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2008 DIGILAW 825 (AP)

K. Venkat Reddy v. Chinnapareddy Viswanadha Reddy

2008-09-25

A.GOPAL REDDY, VILAS V.AFZULPURKAR

body2008
YILAS V. AFZULPURKAR, J : Both these appeals are filed against the common order dated 2.4.2008 passed by the learned I-Additional District Judge, Nizamabad allowing OP No.309 of 2006 and dismissing, OP No.89 of 2006. Both 1 these appeals relate to custody of minor child C. Sainath Reddy who is now aged about 6 years (born on 17.9.2002). His grand parents are appellants 1 and 2 in both the appeals and the appellants 3 and 4 in CMA No.396 of 2008 are their daughters. The natural father of the minor child is respondent in CMA No.396 of 2008 and respondent No.1 in CMA No.410 of 2008 and respondent No.2 in CMA No.410 of 2008 is the father of the respondent No.1. Both these appeals are disposed of by this common judgment. 2. The dispute before the Court below and in these appeals relating to the custody of the minor child, is between his maternal grand parents and his natural father. The mother of the minor child Smt. Rajani committed suicide on 1.12.2004 when the child was about 21/2 year old, whereupon the contest for custody of the child among the said two parties commenced. For the sake of convenience, the parties are being referred to as "the appellants 1 and 2" and "the respondent" as arrayed in CMA No 96 of 2008. 3. The brief facts leading to filing of OPs by either side are set out hereunder : The respondent who has qualifications of M.Com., M.Phil., P.hD., was working as lecturer in S.S.N. Engineering College, Ongole. In the same college, one Rajani, the daughter of the appellants 1 and 2 who was a graduate in Engineer (B.Tech.) was working as a lecturer. The respondent and the said Rajani fell in love and got married on 26.10.2001. They were blessed with a son C. Sainatha Reddy on 17.9.2002 and by then, the respondent as well as his wife Rajani who were working as lecturers in Annamacharya Engineering College, Rajampet. It is alleged in the O.P. No. 309 of 1996 filed by the respondent that one week prior to 1.12.2004 his wife Rajani went to Hyderabad for the purpose of attending the ceremony of Gruhapravesam of her sister-in-law, the appellant No1 and it appears that there was a quarrel between Rajani and the appellants 3 and 4 and Rajani was humiliated. She thereafte; returned to Rajampet and was having considerable mental stress and ultimately on 1.12.2004 she committed suicide in the absence of the respondent at Rajampet. The appellants 1 and 2 were examined by the Mandal Revenue Officer, Rajampet at the time of inquest over the dead body of Rajani. It is further alleged that after the cremation, the appellants 1 and 2 demanded for return of gold jewellery, house hold articles and sarees which were returned to them by the respondent. It is also alleged that at the time of returning the clothes, a letter was found in the almirah Almyrah of Rajani which is in the nature of a suicide note, written by her that she was humiliated and ill-treated when she attended Gruhapravesham of the appellant No.3. After that, there was a change in the attitude of the appellants. It is further alleged that in January, 2005 the appellant No.1 came to Rajampet where the respondent was working and demanded the cust-ody of child. At that time it was mutually agreed that the respondent shall deposit a sum of Rs.3.00 lakhs in the name of minor child, out of which Rs.2.40 lakhs has to be contributed by the respondent and the remaining amount of Rs.60,000/- to be contributed by the appellant No.1. It is alleged that a document was written to that effect including the arrangement as to the custody of the minor child and it was kept with one Siva rami Reddy who was working as professor in Annamacharya Institute of Technology and Science, Rajampet. It is further alleged that while so in March, 2005 the appellant No.1 at the instigation of other appellants came to Tirupathi and again raised a dispute relating to the custody of the minor child and with the influence of police, they obtained a document from him forcibly as if the respondent agreed to part with the custody of the child and the child was taken away from the custody of the respondent. After a month, the respondent went to Hyderabad and collected the child from the appellants 1 and 3. It is also alleged that the respondent got married second time on 4.11.2005. He and his second wife intended to look after the minor child and send him to school. After a month, the respondent went to Hyderabad and collected the child from the appellants 1 and 3. It is also alleged that the respondent got married second time on 4.11.2005. He and his second wife intended to look after the minor child and send him to school. The appellants who were residing at Nizamabad are alleged to have visited Tirupathi and demanded the custody of the child and when the respondent refused to handover the child to them, it is alleged they approached the police at Tirupathi and by influencing and by force took away the minor child from the custody of the respondent and since then the appellants have been holding the custody of the minor child. It is in these circumstances the respondent approached the Additional District Judge at Madanapalle by filing OP No.219 of 2005 on 16.11.2005 seeking direction against the appellants to return the custody of the minor child to him, apart from other reliefs by alleging that he being a natural father, is entitled to custody of the child. 