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2009 DIGILAW 68 (KAR)

Chethana Kumble v. Kumar Jahagirdar

2009-01-28

RAM MOHAN REDDY

body2009
Judgment :- Ram Mohan Reddy, J. The rejection of the petitioner's application under Order VII Rule 11 r/w Section 151 CPC by Order dt. 11.11.2007 in M.C.No. 1195/98 of the Principal Judge, Family Court, Bangalore, has resulted in this petition invoking Article 227 of the Constitution of India. 2. The threshold contention of the learned Counsel for the respondent over the maintainability of the writ petition deserves to be rejected, since the petitioner can invoke the power of superintendence under Article 227 of the Constitution, calling in question the order impugned of the Family Court. 3. Briefly stated facts are that a female child by name Kum. Aaruni was born on 7.12.1994 to the petitioner from out of the wedlock between the parties and on 11.12.1998, a joint petition filed invoking Sec. 13B of The Hindu Marriage act 1955, for short ‘Act' for a decree of divorce by mutual consent and child's custody in terms of the compromise, was accordingly allowed by order dtd. 12.04.1999 of the Family Court. The arrangement over the custody of the child and visitation rights having led to certain alleged difficulties in its implementation, perhaps, impelled the parties to file separate application under Section 26 of the Act for custody. The rejection of the petitioner's application and allowing respondent's application for custody of the child, by order dt. 20.4.2002 when carried in two Appeals viz., MFA 2940/02 and MFA 2939/02, a Division Bench of this court allowed the appeals by order dt. 27.1.2003 reversed the order of the Family Court and accordingly, allowed the petitioner's application for custody of the female child subject to visitation rights to the respondent ex-husband. That order when questioned in CA No.619/04 & 620/04 before the Apex Court, was confirmed by order dt. 29.1.2004, subject to certain modifications. 4. On 23.8.2006 the respondent filed an application under Section 26 of the Act for permanent and exclusive custody of the minor child, which was resisted by filing statement of objections of the petitioner inter alia refuting the allegations made therein. At the stage of recording evidence of the respondent ex-husband, the petitioner tiled I.A. u/O VII Rule 11 CPC , on 17.9.1997 to reject the application filed by the ex-husband. That application was opposed by filing statement of objections dt. At the stage of recording evidence of the respondent ex-husband, the petitioner tiled I.A. u/O VII Rule 11 CPC , on 17.9.1997 to reject the application filed by the ex-husband. That application was opposed by filing statement of objections dt. 22.9.2007 pointing out that the applicant was entitled to maintain the application under Section 26 of the Act and that the petitioner's application under Order VII Rule 11 CPC warranted rejection. The Family court having considered the rival contentions of the parties and the in the light of the observations of the Apex Court in Civil Appeals, as also the reported opinion in Jai Prakash Khadria vs Shyam Sunder Agarwalla (2006) 6 SCC 598 rejected the petitioner's application by the order impugned. 5. At the very threshold it is useful to refer to reported opinions over settled principles of law. (a) There can be no dispute that all orders relating to the custody of minor children from their very nature must be considered to be temporary orders made in the existing circumstances and that with changer (conditions and circumstances, including passage of time, the court is entitled to vary such orders, if such variation is considered to be in the paramount interest of the welfare of the minor. This is the law laid down by the Apex court in the case of Rosy Jacob vs Jacob A.Chakramakkal (1973) 1 SCC 840 as well as in R.V Srinath Prasad vs Nandamuri Jayakrishna (2001) 4 SCC 71 . (b) Indisputably, the object of Order 7, Rule 11 is to keep out of Courts irresponsible law suits, a tool in the hands of the courts. The question to be decided while dealing with an application filed under Order 7, Rule 11(a) CPC, is whether a real cause of action is set out in the plaint or something purely illusory has been stated. If on a meaningful and not formal reading of the plaint, it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, the court should exercise the power under Order 7. Rule 11(a). If clever drafting has created the illusion of a cause of action, it must be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. Rule 11(a). If clever drafting has created the illusion of a cause of action, it must be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. This is the law laid down by the Apex Court in Sopan Sukhdeo Sable & Others vs Assistant Charity Commissioner & Others (2004) 3 SCC 137 . (c) A cause of action is bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. Material facts are required to he stated but not the evidence except in certain cases where the peladings relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, as held by the Supreme Court in Liverpool & London S.P. and I Association Ltd. vs M. V. Sea Success I & Another (2004) 9 SCC 512 . 