Atheeshsanka vs Sanka Mamidi Lakshmi Renuka
2021 Latest Caselaw 3644 AP

          HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
                           AND
          HON'BLE SRI JUSTICE B. KRISHNA MOHAN

         CIVIL MISCELLANEOUS APPEAL No.76 of 2021

JUDGMENT: (per Hon'ble Sri Justice B.Krishna Mohan)


      This civil miscellaneous appeal arises against the order in

I.A.No.1059 of 2019 in GWOP No.61 of 2019 on the file of

IV Additional District Judge, Kakinada, East Godavari District,

dated 08.12.2020, granting interim custody of the minor child (Sanka

Akshaya) to the petitioner therein with certain conditions.


2.    The appellant herein is the respondent in IA and the respondent in

the GWOP before the court below. The respondent herein is the

petitioner in the IA and the petitioner in the GWOP before the court

below.

3. Heard the learned counsel for the appellant herein and the learned

counsel for the respondent herein.

4. The respondent herein is a legally wedded wife of the appellant

herein and she filed the above said GWOP No.61 of 2019 against the

appellant herein before the IV Additional District Judge, Kakinada,

under Sections 7 and 25 of the Guardians and Wards Act, 1890 (for

short, "the Act") read with Section 151 of the Code of Civil Procedure,

1908 seeking custody of the minor child (Akshaya Sanka) and such other

reliefs as may be granted by the court below.

5. Pending the said OP, she filed an IA No.1059 of 2019 in it before

the court below seeking an interim custody of her minor daughter Sanka

Akshaya, who born on 05.04.2018 out of their wedlock at Grand Rapids,

State of Michigan, County of Kent. It is their case that the marriage

between the appellant herein and the respondent herein took place on

08.10.2009 at Kakinada as per Hindu rights and customs. Out of their

wedlock, a female baby by name Sanka Akshaya was born as stated

above in the State of Michigan, County of Kent, USA.

6. The backdrop of the case is that after the marriage she joined her

husband in USA and allegedly he started harassing her for additional

dowry of Rs.One crore, as she could not arrange the same she was ill

treated, beaten and abused indiscriminately, made to resign her job

forcibly, got her VISA converted into a dependant VISA, after child was

born she was compelled to sign on divorce papers for submission in US

Court, gave life threat to the baby and herself, made false promise to the

effect that baby's passport was getting ready for travel to India along with

her and in the last minute she was alone sent to India on the pretext that

he would bring the baby later on getting the passport and VISA. Thus he

has cheated her. As she is on a dependant VISA and no other supporting

documents are with her and due to financial constraints she could not go

back to USA to secure the custody of her minor child. Hence, she

approached the court below in the above said OP seeking custody of the

child and filed the above said IA for interim custody of the child pending

OP.

7. He opposed her averments and contentions by filing a counter

before the court below in the said IA. He alleged that in the month of

July, 2018 her parents and herself insisted him for giving divorce as she is

not happy with the marriage and he tried to convince them but they did

not heed his words, then he filed a divorce case in USA in the month of

October, 2018, on three occasions there was a counseling by the counsels

in USA to continue their marital life but she did not appear for the said

counseling though he appeared with an intention to withdraw the

divorce case, then she left the minor child of eight months old baby with

him and abruptly left his company to India by giving 12 hours prior

notice only, ever since he has been taking care of the minor child,

he never demanded any dowry or additional dowry and there is no

matrimonial dispute as contended by her. They are all invented for the

purpose of the case. His case is that the minor child was born in USA

and the said baby is a citizen of America. He filed a petition before the

XVII Circuit Court for the county of Kent Family Division in the State

of Michigan viz., Case No.18-09176-DM. Then the court at Michigan

ordered for custody of the minor child to him as per the orders dated

08.03.2019. The minor child is growing healthy in his custody and the

court at Michigan examined all the material aspects of the minor child

and granted custody to him. Suppressing all these facts she filed the

above said guardian OP and the interlocutory application before the

court below in India making claim of the custody of the minor child

illegally.

8. In view of the above said rival contentions and averments,

the court below framed the following points that arise for consideration

in the above said IA at paragraph 14 of the order, which reads as follows:

"1. Whether this court is having jurisdiction to entertain the present petition under Sections 7 and 25 of Guardian and Wards Act (8 of 1890)?

2. Whether the petitioner/Atheesh Sanka can claim the custody of minor daughter Sanka Akshaya, who born on 05.04.2018 in USA?"

9. On hearing both the counsels of the parties, the court below held

both the points in favour of the respondent herein/petitioner therein and

allowed the IA through its order dated 08.12.2020 and the operative

portion of the same is as follows:

"30. In view of the answers in Points No.1 and 2, it is a fit case to

handover the custody of the minor child (Sanka Akshaya) to the petitioner

with the following conditions:

1. Respondent/Sanka Atheesh, who is husband of petitioner is hereby

directed to handover the minor child (Sanka Akshaya) to the petitioner

in India within a period of three months from the date of this order

(The respondent who residing at USA has to take minor child (Sanka

Akshaya) from USA to India, he has to comply several formalities to

bring the child to India and therefore, this court feels a reasonable time

should be granted to the respondent and accordingly, three months time

granted to the respondent to bring the child (Sanka Akshaya) to India;

2. Respondent is hereby directed to take all necessary steps to shift the

minor child (Sanka Akshaya) from USA to India;

3. Petitioner is hereby directed to allow the respondent to see the minor

child through Video-Call or Whats-App call or Skype whenever

required by the respondent;

4. Petitioner is hereby directed to permit the respondent to see the minor

child at India physically whenever he came to India and made a request

to see the child (Sanka Akshaya) and the petitioner further directed to

allow the respondent to see the minor child (Sanka Akshaya) once in

ten days when the respondent stay in India.

10. At this stage the learned counsel for the appellant submits that the

court below grossly erred in allowing the above said IA by granting

custody of the minor child to the respondent herein though it has no

territorial jurisdiction to entertain the main OP under the Act since the

said female baby/the minor child is a Citizen of USA. Be that as it may,

the court below ought to have seen the welfare of the child as a

paramount consideration and continued with the custody of the

appellant herein instead of disturbing the same at this juncture.

Further the appellant and his baby never visited India after she

abandoned them and left to India. Anyhow he has been managing both

his office work and upbringing of the child successfully and the baby is

also adjusted much there in USA. The court below erred in ordering the

change of custody of the minor child at this juncture from the father to

mother as an interim measure, that too in the prevailing COVID-19

pandemic situation.

11. On the other hand, the learned counsel for the respondent submits

that the court below has got all the jurisdiction to entertain the above

said OP and the court below is justified in allowing the above said IA for

the custody of the minor child to the mother/respondent herein as the

minor baby is aged below five years and as such she is entitled for the

same as a natural guardian under Indian Law.

12. Having regard to the above said facts and circumstances, it is true

that the marriage took place between the parties in Kakinada in the State

of Andhra Pradesh as per Hindu Rights and customs and both the parties

are Indian citizens but as Non-Resident Indians they left to USA.

During their stay they have begotten a female child (Sanka Akshaya)

in the State of Michigan on 05.04.2018. It appears that the appellant

herein approached the local court in USA and obtained custody of the

minor child in the absence of the respondent herein. After returning to

India she was constrained to institute the above said Divorce OP and file

the above said interlocutory application in it. It appears that the appellant

herein also filed another IA in the said OP for return of the plaint/

petition and the same is pending. The counsel for the appellant also

submits that the said interlocutory application was not considered along

with this I.A.No.1059 of 2019 in the said OP.

13. The above said contentions, averments and rival submissions

would disclose that the main relief sought for in the above said OP and

the relief sought for in the above said IA are one and the same and the

court below in stead of determining the rights of both the parties at the

interlocutory stage, the same should have been considered in the main

OP itself. In fact the parties are not yet subjected to trial and no

opportunity was given yet to mark their respective documents in the

main OP in order to substantiate their respective claims. The issues of

territorial jurisdiction of the court below, entrusting the custody of the

minor child born in USA to the parent in India residing in the State of

Andhra Pradesh and the applicability and binding nature of the order of

the Foreign Court with respect to the custody of the minor child shall yet

to be gone into in the main OP by the court below. At this stage

disposing of the IA summarily with the two points framed as mentioned

supra is unwarranted and amounts to finality on an incomplete

adjudication without determining the rights of the parties.

14. Hence, the order under appeal is set aside directing the court

below to dispose of the main OP on the above said core "issues" and the

other issues which may arise basing upon the rival pleadings after

subjecting them to trial and hearing as per law as expeditiously as

possible preferably within six months from the date of receipt of this

order.

15. Insofar as the custody of the child pending disposal of the

guardian OP is concerned, both the parties shall maintain status quo as on

today and it is open for the court below to order for production of the

minor child by the parent having the custody as and when it is required

while deciding the main OP itself and passing of final orders in it.

16. Accordingly, the Civil Miscellaneous Appeal is disposed of.

There shall be no order as to costs.

As a sequel, the miscellaneous applications pending, if any, shall

stand closed.

_______________________________ JUSTICE C.PRAVEEN KUMAR

________________________________ JUSTICE B. KRISHNA MOHAN September 21st, 2021 LMV ` 9

HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND HON'BLE SRI JUSTICE B. KRISHNA MOHAN

CIVIL MISCELLANEOUS APPEAL No.76 of 2021

September 21st, 2021

LMV