4. The appellant No.1 has filed OP No.89 of 2006 before the District Judge, Nizamabad against the respondent and his father on 6.12.2005 for being appointed as guardian of the minor child of his person and property. In the said OP the appellant No.1 made allegations against the respondent that he was demanding dowry and causing mental and physical harassment to the deceased Rajani and the respondent killed her in the house at Rajampet. He alleged that a complaint was lodged with Station House Officer, Mannoor Police Station who registered a case in Cr.No.132 of 2004 under Section 174 of Cr. PC on 1.12.2004 and it was pending investigation. He also alleged that there was a panchayat held regarding the guardianship of the minor child where the matter was settled and as per the settlement, the respondent deposited Rs.3.00 lakhs in Head Post Office at Nizamabad and Rs.2.00 lakhs in Commercial Bank at Peeleru in the name of the minor child to bear the expenses of education and welfare from the interest derived from the said deposits till the child attains majority and that it was agreed that the appellant No.1 will be the guardian of the minor child and on holidays the respondent will have the custody of the child. It is alleged that a document on a hundred-rupee stamp paper was recorded and signed by the parties on 19.3.2005. It is further alleged that the respondent deviated from the terms of the said settlement and instead of returning the child to the custody of the appellant No.1, the respondent retained the custody of the child with him for 5'l'2 months whereupon the appellant No.1 had filed a complaint and with the help of police he secured the custody of the child on 14.11.2005. It is, therefore, alleged that the respondent having married again and keeping in view the past experience of mishandling and torturing of minor boy by the respondent and his family members, the appellant No.1 sought appointment of himself as guardian and entitled to the custody of the minor child. 5. Later it appears that the OP filed by the respondent i.e., OP No.219 of 2005 before the Additional District Judge, Madanapalle was transferred to the District Judge, Nizamabad and re-numbered as OP No.309 of 2006. The OP filed by the respondent and the OP filed by the appellant No.1 were tried together by the learned I-Additional District Judge, Nizamabad and disposed of under a common order which is impugned in these appeals. As already stated, under the impugned order, the learned I Additional District Judge allowed the OP No.309 of 2006 and dismissed the OP No.89 of 2006. The correctness of which is questioned in these appeals. 6. During the trial before the learned District Judge which was recorded in OP No.309 of 2006 the respondent examined himself as PW.1, his brother as PW 2, his brother's wife as PW.3 and second wife as PWA. Similarly the appellant No.1 examined himself as R W.1, his wife-appellant No.2 as RW.2, the appellant Nos.3 as RW.3. RWA was the Principal at Sri Venkateswara Tirumal College of Engineering at Puttur of Chittur District. He and RW.5 are witnesses to EX.B I-agreement between the appellant No.1 and the respondent. RW.6 was a technician in the Engineering College at Rajampet where the respondent and his first wife Rajani were working who speaks about the incidents immediately after the death of Rajani. Before the trial Court, the respondent marked Exs. He and RW.5 are witnesses to EX.B I-agreement between the appellant No.1 and the respondent. RW.6 was a technician in the Engineering College at Rajampet where the respondent and his first wife Rajani were working who speaks about the incidents immediately after the death of Rajani. Before the trial Court, the respondent marked Exs. A1 to A4 which are attested copies of fixed deposit receipts, Exs.A5 to A8 are the attested copies of LIC policies, Exs.A9 to A19 are the attested copies of certificates issued by various departments and universities to the respondents, Exs.A20 to A30 are the research papers published in various reputed all India Level Journals, EX.A.3 is the copy of FIR and Ex.A.32 is the part-II statement relating to the said FIR. Similarly on behalf of appellants. EX.B.1 was marked which is a copy of Odambadika Kararname dated 19.3.2005 (agreement), Exs.B2 and B3 are the prescriptions dated 22.9.2002 and 23.8.2005 and EX.BA is the Xerox copy of school fee receipt relating to the minor child. Ex. X1 is the signature of RW.3 on EX.A.32. 