JUDGMENT
Aggrieved by the judgment and decree passed by the Family Court allowing the petition filed by the respondent herein under the Hindu Minority & Guardianship Act, 1956 and Guardians and Wards Act, 1890 granting the custody of minor child to the respondent, the present appeal is filed.
2. The case made out by the appellants herein is that the respondent is the daughter-in-law of the first appellant. Her son Mohankumar died under mysterious circumstances. The allegation is that the respondent had an extramarital affair with one Dastagir and she was responsible for the death of Mohankumar. Respondent left her son Madhusoodan with the appellants and never cared about him at any point of time. After the death of the son of first appellant, the respondent herein filed a petition before the Family Court, Davangere under Section 8 of Hindu Minority & Guardianship Act, 1956 read with Section 29 of the Guardians and Wards Act, 1890. The petition was allowed, directing the custody of the minor child to the respondent herein. Aggrieved by the same, the present appeal is filed.
3. The appellants contend that the impugned order is bad in law and liable to be set aside. That the Family Court committed an error in granting custody of the child to the respondent. That a serious allegation is made against the respondent - mother of the minor child - that she is having an extramarital affair with one Dastagir. That she has forced the child to undergo circumcision. Hence, the appeal be allowed.
4. On the other hand, learned counsel for the respondent, defends the impugned order.
5. On hearing learned counsels, we are of the considered view that the custody of the child should be given to the first appellant. Firstly, with regard to the death of the father of the child himself and secondly that the respondent is having an illicit relationship with one Dastagir. Under these circumstances, if the custody of the child should remain with the respondent, it would be wholly unjustified. At present, the child continues to be in the custody of the appellants. In fact, the child as well as the first appellant are present in the court. On a query, the child, who is aged 11 years, very strongly stated that he would continue to live with the first appellant-grandmother and not with the respondent. Under these circumstances, we are of the view that the order passed by the Family Court is in appropriate.
6. It was alleged by the respondent that the appellants have no interest to look after the child. That they are not interested in his well being. On a specific question being asked to the 1st appellant who is present before the court she denies such a suggestion. She, in fact, went to the extent of stating that not only this child but even the other child namely, the daughter of the respondent would also be looked after by her. Therefore the allegation of the respondent on this ground cannot be accepted.
7. The appellant contends that under the influence of one Dasagir, the child was subjected to cruelty. That circumcision was forced upon the child only because the respondent was having an illicit relationship with one Dastagir. We are of the considered view that such an allegation is extremely serious and so also are the repercussions. Under these circumstances, since the child was present in the Court, an amicus curiae was appointed to assist the Court to find out whether circumcision was conducted on the child. The matter was adjourned. The amicus curiae reported back to the Court that on the physical examination of the boy, he has no hesitation to conclude that circumcision was conducted on the boy. The fact reported by the amicus curiae is extremely disturbing. The right of a child has been trampled upon. Only because the mother was having an illicit relationship with one Dastagir cannot justify circumcision on the boy. The act committed by the respondent and that too being a mother is unpardonable. Such an act can never be condoned.
8. The Family Court should primarily consider the interest of the child while considering such petitions. In view of the serious allegations that have been leveled against the respondent, it is only just and proper that the interest of the child should be the Paramount importance. The child continues to remain with the custody of the first appellant. The child, who is present before the court, also states that he would remain with the first appellant-grandmother.
9. The plea of the respondent herein is that at least visitation rights be accorded to her. That she may be permitted the custody of the child at least during vacation period of the school of the child. We are of the considered view that the request is just, fair and reasonable.
10. For the aforesaid reasons, we are of the view that the impugned order requires to be set aside. Consequently, the order dated 3-8-2009 passed by the Family Court, Davangere, in G&WC No 3 of 2006 is set aside. The petition filed by the respondent is dismissed. However, visitation right is granted to the respondent. The respondent is permitted to visit the child during school vacation, by intimating the same to the first appellant-grandmother, who shall cooperate in such an exercise. Consequently, appeal is disposed off accordingly.