SHRI SHAM S/O ASHOK SUTAR vs SMT. VAIDYA W/O SHAM SUTAR

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MFA No. 100896 of 2025


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IN THE HIGH COURT OF KARNATAKA AT DHARWAD


TH
DATED THIS THE 8 DAY OF OCTOBER, 2026

PRESENT

THE HON'BLE MR. JUSTICE M.I.ARUN

AND

THE HON'BLE MRS JUSTICE USHARANI

MISCELLANEOUS FIRST APPEAL NO. 100896 OF 2025 (GW)

BETWEEN:

1. SHRI SHAM S/O ASHOK SUTAR,
AGE: 36 YEARS, OCC. SERVICE,
R/O. H.NO.2040, PLOT NO.21,
VINAYAK COLONY, SHAHUNAGAR,
BELAGAVI-590001.





2. MASTER TANISH S/O SHAM SUTAR,
AGE: 4½ YEARS, OCC. STUDENT,
REPRESENTED BY HIS NATURAL GUARDIAN
APPELLANT NO.1, SHAM S/O ASHOK SUTAR,
R/O. H.NO.2040, PLOT NO.21,
VINAYAK COLONY, SHAHUNAGAR,
DIST. BELAGAVI-590001.
… APPELLANTS
(BY SRI. SADIQ N. GOODWALA, ADVOCATE)

AND:

SMT. VIDYA W/O SHAM SUTAR,
AGE: 32 YEARS, OCC. HOUSEHOLD,
R/O. C/O. SHANKAR R. LOHAR,
H.NO.446, PIPELINE ROAD,
SARASWATI NAGAR, GANESHPUR,
DIST. BELAGAVI-590001.





Digitally
signed by K M
SOMASHEKAR
Date:
2026.10.17
17:28:46
+0530
K M
SOMASHEKAR

… RESPONDENT
(BY SMT. GEETA K.M. @ PAWAR, ADVOCATE)

THIS MFA IS FILED UNDER SECTION 47(A) GUARDIANS AND
WARDS ACT, 1890, PRAYING TO SET ASIDE THE JUDGMENT DATED
08.01.2025 PASSED BY THE LEARNED I ADDITIONAL PRINCIPAL
JUDGE, FAMILY COURT, BELAGAVI IN G AND WC NO.12/2022 BY
ALLOWING THE APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE M.I.ARUN
AND
HON'BLE MRS JUSTICE USHARANI

ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.I.ARUN)


Aggrieved by the judgment and decree passed in G&WC
No.12/2022 dated 08.01.2025 passed by the I-Additional
Principal Judge, Family Court, Belagavi (hereinafter referred to
as ‘Family Court’ for short), the father and his minor son i.e.,
respondent Nos.1 and 2 therein, who are appellant Nos.1 and 2
herein, have preferred this appeal.

2. The appellant No.1 and the respondent are husband
and wife. They got married on 10.07.2016. On 18.11.2017 a
son by name Master Tanish (appellant No.2 herein) was born to
them. Due to marital discord, the husband and wife are living
separately. It is the case of the wife that she was forcefully
ousted from the matrimonial home on 19.02.2022 and the
husband snatched their son and since then the son is staying
with the father. She is ready and willing to join the company of

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husband by forgetting all the marital discord and she submits
that she wants both her son and husband.

3. Per contra, the husband has made allegations of
adultery against the wife. He has also alleged that she has been
cruel to him and he is not willing to take her back.

4. As the wife was not allowed to meet her son, she
preferred G & WC 12/2022, wherein she sought for permanent
custody of her son.

5. The Family Court based upon the evidence let in,
came to the conclusion that the husband failed to prove the
allegations of adultery and cruelty on the part of the wife. It
believed the version of the wife that the child was forcefully
snatched from her and she was thrown out of the matrimonial
house. The Family Court insofar as it relates to the interest of
the child has observed as under:
14. After the trial, in order to know wish of the
child, the Court itself had a chit-chat with the child in an
in camera proceedings. No doubt, the child voluntarily
said that he wants to continue to reside with his
father/respondent No. 1, but said opinion of the minor
child who is just at the tender age of 7 years age cannot
be treated as substantiate statement to discard the plea
of the petitioner. It is evident on records that when the

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child was aged about just 4 years the petitioner was
separated from his company. Thereafter, the child has
remained only with the company of his father and
grandparents. Though the respondent denied the
allegation of the petitioner that she was not allowed to
meet her child, it is not his case that the petitioner has
frequently been in touch with the child. In the
circumstances it would be relevant to rely on a decision
reported in AIR 2017 SC 929 (Vivek Singh Vs.
Romani Singh), wherein the Hon'ble Apex court has held
as under:

A child, who has not seen or experienced or lived
the comfort of the company of the mother is,
naturally, not in a position to comprehend that
the grass on the other side may turn out to be
greener. It is further held that only when a girl
child is exposed to that environment of living
with her mother, that she would be in a position
to properly evaluate as to whether her welfare
lies more in the company of her mother or in the
company of her father. The role of the mother in
the development of a child's personality can
never be doubted.

