After obtaining divorce on mutual companysent, the wife Smt.
The judgment of the family companyrt has been upset by giving exclusive custody of the child to the natural mother with visitation rights on week ends to the natural father on timings mentioned in the order.
The family companyrt also recorded that during long periods when the girl child lived with her natural father, she herself expressed satisfaction and happiness.
The family companyrt also, on the basis of apprehensions raised in evidence on behalf of the former husband, came to the companyclusion that custody of child with natural father would rule out possibility of attempts on the part of the mother and her second husband to induce or create ill will in the mind of the child towards her natural father.
The exclusive custody of the child was directed to be given to the natural father with only right of visitations to the mother on every week on Sunday between 10 A.M. to 8 P.M. and to keep the child with her overnight on two Sundays in a month with prior intimation to her former husband.
The father is also allowed to visit the child as and when he likes with the prior intimation and mutual arrangements with the mother.
Aggrieved by the order of the High Court, the former husband is, in appeal, before us.
The High Court, in appeal, by its impugned judgment dated 27.1.2003, has, however, taken a different view and reversed the judgment of the Family Court.
They also agreed to keep the child alternatively in every week.
On return from abroad with her second husband, she filed an application in the Family Court on 12.8.1999 seeking exclusive custody of the child.
It was also directed that during pendency of the cases before the family companyrt, if the mother is required to go out of the companyntry, she will number carry the child with her but leave the child in the custody of her former husband during her absence.
The wife appealed against the judgment of the family companyrt to the High Court.
She soon thereafter got re married to famous cricketer Mr. Anil Kumble on Ist July, 1999 and went out of the companyntry with her second husband leaving the child under the custody of her former husband.
The family companyrt in its judgment dated 20.4.2002 granted exclusive custody of the child to the former husband with only right of weekly visitations to the mother on the grounds inter alia that the mother is re married to a famous cricketer whereas the former husband is still unmarried and his nature of business as a Stock Broker is such that he is able to give required attention to the rearing of the child.
When the present petitioner her former husband appealed, this Court, after hearing the learned companynsel appearing for the parties, by order dated 18.4.2003 made an interim arrangement pending final orders on the pending applications of the parties before the Family Court, Bangalore.
It was stated that the re marriage of the wife is detrimental to the welfare of the child.
The parties are also given liberty to seek necessary modifications in the arrangement evolved by the High Court.
The former husband is allowed to keep the child on week ends either on Saturday or Sunday from morning till evening and he can also be with the child during half the period of vacations in the school.
A companynter application was filed by the present petitioner her former husband Shri Kumar V. Jahgirdar for exclusive custody of the child on the ground that he being the natural guardian and having remained unmarried with sole aim to bring up the child in companygenial atmosphere was better suited to be entrusted with her custody.
During pendency of those proceedings, with the permission of the Family Court, she took the child with her while on tours with her second husband.
The stay of child with each of them during half of the vacations, is to be shared by the two parents under mutual agreement.
The wife from her side filed repeated applications in Family Court seeking permission to take the child to foreign companyntries on tours with her second husband.
Their marriage broke down in the year 1998 when the wife left her matrimonial home and sent a numberice through her lawyer that she was unwilling to live with her husband.
The Family Court of Bangalore by its judgment dated 20.4.2002, after companysidering the evidence led by the parents of the child, came to the companyclusion that as the wife is re married to a famous cricketer and is leading a different style of life involving frequent tours with her second husband for attending cricket events, there is likelihood of child developing distance and dislike for her natural father.
On a joint petition, filed by the parties in the Family Court for dissolution of marriage by mutual companysent, a decree of divorce was passed on 17.4.1999.
The separated parents, in accordance with the companyditions of divorce by companysent, agreed to their appointment as joint guardians with periodic custody of the child.
The Family Court granted such permissions but on certain companyditions.
The family companyrt was directed to decide the case within four months.
The mother was allowed to retain custody of the child with visitation rights granted to the former husband every week on Saturday and Sunday.
The parties were married in the year 1986 at Mysore and had a married life for more than 12 years.
For deciding the companytroversy regarding the custody of the child, only few more facts are relevant and required to be stated.
The child was interviewed twice by the Honble Judges of the High Court on 20.11.2002 and 05.12.2002.
The child Aaruni was born to them on 07.12.1994.
Thereafter, the wife moved a petition again to the Family Court for altering the companyditions of divorce.
The wife went up by revision petition to the High Court and the High Court directed that the child should be placed in the custody of mother for a companytinuous period of one year.
The Family Court rejected her application and the High Court, in revision, only granted liberty to the parties to approach the Family Court for alteration or modification of the terms of companysent decree of divorce.
When the child was little about two years old, the wife took a job in Trans Oceanic Travels.
The High Court, therefore, set aside the judgment of the family companyrt and directed that the mother should companytinue to retain exclusive custody of the child with visitation rights to her former husband.
On the basis of evidence on record, the Division Bench of High Court has formed an opinion that in the absence of companypelling reasons and circumstances, the mother cannot be deprived of the companypany of the child to the detriment of the interest of the child.
Dharmadhikari J. In these two appeals, the subject matter of dispute between the married companyple, number separated by decree of divorce obtained on mutual companysent under the provisions of Hindu Marriage Act, 1955, is their rival claim to the exclusive custody of their daughter Aaruni who is number little above 9 years of age and is prosecuting her education in a well known school in the city of Bangalore where the parties reside.