6. The Division bench of this Court in its order dt. 27.1.2003 al lowing MFA 2940/02 and 2939/02, at paragraph 30, recorded the input information obtained from the minor child Aaruni to hold that in the interest of minor she deserved to be entrusted to the custody of mother subject to the rights of the parties to seek modification of the arrangement if situation so warrants and if both the parents are agreeable to such arrangements. In addition, at paragraph 43 liberty was reserved to the parties to move the court for such variation/ modification if they become necessary under any changed and compelling circumstances. The Apex Court too in its order dt. 29.1.2004 in CA 619/04 and 620/04 approved the conclusions of the Division Bench of this Court, keeping in mind the safeguard and interest of the minor, while however made little modifications by observing that the prospects of arrival of a second child in the family of the petitioner would, in fact, be a welcome situation in favour of the minor child Aaruni. In addition, their lordship of the Apex Court observed that the ex-husband lives alone with his father and as no female members live jointly with him although he may have female relations in the city but that would not ensure constant care, company and attention to the minor female child, coupled, with the fact, that ex-husband was a busy stock broker carrying on business, by reason of which, he would remain out of residence for attending his office and other businessi engagements. While confirming the visitation rights of the ex-husband their lordships observed thus: "5. The apprehension expressed against the second husband that he might poison the mind of the child and create ill-will towards natural father is not borne out from the evidence on record. On the contrary, the second husband in his deposition has made statements evincing a very cooperative and humane attitude on his part towards the problem of the estranged couple and the child. We find that apprehension expressed against the second husband is without foundation. The parents of the child have separated by mutual consent without making any vicious allegation against each other. They also agreed under the express terms of the consent decree of divorce to take responsibility of bringing up their child as her joint guardians. This gesture of decency and cooperation in jointly looking after the child has to continue. In this mutual agreement of separated couple, on behalf of second husband, it is assured to us that he would continue to give his unreserved cooperation and help and would do nothing as to spoil the relationship or intimacy of the child with the natural father. 6. The visitation rights given to the natural father, in the present circumstances, also do not require any modification because with the passage of time, the growing child should eagerly wait for the company of her father as a happy and enjoyable moment rather than treat it as a part of empty ritual or duty. To make visitation rights of natural father effective and meaningful for proper growth of the child, active cooperation of both the parents and her step father is expected and we hope it would not he found wanting from any of them." 7. To make visitation rights of natural father effective and meaningful for proper growth of the child, active cooperation of both the parents and her step father is expected and we hope it would not he found wanting from any of them." 7. The respondent in the affidavit accompanying the application under Section 26 o f the Act for grant of permanent and exclusive custody of the minor child, set out the facts of the case and at paragraphs 15 to 20 alleged changed conditions and circumstances and at paragraph 29 alleged that his child kept complaining about the remarks made by the petitioner's mother-in-law, while at paragraph 39 made allegations against the petitioner of constantly belittling him in the presence of the minor child tending to damage the psyche of the child. The application is opposed by filing objections refuting the allegations, while specifically pointing out to alleged two changed circumstances urged by the ex-husband for modification of the earlier order that the petitioner has given birth to two children from her present husband and that she had shitted her residence from Basavanagudi to Banashankari which is not in the paramount interest of the minor. 8. In the petitioner's application under Order VII Rule 11(a) of CPC, it is asserted that the parties did not enter into any agreement to seek modification of the orders and that there was, apparently, no changed and compelling circumstances calling for variation/ modification o f the orders of the Division Bench as well as that of the Apex Court and there being no cause of action for the ex-husband to maintain the application under Section 26 of the Act, deserved to be dismissed. This application was stoutly refuted by filing statement of objections pointing out that apart from the aforesaid two allegations there were several others relating to the conduct of the petitioner her second husband, and her mother-in-law's unwarranted remarks affecting the psyche of the child. In addition the non-cooperative and inhuman attitude of the petitioner and her second husband affecting the decency and co-operation in jointly caring for the child. Moreover the petitioner is said to have undergone a surgery by cesarean section to deliver the third child, affecting the desired attention on Aaruni. In addition the non-cooperative and inhuman attitude of the petitioner and her second husband affecting the decency and co-operation in jointly caring for the child. Moreover the petitioner is said to have undergone a surgery by cesarean section to deliver the third child, affecting the desired attention on Aaruni. The Civil Court having elaborately considered the pleadings and contentions of the parties and having applied the principles of law declared by the Apex Court held that the ex-husband was entitled to maintain an application. 