Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 1000 (KAR)

Yogish Kode v. Rashmi Madhava

2013-08-28

A.S.BOPANNA

body2013
Judgment : 1. The petitioner is before this Court assailing the order dated 04.02.2013 passed by the Additional Prl. Family Judge, Family Court, in I.A.No.20 filed under Section 10 R/w Section 151 of CPC in O.S.No.2/2007. The said order is impugned at Annexure-E to the petition. 2. The facts in brief are that the petitioner and respondent got married to each other on 07.11.2001. Thereafter they were residing in California, United States of America, during which period they had certain marital differences. They have also a son out of the said wedlock. The issue herein pertains to the custody as well as the visitation rights relating to their son. While the parties were residing in the United States of America, they had approached the Superior Court at California, County of Santa Clara in Case No.1-06-FL 137377 wherein certain orders with regard to the custody and visitation rights came to be considered in respect of the child Gaurav Kode Yogish. The said order was passed on 01.02.2007. 3. The parties are presently agitating certain issues relating to the custody and visitation rights of the said child before the Courts in India. While that is the position, the respondent herein has filed a suit in O.S.No.2/2007 seeking for a declaration that the custody and visitation rights in respect of the minor child Gaurav Kode Yogish passed by the Superior Court at California, County of Santa Clara, in Case No. 1-06-Fl-137377 on 01.02.2007 is in contravention of the Indian laws. 4. In the said suit, the petitioner herein has filed an application under Section 10 R/w Section 151 of CPC seeking stay of the further trial or consideration of the suit. The same came to be numbered as I.A.No.20 and was ultimately dismissed by the order dated 04.02.2013. The said order is assailed in the instant petition. 5. Learned senior counsel representing the petitioner would contend that the Court below was not justified inasmuch as the provision contained in Section 10 has not been properly appreciated. It is the case of the petitioner that in respect of the custody and visitation rights of the child Gaurav Kode Yogish, a petition in G & WC No. 172/2006 had been filed before the Family Court which came to be disposed of on 15.07.2011. It is the case of the petitioner that in respect of the custody and visitation rights of the child Gaurav Kode Yogish, a petition in G & WC No. 172/2006 had been filed before the Family Court which came to be disposed of on 15.07.2011. In the said proceedings, the petitioner herein had contended that the rights of the parties have already been considered by the order passed by the Superior Court of California. The said contention had been rejected. 6. Presently, against the said order, an appeal has been filed before this Court which is pending in MFA No.7617/2011. It is therefore contended that the issue with regard to the orders passed by the Superior Court in California and the right granted to the parties having been pleaded and urged by the petitioner in the said proceedings is an issue which would have to be considered by this Court in said Miscellaneous First Appeal before correctness or otherwise of the order passed in G & W C is considered. In that light, it is contended that the matter substantially is in issue before this Court in the said appeal which is a continuation of the proceedings of the Court below. Therefore, in the present context, when the suit is filed seeking to set aside the said judgment and the said issue is being considered by this Court, any conflicting opinion expressed will be contrary to law. 7. With regard to the contention that the Court below has not appreciated this aspect in its correct perspective, learned senior counsel would place reliance on a judgment of this Court in the case of Express Road Transport Pvt. Ltd. -vs- M/s Mallar Trading Company reported in 1985(1) KLJ 35 to point out that when matters are pending before the Higher Courts, the Lower Courts would stay its hands from considering the matter. 8. Learned counsel for the respondent would however contend that the prayer made in the application does not satisfy the requirements of Section 10 of the Act. 8. Learned counsel for the respondent would however contend that the prayer made in the application does not satisfy the requirements of Section 10 of the Act. It is contended that the prayer made in the suit is entirely different inasmuch as the plaintiff therein is seeking that the order passed by the Superior Court at California be declared as not binding while the issue in G & WC case is with regard to custody of the child which in fact has been considered after rendering a finding that the Courts in India have jurisdiction to entertain the matter. That aspect of the matter had been assailed before this Court and has finally been considered by the Hon'ble Supreme Court in SLP No.8656/2009 holding that the Courts in India had jurisdiction to consider the dispute between parties herein. It is his further contention that the pendency is before this Court and not before the trial Court and Section 10 of the Act provides that only when there is concurrent jurisdiction and the matter is substantially in issue, the stay of the subsequent proceedings would arise and not otherwise. 