Andhra Pradesh High Court - Amravati
Nandi Muni Kumar vs Ekambaram Swetha on 28 December, 2023
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
(3438)
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
THURSDAY, THE TWENTY EIGHTH DAY OF DECEMBER
TWO THOUSAND AND TWENTY THREE
PRESENT
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
THE HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
FAMILY COURT APPEAL No.37 OF 2022
Between:
1. NANDI MUNI KUMAR, S/o. N. Muni Krishnaiah, Aged about
36 years, R/o. D.No.18-2-292896, Yanadi Colony,
Akkarampalli Road, Tirupati, Chittoor District.
APPELLANT
AND
1. EKAMBARAM SWETHA, W/o. Nandi Muni Kumar, Aged
about 32 years, R/o. D.No.6-8-1002/102, R.C.R. Enclaves,
N.G.Os Colony, K.T. Road, Tirupati, Chittoor District.
2. E. Ramachandran,, S/o. Late E. Venkataiah, Aged about 60
years, R/o. D.No.6-8-1002/102, R.C.R. Enclaves, N.G.Os
Colony, K.T. Road, Tirupati, Chittoor District.
3. N. Vijayasree,, W/o. E. Ramachandran, Aged about 58
years, working as Principal, Government Degree College,
Karvetinagaram, Chittoor District.
RESPONDENTS
CIVIL REVISION PETITION No.1842 OF 2022
Between:
1. NANDI MUNI KUMAR, S/o N. Mumi Krishnaiah, Aged about
38 years, R/o D. No.18-2-292/B96, Yaandi Colony,
Akkarampalli Road, Tirupati, Chittoor District.
2
UDPR,J & AVRB,J
FCA No.37/2022 &
CRP No.1842/2022
PETITIONER
AND
1. EKAMBARAM SWETHA, D/o E. Ramachandran, Aged about
34 years, presenting prosecuting studies at 1702 E, 36th
Ave Vancouver, British Colambia, V5P 105, Canada Rep by
her mother N. Vijaya Sree, W/o E. Ramachandran, Aged
about 60 years, R/o D.No. 1002,N.G.O.s Colony, K.T. Road,
Tirupati city and District Presently residing at Sri Mum
Anjaneya Buidlings, Opp. Bharat Petrol Bunk, Kunigal
Road, Gulur, Tumkur, Karnataka.
RESPONDENT
This Court made the following:
3
UDPR,J & AVRB,J
FCA No.37/2022 &
CRP No.1842/2022
HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
COMMON JUDGMENT:
(Per Hon'ble Sri Justice A.V.Ravindra Babu)
Challenge in the Family Court Appeal No.37 of 2022 is to
the order, dated 02.05.2022, in F.C.O.P. No.156 of 2019 on the file
of the Judge, Family Court-cum-V Additional District Judge,
Tirupati (for short, 'the learned Judge, Family Court') where under
the learned Judge, Family Court dismissed the Petition filed by the
petitioner (husband) under Section 7 of the Family Courts Act,
1984 (for short, 'the FC Act') seeking custody of the minor child by
name Likith Sri Sai @ Sri Sreeyansh .
2. Challenge in the Civil Revision Petition No.1842 of 2022 is to
the order, dated 12.08.2022, in I.A. No.642 of 2022 in G.O.P.
No.147 of 2017 where under the learned Judge, Family Court
modified the orders passed in G.O.P. No.147 of 2017, dated
12.01.2019.
3. The parties to this Family Court Appeal and Civil Revision
Petition will hereinafter be referred to as arrayed before the trial
Court in the respective cases.
