6 month shared custody to both parents-K M Vinaya vs B R Srinivas Karnataka HC 2013

[6 months shared custody to father and mother-Karnataka HC 2013](http://menrightsindia.net/2014/06/6-month-child-custody-year-father-mother-karnataka-hc.html

Facts of case

  1. As stated by husband, wife had left husband's house during 5th month of pregnancy. She did not come back even after birth of their son.

  2. A surgery of son when 1 year old was not disclosed to husband.

  3. Wife got a job when son was 8 months old and works 10-12 hours a day leaving child in custody of her mother.

  4. Father also said that the child needed medical care due to a congenital condition.

  5. Husband had sent a legal notice to wife to come back, and had later filed a GWC case in 2004 for full custody of child.

  6. Wife countered GWC case of husband by stating several allegation on him like he is irresponsible, in debt, steals things from house etc.

  7. Wife said she got the child admitted to good school and has filed a divorce petition too in 2004.

  8. Both mother and father had produced doctors to testify on health condition of child. Lot of doctors' reports were submitted from both sides.

  9. The family court of Bangalore had given order to hand over custody to father. The order was made based on fact that mother who had custody of child neglected his health, and that she was trying to alienate child from father, and that failed to implement one order under IA (Interim Application).

  10. Mother had appealed against family court's order to Karnataka HC. She retained custody of child apart from few instances of interim custody to father and visitation every month.

  11. Karnataka HC decided to allow custody for first 6 months of year (Jan-Jun) to father and from Jul-Dec to mother. Court also allowed visitation to non-custodial parent on Sat-Sun, and telephonic/video access to child for both parents.

  12. Since both parents were earning well, they were directed to maintain education and other expenditures of their son in equal proportion.

Points of law raised

  1. Technical legal grounds were raised by both parties, however the sole decision in judgment was based on considerations of interest and welfare of child.

Points of law reiterated

  1. Primary determinant of child custody decision is welfare and interest of child, and not father's right under GWA Section 25.

Facts held important in case

  1. Though child expressed desire to be with mother, it was not considered too important also because he had been primarily in custody of mother all along, and was 12 years old.

  2. That respondent father had a joint family and children of his brother and sister were also there to give company to his son.

  3. Court also opined that numerous studies had found that children who live with their father are more likely to have good physical and emotional health to achieve academically and more likely to exhibit self control and pro-social behaviour.

  4. Though child had been with mother till about 12.5 years of age, it was deemed that son needs guidance of father also at his age of adolescence.

  5. Father had been fighting for custody of son since 8 years till case was decided by HC.