IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD M.F.A.No.6445 OF 2017 (GW) BETWEEN:
Dakshina Murthy, S/o.Late Lingachar, Aged about 56 years, Retired Health Inspector, Bramhanara Beedi, Halebeedu Post, Belure Taluk, Hassan District – 573 201. … Appellant (By Sri B.K.Manjunath, Advocate) AND Parameshwarachar, Aged about 48 years, R/at Behind Krishna College, 7th Cross, 80 Feet Road, Mahalakshmi Nagar, Batawadi, Tumkur Town, Tumakur District – 572 101. … Respondent (Respondent - dead) This MFA is filed under Section 47 of the Guardians and Wards Act against the order dated 15.07.2017 passed in G and WC 21/2015 on the file of the Principal Judge, Family Court at Tumakuru, allowing the petition filed under Section 10 of the Guardians and Wards Act.
This MFA, coming on for admission, this day, NARENDRA PRASAD J., delivered the following:
JUDGMENT This appeal is directed against order dated 15.07.2017 passed by the Family Court, Tumakuru in G and W.C.No.21/2015.
2. Brief facts of the case are that appellant married one A.R.Baby on 22.04.2002. After the marriage, appellant and his wife were living together happily. Out of their wedlock, a girl child was born, named Aishwarya, who is now aged about 13 years. Appellant was looking after his wife and daughter with all love and affection. Wife of appellant, A.R.Baby died on 22.04.2008. After the death of appellant’s wife, respondent Parameshwarachar, who is the husband of elder sister of appellant‘s deceased wife, took away the minor child who was aged about five years, without the knowledge of the appellant. On 18.05.2008, appellant had given a police complaint against respondent alleging that he kidnapped his minor daughter Kum.Aishwarya H.T. After that, elder sister of appellant’s wife one Smt.A.R.Sarvamangala filed a petition under Section 10 of Guardian and Wards Act, 1890 against the appellant on the file of District and Sessions Judge, Tumakuru to appoint her as de facto guardian of the minor child Kum.Aishwarya H.T. During the pendency of the said G & W.C.No.19/2013 the said Sarvamangala died. Hence, G & W.C.No.19/2013 was dismissed as not maintainable on 14.07.2015. Thereafter, respondent herein, who is the husband of deceased Sarvamangala filed G & W.C.No.21/2015 on the file of Family Court, Tumakuru. The Family Court, by order dated 15.07.2015 appointed Parameshwarachar, respondent herein as a de facto guardian of Aishwarya H.T. Being aggrieved by the same, appellant has filed this appeal on 14.08.2017. This Court by order dated 12.12.2017 admitted the appeal and issued notice to respondent. In the meanwhile, on 02.09.2018 respondent Parameshwarachar also died. Hence, appellant filed I.A.No.1/2019 for allowing the appeal.
3. It is noted that respondent though served in the appeal has died on 02.09.2018 as per the Death Certificate annexed to the application and affidavit filed by the appellant under Section 151 of Code of Civil Procedure, 1908. In the affidavit he has stated that he is the biological father of minor daughter Aishwarya. In fact, he was looking after the welfare of Aishwarya and he was providing her very good education and also is paying her school fees. Now that Aishwarya is studying in 10th standard in Tumakuru, he is looking after his daughter Aishwarya. In view of death of appellant’s wife, her sister Sarvamangala and respondent Parameshwarachar, appellant has to take care of his minor daughter. Hence, he prays for declaring him as guardian of minor daughter Aishwarya H.T.
4. We have heard learned counsel for the appellant.
5. Having regard to the facts and circumstances of the case, impugned order dated 15.07.2017 passed by the Principal Judge, Family Court at Tumakuru in G & W.C.No.21/2015 is set aside by allowing this appeal.
6. The appellant – father of minor child, Sri Dakshina Murthy, S/o. Late Lingachar, is declared as the guardian of minor child Aishwarya H.T.
7. In view of the appeal being allowed, I.A.No.1/2019 stands allowed.
Sd/- JUDGE Cm/-
Sd/- JUDGE