Read Time: 07 minutes

Synopsis

The Karnataka High Court has upheld the order granting custody of 15-year-old boy to his grandmother in view of his wish but allowed his mother visitation rights for two days in a week, saying the woman who has given birth to the child cannot be left in the lurch.

Justice M Nagaprasanna rejected the mother’s petition challenging the order granting her son’s custody to the grandmother but held that the mother cannot altogether be denied interaction with the child despite his wish.

The court relied upon the Supreme Court's decisions in the case of Mausami Moitra Ganguli Vs Jayant Ganguli (2008), Nil Ratan Kundu and Another Vs Abhijit Kundu (2008) and Sankar Vishwanathan Vs State of Karnataka (2023) to point out that what unmistakably emerged from those judgements is that, consideration of best interest and welfare of the child in any given fact should be the paramount consideration.

“The apex court further holds that courts exercising jurisdiction over such issues should act as parents patriae and ascertain the wish of the minor child and not go against the wish of the minor child. The wish of the minor child was ascertained not once but twice and on both occasions, the child wished to stay with his grandmother,” the court noted.

"But, the mother who has given birth to the son cannot be left in the lurch. Equal visitation right will also have to be looked into," it added. 

The woman-petitioner questioned order passed by the Additional District and Sessions Judge, Kodagu-Madikeri, rejecting her plea under Section 29 of the Protection of Women from Domestic Violence Act, 2005. The sessions court had annulled the beneficial order passed in her favour.

Her counsel contended that in the best interest of the child, the child should always be with the mother. He said the courts have erred in directing the grandmother to 
be the guardian of the child and granting visitation rights to the mother, which ought to have been other way round. "Merely because the child wants to stay with the grandmother who has pampered the child, the court cannot grant custody of the child to the grandmother during existence of the mother," he said. 

The counsel for the grandmother, on the other hand, submitted that what the courts will have to look into is the best interest of the child. The child, in the interaction, not once but twice has made it clear that he wants to stay with his grandmother and not the mother. Whether it is of pampering or otherwise, the intention of the child and interest of the child should be looked into by the Court hearing such cases. It is not that the child is in the custody of a stranger, but in the safe hands of his grandmother which could not have been taken objection to by the petitioner, he said.

The court noted in the family, the father and grandfather of the child are no more. The child in question has grown with the grandmother.

The petitioner-woman got married in January 2008 and was blessed with two children, aged 15 and 12. However, her husband died in 2013. Owing to matrimonial dispute, she left the home. In 2018, she filed an application under Section 12 of the Protection of Women from Domestic Violence Act, seeking direction to her mother-in-law to hand over the custody of her son to her. 

The trial court and the first appellate courts, however, went by the wish of the child who said he wanted to stay with the grandmother and not the mother.

Case Title: