioner no.1 in the evening, in the presence of

the court appointed Commissioner. Further, the

Commissioner shall be present at all times during

the course of the visitation meetings, which shall

take place in a public place only.

19. Thus, we modify the interim visitation rights

only to the above extent of requiring the presence

of a female court Commissioner who shall be

appointed by the Family Court at Durg,

Chhattisgarh within four weeks from the date of this

order.”

83. In Ruhi Agrawal (supra), the mutual respect of the

contesting parties and their collaboration being essential for the

child‟s wellbeing were emphasised. That was a case between

the parents, father and the mother, for custody/visitation rights.

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The present is a case between the father and the maternal-

grand-parents and uncle, but for the wellbeing of the child, the

mutual respect and collaboration between the contesting parties,

is essential and both the parties must understand this. The

concern of the respondents, that, the child deposed against the

father, during investigation, before the Magistrate and in Sessions

Court as also the pendency of the criminal appeal are relevant

factors and they can be addressed, by granting restricted and

supervised visitation meetings. We also find from the judgment of

the Sessions Court that, the child (P.W.8) deposed that “Earlier

he had love and affection towards his father …..”though he

added….”but not now.” The misunderstandings or wrong

impressions, may be for any reason, tutoring, living separately for

long or otherwise, may get removed. The visitation rights can be

allowed with restrictions and imposing conditions in the hope that,

with the passage of time the bond between the father and son,

may develop. We are of the view that after acquittal the father,

ordinarily, should not be deprived of the love and affection of the

child or of his company, restricted and supervised, keeping in

view the observations made and the spirit of the judgments in

Kirtikumar Maheshanker Joshi (supra) and Ruhi Agrwal

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(supra), so that the father may also get an opportunity to win over

the love and affection of the child, by his acts, conduct behivour

and sharings. Let the understandings be better between the

parties for overall development of the child.

84. We allow restricted and supervised visitation rights to the

appellant by issuing the directions as under:

i) The appellant (father) is permitted to visit/meet the

child (son) namely Master Surya Srivastav, twice in a

month on 1

st

Saturday and 3

rd

Saturday, for two

hours during 1.00 p.m to 3.00 p.m.

ii) The place would be the Family Court at Ananthapur.

iii) The respondents shall ensure the presence of the

child (ward) on the aforesaid days, place and time.

iv) The appellant shall not be permitted to take the child

outside the premises of the place of meeting.

v) The appellant shall behave like a responsible father.

He would not cause any embracement to the child

nor hurt his feelings.

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vi) The respondents shall not create any obstruction or

cause inconvenience to the appellant to meet the

child and being in the company of the child.

vii) The paternal grandparents shall also be at liberty to

meet grandchild on the days and time specified. The

same restrictions as with respect to the appellant

shall be applicable to them also.

viii) The visitation shall be in the supervision of the

learned Judge, Family Court. He may himself be

present for visiting hours or part thereof and/or may

depute a responsible officer to remain present.

ix) The learned Judge, Family Court shall have all the

powers to arrange for ensuring the safety and

security of the child in the Family Court premises for

which considering the necessity, he may request the

local police to depute one/two police constables.

Upon such request, the concerned Station House

Officer shall provide the police constable who shall

be in civil uniform.

x) Any other person, shall not be permitted in the

meeting room except as per this order.

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xi) The learned Judge, Family Court shall submit the

report of every visitation, to this Court through the

Registrar (Judicial) of this Court, in a sealed cover

which shall be placed on the record of this appeal.

xii) The appellant and the paternal grandparents shall

also be permitted to engage with the child on a

suitable video conference platform for one hour on

every Sunday preferably between 2.00 p.m to 4.00

p.m.

xiii) In order to facilitate the video conferencing between

the child and the appellant and the grandparents,

the appellant shall provide smart phone to the child.

xiv) These arrangements are initially made for a period of

three months from 1

st

May, 2025.

xv) On expiry of such period, this Court exercising

parens patriae jurisdiction, will review and consider

the extension, expansion or otherwise of the

visitation rights allowed vide this judgment.

85. We do not find any reason to interfere with the judgment of

the learned court, for the discussion made on the point of custody

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but we allow the visitation rights with the aforesaid directions and

observations. The appeal for the custody is dismissed.

86. Before parting, we would like to reiterate the settled

principle of law, that no order of custody of the ward is final and

conclusive. It is always liable to further judicial scrutiny and

modification by the court depending on proof of substantial

changes in the circumstances that occur in the growing life of the

ward and the guardian. When occurrence of substantial changes

is brought to the notice of the court, it is bound, inappropriate

cases to modify the orders of custody, no matter the original

petition itself has culminated in a decree for permanent custody

and the proceedings before the Court has come to a logical

conclusion.

87. No order as to costs.

88. Let a copy of this judgment be sent to the Principal District

Judge, Ananthapur and also to the Judge, Family Court,

Ananthapur.

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As a sequel thereto, miscellaneous petitions, if any

pending, shall also stand closed.

____________________

RAVI NATH TILHARI, J

_______________________

CHALLA GUNARANJAN, J

Dated:10.04.2025

Note:

L.R copy to be marked.

B/o.Gk

77

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

&

THE HON’BLE SRI JUSTICE CHALLA GUNARANJAN

C.M.A.No.247 of 2023

Date:10.04.2025.

Gk.