UDPR,J & AVRB,J
FCA No.37/2022 &
4. The appellant (husband) herein is the petitioner in F.C.O.P.
No.156 of 2019, who filed the same under Section 7 of the FC Act
seeking custody of the minor child by name Likith Sri Sai @ Sri
Sreeyansh. The case of the petitioner, in brief, as set out in FCOP
No.156 of 2019 is that he is the legally wedded husband of the
first respondent and their marriage was solemnized on 08.05.2014
at Tirupati as per the Hindu rites and customs. Later, there arose
some matrimonial disputes between the couple which resulted into
filing of several cases before various Courts at Tirupati. Presently,
they are residing separately. As the petitioner is very much
interested to lead a happy marital life with his wife, he filed a
Petition against his wife seeking restitution of conjugal rights in
FCOP No.15 of 2016 before the trial Court. At the instance of
second and third respondents, who are her parents, she filed a
Petition FCOP No.114 of 2016 before the trial Court seeking
divorce. The learned Judge, Family Court disposed of both the
Petitions vide common order, dated 09.09.2017, wherein the FCOP
No.15 of 2016 for restitution of conjugal rights was allowed and
FCOP No.114 of 2016 for divorce was dismissed. In I.A. No.1503 of
2016 in FCOP No.15 of 2016 on 08.07.2016 visitation rights were
awarded to the petitioner to visit his minor child. Aggrieved by
UDPR,J & AVRB,J
FCA No.37/2022 &
granting visitation rights to the petitioner herein, the first
respondent preferred an Appeal in FCA No.409 of 2017 before the
erstwhile High Court of Andhra Pradesh at Hyderabad, which is
pending. The petitioner herein also filed GOP No.147 of 2017
before the trial Court to enforce his visiting rights and it was
allowed on 12.01.2019 directing the respondent (wife) to handover
the minor child to the petitioner on every Saturday to spend time
with him from 10:00 a.m. to 06:00 p.m. To avoid implementation
of the said judgment, respondent (wife) forcibly took away the
minor child to an un-disclosed location. Petitioner, on due
enquiry, learnt that his minor child is not even attending the
school and the respondents are trying to inflict harm to him and to
harass him. The respondents are holding his minor child to
pressurize the petitioner to consent for divorce. These acts of the
respondents are detrimental to the interest of the minor child. The
petitioner has apprehension for the safety, welfare and well being
of his minor child. The petitioner also made a representation to the
Superintendent of Police, Tirupati on 28.01.2019 but no action
was taken. The minor child is deprived of the fatherly affection of
the petitioner. First respondent is trying to go abroad leaving the
minor child with her parents i.e., second and third respondents. It
UDPR,J & AVRB,J
FCA No.37/2022 &
is not in the best interest of the minor child to be to be in the
custody of first respondent and her parents. In fact, he filed GOP
No.147 of 2017 to seek visitation rights of minor child as he did
not want to take away the child from the care and custody of first
respondent as the child was of a tender age. Because now the first
respondent left the minor child in the custody of second and third
respondents, the petitioner is now taking appropriate steps to get
him into his sole custody. Hence the Petition.
5. The first respondent through the third respondent got filed
a counter denying the case of the petitioner and the relevant facts
insofar as opposing the prayer of the petitioner in FCOP No.156 of
2019 as per the counter are that the first respondent is the legally
wedded wife of the petitioner. Their marriage was performed on
08.05.2014 at Sri Sai Nirmala Ramaiah Kalyanamantapam,
Ramanujam Circle, Tirupati. Parents of the first respondent
complied the demand of the petitioner to pay the dowry. She
joined with the petitioner at matrimonial home at Tirupati. The
marriage was duly consummated and out of their wedlock, a male
child was born to them, who is now in the care and custody of her.
Even after joining into the matrimonial home of the petitioner, the
first respondent complied the demands of the petitioner and his
UDPR,J & AVRB,J
FCA No.37/2022 &
parents with regard to additional dowry and other launchanams.
Initially, the petitioner left the first respondent at Tirupati while he
was going to Hyderabad to attend his job. In fact, first respondent
had intention to accompany her husband to Hyderabad.
Ultimately, due to negotiations, petitioner took her to Hyderabad
on 30.05.2014 with several conditions to get household articles
which was complied by her parents. Even after that, the first
respondent was subjected to cruelty while she was at Hyderabad
along with the petitioner. She conceived and in her 5th month
pregnancy, at the demands made by the petitioner and his
parents, her parents performed the Srimantham on 25.01.2015 in
a grand manner. Thereafter, parents of the first respondent took
her to Tirupati where she gave birth to a male child on
24.02.2015. Even after that the petitioner and his parents
demanded additional dowry of Rs.30,00,000/-. On 29.04.2015,
the first respondent and her child went to the matrimonial home
at Hyderabad where the petitioner did not allow them into the
house and as there was no other go, first respondent and her
parents returned to Tirupati. Since then, she and her minor child
are staying with her parents. Due to unbearable harassment made
by the petitioner and his parents, the respondent filed a private
UDPR,J & AVRB,J
FCA No.37/2022 &
complaint before learned IV Additional Judicial Magistrate of First
Class, Tirupati which resulted into registration of Crime No.75 of
2015 against the petitioner and his parents for the offence under
Section 498-A IPC. The petitioner did not take any care towards
the first respondent or their minor child. The petitioner is a Senior
Software Consultant in CGI Company at Hyderabad, earning
Rs.1,00,000/- p.m. After coming to know about registration of FIR
against them, the petitioner filed FCOP No.15 of 2016 seeking
restitution of conjugal rights. The respondents to avoid torture in
the hands of the petitioner also filed a Domestic Violence Case.
