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2024 DIGILAW 930 (AP)

N. Pavan Kumar v. R. Maheswari

2024-08-02

R.RAGHUNANDAN RAO

body2024
ORDER : (R. Raghunandan Rao, J.) : The petitioner and the respondent, who were already living in the United States of America, got married on 18.11.2010 in Tirupati. Thereafter, they had moved to the state of Michigan, where their son (herein referred to as the “child”) was born on 02.10.2014. 2. As differences arose between them, the petitioner herein approached the Third Judicial Circuit of Michigan (herein referred to as the “Court of Michigan”), for dissolution of his marriage with the respondent herein, as well as for the custody of their child. A consent order was passed on 21.01.2016, wherein the marriage was dissolved and the terms of the custody of the child were also fixed. 3. The petitioner moved to India along with the child on 12.06.2017 and lived with the child in Tirupati. Subsequently, the respondent came to India and filed a writ of Habeas Corpus numbered as W.P.No.30964 of 2018, claiming that the terms of the order of the Court of Michigan required the custody of the child to be rotated between the respondent and the petitioner on a three monthly basis and that the child could not have moved out of the USA as there was a restraint order in the consent order mentioned by both the petitioner and the respondent, wherein the child could not have been moved out of the USA. 4. It may also be noted that after shifting to India, the petitioner moved F.C.O.P.No.110 of 2018 before the Family Court-cum- V Additional District Court, Tirupati, in August 2018, for sole custody of the child. 5. Initially, the erstwhile High Court for the States of Andhra Pradesh and Telangana, at Hyderabad, had directed that the interim custody of the child be given to the respondent for a period of two days subject to the respondent depositing her passport with the Court. The respondent, after deposit of her passport, was given the custody of the child for two days and after the expiry of the said two days, she returned the child back to the custody of the petitioner. 6. On 15.11.2018, the respondent withdrew her writ petition, i.e., W.P.No.30964 of 2018. The respondent, after deposit of her passport, was given the custody of the child for two days and after the expiry of the said two days, she returned the child back to the custody of the petitioner. 6. On 15.11.2018, the respondent withdrew her writ petition, i.e., W.P.No.30964 of 2018. Thereafter, the petitioner approached the erstwhile High Court for the States of Andhra Pradesh and Telangana, at Hyderabad, by way of W.P.No.47795 of 2018, contending that the respondent, taking advantage of the absence of the petitioner in Tirupati, as he was attending the High Court in relation to the proceedings in W.P.No.30964 of 2018, had abducted the child from Tirupati and that some persons, accompanying the respondent, had also assaulted his parents. This Writ Petition was transferred to this Court upon bifurcation of the combined High Court for the States of Andhra Pradesh and Telangana, at Hyderabad. A Division Bench of this Court, by an order dated 12.04.2019, had given a finding that the child had been abducted by the respondent on 15.11.2018 and was taken out of the country despite pending litigation. The respondent was directed to produce the child before the Family Court in Tirupati in F.C.O.P.No.110 of 2018 within 8 weeks to 12 weeks from the date of receipt of that order. 7. Aggrieved by this order, the respondent approached the Hon’ble Supreme Court by way of S.L.P.(Criminal) No.6436 of 2019. During the pendency of this SLP, F.C.O.P.No.110 of 2018 came to be dismissed on 20.12.2019, on the ground that the Family Court at Tirupati, does not have any jurisdiction to take up the matter. The Hon’ble Supreme Court, being appraised of this fact, had held that nothing further survives for consideration before the Hon’ble Supreme Court as the F.C.O.P. itself had been closed and closed the SLP by an order dated 24.01.2021. 8. Thereafter, in a parallel proceeding, the petitioner herein had filed F.C.A.No.172 of 2019, before this Court, against the order of dismissal, dated 20.12.2019, passed by the Family Court, Tirupati in F.C.O.P.No.110 of 2018. A Division Bench of this Court, by an order dated 23.09.2021, had allowed the appeal holding that the Family Court, Tirupati, is not denuded of its jurisdiction and remanded the matter back to the Family Court, Tirupati for a decision on merits in F.C.O.P.No.110 of 2018. 9. A Division Bench of this Court, by an order dated 23.09.2021, had allowed the appeal holding that the Family Court, Tirupati, is not denuded of its jurisdiction and remanded the matter back to the Family Court, Tirupati for a decision on merits in F.C.O.P.No.110 of 2018. 9. The respondent herein had then moved I.A.No.1208 of 2023 and I.A.No.1223 of 2023 in F.C.O.P.No.110 of 2018, for permission to be represented through a counsel and to be represented by her father as her G.P.A. Holder respectively. 