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2012 DIGILAW 106 (KAR)

S. Anand v. Lakshmi

2012-02-06

S.ABDUL NAZEER

body2012
Judgment :- 1. In this case, the petitioner has called in question the validity of the order at Annexure ‘F’ dated 1.7.2011 in M.C.No.186/2008 and the order at Annexure ‘J’ dated 17.11.2011 in G & W.C.No.100/2008 on the file of the 6th Addl. Principal Judge, Family Court, Bangalore. 2. The respondent was married to the petitioner as per the Hindu rights and customs on 28.2.1999 at Eshwara Temple, Patalamma Temple Street, Jayanagar 3rd Block, Bangalore and out of the said wedlock, a son by name Pawan was born on 1.3.2002. The petitioner has filed M.C.No.186/2008 against the respondent on the file of the 6th Addl. Principal Judge, Family Court, Bangalore to declare that his marriage with the respondent is null and void. The respondent filed G & W.C.No.100/2008 under Sections 7 and 25 of the Guardian and Wards Act, 1890 for declaration that she is the natural guardian of the minor child Pawan and to hand over the custody of the child. The petitioner has opposed the said application by filing his statement of objections. During the pendency of the matter, the respondent filed an application seeking interim custody of the child, which was also opposed by the petitioner. After consideration of the rival contentions of the parties, the court below has allowed the application by order dated 1.7.2011. Since the petitioner failed to hand over the custody of the child, the respondent again filed an application for implementation of the aforesaid order, which was also allowed by the court below by order dated 17.11.2011. 3. I have heard Smt.Pramila Nesargi, learned Senior Counsel appearing for the petitioner and Sri Prasanna Kumar P. Daroji, learned Counsel appearing for the respondent. 4. Learned Senior Counsel for the petitioner contends that the child Pawan is studying in 4th standard in a school at J.P.Nagar. The child has been living with the petitioner and is not willing to go with the respondent. If the child is compelled to go with the mother forcibly, it will affect the minor child. It is argued that the respondent was earlier married to one M.C.Krishnamurthy and a child was born to her through her first husband. The child has been living with the petitioner and is not willing to go with the respondent. If the child is compelled to go with the mother forcibly, it will affect the minor child. It is argued that the respondent was earlier married to one M.C.Krishnamurthy and a child was born to her through her first husband. It is further contended that the respondent and her children were missing on 15.12.2007 and on 21.12.2007, her elder son called the petitioner over phone and told him that the respondent has kept them in a lock at Chittoor and requested him to rescue them. The police have rescued them on 24.12.2007 and with effect from the said date, the children are with the petitioner. The respondent had filed M.C.No.124/1999 before the Family Court against her first husband for divorce, which was dismissed on 28.12.2002. It is only thereafter petitioner to know that the respondent is not a divorcee. The learned Senior Counsel has taken me through various document produced by the petitioner in the Family Court. She submits that petitioner is staying with his brother, sister-in-law and the two children. The school is very close to his residence. The petitioner is financially well off and is running a driving school. Therefore, in the interest of the minor child, custody of the minor child should be given to the petitioner. 5. On the other hand, learned Counsel appearing for the respondent has submitted that the orders of the court below do not require interference. It is argued that the court below has passed the order keeping in mind the welfare of the minor child. He is giving different addresses at different point of time. The respondent is staying with her mother at Jayanagar and the school of the child is very close to her house. In the interest of the minor child, he should remain with the respondent. He has also taken me through the various documents produced by the respondent before the court below. 6. The principles of law in relation to custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statue. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statue. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. In ROSY JACOB VS. JACOB A. CHAKRAMAKKAL – (1973) 1 SCC 840 , the Apex Court has observed that children are not mere chattels nor are they mere play things 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 the 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 requirement of welfare of the minor children and the rights of their respective parents over them. In KUMAR V. JAHGIRDAR VS. CHETANA K. RAMATHREERTHA – AIR 2001 SC 2179 , the Apex Court was considering the interim custody of the minor child. In the said case, the marriage was dissolved by mutual consent and the spouses were appointed as joint guardians. The wife, who was re-married subsequently sought permanent custody and permission to take the child to Europe tour. The High Court directed the custody of the minor child to be given to the mother for a period of one year. The Court further directed that after the passage of one year, the child should be given to the custody of the father. The Apex Court has held that the custody of the minor child will remain with the mother till the disposal of the petitions filed by the parties for custody of the child. The Court further directed that after the passage of one year, the child should be given to the custody of the father. The Apex Court has held that the custody of the minor child will remain with the mother till the disposal of the petitions filed by the parties for custody of the child. The Family Court was directed to dispose of the main matter without prejudice to the rights and contentions of the parties in the proceedings for custody of the child pending before it. In the course of the order, the Apex Court observed that the High Court has not considered the welfare of the minor child in its proper perspective. In MAUSAMI MOITRA GANGULI VS. JAYANTI GANGULI – AIR 2008 SC 2262 , the Apex Court has held that better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. In the said case, the mother was staying all alone at another place. The child during interview by Court opted to stay with father and showing his disinclination to leave his birth place. The Court observed that dislocation of child from place where he has grown up would not only impede his schooling but also cause emotional strain and depression on him and therefore, the application of the mother for the custody of the child was rejected. In GAURAV NAGPAL VS. SUMEDHA NAGPAL – (2009) 1 SCC 42 , the Apex Court has noted the principles governing the custody of the minor child as under: “The word ‘welfare’ used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as 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 he minor children and the rights of their respective parents over them”. The Court further observed as under: “The Court has to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others. Mature thinking is indeed necessary in such a situation. When the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis. In such matters, human angles are also relevant for deciding the issues. The object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of ward’s health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor.” 7. In the instant case, we are considering the interim custody of the minor child under Section 12 of the Guardians and Wards Act, 1890 pending disposal of the main matter. Learned Senior Counsel appearing for the petitioner has taken me through various documents produced by the petitioner before the Family Court in support of her contention that the father is most suitable to be appointed as the guardian of the minor child pending disposal of the application. Similarly, learned Counsel for the respondent has also taken me through various documents to buttress his argument that the respondent-mother is most suitable to be appointed as the guardian. Similarly, learned Counsel for the respondent has also taken me through various documents to buttress his argument that the respondent-mother is most suitable to be appointed as the guardian. The Family court has to appreciate all these documents while deciding the main matter in the light of the principles laid down by the Apex Court referred to above. It is to be noted here that the school where the child is studying is not far away from the house of the respondent. The respondent is staying along with her mother at Jayanagar, Bangalore. According to the petitioner, he is staying with his elder brother, sister in law and two children of his brother in a house at J.P.Nagar. The petitioner is running a driving school. Serious allegations have been made by the respondent against the petitioner that he is staying at different places and that he is leading an immoral life, which has to be established before the Family Court. Be that as it may. The Family Court has relied on the letter submitted by Smt. Vijayalakshmi Shetty, Senior Counsellor, which discloses that the child is intending to go with his mother at the time of his visit. Taking a over all view of the matter, the Family Court has directed the respondent to take the custody of the child. Having perused the entire materials on record, I am of the view that the orders impugned do not warrant interference. The writ petitions are accordingly dismissed. However, I direct the Family Court to dispose of the main matter on its merits and in accordance with law without being influenced by the observations made in the impugned orders or in this order. No costs.