15. In another case passed in a decision reported
in (2017) 8 SCC 454 (Nithya Anand Raghavan v.
State (NCT of Delhi), the Hon'ble Apex court has held
that the custody of a girl child who is aged about 07 years
must ideally be with her mother unless there are

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circumstances to indicate that it would be harmful to the
girl child to remain in custody of her mother.

16. With regard to the case on hand, the petitioner
was separated from the company of the child when he
was just 4 years old. Till now he remains with the
company and custody of his father/respondent No.1. As
such, the child naturally is not in a position to assess
benefits of the company of his mother. Herein, no iota of
evidence is placed on the part of the respondent to show
circumstances which would indicate that it would be
harmful to the respondent No.2 to remain in the custody
of the petitioner. Probability of influence on the child by
the father herein cannot be ruled out to state before the
Court that he wants to continue with the custody of his
father.

17. As discussed earlier, absolutely no delay is
caused on the part of the petitioner to approach the Court
seeking lawful custody of her minor child from the
respondent No.1. No extra qualities can be found in the
respondent No.1 which can defeat the plea of the
petitioner in seeking custody of the minor son. Of course,
being father the care taking ability of the respondent No.1
cannot be doubted, but in comparison, the petitioner
being mother, stands in higher footage as caregiver to
her minor son. In view of the decision relied supra, role of
the petitioner in development of the personality of the
respondent No.2 can never be doubted. The petitioner
has not sought for any financially assistance from the

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respondent No.1 in bringing up the child. Moreover, it is
admitted fact that the petitioner has independent source
of income and she can provide comfort in all sorts to her
son. Considering the tender age of the respondent No.2,
it would be lawful to hold that the petitioner is entitled to
have custody of her minor son. At the same time, rights
of the respondent No.1 cannot be ruled out. The
respondent No.1 and his parents are always at liberty to
visit their son/grandson. Such of their visitation rights can
be formulated while handing over custody of the minor
son to the petitioner. In the result, the point No.1 is
answered in Affirmative. ”


6. Based on the aforementioned reasoning, the Family
Court has passed the following order:
ORDER

“The petition filed under Section 25 of the Hindu
Guardian and Wards Act allowed.

The respondent No.2 is hereby directed to hand
over custody of the minor respondent No.2 to the
petitioner within 2 months from the date of this order.

The respondent No.1 and his parents are at liberty
to meet the minor respondent No.2 on every Saturday
and Sunday between 5 p.m. to 7 p.m. after consultation
with the petitioner and the petitioner shall cooperate to
such of their visitation.

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The respondent No.1 is entitled to have interim
custody of the respondent No.2 during second half of his
summer, dasara and winter vacations till he attains age of
majority.”


7. Aggrieved by the aforementioned order, the
husband has preferred this appeal. His contention is that the
Family Court erred in appreciating evidence on record let in by
the parties insofar as it relates to conduct of the wife is
concerned. It is also his contention that since 19.02.2022, the
child has never been in the company of the mother and
handing over of the child to the mother’s custody would not be
in the welfare of the child, and the interest of the child is
paramount while granting custody. On the said ground, it is
prayed that the impugned order be set aside, the appeal be
allowed and the G&WC No.12/2022 filed by the wife be
dismissed.

8. Per contra, the wife justifies the impugned order
and prays for dismissal of the appeal.

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9. Irrespective of the allegations and counter
allegations made by the husband and wife against each other,
in Guardian and Wards Case, while the Court is deciding the
custody of the child and parenting rights of father and mother,
the interest of the child is paramount and not individual rights
of the parents in respect of the child.

10. Insofar as it relates to finding of the Family Court in
respect of the conduct of the wife, we do not see any reason
why the same has to be differed with. Once allegation is made
by the husband against the wife, the burden of proving the
same is on the husband and in the instant case, except for his
oral statement he has not adduced any believable evidence,
which proves the adulteress relationship of the wife with third
party. Similarly insofar as it relates to cruelty, it is the word of
the husband against the word of his wife and the evidence of
both the parties does not establish conclusively as to who has
been cruel to whom.

