Sri K.C. Shankar vs Srinivasa @ Seena and Smt. Bhagyamma

K.L. Manjunath, J.—The appellant being aggrieved by the order passed by the Civil Judge, (Sr. Dn.), Kunigal, dt. 28th October 2013 passed in G & W.C. No. 4/2011, the present appeal is filed. The admitted facts are as hereunder:

On 15.4.2007 the appellant married Savitha, the daughter of the respondents at Bhadravathi. They lived together happily and Savitha gave birth to a daughter by name, Jyothika on 22.8.2010 at Nanjappa Hospital, Shimoga and 3 days after giving birth to a female child, the appellant''s wife died in the hospital and since then the minor daughter of the appellant is with the respondents, who are none other than the maternal grand parents of the child. The petition came to be filed by the appellant claiming custody of the minor child. The appellant after the death of his first wife, has remarried.

The respondents contested the matter. According to them, after the death of their daughter Savitha, appellant has not visited them and even he has not seen the child. The appellant is doing business in selling of chips is always be visiting from place to place. According to them, he is visiting most of the villages in Tumkur, Maddur and Malavalli Taluks. He would come home every day late in the night on account of his business and the grand daughter - Jyothika has been taken care of by them as they are financially sound and they are having great love and affection to their grand-daughter and therefore they contended that if the child is in their custody, it would be in the interest of the minor child. According to them, since the appellant has taken a second wife on 2.2.2012 by name, Shruthi, after filing of the petition, the 2nd wife may not take care of the child properly.

In order to prove their respective contentions, in all 3 witnesses were examined on behalf of the appellant. Amongst them P.W. 1 is the petitioner, P.W. 2 is the second wife. One more witness by name Nagaraju - P.W. 3 is none other than the brother of the petitioner He relied upon Ex. P1 to P7. On behalf of the respondents, respondents were examined as R.W. 1 and R.W. 2 and they relied upon Ex. R1 and R2. The Trial Court after appreciating the evidence came to the conclusion that in the interest of the child, till she attains the age of 7 years, the child shall be with the respondents and thereafter the appellant is entitled for the custody. The visitation rights is also given to the appellant, till the child attains the age of 7 years. Accordingly, petition filed by the appellant came to be disposed of on 28.10.2013.

Being not satisfied with the order of the Trial Court, the present appeal is filed by the appellant.

We have heard Mr. K.V. Narasimhan, Learned counsel for the appellant. After hearing the learned counsel for the appellant, we do not see any error committed by the Learned Single Judge in allowing the child to be in the company of her maternal grand parents till she attains the age of 7 years by giving visitation rights to the appellant for the following reasons:

Admittedly, when the petition filed in the year 2011. The appellant had not taken a second wife and there is nothing to show that in the absence of second wife the appellant can take care of the welfare of the minor daughter. Admittedly, the appellant is engaged in the business of condiments by employing 18 workers. The nature of business of the appellant is to vend the condiments in different places including several villages. Therefore, he will not find time to look after the minor daughter. After institution of the petition, he has remarried. The marriage has taken place in the year 2012. When the appellant has remarried on 2.2.2012, it is difficult for us to hold that the second wife also evince interest to take care of the minor daughter, who has just now married.

In the interest of the appellant and in the interest of second wife, we are of the opinion that if the child is allowed to stay for the period of 7 years with the maternal grand-parents, it would be in the better interest of the appellant and his second wife and so in the interest of the minor child.

In view of the visitation rights granted to the appellant, we do not see any merits in this appeal. Accordingly, the appeal is dismissed.