9. Although Sri. C.V. Nagesh, learned Sr. counsel for the petitioner contends that there is no material whatsoever over the existence of a cause of action to establish changed or compelling circumstances entitling the ex-husband to maintain an application for modification of the orders for custody of the minor child, I am not impressed by that submission. Allegations of changed conditions or circumstances cannot he inferred from the pleadings of parties since cause of action is a bundle of facts required to he pleaded and proved. Material facts are only to he stated while proof is by a trial. It would be too far fetched to read the contents of the affidavit accompanying the application under Section 26 of the Act to conclude that no cause of action is made out, to file and maintain the application. The respondent, ex-husband having made several allegations is hound to establish the same in a trial and if acceptable to the Family Court, then and then alone it can he said changed circumstances exist to interfere with the earlier orders of custody of the minor child. We must bear in mind if the allegations of ex-husband turn out to be true, then it would not he in the interest of the minor child. Per contra, if the allegations are devoid of merit and turn out to be false, it is needless to state that the application must he treated as frivolous and rejected. 10. Suffice it to state that the Family Court having considered the pleading in the affidavit accompanying the application under Section 26 of the `Act', did not conclude that the cause of action was either illusory or meritless nor vexations, but that there was a need to inquire into the truth of the allegations. The proceeding before the Family Court had reached the stage. of recording the evidence of ex-husband over the assertions and allegations. The proceeding before the Family Court had reached the stage. of recording the evidence of ex-husband over the assertions and allegations. It would not be out of place to mention that one of the considerations that went into the decision making process so as decline custody and extend visiting rights to husband was that he was a busy stock broker, unmarried, did not have female members living with him to take care of the female child. Yet another circumstance that weighed in the mind of their lordships of the Apex Court was that with passage of time, the growing child should eagerly wait for the company of her father as a happy and enjoyable moment rather than treat the visitation rights as empty ritual or duty. In addition it was observed that there was a need for decency and co-operation in jointly looking after the child. In this regard, it was noticed that active cooperation of both the parents and the step father of the minor child was expected and hoped that it would not be found wanting from any one of them. 11. In the light of the observations of the Apex Court at paragraphs 5 and 6 extracted supra, it would be unfair on the part of the Family Court to refuse to consider to the ex-husband's assertions of non- co-operation from the ex-wife which is not in the interest of the minor child. What is expected of the parties including the step father is active cooperative, a step-in-aid in the paramount interest of the minor child. The petitioner having founded the cause of action on the basis of the several averments set out in the affidavit accompanying the application, I am of the considered opinion that the Family Court was fully justified in rejecting the petitioner's application by the order impugned. 12. Before parting with this case, the petitioner giving birth to two children from the present husband or shifting of the residence from Basavanagudi to Banashankari a distance of two kilometers, is too trivial to contend changed circumstances, more so in the light of the observations of the Apex Court that the arrival of the second child in the family of the wife would be in favour of the minor child. Distances in Bangalore does not really matter when children are ferried to schools by in motor vehicles and the extended distance being additional -2kms. 13. Distances in Bangalore does not really matter when children are ferried to schools by in motor vehicles and the extended distance being additional -2kms. 13. However, without dwelling into the merits or demerits of the assertions and allegations made by the ex-husband in the application under Section 26 of the Act and leaving open all contentions of the parties to be urged before the Family Court, this petition is, accordingly rejected.