The first respondent to stand on her feet got admission in Master
in Business Administration at Canada and she left to Canada for
her education. Since from the birth of child, he has been with the
first respondent and under the care and custody of her parents.
Petitioner did not look after the child. The child was born on
24.02.2015 at Tirupati. Parents of the first respondent
accompanied her and the child to Hyderabad on 29.04.2015 but
the petitioner did not allow them into the house and thrown away
the mother and the child. On the same day, they returned to
Tirupati. Petitioner had no nexus with the child. The child
developed love and affection towards parents of the first
UDPR,J & AVRB,J
FCA No.37/2022 &
respondent. The Court granted visitation rights to the petitioner in
GOP No.147 of 2017 but he never tried to meet the child basing on
the said orders. Petitioner commenced fresh litigation by filing
petitions for Habeas Corpus in Writ Petition No.10780 of 2019,
which was dismissed on 27.08.2019 and in Writ Petition No.16042
of 2019, there was an order that all the expenses of the child
including school fee etc., shall be borne by the petitioner (father)
and mother jointly. Petitioner did not comply the said order. The
child is not interested to see the face of the petitioner who is
unaware that he is his father. Hence, the Petition is to be
dismissed.
6. During the course of trial on behalf of the petitioner before
the learned Judge, Family Court, Tirupati in FCOP No.156 of
2019, PWs.1 to PW.4 were examined and Exs.A-1 to A-9 were
marked. On behalf of the respondents, first respondent herself
examined as RW.1 and no documents were marked.
7. The learned Judge, Family Court on hearing both sides and
after considering the oral and documentary evidence on record,
dismissed the FCOP No.156 of 2019 on 02.05.2022.
UDPR,J & AVRB,J
FCA No.37/2022 &
8. Felt aggrieved of the same, the unsuccessful petitioner
therein filed the present Family Court Appeal No.37 of 2022.
9. Coming to the Civil Revision Petition No.1842 of 2022, the
facts leading to filing of the Civil Revision Petition are as follows:
The petitioner herein is no other than the petitioner (husband) in
GOP No.147 of 2017 before the trial Court. The learned Judge,
Family Court passed an order in GOP No.147 of 2017 on
12.01.2019 by holding that petitioner and his parents are
permitted to see the minor child Likith Sri Sai on every Saturday
and spend time with him from 10:00 a.m. to 06:00 p.m. and that
the respondent (wife) is directed to handover the minor child to the
petitioner either at her residence or at Family Court, Tirupati at
10:00 a.m. on every Saturday and that the petitioner (husband)
shall return the child to the respondent (wife) at 06:00 p.m. on the
same day in the Court premises or at her house. As against the
said order and expressing some difficulty in implementation of the
said order, the respondent (wife) in the capacity of the petitioner
filed I.A. No.642 of 2022 in GOP No.147 of 2017 so as to modify
the said order and the learned Judge, Family Court by virtue of
the order, dated 12.08.2022, modified the order by directing that
the respondent (father) and his parents shall be allowed to spend
UDPR,J & AVRB,J
FCA No.37/2022 &
time with minor child on first and third Sunday of every month in
the house of the petitioner (wife) situated at Tirupati and there is
no need to bring the child to the Family Court on every Saturday
and the child can be taken out by the father if the child is readily
willing otherwise, the father has to spend time in the house of the
wife at Tirupati and that paternal grand parents are also allowed
to see the child and spend time with the child on first and third
Sunday of every month between 10:00 a.m. to 05:00 p.m. in the
residence of child's mother at Tirupati.
10. Felt aggrieved of the said order in IA No.642 of 2022 in GOP
No.147 of 2017, dated 12.08.2022, the petitioner (husband) filed
the present Civil Revision Petition.
11. Now in deciding this Family Court Appeal and the Civil
Revision Petition, as above, the points that emerge for
consideration are as follows:
1) Whether the best interest and welfare of the minor
child would be served in the custody of the
petitioner/appellant (husband) or in the custody of the
first respondent (wife)?
UDPR,J & AVRB,J
FCA No.37/2022 &
2) Whether the order, dated 12.08.2022, in IA No.642
of 2022 in GOP No.147 of 2017 is legally sustainable
under law and facts?
3) To what relief?
