Smt. Anupama V Nadagouda vs Sri. Vijaya Mahantesh Mulemane
2021 Latest Caselaw 6043 Kant

                                                       R
       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 14TH DAY OF DECEMBER, 2021

                         PRESENT

            THE HON'BLE MR. JUSTICE B. VEERAPPA

                           AND

          THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA

       MISCELLANEOUS FIRST APPEAL No.2863/2021 (GW)


BETWEEN:

SMT. ANUPAMA V. NADAGOUDA,
W/O OF VIJAYA MAHANTESH MULEMANE,
D/O SRI VENKATRAO NADAGOUDA,
AGED ABOUT 37 YEARS,
R/A NO.B-5, JAYA MAHAL EXTENSION,
BENGALURU-46.

PRESENTLY R/A
NO.13/56, 'PADMASIRI',
5TH MAIN, 4TH CROSS,
RMV 2ND STAGE,
BOOPASANDRA,
BENGALURU-560094.                                 ...APPELLANT

(BY SRI KIRAN V RON, ADVOCATE FOR
MS. SUKRUTA R., ADVOCATE)

AND:

SRI. VIJAYA MAHANTESH MULEMANE,
S/O MULEMANE MALLIKARJUNA GOWDA,
AGED ABOUT 43 YEARS,
                                  2




R/A HATCHOLLI,
SIRAGUPPA, BALLARY-538441.                        ...RESPONDENT

(BY SRI MAHESH, ADVOCATE FOR CAVEATOR/RESPONDENT)
                            ....
     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 47(a) OF THE GUARDIAN AND WARDS ACT AGAINST THE
IMPUGNED ORDER DATED 04.02.2021 PASSED ON I.A.NO.V IN G
AND WC NO.337/2018 BY THE I ADDITIONAL PRINCIPAL FAMILY
JUDGE, FAMILY COURT, BENGALURU, ALLOWING THE I.A.NO.5
FILED UNDER ORDER 7 RULE 11 OF CPC.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:

                         JUDGMENT

The present miscellaneous first appeal is filed by the wife

against the impugned order dated 4.2.2021 passed in G & WC

No.337/2018 by the learned I Additional Principal Family, Bengaluru

allowing I.A.5 filed under Order VII Rule 11 of the Code of Civil

Procedure (for short, hereinafter referred to as the 'CPC) and

consequently, rejecting the petition filed by the wife on the ground

of jurisdiction and cause of action in view of the provisions of

Section 9 of the Guardians and Wards Act, 1890.

2. It is the case of the appellant that while filing petition

under the provisions of Sections 7, 10 and 17 of the Guardians and

Wards Act, 1890 that her marriage with the respondent was

solemnized on 30.11.2008 in Sindanur of Raichur District,

Karnataka State in accordance with the Hindu Rites and Customs

Ceremony. After living in Bellary for about few days, both of them

shifted to Canada and as they had many differences and were

incompatible after their marriage, the wife thought that the things

would change better after the birth of their child. Out of their

wedlock, a female child by name 'Anvita' was born on 11.2.2011.

Since the marital discord got worse, she thought that, the daily

fights and the atmosphere at home would have a negative impact

on the child, and it would deter the child's education and future

psychologically. Right from the beginning of the marriage, she was

subject to cruelty at the hands of the respondent and marital life

never went smoothly. On account of the difference in

temperaments and attitudes, the marriage between the parties had

irretrievably broken down and there was no possibility of living

together as husband and wife.

3. It was further contended that the husband was very

irresponsible towards leading a matrimonial life with no aims and

games in life and he was severely addicted to alcohol and other bad

habits. As such, he started stealing the valuable things at home

and sell them for some amount for consumption of alcohol and

other vices. The child got influenced by the behaviour of the

respondent and started to show temper and symptoms of being

insecure, whenever the respondent was around her; refused to

have food; imitate the respondent by banging her head to the wall.

In order to protect the child from being influenced by the behaviour

of the respondent, she was forced to give money out of her savings

to the respondent, so that he could spend some more time outside

home and away from the child. It is further contended that the

child had expressed to her and her sister-in-law that the respondent

used to sleep on the top of the minor child and kiss her. Hence,

on the advice of her parents, she decided to come back to India

with her daughter and filed a petition for divorce under the Hindu

Marriage Act. Therefore, she filed a petition for appointment and to

declare her as guardian of the minor child - Anvita on 5.12.2018.

4. The respondent-husband filed an application under Order

VII Rule 11 of the CPC to reject the petition mainly on the ground

that there was no cause of action; civil marriage was solemnized

between himself and appellant in Toronto, Ontario, Canada and

they had a daughter by name Anvita Mulemane; The child acquired

Canadian Citizenship by birth out of civil marriage. He was working

at Toronto, Cananda since 2007 and the appellant was working at

Toronto, Canada since 2007 as Customer Service Analyst at T.D.