7. We have heard Sri L. Prabhakar Reddy, learned Counsel for the appellants in both the appeals and Sri C. Srinivas, learned Counsel for the respondent in both the appeals. 8. The learned Counsel for the appellants has strenuously contended that keeping in view the past conduct and the incidents which happened particularly relating to the suspicious death of Rajani, it would not be safe to trust the respondent for being given the custody of the minor child and he also alleges and urges that the respondent married second wife on 4.11.2005, within one year of death of his first wife Rajani, which is a strong circumstance against the respondent. He further contends that the appellants 1 and 2 who are grand parents of the minor child lost their daughter and are taking care of the minor child immediately after her death and they are looking after the minor child affectionately and therefore in the over all circumstances of the case coupled with the fact that the respondent had agreed for the appellants to get the custody of the child as per Ex.B.1, the order under appeals deserves to be set aside. The learned Counsel also relies upon Paragraphs 15 and 16 of the decision of the Hon'ble Supreme Court in Mausami Moitra Ganguli v. Jayant Ganguli, 2008 (8) SCALE 527 . 9. The learned Counsel also relies upon Paragraphs 15 and 16 of the decision of the Hon'ble Supreme Court in Mausami Moitra Ganguli v. Jayant Ganguli, 2008 (8) SCALE 527 . 9. Per contra, the learned Counsel for the respondent contends that the responding being the natural father of the minor child, he is alone entitled to the custody of the child especially as nothing is established against him which disentitles him from the said right of natural parent. He further contends that Ex.B.1 document, apart from being vitiated by coercion and undue influence, is opposed to public policy and invalid and cannot be enforced against the welfare of the child. He further contends that the respondent, the father of the child, is highly educated and working, in an Engineering College as a lecturer for several years, he has professional reputation to his credit and is financially very sound and he is best suited to take care of the minor child's interest and welfare. He also contends that though the respondent has married second wife, her evidence independently shows that she has married the respondent after knowing all the circumstances and she is keen on looking after the minor child and for that• purpose, she had undergone tubectomy operation so that she will not beget any children to ensure that the minor child is not neglected. He has also relied upon -the decisions in Atchayya v. Kosaraju Narahari, AIR 1929 Mad. 81 , Malakala Ramu @ Raman v. Mammidi Gopalamurthy, 1998 (2) ALD 150 (DB) and Manchala Hushikesh v. Terala Pradeep Kumar and others, 2001 (3) ALD 454 (DB), in support of his contention that when there are competitive claims by the father and maternal grandfather to the sai4 minor child, the father cannot be deprived of the custody of the child when the matter is viewed entirely from the point of view of the child keeping in view the paramount welfare and interest of the minor child. 10. Insofar as the legal position is concerned, the natural father undoubtedly stands on a better position than the maternal grandfather, provided there are no circumstances which disqualify the father from such custody. 11. The interest and welfare of the minor child being the paramount consideration, the economic condition of the father and the status in the society also needs to be assessed vis-a-vis the maternal grandfather. 11. The interest and welfare of the minor child being the paramount consideration, the economic condition of the father and the status in the society also needs to be assessed vis-a-vis the maternal grandfather. In a matter of this nature where the grandfather seeking preferential custodial right over the natural father's claim for custody of minor child, it is essential for the grandfather/ to plead and establish that the natural father is unfit or is otherwise disqualified from being given the custody of the child. 