Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 4099 (MAD)

. v. .

2018-11-02

P.D.AUDIKESAVALU

body2018
JUDGMENT : The Petitioner, who is the father of the minor child, viz., H. Syed Sahfique Ahmed born on 05.03.2011, has filed this Petition under the Guardians and Wards Act, 1890, seeking for appointing him as the guardian of the person of the minor and for permanent custody of that child, who is now in the custody of the Respondent/Mother. In pursuance of the orders dated 03.04.2018 and 12.04.2018, the Petitioner has filed an affidavit dated 11.06.2018 stating that he had divorced the Respondent on 10.01.2012 by triple talaq and the Chief Haji had given a letter validating the talaq and he married another women in the middle of the year 2012 and through her he was having three female children. 2. The Respondent in the counter affidavit dated 11.09.2018 has contended, inter alia, that there have been earlier orders of the Courts in other proceedings between the parties directing the Petitioner to pay her maintenance, which has not been promptly complied, and that the school fees of the minor child that was incurred by the Respondent has not been reimbursed by the Petitioner. 3. In reply to the claim made by the Respondent for reimbursement of the school fees incurred by her, the Petitioner has filed reply affidavit dated 03.10.2018 stating that there is no Court order requiring him to reimburse the school fees of the minor child said to have been incurred by the Respondent. 4. A Memo of Calculation dated 11.09.2018 along with supporting receipts for school fees aggregating to Rs.2,79,000/- paid by the Respondent from May 2014 to May 2018 has been filed by the Respondent. Though the copy of the said Memo of Calculation with the enclosures has been received by the Counsel for the Petitioner, no objection has been raised regarding the genuineness of the same till date. As such, the Petitioner does not dispute the correctness of the amount of school fees claimed to have been paid by the Respondent, but only seeks to contend that he does not have any liability to pay the same on the ground that there is no order from any Court in that regard. 5. As such, the Petitioner does not dispute the correctness of the amount of school fees claimed to have been paid by the Respondent, but only seeks to contend that he does not have any liability to pay the same on the ground that there is no order from any Court in that regard. 5. In justification of the claim that the Petitioner cannot be required to pay the school fees of the minor child, Learned Counsel appearing for the Petitioner relies on para 13 of the affidavit dated 13.05.2016 filed by the Respondent in M.C. No. 1346 of 2015 on the file of the V Metropolitan Magistrate Court, Egmore, Chennai, in which it has been stated as follows:- “13. I humbly submit that I am finding it very difficult to maintain myself and the Second Petitioner. I need a sum of Rs.20,000/- per month for my maintenance as per my standard of living and the Second Petitioner needs a sum of Rs.6,000/- for his school education, maintenance, welfare, dress, medical expenses, entertainment expenses, etc., as per our standard of living which the Respondent needs to be directed to pay to us.” It is contended that after taking note of the same, the Additional Mahila Court, Chennai, in the order dated 19.06.2017 in C.M.P. No. 990 of 2016 in D.V.C. No. 72 of 2017 had fixed the interim maintenance payable to the Respondent at Rs.6,000/- and for the minor child at Rs.4,000/-, aggregating to Rs.10,000/- per month and in such circumstances, the Respondent cannot claim any higher amount including school fees from the Petitioner. 6. In reply to the aforesaid contention, Learned Counsel for the Respondent submits that the Respondent had filed a complaint against the Petitioner for domestic violence and dowry harassment in M.C. No. 1346 of 2015 before the V Metropolitan Magistrate Court, Egmore, Chennai, and that the Petitioner had filed Crl. O.P. No. 4550 of 2016 under Section 482 of Code of Criminal Procedure, 1973, before this Court to quash the same and by order dated 21.04.2016 the Petitioner was directed to pay the school fees of the minor child by 25.04.2016. After recording that the Petitioner had not complied with that direction, this Court by order dated 26.04.2016 in Crl. O.P. No. 4550 of 2016 under Section 482 of Code of Criminal Procedure, 1973, before this Court to quash the same and by order dated 21.04.2016 the Petitioner was directed to pay the school fees of the minor child by 25.04.2016. After recording that the Petitioner had not complied with that direction, this Court by order dated 26.04.2016 in Crl. O.P. No. 4550 of 2016 had held that the same has been filed by the Petitioner with a view to drag on the proceedings and this Court was not inclined to quash the proceedings in M.C. No. 1346 of 2015, which was directed to be disposed of within a period of two months. 7. On a careful consideration of the rival submissions, it is not possible to accept the contention of the Learned Counsel for the Petitioner that the aggregate amount of Rs.10,000/- per month fixed as interim maintenance in the aforesaid proceedings includes school fees of the minor child and the Petitioner cannot be required to pay any further amount towards school fees of the minor child now. Inasmuch as the Respondents had actually claimed Rs.26,000/- per month towards maintenance, which included Rs.6,000/- towards school fees, but had been granted only Rs.10,000/- towards interim maintenance, it cannot be said that any adjudication regarding the amount of school fees had been consciously made in that order. On the contrary, it is borne out from the record that the Petitioner was directed in the order dated 21.04.2016 in Crl. O.P. No. 4550 of 2016 to pay the school fees of the minor child, which he has not obeyed. 8. On the contrary, it is borne out from the record that the Petitioner was directed in the order dated 21.04.2016 in Crl. O.P. No. 4550 of 2016 to pay the school fees of the minor child, which he has not obeyed. 8. Be that as it may, it has to be pointed out here that the requirement to bear the school fees of the minor child is the concomitant obligation cast on the Petitioner as the father of that child, arising out of his Fundamental Duty under Article 51-A(k) of the Constitution of India, 1950, which reads as follows:- “It shall be duty of the every citizen of India, who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.” This would necessarily mean that even in the absence of an order from the Court, the Petitioner cannot shirk the responsibility to pay the school fees of his minor child and his recalcitrant attitude refusing to perform the same has to be inferred that it would not be in the interests of the minor child to entertain his request for grant of custody of the minor child as guardian. 9. In the aforesaid backdrop, this Court is of the considered view that in order to be satisfied regarding the bonafides of the Petitioner for prosecuting this Petition, he would have to first remit the aforesaid sum of Rs.2,79,000/-, which has been incurred by the Respondent towards the school fees of the minor child. Accordingly, the Petitioner shall invest the aforesaid sum of Rs.2,79,000/- in an interest fetching Fixed Deposit in any Nationalized Bank, in the name of the Registrar General of this Court, for a initial period of one year and renewable automatically from time to time, until further orders of this Court and hand over the original receipt of that Fixed Deposit to the Joint Registrar (Original Side) of this Court under written acknowledgment on or before 28.11.2018. If the aforesaid direction is not complied by the Petitioner, he shall forfeit the right to prosecute this Petition filed by him for the custody of the minor child and appointing him as guardian. Call on 30.11.2018 for reporting compliance and passing further orders.