9. Reliance is placed on the decision in the case of National Institute of Mental Health and Neuro Sciences -vs- C. Parameshwara reported in AIR 2005 SC 242 . In that view, it is contended that the Court below had appreciated the matter in its correct perspective and the order dated 04.02.2013 does not call for interference. 10. In the light of the rival contentions, the contents of Section 10 in any event need not be adverted to in detail inasmuch as the said provision itself has been extracted during the course of the order passed by the Court below. With regard to the provision contained therein, there can be no dispute that the issue would have to be directly or substantially in issue and should be pending in the Courts having concurrent jurisdiction. In the instant case, since the petitioner contends that the issue is still pending consideration in the first appeal, whether the said issue is relatable to the issue which is urged in the suit is to be noticed since it cannot be in dispute that the appeal is a continuation of the original proceeding. In the instant case, since the petitioner contends that the issue is still pending consideration in the first appeal, whether the said issue is relatable to the issue which is urged in the suit is to be noticed since it cannot be in dispute that the appeal is a continuation of the original proceeding. On this aspect of the matter, having carefully perused the judgment of the Hon'ble Supreme Court relied upon by the learned counsel for the respondent, the factual aspects in the instant case would disclose that the G & WC case filed by the respondent herein was relating to the custody of the minor child of the parties. In the said proceedings, the matter has been disposed of on 15.07.2011 wherein the custody of the child has been ordered in favour of the respondent. The petitioner herein has been granted visitation rights in respect of the child as provided therein. The undisputed fact is that the petitioner herein has assailed the said judgment dated 15.07.2011 in MFA No.7617/2011 which is pending consideration before this Court. A copy of the judgment passed in G & WC case is made available to this Court. A perusal of the same would indicate that while opposing the petition filed by the respondent herein in G & WC No.172/2006, the petitioner herein had also placed reliance on the order passed by the Superior Court at California. Though the Court below has rejected such contention and has thereafter proceeded to pass orders, that question is one of the issues which would require consideration in the pending MFA No.7617/2011. 11. If these aspects of the matter are kept in perspective, the question with regard to the custody and visitation rights which has now been granted in G & WC No.172/2006 in favour of the respondent having not yet attained finality due to the pendency of the appeal before this Court and when this Court in the said appeal would have to consider the contention relating to the earlier proceedings wherein an order has been passed by the Superior Court of California in the background of the contention put forth by the petitioner herein, it is still an issue in the said appeal. In that circumstance, when the suit in O.S.No.2/2007 is filed seeking declaration of the said order as null and void, I am of the opinion that the prayer made in the said suit is a substantially similar to the issue which had been considered in G & WC No.172/2006. Therefore, if the proceedings are allowed to continue and if there is a conflicting judgment in the suit, it would not be in the interest of the parties. 12. Further in any event, the validity or otherwise of the order dated 01.02.2007 passed by the Superior Court at California would arise for consideration in the appeal in the background of this Court considering the correctness or otherwise of the custody and visitation rights granted under the judgment dated 15.07.2011 in G & WC No.172/2006. Further, on the issue with regard to the concurrent jurisdiction, in view of the judgment relied on by the learned counsel for the respondent, it is to be noticed that though the present suit filed is under Section 26 R/w Order VII Rule 1 of CPC as a original suit and the proceedings in G & WC No.172/2006 was filed under the G & WC Act, the jurisdiction to entertain both these issues is with the Family Court and therefore, it would have to be considered that both the proceedings though under the different enactments is being considered by the Court having concurrent jurisdiction. 13. Therefore, if all these aspects are kept in view, I am of the opinion that the provision of Section 10 of CPC would have to be invoked in the instant case and the appreciation as made by the Court below is not justified. Accordingly, the order dated 04.02.2013 in I.A.No.20 filed in O.S.No.2/2007 is set aside and consequently, I.A.No.20 is allowed. The further proceedings in O.S.No.2/2007 shall remain stayed pending consideration of MFA No.7617/2011 on the same attaining finality. In terms of the above, the petition stands disposed of.