IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD M.F.A.No.6941 OF 2017 (GW) BETWEEN:
SMT. RAJESHWARI G.P W/O. LATE SRI BASAVARAJAPPA A.G. AGED ABOUT 60 YEARS, R/O. ARALAGUPPE POST, KIBBANAHALLI HOBLI, TIPTUR TALUK – 572 212. ... APPELLANT (BY SRI RAMESH P. KULKARNI, ADVOCATE) AND:
1. SMT. CHANNAMMA W/O. SRI CHANNABASAPPAGOWDA, AGED ABOUT 61 YEARS, 2. SRI CHANNABASAPPA GOWDA, S/O. BASAPPAGOWDA, AGED ABOUT 67 YEARS, BOTH RESIDING AT:
KALKANTA, KOLURU, HULI DEVARA BANA POST, SAGARA TALUK, SHIMOGGA DISTRICT – 577 401. ... RESPONDENTS THIS MFA IS FILED UNDER SECTION 47 OF THE GUARDIANS & WARDS ACT, AGAINST THE JUDGMENT AND DECREE DATED 17.02.2017 PASSED IN G. & W.C. NO.5/2012, ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, TIPTUR, DISMISSING THE PETITION FILED UNDER SECTION 10 OF G & W ACT.
THIS APPEAL COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION THIS DAY, NARENDRA PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT Though there is a delay of ninety days in filing the appeal, we have nevertheless heard learned counsel for the appellant.
2. This appeal is filed under Section 47 of the Guardian and Wards Act, 1890 challenging the order dated 17.02.2017 passed by Senior Civil Judge & JMFC., Tiptur in G & WC 5/2012, whereby the Trial Court has dismissed the petition filed by the appellant.
3. Brief facts of the case are that Shivakumaraswamy is the son of appellant. Shivakumraswamy was married to Parvathamma. Out of the wedlock, Ganesh was born on 28.10.2010. Shivakumaraswamy passed away on 29.04.2011 and his wife Parvathamma also passed away on 27.09.2011, leaving behind their minor son, Ganesh. Ganesh has been residing with his maternal grandparents, who are the respondents herein. He is in the custody of respondents. Hence, appellant filed the petition under Section 10 of Guardians and Wards Act, 1890 before the Senior Civil Judge & JMFC., Tiptur seeking a direction to the respondents to handover the minor child Ganesh, son of late Shivakumaraswamy to the custody of the appellant, who is the grandmother of Ganesh.
4. On the service of notice, respondents herein appeared through their counsel and filed their detailed written statement contending that appellant and her family members had refused to take care of Parvathamma and her son Ganesh after the death of Shivakumaraswamy. At that time, respondents brought back Parvathamma to her parental house and they were taking care of Parvathamma and Ganesh. Even after death of Parvathamma, they have been taking care of Ganesh. Hence, they sought for dismissal of the petition.
5. To establish their case, appellant examined herself as PW1 and examined another witness as PW2. They got marked five documents as Ex.P1 to Ex.P5. First respondent was examined as RW1 and examined another witness as RW2. They got marked five documents as Ex.R1 to R5. Appreciating the oral and documentary evidence on record, Trial Court has rejected the petition. Being aggrieved by the same, appellant has preferred this appeal.
6. Heard learned counsel for the appellant and perused the materials on record.
7. Sri Ramesh P.Kulkarni, learned counsel for the appellant submits that the Court below has failed to appreciate the fact that respondents had not produced any materials to show that they have sufficient income to look after the minor. He further contended that Trial Court has not properly considered the financial position of the parties to assess the capacity to provide better amenities to the minor child. Hence, he sought for allowing the appeal.
8. It is not in dispute that Master Ganesh, born on 28.10.2010, is the son of Shivakumaraswamy and Parvathamma. Shivakumaraswamy passed away on 29.04.2011 and his wife Parvathamma also passed away on 27.09.2011, leaving behind minor Ganesh. After the death of Shivakumaraswamy, respondents who were maternal grandparents of Ganesh have taken care of Parvathamma and her son Ganesh. Even after the death of Parvathamma, maternal grandparents have been taking care of Ganesh. Even as per Ex. R1 - certified copy of the judgment in O.S.No.105/2013 of the Addl. Civil Judge & JMFC, Sagar, minor Ganesh is entitled to half share in the LIC policy amounts which belongs to deceased Shivakumaraswamy. Ex.R2 – certified copy of decree in the said suit and Ex.R3 - study certificate of said Ganesh show that he has been studying in Kodachadri Primary School, Ginivara, Sagar Taluk and respondents herein have been shown as guardian of the minor child. Even as per the deposition of PW2, it is clearly admitted that Ganesh has been growing up with his maternal grandparents. The Trial Court, on perusal of oral and documentary evidence produced by the parties and considering the interest of the minor child, is justified in dismissing the petition.
9. Having heard learned counsel for the appellant, we do not find any merit in the appeal. Hence, the appeal is dismissed by ignoring the delay of ninety days in filing the appeal.
Sd/- JUDGE Sd/- JUDGE Cm/-