11. Be that as it may, as mentioned above, what is to
be adjudicated upon is the custody of the child keeping in view
the best interest of the child.

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12. A child requires both father and mother.
Irrespective of whether there is harmony between husband and
wife and whether they are living together or separately, a duty
is cast upon both the father and mother not to poison the mind
of the child against each other and to give their love and
affection and make efforts to help the child to develop its
personality and be a good human being. It is unfortunate that
in many cases, the child becomes a pawn at the hands of the
fighting parents often resulting in hampering proper growth of
the child.

13. Subsequent to filing of the appeal, an interim order
dated 25.03.2025 was passed, which reads as under:
“Pursuant to the order dated 17.03.2025, the
appellant and respondent as well as the minor child are
present before this Court. We have interacted with the
parties as well as the child in chambers as also heard
submissions of both the learned counsels.
It is expedient that an interim arrangement be
made to enable the respondent to interact with the minor
child. Hence, the respondent shall be entitled to for
visiting of rights of the minor child in the premises of the
District Legal Service Authority, Belagavi on 29.03.2025
and 05.04.2025 between 3.00 to 5.00 p.m. The appellant

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No.1 shall bring the child to the premises of the District
Legal Service Authority, Belagavi on the said dates at
3.00 p.m. and pick up the child at 5.00 p.m. However,
during the said periods of 3.00 p.m. to 5.00 p.m. the
appellant No.1 shall not be present in the premises.
The Member Secretary, District Legal Service
Authority, Belagavi, shall facilitate the said arrangements
and send a report to this Court.
Re-list on 08.04.2025.
Registry to furnish a copy of this order to the
Member Secretary, District Legal Service Authority,
Belagavi.”

Thereafter, on 22.07.2025, the following interim order has
been passed:
“As directed by this Court, both the parties are
present before the Court and the appellant – husband
states that he will ensure that the respondent is able to
meet and be with the child every Sunday between 11:00
a.m. to 4:00 p.m. in the park situated in the
neighbourhood which is convenient for both the parties.
Learned counsel for the appellant submits on
instructions that this arrangement can be made to enable
the child to develop some bonding with the mother and
thereafter appropriate direction can be given by this Court
to enable the child to stay with the mother.
Placing the submission of the learned counsel for
the appellant on record, in the presence of the appellant

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and the respondent – wife, we direct the appellant to
ensure that the son of the parties who is aged about 08
years to meet the respondent – mother every Sunday
between 11:00 a.m. to 4:00 p.m. in the neighbourhood
park situated at Bauxite Road, near Kumarswamy Layout,
Open Gym Park, Belagavi. This arrangement will continue
for a period of four weeks commencing from 3rd of
August, 2025.
Re-list this matter on 28.08.2025.”

On 09.09.2026, the following interim order has been passed:
“We had a detailed interaction with the appellant,
the respondent and minor child. We have noticed that the
child is in care and custody of the appellant from more
than three years and he is not even ready to speak with
the respondent/mother. Noticing the same, we are of the
considered view that if the parents along with child are
referred to the Child Psychiatrist, so that the Psychiatrist
can hold counseling. This exercise is taken keeping in
mind the paramount interest of the minor ward.
On enquiry, learned AGA Sri. V.S. Kalasurmath
submits that there are no Psychiatrists in BIMS, Belagavi
and he voluntarily submits that one Dr.Radhika Kulkarni
is a Psychiatrist at Belagavi and seeks to refer the parties
to her. We have also verified the experience of the
aforesaid doctor and of the view that Dr.Radhika Kulkarni,
Psychiatrist should counsel the child, father and mother
as well.

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The reasonable fee of the Dr.Radhika Kulkarni shall
be borne by the father. We request Dr. Radhika Kulkarni
to conduct counseling to facilitate the minor ward to
interact with the mother, so that we can consider the
request of the respondent/mother to provide her
visitation right.
Registry is directed to forward this order to
Dr.Radhika Kulkarni with a request to counsel the child
and parties. The appellant and the respondent along with
minor ward are directed to appear before the Counselor
on 20.09.2025 at 5 p.m. in her clinic, of which address is
given below:
Dr. Radhika Kulkarni,
Ayush Mind & Body Clinic,
S.V. Road, Chidambar Nagar,
Belagavi-590006.
Mob.No.9845208067.