12. In Atchayya v. Kosaraju Narahari, referred to above (supra), it was observed : "The question therefore which had to be considered in this case was whether the objections raised by the appellant even, if true, showed that the father was unfit to be the guardian of his child. It cannot, in our opinion, be successfully contended that either by his marrying a second wife who is now living with him or by his having ill treated the child's mother during her lifetime (even assuming the ill-treatments to be true), he has rendered himself unfit to have the custody of his child…….. We think that if the father is leading as immoral life, it will be for the Court to consider whether he is of such a character that it would not be to the welfare of the child that he should have its custody. In this case a vague allegation is made in Para 4 of the counter-petition against the character of the father which purports to be based upon a letter alleged to have been written by the deceased wife to her brother. The allegation is extremely vague. Further the writer of the letter being dead the latter is clearly inadmissible in evidence. There is no allegation that the father was at the date of the application leading an immoral life and the vague allegation seems to be made only to create a prejudice against the father.. .. ... .... The allegation is extremely vague. Further the writer of the letter being dead the latter is clearly inadmissible in evidence. There is no allegation that the father was at the date of the application leading an immoral life and the vague allegation seems to be made only to create a prejudice against the father.. .. ... .... The learned District Judge observes as follows : "Even considering the matter entirely from the point of view of the welfare of the minor it cannot be to the minor's welfare to estrange him from his own father at this tender age as will undoubtedly be the as if he continues under the guardianship of the respondent (appellant) between whom and the father there is little love lost." We entirely agree with those observations." 13. Similarly in Malakala Ramu @ Raman v. Mdmmidi Gopalamurthy (supra), a Division of this Court in Para 20 observed as follows : "As has been made clear, while granting custody of the minor children, the paramount consideration is the welfare of the minors. In this case, the appellant-respondent has not placed before us any material to hold that the interest of the minor children would be jeopardized if the custody of the minor children is granted to their natural father respondent-petitioner. On a careful scrutiny of the evidence on record also does not give an impression that the interests of the minors would not be served if they are given in custody to the respondent petitioner. The respondent-petitioner is gainfully employed in South Central Railways at Vijayawada where there are good schools. If the children are given in custody to the respondent-petitioner, he would admit them in good school at Vijayawada for imparting education and be able to provide reasonable requirements for their upbringing......" 14. In Manchala Hushikesh v. Terala Pradeep Kumar and others (supra), the legal position is summarized in Para 22, which is as follows : "From the above, it is clear that the father is the guardian of the minor until he is found unfit to be the guardian of the minor. The welfare of the minor is paramount consideration while ordering their custody. The welfare of the minor is paramount consideration while ordering their custody. In view of the Section 25 of the Act, the onus is on the person who opposes the application by a guardian for the custody of a ward under this section to make out that the welfare of the wards be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made. This onus is particularly heavy when the guardian is the father of the child. Likewise, under Section 19 the burden of proof to deny the natural father the custody of his child would be very heavy to establish his unfitness and the Court will require very strong reasons for interference with the father's right to custody. In the facts and circumstances of the present case, it is in this background of the legal position we have to analyze the evidence adduced, both oral as well as documentary, to prove the unfitness or otherwise of the father and also see whether the welfare of the child would be better served in the hands of the father or the respondents." 15. In a decision of the Hon'ble Supreme Court in Mausami Moitra Ganguli v. Jayant Ganguli referred to above (supra), relied on by the learned for the appellants, Paras 15 and 16 are relevant which are extracted below : "15. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 84 , a three-Judge Bench of this Court in a rather curt language had observed that the children are not mere chattels; nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to their considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of, the society and the guardian Court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. 16. In Halsbury's Laws of England (Fourth Edition, Vo1.13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms: "809. 16. In Halsbury's Laws of England (Fourth Edition, Vo1.13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms: "809. Principles as to custody and upbringing of minors. Where in any proceedings before any Court, the custody or upbringing of a minor is in question, the Court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect' of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other." 