Bank, Toronto, Canada and they were leading marital life at Canada

and at no point of time, they led happy marital life at Bengaluru. It

is further contended that as the child Anvita Mulemane was born in

Canada, she had acquired citizenship of that Country and was

attending school in Canada; She was under the care and custody of

appellant and was comfortably enjoying her tender age, good at

drawings and paintings. It is further contended that the appellant

is having illicit relationship with one Sanjeev Marathe and is living

with him having cohabitation which is a crime as per the Hindu Law

and the said relationship has been admitted in Superior Court of

Justice at Toronto, Canada. The appellant has declared before the

Court that she has been living separately since 10.9.2016 and with

a married man i.e., Sanjeev Marathe.

5. The respondent has further contended that she

intentionally choose to abandon the child Anvita and was residing

separately since 2016. Subsequently, she filed an application for

divorce and child custody before the Superior Court of Justice,

Canada wherein temporary/interim order was issued directing the

appellant to pay support of her share of special and extraordinary

expenses and gave minimum access to the minor daughter Anvita

Mulemane. The respondent stated that the Superior Court of Justice

by the order dated 1.11.2017 had restrained the appellant's living

in relationship partner from direct or indirect contact with child

Anvita Mulemane. Further on 12.7.2018 ordered Reunification

Therapy on his consent as the child Anivta Mulemane was reluctant

to her mother/appellant. It is further contended that on

16.8.2018, a Therapy Agreement was entered between the

appellant and respondent. Accordingly, the respondent gave his

consent for the child Anvita Mulemane to be taken to India for a

specific period in lieu of the fact that the appellant had a family

emergency to attend. The notarized consent letter contained the

date of departure from Canada and return to Canada as 25.8.2018

and 25.9.2018 respectively.

6. It is further stated that the appellant and minor

daughter left India from Canada on 26th August, 2018 and were

supposed to return on the date, but they did not return to Canada

as the appellant postponed her return date. Thrice the flight tickets

were cancelled i.e., on 25.9.2018, 5.10.2018, 9.10.2018 and

17.10.2018 where the appellant herself had booked the tickets as

per her convenience and respondent went to Airport to return to

Canada. He was surprised that the appellant had lodged a

complaint against him before Basaveswaranagar Police on

17.10.2018 in Crime No. 326/2018 alleging falsely that he had

harassed and tortured her both physically and mentally and also for

cheating and holding away her daughter Anvita Mulemane. As

such, he was served with notice by Basaveswaranagar Police

Station. It is contended that as the child is presently resident of

Bangalore that does not entitle the jurisdiction for this Court to

entertain the application filed by the appellant and as such, the

appellant has not come before the Court with clean hands and has

suppressed the material facts and therefore, sought to reject the

application.

7. The said application was resisted by the appellant

reiterating the averments made in the main petition. The Family

Court considering the averments and objections filed by both sides

by the present impugned order dated 4th February, 2021, allowed

the application - I.A.5 filed under Order VII Rule 11 of the Code of

Civil Procedure, thereby rejected the plaint on the ground that it

has no jurisdiction to entertain the same. Hence, the present

miscellaneous first appeal is filed by the wife.

8. We have heard the learned Counsel for the parties to the

lis.

9. Sri Kiron V. Ron, learned Counsel for the appellant-wife

contended with vehemence that the impugned order passed by the

Family Court allowing the application - I.A.5 filed under Order VII

Rule 11 of the Code of Civil Procedure by the respondent-husband

is non-application of mind and hence, cannot be sustained. He

would further contend that the Family Court while considering I.A.5,

taking into consideration the documents - Annexures-A and B along

with written arguments produced by the respondent, summarily

without holding any enquiry with regard to the ordinary residence

of the minor child, has allowed the application. Hence, on that

ground alone, the impugned order is liable to be set aside. He

further contended that the Family Court overlooking the well settled

principles of law that, when an application is filed under Order VII

Rule 11 of CPC, it is required to consider not only the cause of

action, but also the documents filed along with the petition and has

erroneously allowed the application. He would further contend that

at paragraph-17 of the impugned order, it has been held that the

appellant suppressing the true facts and not disclosing the

citizenship of the minor daughter - Anvita, has obtained an exparte

order on 7.12.2018, which is factually incorrect. Though a

photocopy of the Birth Certificate of the minor child was produced

at the time of filing of the petition, the original Birth Certificate was

not in the custody and possession of the appellant. With regard to

production of photocopy of the Birth Certificate, the office had also

raised objections for production of original and the same was

produced subsequently by virtue of a memo dated 22.3.2019 and

as such, the said observations made by the Family Court is

incorrect.

10. The learned Counsel for the appellant would further

contend that rejection of plaint without holding any enquiry cannot

be sustained and therefore, he sought to allow the appeal.

