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2012 DIGILAW 322 (AP)

Tatineni Mayuri v. Edara Baldev

2012-03-21

C.V.NAGARJUNA REDDY

body2012
Judgment : This Civil Revision Petition arises out of Order, dated 13.03.2012, in F.C.O.P.No.95 of 2011 on the file of the learned Judge, Family Court, Hyderabad. The petitioner and the respondent are the wife and husband. As their matrimonial life ran into rough weather, the petitioner filed the above-mentioned F.C.O.P. for grant of divorce. The respondent filed O.P.No.731 of 2011 for appointing him as guardian and also for custody of his minor girl child by name Jasmitha. It is not in dispute that both the O.Ps. were jointly tried and the evidence was closed. The cases were ripe for arguments. At this stage, the respondent filed I.A.No.208 of 2012 under Section 17(3) of the Guardians and Wards Act, 1890 (for short “the Act”) for examining his daughter in order to ascertain her preference. While the said I.A. was pending, the in charge Judge, Additional Family Court, Hyderabad, passed an order, dated 13.03.2012, wherein he has directed the petitioner to produce the minor girl child before the Court, as he intended to examine the child orally. On the following day, the petitioner filed I.A.No.271 of 2012 for examining the child to ascertain her views at any place other than the Court in a homely atmosphere in the absence of both the parties. The lower Court adjourned the said application to 19.03.2012 for filing a counter affidavit by the respondent. At this stage, the petitioner filed the present civil revision petition, feeling aggrieved by the order, dated 13.03.2012. The main objection of Sri E. Manohar, learned Senior Counsel, representing Ms. Vani, learned counsel for the petitioner, is that even while I.A.No.208 of 2012 filed by the respondent is pending, the lower Court has exceeded its jurisdiction in directing the production of the minor girl child for examination. He further stated that the stage for examining the child has not yet reached, because as held by the Division Bench of this Court in Deram Seethamahalakshmi alias Dabir Latha and others V. Kala Seethamahalakshmamma ( 1982 (2) ALT 392 ), the necessity of examining the child would arise only after the Court comes to the conclusion on the merits of the case and that it is premature for the Court to examine the child even before the arguments were advanced on the part of the parties in the O.Ps. Alternatively, the learned Senior Counsel submitted that as requested by his client, the child may be examined at an appropriate time at a place other than the Court in which the cases are being heard. He suggested that the minor girl child may be examined by the Judge in the Legal Services Authority building. Sri M.P. Chandra Mouli, learned counsel for the respondent, while fairly conceding that before passing the order, dated 13.03.2012, the lower Court ought to have disposed of the I.A. filed by his client, however, submitted that in her own evidence, the petitioner has described the minor girl child as very intelligent beyond her age and that as held by the Courts from time to time while interpreting Section 17(3) of the Act, the preference of child is also relevant before adjudicating on the application for appointment of guardian of the minor child. I have carefully considered the respective submissions of the learned counsel for the parties. The judicial opinion, which is firmly established in a case for appointment of guardian and custody of minor child, is that the welfare of the child is of paramount importance. All efforts need to be made by the Courts dealing with such cases to determine as to how best the welfare of the minor child is ensured. Such determination can be made on the basis of various factors emanating from the material available on record including the evidence of the parties, the attendant circumstances, the social status of the family, the conduct and attitude of the parents, etc. Section 17(3) of the Act will only act as an aid for the Court to arrive at the right and just conclusion for ascertaining the welfare of the child. There cannot be a hard and fast rule on the aspect of ascertaining the views of the child, because the language of Section 17(3) of the Act would suggest that discretion is vested with the Court on this aspect depending upon its satisfaction that the child is old enough to form an intelligent preference. The Division Bench of this Court in Deram Seethamahalakshmi (supra) on examination of the child of 9 years old came to the conclusion that the child was not old enough to form an opinion. The Division Bench of this Court in Deram Seethamahalakshmi (supra) on examination of the child of 9 years old came to the conclusion that the child was not old enough to form an opinion. Of course, in Nil Ratan Kundu V. Abhijit Kundu ( (2008) 9 SCC 413 ) the Supreme Court has elicited the views of a minor male child of 6 years old and found him to be quite intelligent. Here again, whether the child is old enough to form an intelligent preference depends upon the individual capacity and capability of the child, its I.Q. levels, etc., and not merely on the age of the child. In my considered opinion, the adjudicatory process would be complete, if the views of the minor child also are ascertained before the cases are finally disposed of by the lower Court. Fortunately, there is a consensus among the parties on this aspect, but the difference of opinion between them pertains only to the stage and the place of examination of the child. Having given my earnest consideration, I am of the opinion that on completion of the arguments on both sides, it would be appropriate for the Court below to examine the child before arriving at its final conclusion. As regards the venue, as both the parties have agreed on the venue, namely, the Legal Services Authority building within the precincts of the City Civil Courts, the lower Court can examine the minor girl child at that place and preferably without the parents being present at the time of examination by the Judge. In the light of the above discussion, the Civil Revision Petition is disposed of in the following terms: 1) The Court below should first hear the arguments of the parties and before reserving the judgment examine the minor girl child as directed above; and 2) I.A.Nos.208 and 271 of 2012 shall stand disposed of. As a sequel, C.R.P.M.P.Nos.1911 and 1863 of 2012 filed by the petitioners for interim relief, is disposed of as infructuous.