POINT Nos.1 to 3:
12. In FCOP No.156 of 2019, PW.1 was no other than the
petitioner, who got filed his chief-examination affidavit putting
forth the facts in tune with the petition averments. Through his
examination Exs.A-1 to A-8 were marked. Ex.A-1 is the copy of
common order, dated 09.09.2017, passed in FCOP Nos.15 and
114 of 2016. Ex.A-2 is the copy of order in GOP No.147 of 2017,
dated 12.01.2019. Ex.A-3 is the copy of representation, dated
28.01.2019, given by the petitioner to the Superintendent of
Police, Tirupati. Ex.A-4 is the Birth certificate of the minor child.
Ex.A-5 is the certified copy of the order in WP No.16042 of 2019.
Ex.A-6 is bunch of 23 photoes with CD. Ex.A-7 is the attested
copy application along with enclosures relating to change of name
of minor child obtained from Tirupati Municipal Corporation.
Ex.A-8 is the birth certificate of Nandi Likith Sri Sai. Ex.A-9 is the
photos taken at Mediation Center in FCOP No.15 of 2016.
UDPR,J & AVRB,J
FCA No.37/2022 &
13. He got filed the chief-examination affidavit of PW.2, a third
party and the chief-examination affidavit of third party in
substance is that though the petitioner had every intention to lead
happy marital life with his wife but she had no regard to do so and
that the petitioner had any amount of affection towards his minor
child. Further, the petitioner filed the chief-examination affidavit of
PW.3, who is his father, in support of his case. Further, the
petitioner got filed the chief-examination affidavit of PW4, who is a
third party, in support of his case.
14. RW.1 before the trial Court was no other than the wife of the
petitioner. Her chief-examination affidavit was in support of her
case.
15. Insofar as FCA No.37 of 2022 is concerned, Sri P. Veera
Reddy, learned Senior Counsel, appearing on behalf of Smt.Sodum
Anvesha, learned counsel for the petitioner/appellant (husband),
would vehemently contend that the petitioner is no other than the
natural guardian of the minor child. As of now, the minor child is
aged about 8 years. The first respondent leaving the fate of the
minor child to her parents, left to Canada in pursuit of her
studies. The various allegations of cruelty raised by the first
UDPR,J & AVRB,J
FCA No.37/2022 &
respondent against the petitioner were negatived as the divorce
petition filed by the first respondent in FCOP No.114 of 2016 was
dismissed. On the other hand, the learned Judge, Family Court
found favour with the case of petitioner and granted an order for
restitution of conjugal rights. So, whatever the allegations in FCOP
No.114 of 2016 impugning the conduct of the petitioner proved to
be incorrect. So, the prayer of the first respondent to grant a
decree of divorce was dismissed and the prayer of the petitioner to
grant restitution of conjugal rights was duly considered by the
learned Judge, Family Court. Even then the first respondent (wife)
did not care to implement the order of the learned Judge, Family
Court in FCOP No.15 of 2006 for restitution of conjugal rights. It is
altogether a different aspect that an Appeal is pending against the
common order of the Judge, Family Court in FCOP Nos.15 and
114 of 2016. Learned Senior Counsel would contend that from the
beginning the respondents had an inclination to create a gap
between the petitioner and his minor child. The intention of the
first respondent and her parents is to compel the petitioner to
come forward for a decree of divorce with consent. Because the
petitioner is fond of her minor child and to compel the petitioner to
come forward for a divorce, the respondents are causing
UDPR,J & AVRB,J
FCA No.37/2022 &
discomfort to the minor child who is staying with them. The
learned Judge, Family Court granted visitation rights to the
petitioner in GOP No.147 of 2017. Even to deprive the petitioner
with such facility, the petitioner (wife) filed IA No.642 of 2022 in
GOP No.147 of 2017 and the learned Judge, Family Court
modified the order in GOP No.147 of 2017, which is now the
subject matter of challenge in the Civil Revision Petition No.1842
of 2022. Learned Senior Counsel would strenuously contend that
the interest and welfare of the child is of paramount consideration
while dealing with the custody of the minor child. If really, the first
respondent had any interest to look after the welfare and interest
of the minor child, she would not have left the child to his fate in
the custody of her old aged parents. Learned Senior Counsel
would rely upon a decision of the Hon'ble Apex Court in Vivek
Singh v. Romani Singh1. He would submit that the facts in the
above said case are similar to the present case on hand. The
respondents cannot perpetuate custody of the minor child with
them on the ground that from the beginning the child is in their
custody. The petitioner has every right to show his natural love
and affection as father towards the minor child. Though the
1 (2017) 3 SCC 231
UDPR,J & AVRB,J
FCA No.37/2022 &
interest of the minor child is paramount consideration but the
evidence on record would prove the fact that the petitioner has
every intention to take care of the welfare of the mind child and
the best interest of the child would be served in the custody of the
petitioner. Petitioner is financially well to take care of the wellbeing
of his minor child. The petitioner has his parents who are ready to
assist the petitioner to take care of the welfare of the minor. The
conduct of first respondent is such that even she went to the
extent of changing the name of minor child without his consent so
as to keep the child from the reach of the petitioner. The first
respondent thought of to change the name of the minor child and
this itself is sufficient to say that it is not in the best interest of the
child to allow him to be in the custody of respondents. With the
above said contention, learned Senior Counsel would contend that
the Appeal is liable to be allowed.
