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2020 DIGILAW 1745 (KAR)

Sheela Rani v. Raghavendra Rajgopal

2020-09-07

B.V.NAGARATHNA, RAVI V.HOSMANI

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JUDGMENT 1. This appeal is directed against Order dated 03/07/2012, passed in Misc.No.98/2011, arising out of M.C.No.842/2008, disposed on 21/04/2011, by the IV Addl. Family Court Judge at Bengaluru, being aggrieved by the custody of the minor child, Aarav Dwij, having been given to the mother of the child. 2. Briefly stated, the facts are that the appellant had filed M.C.No.842/2008, as against the respondent/husband under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act" for the sake of convenience), seeking dissolution of her marriage with respondent by a decree of divorce. By judgment and decree dated 21/04/2011, the marriage between the parties was dissolved and a decree of divorce was granted. Since there was no order made with regard to the custody of the minor child Aarav Dwij, who was then aged about seven years, an application was filed under Sections 26 and 27 of the Act seeking permanent custody of the minor child. The said application was numbered as Misc.No.98/2011. By order dated 19/06/2012, the said application was dismissed by considering it to be review of the judgment and decree, passed in M.C.No.842/2008, disposed on 21/04/2011. Being aggrieved, the mother of the child and wife of the respondent has preferred this appeal. 3. We have heard learned counsel for the appellant/wife, who has appeared in person and learned counsel for the respondent/husband through video conference. 4. Appellant's counsel submitted that although M.C.No.842/2008 was filed by the appellant seeking dissolution of marriage by a decree of divorce, nevertheless, in such a proceeding, the custody of children could also be considered as Section 26 of the Act expressly provides for the same. That in the instant case, as regards the custody of the child, though relief was sought for in that regard, but since the Court was of the opinion that such a relief could be sought for only by filing a separate petition under the provisions of the Guardians and Wards Act, 1980 (hereinafter referred to as "G&WC Act" for short), a memo was filed by the counsel stating that independently such relief could be sought. In the circumstances, IV Addl. Family Court granted only the relief of dissolution of marriage. In the circumstances, IV Addl. Family Court granted only the relief of dissolution of marriage. However, on legal advise, the appellant herein preferred an application under Section 26 of the Act seeking for an order to be made on the custody of the minor child to her. That application was dismissed by construing the same to be a review and held that there was no error apparent on the face of the record in the judgment and decree of divorce. Learned counsel submitted that the said impression of the Court below is erroneous inasmuch as under Section 26 of the Act, it is permissible to seek an order regarding custody of the child; merely because, earlier the counsel then appearing for the appellant had filed a memo stating that an independent proceeding would be filed under G&WC Act seeking relief with regard to the custody of the child, the application filed under Section 26 of the Act could not have been dismissed. In that regard, he drew our attention to Section 26 of the Act to contend that even after the disposal of the main proceeding, it is permissible to seek modification of custody orders, if made in the original proceeding and such being the position, there was no error on the part of the appellant in seeking such an order after the disposal of M.C.No.842/2008. 5. Learned counsel for the appellant further contended that the respondent had questioned and contested the paternity of the child and the appellant/wife had established that the respondent was the father of the child by producing relevant evidence. That the decree of divorce was granted on 21/04/2011 and this appeal was filed in the year 2013. That during the pendency of the proceeding before the Family Court or thereafter, the respondent has not taken any interest in respect of the child, who is presently sixteen years of age, studying in 10th standard at London, United Kingdom and is residing with her mother who is working in London as a software engineer. That unless an order of custody is passed in favour of the appellant, there would be no certainty in the matter, particularly when the minor child is an Indian citizen and his passport would have to be renewed. That unless an order of custody is passed in favour of the appellant, there would be no certainty in the matter, particularly when the minor child is an Indian citizen and his passport would have to be renewed. He therefore, submitted that the impugned order dated 03/07/2012, passed in Misc.No.98/2011 may be set aside and the relief sought for by the appellant under Section 26 be granted. Thus, the appellant would not press on the judgment and decree passed in M.C.No.842/2008, which is concerning the dissolution of marriage by a decree of divorce between the parties. 6. Per contra, learned counsel for the respondent/husband contended that when the appellant herself had filed a memo in M.C.No.842/2008 stating that she would not press on the aspect of custody in the said proceeding and an independent proceeding would be initiated by her, she could not have filed Misc.No.98/2011 seeking orders for custody of minor child. He further submitted that the respondent is seeking joint custody of the minor child. 