10. This application of the respondent was resisted by the petitioner primarily on two grounds. Firstly, the petitioner and the respondent are required to undergo a mediation process before any further proceedings can be conducted in the Family Court and for such purpose, the presence of the respondent and the child are necessary. Secondly, the respondent, having violated the directions of this Court in not producing the child before the Family Court in pursuance of the directions of the Hon’ble Division Bench of this Court in W.P.No.47795 of 2018 dated 12.04.2019, is precluded from seeking leave to be represented by a legal counsel or to be represented by a GPA Holder. The petitioner contends that the applications themselves could not have been accepted as they are in violation of Rule 20 of the Civil Rules Practice. 11. The Trial Court, after considering the submissions, on 29.12.2023, had held in favour of the respondent, by permitting the respondent to be represented by her GPA Holder and also to be given representation through a legal counsel. 12. The Family Court came to this conclusion on the ground that conflicting questions of jurisdiction including the conflict of jurisdiction between the Courts in America and the Courts in India would be required to be resolved and the respondent should be permitted to take the assistance of the legal counsel. The Family Court also took the view that a mediation was attempted in the Hon’ble Supreme Court of India in SLP (Criminal) No.6436 of 2019 and as such, no further mediation is required to be conducted by the Family Court. This order, granting such permission dated 29.12.2023, is resisted before this Court by the petitioner. 13. The Family Court also took the view that a mediation was attempted in the Hon’ble Supreme Court of India in SLP (Criminal) No.6436 of 2019 and as such, no further mediation is required to be conducted by the Family Court. This order, granting such permission dated 29.12.2023, is resisted before this Court by the petitioner. 13. The petitioner, who is appearing party-in-person, contends that the directions of the Hon’ble Division Bench of this Court, dated 12.04.2019, in W.P.No.47795 of 2018, directing the respondent to produce the child before the Family Court in Tirupati, has been violated. Despite this violation, the Family Court exercised its discretion in favour of the respondent, wherein she was being permitted to be represented by her GPA Holder and she was also being assisted by a legal counsel. The contention of the petitioner that the absence of the respondent is impeding the suit as well as other proceedings that need to be taken before the Family Court, was negatived by the Family Court without cogent reasons being given for such rejection. 14. Sri K. Kranti Chaitanya, learned counsel appearing for the respondent would submit that certain additional facts need to be placed before this Court. He submits that the Court of Michigan had prohibited the child from being taken out of the USA, despite which the petitioner had gone back, with the child, to Tirupati and the same amounts to illegal custody being taken by the petitioner. He would further submit that the respondent, who had been staying in Texas, for quite sometime, had actually moved the Court in Michigan, for enforcement of these orders. However, the Court in Michigan, on the ground that the Court of Michigan does not have continuing jurisdiction over the case had closed the case. Thereafter, the respondent again moved the Harris County Court (herein referred to as “HCC”) in Texas for the custody of the child and the same was granted by the HCC. He would further submit that the order of the HCC prohibits the respondent and the child from moving outside the jurisdiction of HCC and consequently, the respondent cannot bring the child to India as it would amount to a violation of the orders of the Court in Texas. He would also submit that the child is a citizen of USA and it is the Courts in America which would have jurisdiction in this regard. He would also submit that the child is a citizen of USA and it is the Courts in America which would have jurisdiction in this regard. He would submit that the order of the Family Court, cannot be complied in view of the directions of the Court in Texas. He would also submit that since the question of jurisdiction had been decided by a foreign Court, the provisions of Section 13 of C.P.C. would apply. 15. In reply to this, the petitioner would submit that the provisions of Section 13 of C.P.C would apply, when the Court in India would find that the foreign Court would have jurisdiction, in terms of the law in India. He would submit that the law in India requires cases to be filed for custody, in the places where the child was resident. He would point out that the petition, before the Court in Texas, was moved within 9 days of the child being taken to Texas and the said stay of 9 days would not meet the requirement of Indian law that such cases can be filed where the child is ordinarily resident and a stay of 9 days would not meet that requirement. Consideration of the Court: 16. Despite elaborate arguments being raised by both sides, the question before this Court is whether the Family Court could have exercised its discretion in order to permit the respondent to be represented by her GPA holder and also permit the respondent to be assisted by her legal counsel. 