16. Insofar as the Civil Revision Petition is concerned, the
learned Senior Counsel would contend that the learned Judge,
Family Court failed to exercise the jurisdiction conferred on him
while dealing with an application to modify the order. The learned
Judge did not take into consideration the fact that the present
petitioner is always ready to take care of the welfare of the minor
UDPR,J & AVRB,J
FCA No.37/2022 &
child and, without proper reasons, the learned Judge modified the
order, dated 12.01.2019, in GOP No.147 of 2017 as such the Civil
Revision Petition is also liable to be allowed. He would contend
that passing appropriate orders in the Civil Revision Petition
would arise depending upon the orders passed in the Family Court
Appeal.
17. Sri N. Subba Rao, learned Senior Counsel, appearing on
behalf of Sri Maheswara Rao Kunchem, learned counsel for the
respondent (wife), would strenuously contend that the minor child
was born on 24.02.2015. After that on 29.04.2015 the first
respondent with minor child along with her parents tried to join in
the matrimonial home of the petitioner at Hyderabad but she was
not allowed to join. There was no dispute that on that particular
day the first respondent along with her kid returned to Tirupati.
So, absolutely, the petitioner had no occasion, whatsoever, to
interact with the child and to show his love and affection. He never
evinced any interest to take care of the minor child. Several times
during the course of visitation rights also the petitioner created
havoc in the mind of the minor child. The parents of the first
respondent i.e., the second and third respondents are highly
educated. They are in good financial condition. The first
UDPR,J & AVRB,J
FCA No.37/2022 &
respondent is in better financial condition than the petitioner. On
account of various circumstances and to stand on her own legs,
she was compelled to go abroad for pursuing higher studies, which
does not mean that she left the minor child to his fate in the
hands of second and third respondents. Second and third
respondents are no other than the affectionate parents of first
respondent, who are always ready to take care of the minor child.
They are providing good education to the minor child at their
place. On the other hand, it is the petitioner who failed to comply
the orders of this Court in Writ Petition No.16042 of 2019, when
this Court directed the petitioner and the first respondent to share
the educational expenditure at 50:50 ratio. It shows the conduct of
the petitioner. The petitioner, who was not able to comply the
orders of this Court so as to reimburse the educational
expenditure of the minor child, is now canvassing that he is ready
to take care of the welfare of the child. The evidence of PW.1 in
cross-examination means that he has no basis to suspect that the
respondents are causing harm to the minor child. The learned
Judge, Family Court on thorough appreciation of the evidence on
record dismissed the claim of the petitioner. He would contend
that in granting custody of the minor child, the paramount
UDPR,J & AVRB,J
FCA No.37/2022 &
consideration to be seen is best interest and welfare of the minor
child. In support of his contentions, learned Senior Counsel would
rely upon the decisions of the Hon'ble Apex Court in Mrs.
Elizabeth Dinshaw v. Arvand M. Dinshaw and another2, Smt.
Surinder Kaur Sandhu v. Harbax Singh Sandhu and
another3, Githa Hariharan (Ms) and another v. Reserve Bank
of India and another4, Chandrakala Menon (Mrs) and another
v. Vipin Menon (Capt) and another5 and Gaurav Nagpal V.
Sumedha Nagpal6.
18. The admitted facts are that the appellant is the husband of
the first respondent and during their wedlock they were blessed
with a male child. On account of estrangement between the
couple, there is no dispute further that the petitioner filed FCOP
No.15 of 2016 for restitution of conjugal rights and the first
respondent filed FCOP No.114 of 2016 for decree of divorce and
both were disposed of by way of common order by allowing FCOP
No.15 of 2016 and dismissing FCOP No.114 of 2016. There is no
dispute that, as against the said common order, there is an Appeal
2 (1987) 1 SCC 42
3 (1984) 3 SCC 698
4 (1999) 2 SCC 228
5 (1993) 2 SCC 6
6 (2009) 1 SCC 42
UDPR,J & AVRB,J
FCA No.37/2022 &
filed by the first respondent pending. The petitioner and first
respondent were blessed with a male child by name Nandi Likith
Sri Sai on 24.02.2015 at Tirupati. The delivery was performed by
the parents of the first respondent i.e., second and third
respondents at Tirupati. There was also no dispute as evident from
the pleadings and the evidence available on record that the first
respondent along with the child went to Hyderabad to join with the
matrimonial home on 29.04.2015 but they have returned on
account of various reasons. There was also no dispute that since
29.04.2015 the petitioner and the first respondent are residing
separately. Parents of the first respondent i.e., second and third
respondents were originally residents of Tirupati. The evidence on
record reveals that they are providing education to the minor child
by residing at a rented house at Tumukur Taluka, Karnataka. The
parties are governed by Hindu Law. The date of common order in
FCOP Nos.15 and 114 of 2016 was passed on 09.09.2017.