16. It is, however, to be noted that that the aforesaid decision of the Hon 'ble Supreme Court arose out of the competing claims between the father and the mother of the child. 17. So far as the facts of the present case are concerned, as mentioned in the beginning of the judgment, in the OP filed by the appellant No.1 there is hardly any allegation against the respondent father except alleging that he was harassing his deceased wife for more dowry and he is alleged to have killed her. The allegation in the said OP is primarily based upon EX.B 1, the alleged agreement and based on that, the appellant No.1 is asserting his right to custody of the child. It is also significant to notice that in the OP filed by the respondent i.e., OP No.309 of 2006 the appellants did not file any counter, but the evidence led on their behalf as stated above is primarily based upon the said agreement EX.B 1 as R W s.3 and 4 were examined to prove that they are signatories to EX.B1. R.Ws.1 and 2 are the appellant No.1 and his wife and interestingly R W.2 denies her signature on the chief examination affidavit itself. She states in her evidence as follows : "It is true we brought the child with the help of police. R.Ws.1 and 2 are the appellant No.1 and his wife and interestingly R W.2 denies her signature on the chief examination affidavit itself. She states in her evidence as follows : "It is true we brought the child with the help of police. We have not kept my other daughters at the place of petitioner after the death of my daughter Rajani as of a formality at any time. It is true that we have not handed over the child when the petitioner came to us at the time of first death anniversary of my daughter, likewise second year also........" 18. From this evidence of the wife of appellant No.1, it is clear that the appellants 1 and 2 are holding the child with them selves and are even denying the access to the respondent father even at the time of death anniversary of their daughter successively year after year. Further the evidence of the appellant No.1 as RW.1 shows that he did not state before the police or the Mandal Revenue Officer that the respondent was responsible for the death of his daughter and when confronted with documents Exs.A3l and A32 which contain his statement that his respondent is not responsible for the death of his wife RW.1 states that since the matter was compromised before the elders, the above statements were given and has attempted to disown the said statements. The substance of the claim of the appellants is primarily based on Ex.A31 which cannot be countenanced, as the agreement among the parties, apart from being opposed to public policy and being unenforceable, cannot override the paramount consideration of the welfare and interest of the child which is only the criteria in deciding on the right to custody of child. 19. On the analysis of the entire evidence, oral and documentary, we feel, that the respondent-father of the child, is highly educated, having several publications to his credit and he is responsible father having very comfortable financial position, he and his second wife have categorically deposed before the Court that his second wife, in order to look after the minor child, has voluntarily agreed not to beget any children and the Court below records that a medical certificate from Government Hospital, Ongole dated 6.10.2007 was produced to show that PW.4 had undergone tubectomy operation on 6.10.2007 at the hospital. The sacrifice of this nature by PW.4 as well as by the respondent in taking all precautions to look after the minor child, therefore cannot be brushed aside or ignored. There is, therefore, total lack of any allegations much less any evidence on the part of the appellants showing that the respondent is in any manner unfit or disqualified from having the custody of the minor child. The mere allegation of the appellants against the respondent for his alleged ill-treatment of his deceased wife is wholly unsubstantiated and in fact there is contrary evidence on record under Exs.A.31 and A32. Mere dislike of the respondent by the appellants is, therefore, no ground to deny the custody to the respondent. The minor child has already lost his mother and we think, it would be wholly erroneous to deprive him of his father as well and overlook the claim of the father and give the custody to the maternal grand parents. 20. From the facts and circumstances of this case, we are fully satisfied that the order of the learned District Judge in granting custody of the minor child to the respondent father is clearly justified in law and warrants no interference by this Court. The appeals, therefore, are totally devoid of merits and liable to be dismissed. Accordingly the CMAs are dismissed. However, no order as to costs. CMA MP No. 2133 of 2008 : 21. In view (If the fact that the main appeals are disposed of with the consent of the parties, no orders are necessary in this application which is accordingly disposed of.