17. The scheme of the Family Court requires both parties to be present in person during the proceedings before the Family Court. However, Section 13 of the Family Court Act, 1984, would be relevant in this regard and reads as follows: 13. Right to legal representation.—Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner: Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae. 18. Section 13 stipulates that no party to proceedings before a Family Court shall be entitled as of right, to be represented by a legal practitioner. 18. Section 13 stipulates that no party to proceedings before a Family Court shall be entitled as of right, to be represented by a legal practitioner. The proviso to this provision allows the parties to obtain the assistance of legal expert when the Family Court considers it necessary in the interest of justice. 19. The respondent herein has moved the above two applications for being allowed to obtain the assistance of legal counsel and also to be represented by her father as the GPA holder. The Family Court, after being appraised by the orders of the Division Bench of this Court as well as the Hon’ble Supreme Court, has allowed both the applications. 20. The orders of the Hon’ble Division Bench of this Court as well as the orders of the Hon’ble Supreme Court are relevant for a decision in the matter. 21. The petitioner herein moved W.P.No.47795 of 2018 contending that the child had been abducted by the respondent and that custody should be restored to him. The Division Bench, by its judgment dated 12.04.2019, in paragraph No.24 had held as follows: 24. However, the record clearly shows that on the day when the writ petition was withdrawn, the boy was abducted from the lawful guardianship of his grand mother. It is no doubt true that orders are passed by the Courts in U.S., but, at the same time, the Courts in India, while recognizing the custody of the boy with the father, granted interim custody to the father, meaning thereby, the boy is in lawful custody of the father in India. Forcible taking away of the boy from the custody of his grand mother, is not permitted by any law or by any order passed by the Courts in U.S. In fact, there is no answer from the counsel when the Court posed a query as to how the mother came into custody of the boy on 15.11.2018. 22. After observing this, the Division Bench allowed the Writ Petition with the following directions: 26. In the result, the writ petition is allowed, directing the 12threspondent to produce N.Jainarayan Sai, a minor child aged about 5 years, son of the petitioner and the 12th respondent, before the Family Court at Tirupati within 8 to 12 weeks from the date of receipt of a copy of this order. In the result, the writ petition is allowed, directing the 12threspondent to produce N.Jainarayan Sai, a minor child aged about 5 years, son of the petitioner and the 12th respondent, before the Family Court at Tirupati within 8 to 12 weeks from the date of receipt of a copy of this order. On which, the concerned civil court shall decide the issue relating to interim custody of the child pending O.P. as well as the O.P. in accordance with law at the earliest. 23. This judgment was challenged before the Hon’ble Supreme Court by way of SLP (Criminal) No.6436 of 2019. The Hon’ble Supreme Court, after staying the order initially, closed the Special Leave Petition with the following observations: We are now informed through the documents placed on record before us that the petition filed by the respondent at the Tirupati Court has been dismissed though learned counsel for the respondent states that the appeal is pending before the High Court. As the aforesaid subsequent act has overtaken the aspect of challenge before us and thus there is no question of production of the child before the Family Court at Tirupati. The special leave-petition is disposed of accordingly. 24. The petitioner had moved F.C.A.No.172 of 2019 before this Court which came to be allowed by a Division Bench of this Court, by judgment dated 23.09.2021. 25. In the course of submissions made by the learned counsel for the respondent, it was contended that the directions of the Division Bench, in W.P.No.47795 of 2018, need not be followed in view of the observations of the Hon’ble Apex Court, dated 24.01.2020, in SLP (Criminal) No.6436 of 2019. The Division Bench, while allowing the application, on the question of jurisdiction of the Family Court, Tirupati, has held as follows: 15. It is contended by the respondent that the order in W.P.No.47795/2018 was challenged in Special Leave to Appeal (Crl) No.6436/2019 before the Hon’ble 41pex Court and therefore the direction in W.P.No.47795/2018 need not be followed. We cannot appreciate this argument. A perusal of the order dated 24.01.2020 passed by the Hon’ble Apex Court in Special Leave to Appeal (Crl) No.6436/2019 would show that on 29.07.2019 