H.S. Aruna Vs. K.N. Prakash - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. section 100: [n. kumar, j] decree in suit for declaration of title states appeal against it delay of 9 years and 7 months lower appellate court refusing to condone the delay and dismissed the appeal second appeal held, state which represent the collective cause of the community, does not deserve a litigant. refusing to condone the delay can result in a meritorious matter being thrown out, at the very threshold and cause of justice being defeated. the technicalities of procedure should yield to considerations which would promote public interest and substantial justice. when delay is condoned, the highest that can happen is that a case would be decided on merits after hearing the parties. when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. delay was condoned. order of lower appellate court was set aside. matter remitted to lower appellate court for disposal of appeal on merits. section 5; condonation of delay - decree in suit for declaration of title states appeal against it delay of 9 years and 7 months lower appellate court refusing to condone the delay and dismissed the appeal second appeal held, state which represent the collective cause of the community, does not deserve a litigant. refusing to condone the delay can result in a meritorious matter being thrown out, at the very threshold and cause of justice being defeated. the technicalities of procedure should yield to considerations which would promote public interest and substantial justice. when delay is condoned, the highest that can happen is that a case would be decided on merits after hearing the parties. when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. delay was condoned. order of lower appellate court was set aside. matter remitted to lower appellate court for disposal of appeal on merits. - the respondent has not made out any good ground to disturb the custody of the ward. the contention of the learned counsel for the respondent that the appellant has not filed any application seeking maintenance is not a good ground to deny such a right in the interest of the minor child.k. bhakthavatsala, j.1. a short question that arises for consideration in this appeal is:whether the family court is justified in allowing the petition in g and wc no. 176 of 2006 and directing the appellant-mother to give the custody of the ward viz., k.p. ashwin kumar to the custody of the respondent-father2. our answer to the above point is in the negative for the following reasons:learned counsel for the appellant-mother submits that after dissolution of marriage, the respondent was given visiting rights, but later on the respondent got married for the second time and the ward was not willing to go and therefore the appellant did not send the boy against his will to the respondent-father. on that score, the respondent filed a petition in g and wc no. 176 of 2006 and the trial court, without taking into consideration the welfare of the child and the circumstances under which the ward refused to go, as per the earlier visiting arrangement, the trial court has mechanically allowed the petition.on the other hand, learned counsel for the respondent submits that as the boy was not sent as per the visiting rights given earlier, the respondent-father filed a petition seeking custody of the minor ward and the trial court taking into consideration all the materials placed on record, has rightly allowed the petition directing the appellant to give the custody of the child with visiting rights to the appellant and there is no illegality or infirmity in the impugned order.the learned judge of the trial court formulated a point viz.--whether the petitioner-father had made out a sufficient ground to appoint him as guardian of the minor child k.p. ashwin kumar? if so, whether the petition was maintainable?the point formulated for consideration by the family court was regarding appointment of a guardian of the minor child. since the father is a natural guardian, the question of appointing father as a guardian does not arise. the marriage of the appellant with the respondent has been dissolved by mutual consent. the trial court has not gone into the question as to whether there was any need for change of custody of the ward from mother to father.on our request, the boy was produced before us and we enquired with the boy in camera. the boy categorically said that he is willing to go to the respondent-father once in two months. he also stated that he is studying and comfortably living with his mother. as on today, the boy is aged about 11 years 1 month 18 days. welfare of the minor shall be the sole criteria for giving custody of the child. the respondent has not made out any good ground to disturb the custody of the ward. therefore, the impugned order calls for interference by this court.3. learned counsel for the appellant submits that the respondent had agreed to pay rs. 500/- per month as maintenance, but since january 2006 upto date (august 2009), which comes to rs. 22,000/-, has not been paid yet.4. learned counsel for the respondent submits that since visiting rights were not given, as agreed upon, he has not paid the maintenance amount of rs. 500/- per month from january, 2006.5. the marriage of the appellant with the respondent was dissolved by mutual consent and the appellant who is working and earning, has not sought for any maintenance for herself. the contention of the learned counsel for the respondent that the appellant has not filed any application seeking maintenance is not a good ground to deny such a right in the interest of the minor child. keeping in view the inherent power and jurisdiction of this court, it would meet the ends of justice to direct the respondent to pay a sum of rs. 2,000/- per month as maintenance with effect from 1-9-2009.6. learned counsel for the appellant does not press misc. civil no. 7436, 7770 and 7773 of 2009.7. in view of the above, the appeal is allowed and the impugned order dated 4-12-2008 passed in g and wc no. 176 of 2006 on the file of the principal judge, family court, bangalore, is set aside, holding that the appellant-mother is entitled to continue to have the custody of the ward-kp. ashwin kumar. the respondent is entitled to have the custody of the ward on second sunday of every month from morning 7.00 a.m. to evening 7,00 p.m. further, the respondent shall have the right of custody of the ward for a period of one week during 1st may to 7th may of each year. the respondent is also given right to take the custody of the child for any two hindu religious festivals in a year. the respondent is directed to credit the arrears of maintenance and further maintenance, as awarded in this appeal, in s.b. account of the ward bearing no. 1205011956 with central bank of india, katriguppe, bsk iii stage, bangalore-560 085. maintenance amount shall be deposited on or before 10th of subsequent month. the arrears of maintenance shall be deposited within a month from today.misc. civil nos. 7436, 7770 and 7773 of 2009 filed by the counsel for the appellant are rejected as not pressed.misc. civil no, 7487 of 2009 filed by counsel for the respondent does not survive for consideration and is accordingly rejected.no costs.