Dr. Radhika Kulkarni, shall submit a report of
counseling to this Court in a sealed cover addressing to
the Addl. Registrar General of this Court. Re-list this
matter after three weeks.”


14. It was submitted before this Court that even after
passing the interim order on 09.09.2025, the child refused to
talk to the mother.

15. After hearing the counsel for the parties and also
after interacting with both husband and wife, it was clear that
in the instant case the husband has poisoned the mind of the

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child so badly against the mother that it refused to talk to the
mother. Hence, on 24.09.2026, the following interim order was
passed.
“1. The Family Court in G & Wc.No.12/2022 has
passed the following order:
“ ORDER
The petition filed under Section 25 of the
Hindu Guardian and Wards Act allowed.
The respondent No.2 is hereby directed to hand
over custody of the minor respondent No.2 to the
petitioner within 2 months from the date of this
order.
The respondent No.1 and his parents are at
liberty to meet the minor respondent No.2 on
every Saturday and Sunday between 5 p.m. to 7
p.m. after consultation with the petitioner and the
petitioner shall cooperate to such of their
visitation.
The respondent No.1 is entitled to have interim
custody of the respondent No.2 during second
half of his summer, dasara and winter vacations
till he attains age of majority.”

2. Against the said order, the present appeal is
filed by the father of the child.

3. The facts reveal that, for various reasons,
the father and mother of the child are not living together

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and have been separated. The father by using his
dominant position has been able to deprive a child from
the company of his mother. The records as well as the
evaluation of the psychologist reveal that the child is
refusing to go with the mother.
4. It is not the case of the appellant that the
respondent is an evil person insofar as it relates to the
welfare of the child or she is mentally sick who would
cause harm to the child. That being the case, it is obvious
that the appellant has used the child as a pawn to settle
scores with his wife and has poisoned the mind of the
child against the mother. It is for him to make the child
love the mother once again, failing which, he will have to
be dealt with sternly by the law.
5. At request of appellant, call on 08.10.2026.
6. By that time, the appellant is directed to take
necessary steps to condition the child so that he will be
ready to spend time with the mother.”


16. Subsequent to passing of the aforementioned
interim order, it is submitted by both the parties that the child
has spent couple of hours with the mother on two days.

17. The aforementioned facts reinforce the conclusion
that in the instant case, the father has poisoned the mind of
the child against the mother, which is unfortunate and
detrimental to the interest of the child. Upon being admonished

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by way of interim order dated 24.09.2026, he has advised the
child properly, which has resulted in the child spending a few
hours with its mother.

18. However, it is not in dispute that the father is
taking care of the child by providing necessary material
requirements and he is better placed to provide the same than
the mother.

19. No doubt, under normal circumstances at a tender
age, a child in need of the care of the mother more than that of
the father. But under unfortunate circumstances as recorded
above, sending the child to the custody of the mother, as
ordered by the Family Court, in our opinion, would be a shock
on its psyche and would not be in its best interest. However, as
already mentioned above, child requires love and affection of
both the parents and the appellant No.1-husband is duty bound
to condition the mind of the child to spend quality time with the
mother and to love her. In our opinion, under the given
peculiar facts and circumstances of the case, interest of the
child would be better catered to, if the child remains in the

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custody of the father with parenting rights to be given to the
mother during weekends and all holidays. Hence, the following:

ORDER

(i) The custody of appellant No.2-child Master.Tanish
shall remain with appellant No.1.

(ii) Appellant No.1 shall cater to all the financial
requirements of the child including the medical and
educational expense and he shall not demand any
financial contribution from the respondent-wife
towards child’s maintenance. However, this shall
not come in the way of the respondent-wife
spending on the child.

(iii) The appellant No.1 shall make earnest efforts to
make the child love respondent-mother once again
and facilitate child to spend its time with the
mother during her parenting time with the child
fruitfully.

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(iv) Respondent-mother is entitled to have custody of
the child during the entire weekend holidays of the
child and 50% of school vacations.

(v) If appellant No.1 is to get remarried or become
negligent towards the child or continues to poison
the mind of child against the mother, the
respondent-mother is at liberty to seek
modification of this order.

(vi) This order will not come in the way of the parties
initiating such proceedings against each other,
which is available to them under the law in respect
of other matrimonial dispute.


Sd/-
(M.I.ARUN)
JUDGE


Sd/-
(USHARANI)
JUDGE



YAN
CT:BCK
LIST NO.: 1 SL NO.: 17