stay was granted against the order in W.P.No.47795/2018. We cannot appreciate this argument. A perusal of the order dated 24.01.2020 passed by the Hon’ble Apex Court in Special Leave to Appeal (Crl) No.6436/2019 would show that on 29.07.2019 stay was granted against the order in W.P.No.47795/2018. Thereafter, on being informed that the F.C.O.P.No.110/2018 was dismissed by the Family Court, Tirupati and an appeal was pending before the High Court of Andhra Pradesh against the said order, Hon’ble Apex Court observed that the aforesaid subsequent act has over taken the aspect of the challenge before the Supreme Court and thus there was no question of production of child before the Family Court at Tirupati. With that observation Special Leave Petition was disposed of. It should be noted that Hon’ble Apex Court has not set aside the order in W.P.No.47795/2018 on merits. It was only held that the question of production of the child before the Family Court at Tirupati does not arise because of dismissal of F.C.O.P.No.110/2018 by the Family Court at Tirupati. Therefore, the respondent cannot contend that the order in W.P.No.47795/2018 can be ignored. The other contentions raised by the respondent are of not much significance. The decisions cited also will be of no avail. 26. Aggrieved by this order, the respondent had approached the Hon’ble Supreme Court and the same was taken up as Civil Appeal No.6363 of 2022. The said Civil Appeal was disposed of by the Hon’ble Supreme Court on 09.10.2023 in the following manner: In the given facts and circumstances of the case, we ultimately do not see any reason as to why we should interfere with the impugned order. The civil appeal stands dismissed. 27. In view of the aforesaid submissions of the Hon’ble Supreme Court, it must be held that the order of the Division Bench of this Court in F.C.A.No.172 of 2019 dated 23.09.2021 has merged into the order of the Hon’ble Supreme Court in the case of Kunhayammed and Others vs. State of Kerala and another, (2000) 6 SCC 359 . 28. By virtue of the aforesaid orders, the respondent is bound to produce the child before the Family Court, Tirupati, However, she has chosen not to appear before the Court or produce the child before the Court. 28. By virtue of the aforesaid orders, the respondent is bound to produce the child before the Family Court, Tirupati, However, she has chosen not to appear before the Court or produce the child before the Court. The defense taken up, by the respondent, in this regard, is that the order of the Court in Texas prevents her from taking the child beyond the jurisdiction of the Court in Texas. The said contention cannot be accepted, as it is always open to her to seek an amendment to the said order. 29. In view of the binding directions of the Division Bench in W.P.No. 47795 of 2018, the question of permitting the respondent to appear through a GPA Holder cannot be accepted. Such an application came be made only after she complies with the directions of the Division Bench and produces the child before the Family Court in Tirupati and thereafter obtains orders for custody of the child, in accordance with the directions of the Division Bench. It may also be noted that the respondent had earlier sought to be represented through a GPA holder and the same was initially granted and subsequently revoked. 30. On the question of assistance of a legal counsel, this Court would have to agree with the finding of the Family Court that the respondent should be given the benefit of assistance. However, the same should be given if she complies with the directions of the Division Bench of this Court dated 12.04.2019 in W.P.No.47795 of 2018. 31. Accordingly, the present Civil Revision Petitions are disposed of with the following directions: 1) The orders of the Family Court, Tirupati dated 29.12.2023 in I.A.Nos.1208 of 2023 & 1223 of 2023 in F.C.O.P.No.110 of 2018 are set aside. 2) The respondent, would be entitled to renew her application for being represented by a GPA holder, after she appears before the Court and produces the child before the Family Court, Tirupati. 3) Upon such production, she would be entitled to seek custody of the child in accordance with the directions of the Division Bench dated 12.04.2019 in W.P.No.47795 of 2018. 4) The respondent would also be entitled to the benefit of assistance of a legal counsel, after she appears before the Court and produces the child before the Court. 3) Upon such production, she would be entitled to seek custody of the child in accordance with the directions of the Division Bench dated 12.04.2019 in W.P.No.47795 of 2018. 4) The respondent would also be entitled to the benefit of assistance of a legal counsel, after she appears before the Court and produces the child before the Court. 5) All other objections or any other objections raised as to the maintainability of the F.C.O.P.No.110 of 2018 before the Family Court, Tirupati are left open to be raised, if such objection can be raised before the Family Court. There shall be no order as to costs. As a sequel, interlocutory applications pending, if any shall stand closed.