SUMA GUNDYAL W/O GOPAL GUNDYAL vs GOPAL GUNDYAL S/O NAGESH GUNDYAL

Court
Karnataka High Court

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MFA No. 202364 of 2022


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IN THE HIGH COURT OF KARNATAKA


KALABURAGI BENCH


TH
DATED THIS THE 11 DAY OF SEPTEMBER, 2026

PRESENT

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

AND

THE HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO

MISCL. FIRST APPEAL NO. 202364 OF 2022 (GW)



BETWEEN:

SOU. SUMA GUNDYAL W/O GOPAL GUNDYAL,
AGE: 31 YEARS,
OCC: HOUSE HOLD, SCHOOL TEACHER,
R/O. HOUSE NO. Y-601, YARAMARAS CAMP,
RAICHUR, TQ. AND DIST. RAICHUR- 584101.

…APPELLANT
(BY SRI. SACHIN M. MAHAJAN, ADVOCATE)

AND:

GOPAL GUNDYAL S/O NAGESH GUNDYAL,
AGE: 37 YEARS, OCC: EMPLOYEE,
R/O. HOUSE NO. 27- B, JAWANNAGAR,
VIJAYAPUR ROAD, SOLAPUR- 413001.

…RESPONDENT
(BY SRI. LIYAQAT FAREED USTAD, ADVOCATE)

THIS MFA IS FILED UNDER SECTION 47-A & B OF
GUARDIANS AND WARDS ACT, 1890 PRAYING TO, SET ASIDE
THE ORDER DATED 05.11.2022 PASSED BY THE LEARNED
PRINCIPAL JUDGE, FAMILY COURT, RAICHUR IN G AND W C







Digitally signed by
VARSHA N
RASALKAR
Location: HIGH
COURT OF
KARNATAKA

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No.13/2019, AND DISMISS THE PETITION FILED BY THE
RESPONDENT HEREIN BY ALLOWING THE APPEAL.

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

CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
and
HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO

ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI)
1. The appellant filed this appeal aggrieved by the order
dated 05.11.2022 passed in G&WC No.13 of 2019 by
the learned Principal Judge, Family Court, Raichur
(for short, ‘ the Trial Court ’).
2. For convenience, the parties are referred to as per
their ranking before the Trial Court: Appellant-wife
was the respondent and the respondent-husband
was the petitioner.
3. Brief facts leading rise to the filing of this appeal are
as follows:

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4. The petitioner-husband filed a petition under Section
10 of the Guardians and Wards Act, 1890 (for short,
‘ the Act ’) seeking custody of his minor son—Aarav
Gopal (hereinafter referred to as, ‘ the minor child ’)
from the custody of the respondent-wife.
5. The marriage of the petitioner and respondent was
solemnized on 30.05.2013 as per the customs and
rights prevailing in their community; out of their
wedlock, a son was born to them on 21.10.2015 at
Solapur, Maharshtra State. After the marriage, the
respondent was showing her adamant nature day-
by-day and her behaviour was also changing and
started quarrelling with the petitioner and his family
members. The respondent voluntarily left the
matrimonial home on 10.12.2018 by leaving her son
in the matrimonial home itself and subsequently,
filed a petition under Section 125 of the Code of
Criminal Procedure, 1973 (for short, ‘ the CrPC ’) and
also other criminal cases at Devadurga.

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6. It is contended that pursuant to the liberty reserved
to the petitioner to file a petition for custody of the
child vide order passed by this Court in W.P.
No.203364 of 2019, the petitioner has filed this
appeal seeking custody of the minor child.
7. The respondent has not filed a statement of
objections.
8. When the case was posted for evidence, the
petitioner examined himself as PW1 and marked two
documents as Exhibits P1 and P2. The respondent
examined herself as RW1 and marked two
documents as Exhibits R1 and R2.
9. The Trial Court after recording the evidence framed
the following points for consideration:
“(i) Whether the petitioner has made
out grounds to order for custody of
minor ward as sought for?
(ii) What order?”

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10. The Trial Court, after appreciating the entire
evidence on record, answered point No.1 in the
affirmative and point No.2, as per the final order.
The petition was allowed vide judgment dated
05.11.2022.
11. The respondent, aggrieved by the judgment passed
in G&W Case No.13 of 2019, has filed this appeal.
12. Heard the learned counsel for the petitioner-husband
and the learned counsel for the respondent-wife.
13. Learned counsel for the respondent-wife submits that
the respondent filed a petition under Section 125 of
CrPC and in the said petition, she has filed an
application seeking custody of the minor child and
the impugned order dated 02.04.2019 came to be
passed by the trial Court allowing the application. He
submits that the minor child is not staying with the
petitioner as the petitioner is residing in Puna. The
petitioner has left the minor child in the house of his

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sister at Solapur. When the petitioner is not taking
care of his son, the Trial Court could have dismissed
the petitioner. On the contrary, the Trial Court
allowed the petition.
14. He also submits that the Trial Court has not properly
appreciated the evidence of PW-1, wherein he has
admitted that the minor child is staying with his
sister. The Trial Court could have seen the
paramount consideration of the minor child. As such,
the impugned judgment of the Trial Court is arbitrary
and erroneous. Hence, on these grounds, he prays
to allow the appeal.
15. Per contra, learned counsel for the petitioner-
husband supports the impugned order and submits
that the petitioner is staying in Puna and the minor
child is staying in the house of his sister at Solapur
and also he is taking care of all education expenses
of the minor child. The Trial Court has rightly passed

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the impugned judgment and on these grounds, he
prays to dismiss the appeal.
16. Perused the records and considered the submissions
of the learned counsel for the parties.
17. The points that would arise for our consideration are:

“(i) Whether the respondent proves
that the impugned judgment passed
by the Trial Court is arbitrary and
erroneous and without proper
appreciation of evidence?
(ii) What order or decree?