19. After getting the decree for restitution of conjugal rights, the
petitioner appears to have filed several Writ Petitions before the
High Court of Andhra Pradesh. In Writ Petition No.16042 of 2019,
there was an order passed by a Division Bench of this Court. The
Writ Petition No.10780 of 2019, filed for Hapeas Corpus, was
UDPR,J & AVRB,J
FCA No.37/2022 &
dismissed. According to the order in W.P. No.16042 of 2019, which
was marked as Ex.A-5 before the trial Court, a Division Bench of
this Court while disposing of the said Writ Petition gave a direction
that studies of the child in Ananyaa International School shall
continue and all the expenses of the child, including the school fee
shall be borne by the petitioner (father) and mother jointly. The
said order in WP No.16042 of 2019 was dated 11.11.2019.
20. The petitioner during the course of cross-examination before
the learned Judge, Family Court on 05.02.2021 admitted that the
High Court directed him in a Writ Petition to pay 50% of the fee of
the child but he did not pay the same because the School
authorities did not allow him to do so. He admitted that by that
time the respondent (wife) paid the total fee. As evident from
Ex.A-5 there was a clear direction that the School authorities shall
be made aware of the order. So, when there was an order, dated
11.11.2019, in WP No.16042 of 2019 even by 05.02.2021 the
petitioner could not reimburse 50% of the school fee of his child.
The reason set forth by the petitioner that the school authorities
did not allow him to pay the school fee is not convincing. He had
knowledge of the order of the High Court under Ex.A-5. If really,
the School authorities did not allow him to pay the school fee, he
UDPR,J & AVRB,J
FCA No.37/2022 &
would not have kept quiet without bringing the said fact to the
notice of the High Court. From this, it can be safely inferred that
for the reasons best known to him, he did not comply the order.
21. When the child was born on 24.02.2015, the petitioner and
the first respondent are residing separately from 29.04.2015.
There was an admission from PW.1 during the course of his cross-
examination that from the age of 3rd month till date i.e.,
13.12.2021 the minor child was in the custody of the respondents
and they performed all the necessary customary functions to the
child. So, absolutely, he has no occasion to mingle with the minor
child after first respondent gave birth to the child. There is no
dispute that now the first respondent is in Canada and her
parents i.e., second and third respondents are looking after the
welfare and well being of the child. There was also an admission
from PW.1 during the cross-examination that after his wife
returned from Hyderabad along with the child they were under the
custody of his in-laws so far. He admitted in cross-examination
further that his child is residing at his in-laws house and no harm
was happened to his child.
UDPR,J & AVRB,J
FCA No.37/2022 &
22. The basis for filing of the FCOP No.156 of 2019 i.e., for child
custody by the petitioner as per the pleadings was that the
respondents took the child to an un-disclosed place and there is
likelihood of harm to the child and that the petitioner has every
apprehension about the safety of the child. This apprehension
proved to be in-correct by virtue of his admissions in cross-
examination. So, the fact remained is that right from the date of
birth of the child, the child has been in the custody of the first
respondent and after she left to Canada, she is taking care of the
child through her parents. It is altogether a different aspect that
some visiting rights were created in favour of the petitioner by
virtue of the order in WP No.16042 of 2019, dated 11.11.209,
temporarily by giving option to the parties to approach the Family
Court for appropriate reliefs including seeking the custody of the
child.
23. To elicit the sentiment and wish of the child, we orally
interacted with the child in the Chambers on 21.09.2023.