7. By way of reply, learned counsel for the appellant contended that the filing of such a memo by the counsel was on the suggestion made by the Family Court stating that the order of custody of child could be passed only under the provisions of the G&WC Act and filing of such a memo could not have come in the way of the appellant seeking relief under Section 26 of the Act even after the conclusion of M.C.No.842/2008. He reiterated his submissions and contended that the appellant and the minor child are in London. Hence, it is practically not possible to grant joint custody of the child to the appellant as well as respondent. Therefore, the absolute custody of the child may be granted to the appellant only. 8. Having heard learned counsel for the respective parties, the following points would arise for our consideration: (i) Whether the IV Addl. Family Court, Bengaluru was justified in dismissing the Misc.No.98/2011? (ii) What order? 9. The detailed narration of facts and contention would not call for reiteration except highlighting the fact that M.C.No.842/2008 was filed by the appellant against the respondent herein seeking dissolution of their marriage by a decree of divorce. It is also not in dispute that by judgment and decree dated 21/04/2011, the said M.C.No.842/2008 was decreed. (ii) What order? 9. The detailed narration of facts and contention would not call for reiteration except highlighting the fact that M.C.No.842/2008 was filed by the appellant against the respondent herein seeking dissolution of their marriage by a decree of divorce. It is also not in dispute that by judgment and decree dated 21/04/2011, the said M.C.No.842/2008 was decreed. No doubt, during the course of the said proceeding, the appellant had filed a memo stating that she would seek custody of the minor child Aarav Dwij by filing a petition under the provisions of the G&WC Act. Be that as it may, it is necessary to advert to Section 26 of the Act. The same reads as under: "26 Custody of children. In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made: Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent." 10. On a reading of the said Section, it becomes clear that in any proceeding under the Act would also include a proceeding seeking dissolution of marriage by a decree of divorce. The Court could pass an interim or final order with regard to the custody, maintenance and education of children of such marriage and also pass orders for modification of such orders including revocation, suspension or vary any such order as the case may be, even after the conclusion of the proceeding, depending on the facts and circumstances made out in each case. Therefore, the memo filed by the appellant's advocate before the Family Court, in our view, did not come in the way of the appellant herein seeking custody of the minor child subsequent to the disposal of M.C.No.842/2008. Merely because the counsel for the appellant had filed such a memo, which according to him was on the suggestion of the Family Court, did not estop or bar the appellant from seeking custody of the minor child after conclusion of M.C.No.842/2008, this aspect of the matter has not been appreciated by the Family Court. Instead, the Family Court has proceeded to consider Misc.No.98/2011 as one seeking review of the judgment and decree of the dissolution of marriage by divorce. That was not the object and purpose for which Misc.No.98/2011 was filed by the appellant herein. In the circumstances, we hold that the Family Court misdirected itself in dismissing the said Misc.No.98/2011. 11. Then the next question that would arise is as to whether the appellant is entitled to seek permanent custody of the minor child Aarav Dwij. In that regard, it may be noted that in M.C.No.842/2008, the respondent had questioned the paternity of the child and the appellant through DNA test Reports which are as per Exs.P-3 to P-5, established that the respondent was indeed the father of the child. The respondent/father, during the pendency of M.C.No.842/2008, which was disposed of on 21/04/2011, nor thereafter, filed any application seeking custody of the minor child. Presently, the appellant and the minor child are at London, U.K., where the appellant is working as a software engineer and the child is studying in 10th standard. At this point of time, the respondent is seeking joint custody of the minor child. The respondent/father is in Bengaluru, while the appellant/mother and minor child are at London. It is impossible to grant joint physical custody of the minor child when they are located so far away from each other. That apart, when the respondent has not sought for custody of the minor child either during the pendency of M.C.No.842/2008 or thereafter since the year 2011, we find that the plea made on behalf of the respondent for joint custody is wholly without merit. 12. That apart, when the respondent has not sought for custody of the minor child either during the pendency of M.C.No.842/2008 or thereafter since the year 2011, we find that the plea made on behalf of the respondent for joint custody is wholly without merit. 12. That apart, we also observe that when the respondent/husband questioned the paternity of the child and the same had to be established by the appellant/mother herein through DNA test and scientific evidence, the respondent/father is further estopped from seeking custody of the child. It is also relevant to note that during the pendency of M.C.No.842/2008 by an interim order dated 23/09/2010, the appellant herein was permitted to take the minor child Aarav Dwij along with her to London for a limited period, subject to her appearing before the Family Court as and when her presence was required and to produce the child before the said Court as and when called upon to do so. In the circumstances, the order dated 03/07/2012, passed in Misc.No.98/2011, is set aside. The appeal filed as against the said order is allowed. The permanent legal as well as custody of the minor child, Aarav Dwij is given to the appellant/mother herein. No visitation or other rights are reserved to the respondent/father. 13. At this stage, learned counsel for the appellant submits that since the appellant herself had filed M.C.No.842/2008, which has been allowed by granting a decree of divorce, she would not press any challenge to the said judgment and decree dated 21/04/2011 in this appeal. 14. Submission of learned counsel for the appellant is placed on record. 15. Appeal is allowed in the aforesaid terms. No costs.