Reg. Point No.1 :
18. The petitioner filed a petition under Section 10 of the
Act seeking custody of the minor child, who is born
on 21.10.2015, from the custody of the respondent.
19. The petitioner in order to prove his case examined
himself as PW1 and he has deposed that the
respondent was showing her adamant nature day by
day and her behaviour was also changing and she

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started ill-treating the petitioner and his family
members. The respondent has voluntarily left the
matrimonial home by leaving the minor child in the
matrimonial home itself and filed a petition under
Section 125 of CrPC claiming maintenance. He has
deposed that the respondent has no work and
income to take care of the welfare and education of
the minor ward. He has deposed that if the minor
child continues in the custody of the respondent,
future welfare of the minor child will be spoiled.
Hence, on these grounds, he prayed to appoint him
as a guardian to the minor child.
20. To substantiate his case, he has produced two
documents, marked as Exhibit P1 which is a photo
and Exhibit P2 is the certified copy of the order
passed in Writ Petition No.203364 of 2019.
21. During the course of cross-examination, he has
clearly admitted that on 02.04.2019, he was at Puna

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and his son was staying in the house of his sister at
Solapur and his son was brought from the house of
his sister. On 02.04.2019, his sister picked up his
son from the school to her house and therefore, his
son was staying in his sister's house and is residing
in Puna.
22. On the other hand, the respondent has examined

herself as RW1 and produced the documents. In her
examination-in-chief, she has reiterated the written
statement averments. The petitioner has not made
any allegation against the respondent that the
respondent is not taking care of her son. In the
absence of allegations against the respondent, in
regard to the interest of the minor child. Hence,
prays to allow the writ petition.
23. If the petitioner was so much interested in the
appointment of a guardian, the petitioner could have
kept his son with him and not with his sister. The

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conduct of the petitioner in dropping his son at the
house of his sister itself creates a doubt in the mind
of the Court that the petitioner has no love and
affection towards the minor child.
24. The respondent being the natural mother is having
love and affection towards the minor child. If the
petitioner is so much interested in the welfare and
education of the child, the petitioner could bear his
educational expenses and he can visit the son. On
the contrary, the Trial Court without considering the
said aspect has allowed the application only on the
ground that the respondent is not working and does
not have any income to maintain and to provide
education to the minor child.
25. The Hon'ble Apex Court in the case of Rohith
Thammana Gowda v. State of Karnataka and
1
others held at paragraph No.8 has held as follows:

1
Civil Appeal No.4987/2022 (arising out of SLP(C) No.17166/2021) decided on
29.07.2022.

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“8. At the outset, we may state
that in a matter involving the
question of custody of a child it has
to be borne in mind that the
question ‘what is the wish/desire of
the child’ is different and distinct
from the question ‘what would be in
the best interest of the child’.
Certainly, the wish/desire of the
child can be ascertained through
interaction but then, the question
as to ‘what would be in the best
interest of the child’ is a matter to
be decided by the court taking into
account all the relevant
circumstances. When couples are at
loggerheads and wanted to part
their ways as parthian shot they
may level extreme allegations
against each other so as to depict
the other unworthy to have the
custody of the child. In the
circumstances, we are of the view
that for considering the claim for
custody of a minor child, unless
very serious, proven conduct which
should make one of them unworthy

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to claim for custody of the child
concerned, the question can and
shall be decided solely looking into
the question as to, ‘what would be
the best interest of the child
concerned’. In other words, welfare
of the child should be the
paramount consideration.”
26. From the perusal of the judgment, it is clear that the
Court is required to see the best interest of the minor
child. Admittedly, the minor child is not staying with
the petitioner, but staying with petitioner’s sister. If
the minor child is in the custody of his natural
mother, at least mother will take care of her son. The
said aspect was not properly considered by the Trial
Court and committed an error in passing the
impugned judgment. Hence, the impugned judgment
passed by the Trial Court is arbitrary and erroneous
and as such, the impugned judgment passed by the
Trial Court is liable to be set aside. Hence, in view of

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the above discussion, we answer point No.1 in
affirmative.
Reg. Point No.2 :
27. In view of the above discussion, we proceed to pass
the following order:
ORDER
(i) The Miscellaneous First Appeal is
allowed ;
(ii) The impugned order dated
05.11.2022 passed in G&WC
No.13 of 2019 by the learned
Principal Judge, Family Court,
Raichur is set aside ;
(iii) Consequently, G&WC No.13 of
2019 is dismissed .

Sd/-
(ASHOK S. KINAGI)
JUDGE


Sd/-
(SUBRAMANYA RANGARAO)
JUDGE
RK
List No.: 1 Sl No.: 0
Ct:pk