According to the evidence available on record, the date of birth of
the minor child was on 24.02.2015. So, the child as of now is more
than 8 years old. When we interacted with the child, it appears
that he is capable of understanding the rationale of our questions
UDPR,J & AVRB,J
FCA No.37/2022 &
and when we asked him as to whether he would like to stay with
his grandparents, he made a positive answer that his mother is
taking care of him through his grandparents and used to visit him
occasionally and her grandparents are very affectionate towards
him and since attainment of cognitive ability he has no occasion to
mingle with his father and as such he would like to be with the
second and third respondents and he would like to be with his
mother. When we interacted with him as to why he is not
preferring the company of his father, he made an answer that it is
not possible for him to mingle with his father with whom he had
no acquaintance properly. So, during our interaction with the
child, the child preferred to be in the company of his grandparents
and his mother.
24. At this juncture, it is appropriate to mention here about the
legal principles governing the custody of the minor child. The
learned Senior Counsel appearing on behalf of the appellant relied
upon a decision of the Hon'ble Apex Court in Vivek Singh (1st
supra), wherein the Hon'ble Apex Court had an occasion to
consider its earlier decision in Gourav Nagpal (6th supra), where
the Hon'ble Apex Court dealt with the arguments of the appellant
that child is living since long with the father. The Hon'ble Apex
UDPR,J & AVRB,J
FCA No.37/2022 &
Court made a finding that by flouting various orders leading even
to initiation of contempt proceedings, appellant has managed to
keep the custody of the child as such he cannot be a beneficiary of
his own wrongs.
25. In our considered view, the factual matrix in the above said
case altogether stands on a different footing. Here it is not that
there was any wrongful act on the part of the respondents in
keeping the custody of the minor child with them. On the other
hand, the petitioner and the first respondent are residing
separately from 29.04.2015. Though the first respondent with the
minor child made an attempt to join with the matrimonial home of
the petitioner at Hyderabad on 29.04.2015, it cannot be
materialized as such she returned to Tirupati. Later, the petitioner
had no occasion, whatsoever, to make a visit to the child till he got
an order in WP No.16042 of 2019 for visitation rights. It cannot be
held by any stretch of imagination that the respondents
perpetuated the custody of the minor child by any wrongful acts.
26. Section 6 of the Hindu Minority and Guardianship Act, 1956
(for short, 'the Act of 1956') runs as follows:
UDPR,J & AVRB,J
FCA No.37/2022 &
"6. Natural guardians of a Hindu minor -- The natural
guardian of a Hindu minor, in respect of the minor's person
as well as in respect of the minor's property (excluding his or
her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl--the father, and
after him, the mother: provided that the custody of a minor
who has not completed the age of five years shall ordinarily
be with the mother;
(b) in case of an illegitimate boy or an illegitimate unmarried
girl--the mother, and after her, the father;
(c) in the case of a married girl--the husband:
Provided that no person shall be entitled to act as the natural
guardian of a minor under the provisions of this section--
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by
becoming a hermit (vanaprastha) or an ascetic (yati or
sanyasi)."
27. As seen from the decision of the Hon'ble Apex Court in Mrs.
Elizabeth Dinshaw (2nd supra), the Hon'ble Apex Court at Para
No.8 held as follows:
"8. Whenever a question arises before a court
pertaining to the custody of a minor child, the matter is
to be decided not on considerations of the legal rights
of parties but on the sole and predominant criterion of
what would best serve the interest and welfare of the
minor."
UDPR,J & AVRB,J
FCA No.37/2022 &
28. As seen from the decision of the Hon'ble Apex Court in Smt.
Surinder Kaur Sandhu (3rd supra), it was held as follows:
"Moreover, Section 6 of the Hindu Minority and
Guardianship Act, 1956 cannot supersede the paramount
consideration as to what is conducive to the welfare of the
minor."
29. In Githa Hariharan (Ms.) and another (4th supra), cited by
learned counsel for the appellant, the validity of Section 6 of the
Act of 1956 was under challenge, wherein the Hon'ble Apex Court
at Para No.10 defined the word 'after' as follows:
"10. .......... We are of the view that Section 6(a) (supra) is
capable of such construction as would retain it within the
constitutional limits. The word "after" need not necessarily
mean "after the lifetime". In the context in which it appears
in Section 6(a) (supra), it means "in the absence of", the
word "absence" therein referring to the father's absence
from the care of the minor's property or person for any
reason whatever."
30. Coming to the present case on hand, as this Court already
pointed out, the paramount consideration while dealing with the
custody of the minor child is the best interest and his welfare.
UDPR,J & AVRB,J
FCA No.37/2022 &
31. Turning to the decision of the Hon'ble Apex Court in
Chandrakala Menon (Mrs.) and another (5th supra), the Hon'ble
Apex Court held as follows at Para No.7:
"7. ................. The question regarding the custody of a minor
child cannot be decided on the basis of the legal rights of the
parties. The custody of a child has to be decided on the sole
and predominant criterion of what would best serve the
interest and welfare of the minor...................."
