Judgment · High Court

Aggrieved by the order dated 03.12.2011 passed in G & WC No.10/2009 by the Principal Senior Civil Judge & JMFC., Hospet dismissing the petition filed under Section 10(3) of the Guardian and Wards Act, the petitioner has filed the present appeal.

The appellant filed a petition seeking custody of his five years old child. The case made out is that his wife committed suicide by jumping into well along with another child and the respondent filed a case against him for the offences punishable under Sections 498, 302, 304 of IPC read with Section 3 and 4 of Dowry Prohibition Act. He was acquitted. After release from jail, he requested the 4 / J -3- respondent namely the grand father of the child who was looking after the child for his custody and the same was denied. Hence, the petitioner filed a petition under Section 10(3) of the Guardian and Wards Act seeking custody of his daughter. The Court below by the impugned order dismissed the petition. Hence the present appeal.

When the petition was filed in the year of 2009, the child was aged about five years. Presently, the child is 9 years old. The Court below while considering the plea of the appellant also took note of the communication made with the child that the child does not intend to stay with the appellant and wants stay with the grand parents. Hence, we are of the considered view that the Court below has not committed any error in passing the impugned order and no interference is called for on this ground.

Since the date of the death of the mother, the child is being looked after by her grand parents for the last five years. Hence, we are of the considered view that at -4- this stage, it would not be appropriate to direct custody of the child to be handed over to the father from the grand parents. More over, there are no allegations made by the child with regard to the ill treatment by her grand parents. Hence, on this ground also, we do not find any error committed by the Court below that calls for any interference.

The acquittal of the father for the offences alleged against him under Section 498, 302, 304 of IPC read with Section 3 and 4 of Dowry Prohibition Act was also considered by the Court below. The mere acquittal would not by itself entitle him for custody of the child. In view of the peculiar circumstances in which the mother of the child along with another child died on 26.11.2007, the custody of the child was denied to the father. In this background, it would be appropriate that the custody of the child remains with the grand parents and not with the appellant/father. I f\ 7/ T 4 -5-

Even after considering the plea of the father, in the best Interest of the child, it would be appropriate not to give the custody of the child to the appellant.

The child Is now aged about 9 years. Since she Is bordering the age of puberty. The child needs good care and In the facts and circumstances of the case, It would be appropriate if she remains with her grand parents than with the father. Hence, on this ground also, we decline to Interfere with the order passed by the Court below.

For the aforesaid reasons, the appeal being devoId of merits is dismissed. Sd! JUDGE Sd! JUDGE Prs*