32. From the conspectus of legal principles what emerges is that
while dealing with the custody of the minor child, the Court has to
take into consideration the sole and predominant criterion of what
would best serve the interest and welfare of the minor child.
33. It is also the contention of learned Senior Counsel that the
first respondent made every effort to change the name of the child
and it shows the conduct, and custody of the child with second
and third respondents is not for the well being of the child. It is
very difficult to accept such a contention. RW.1 during cross-
examination deposed that she made an application in the
Municipal Corporation for change of the name of the child as
Nandi Sriyansh from Nandi Likith Sri Sai. Witness volunteers that,
as per the astrology, she made an attempt to change the name of
UDPR,J & AVRB,J
FCA No.37/2022 &
the child. It is to be noted that right from the birth of the child on
24.02.2015 till 29.04.2015, on which date both the petitioner and
first respondent started residing separately, there was no occasion
for the petitioner to mingle with the minor child and first
respondent. Absolutely, there was no pleading from the part of the
petitioner that in consultation with him, the first respondent
named the child as Nandi Likith Sri Sai. Having looked into the
cross-examination part of RW.1, it is very difficult to say that with
any deliberate intention the first respondent made an attempt to
change the name of the child. Considering the evidence in FCOP
No.156 of 2019 with settled legal principles, we are of the
considered view that the best interest of the child would be served
only if he is in the custody of respondents 1 to 3 because the child
even had no proper acquaintance with the petitioner since the date
of his birth. Allowing him to be in the custody of the petitioner
would cause any amount of mental disturbance to the child and it
is not at all going to be in the best interest and welfare of the
minor child. Having considered the above, we are of the considered
view that there are no grounds to interfere with the impugned
order of the learned Judge, Family Court in FCOP No.156 of 2019,
dated 02.05.2022.
UDPR,J & AVRB,J
FCA No.37/2022 &
34. Coming to the Civil Revision Petition, there is no dispute
that the present petitioner sought for visiting rights of the minor
child in GOP No.147 of 2017. The learned Judge, Family Court,
Tirupati by virtue of the order, dated 12.01.2019, directed that the
petitioner and his parents are permitted to see the minor child on
every Saturday and spend time with him from 10:00 a.m. to 06:00
p.m. and the first respondent was also directed to handover the
minor child to the petitioner either at her residence or at Family
Court, Tirupati at 10:00 a.m. on every Sunday and that the
petitioner (husband) shall return the child to the respondent (wife)
at 06:00 p.m. on the same day in the Court premises or at her
house.
35. The respondent (wife) filed I.A. No.642 of 2022 in GOP
No.147 of 2017 so as to modify the said order, dated 12.01.2019,
and to allow her husband to have the visitation rights at the place
where presently the child is residing with second and third
respondents i.e., at Sri Muni Anjaneya Buildings, Opposite Bharat
Petrol Bunk, Kunigal Road, Gulur, Tumkur, Karnataka. The
learned Judge, Family Court passed an order in IA No.642 of 2022
on 12.08.2022 directing that the petitioner herein and his parents
shall be allowed to spend time with the minor child on every first
UDPR,J & AVRB,J
FCA No.37/2022 &
and third Sunday of the month in the house of the first
respondent (wife) at Tirupati and that there was no necessity to
bring the child to the Family Court on every Saturday and further
that the child can be taken out by the father if the child is readily
willing otherwise, the petitioner (father) has to spend time with the
petitioner and the grandparents are also at liberty to see the child
and spend time with him on every first and third Sunday of the
month between 10:00 a.m. to 05:00 p.m.
36. So, the learned Judge, Family Court only deleted the earlier
condition that the child can be handed over to the petitioner at
Family Court, Tirupati. The learned Judge, Family Court, Tirupati
recorded valid reasons for want of facilities at Family Court to keep
the child. The learned Judge, Family Court did not consider the
request of the petitioner (wife) to allow visitation rights at a
particular place at Karnataka
37. Having regard to the above, we do not see any illegality or
irregularity in the impugned order in I.A. No.642 of 2022 in GOP
No.147 of 2017, dated 12.08.2020.
UDPR,J & AVRB,J
FCA No.37/2022 &
38. In the result both the Family Court Appeal No.37 of 2022
and Civil Revision Petition No.1842 of 2022 are dismissed. No
order as to costs.
Consequently, Miscellaneous Applications pending, if any,
shall stand closed.
__________________________________
JUSTICE U. DURGA PRASAD RAO
__________________________________
JUSTICE A.V.RAVINDRA BABU
Date:28.12.2023
DSH