11. In support of his contentions, he relied upon the dictum

of the Hon'ble Supreme Court in the case Ruchi Majoo -vs-

Sanjay Majoo reported in 2011(6) SCC 479 particularly

paragraph-24 and in the case of Jasmeet Kaur -Vs- Navtej Singh

reported in (2018) 4 SCC 295 particularly paragraph-4.

12. Per contra, Sri Mahesh, learned Counsel for the

respondent-husband while justifying the impugned order passed by

the Family Court contended that admittedly, the child was born in

Canada after the Civil Marriage was performed between the parties.

As the same is suppressed in the petition filed before the Family

Court, the Family Court had no jurisdiction to entertain the petition

in view of the provisions of Section 9 of the Guardians and Wards

Act. He would further contend that the reliance placed by the

learned Counsel for the appellant with regard to the observation

made by this Court in the habeas corpus - WPHC 25/2019 filed by

the respondent-husband is that, the arrangement shall continue till

orders are passed in the Guardian and Wards Act proceedings, that

has been initiated by the respondent and G & WC No.337/2018

which was pending on the file of the Family Court, Bengaluru.

Further a direction was also issued to the Family Court, Bengaluru

to independently consider the claim as well as the counter claim for

guardianship in the event of application - I.A.5 filed by the

petitioner-appellant under Order 7 Rule 11 of CPC without being

influenced by any observations made in the order.

13. The learned Counsel for the respondent-husband would

further contend that by filing an application under Order VII Rule 11

of CPC, a prayer was also sought to reject the plaint specifically

stating that the appellant-wife and child Anvita, if appellant visited

India with a Therapy Agreement signed and notarized at Cananda

with a return tickets, during pendency of the suit before Superior

Court of Justice and there is no cause of action in the above suit.

Therefore, the trial Court was justified in rejecting the plaint. He

would further contend that as per the order dated 1 st November,

2017 passed by the Superior Court of Justice, Family Court,

Toranto, Ontario, Annexure-R7 produced along with objections filed

in the present appeal, it is clear that on a temporary basis pursuant

to the Minutes of Settlement dated 1st of November, 2017, the

appellant shall have temporary access to the child of the marriage,

namely Anvita Mulemane ('Anvita') commencing November 5, 2017

every Tuesday from pick-up after school finishes to drop-off in the

lobby of the respondent's building at 7.00 p.m. and every Sunday

from 11.00 am, pick up at the lobby of the respondent's residence

to drop-off at the lobby of the respondent's residence at 7.00 p.m.

on the terms that Anvita shall not have any direct or indirect

contact with Sanjeev Marathe and Sanjeev Marathe shall not be

present during the applicant's access with Anvita. The said material

facts has been suppressed in the present appeal.

14. The learned Counsel for the respondent would further

contend that the appellant-wife has suppressed the fact of filing

divorce petition and for custody of the child before the Superior

Court of Justice, Family Court, Toranto, Ontario which is pending,

while filing the present petition for divorce before the family Court

at Bengaluru. He would further contend as per Annexure-R8 -

Consent Letter for Children Travelling Abroad, the respondent-

husband had given his consent to the appellant-wife to accompany

the child Anvita Mulemane to visit India, stay with her at Bengaluru.

The date of Departure from Canada was 25 th August, 2018 and date

of return to Canada was 25th September, 2018, which was in terms

of the Reunification Therapy Process and Consent letter. As such,

justifying the impugned order passed by the Family Court, he

sought to dismiss the miscellaneous first appeal.

15. In support of his contentions, learned Counsel for the

respondent-husband relying upon the dictums of the Division Bench

of this Court:-

      (i)    in the case of Dr. Mashmoom -vs- Sajid and

             Others     passed     in   MFA     No.22302/2013

             D.D.14th      December,          2015    particularly

             paragraph-5, and

(ii) in the case of Lahari Sakhamuru -vs- Sobhan

Kodali reported in AIR 2019 SC 2881

(paragraph-31);

sought to dismiss the miscellaneous first appeal.

16. In view of the aforesaid rival contentions urged by the

learned Counsel for the parties, the only point that would arise for

our consideration in the present miscellaneous first appeal is:-

"Whether the Family Court is justified in allowing the application - I.A.5 filed under Order VII Rule 11 of the Code of Civil Procedure filed by the respondent-husband and consequently rejecting the plaint on the ground of jurisdiction and cause of action in the facts and circumstances of the present case?"

17. We have given our anxious consideration to the

arguments advanced by the learned Counsel for the parties and

perused the oral and documentary evidence on record carefully.

18. It is an undisputed fact that the marriage between the

appellant and respondent was solemnized on 30.11.2008 in

Sindanur of Raichur District, Karnataka State in accordance with the

Hindu Rites and Customs Ceremonies and also civil marriage at

Toranto, Ontario, Canada and out of their wedlock, a female child

by name 'Anvita' was born on 11.2.2011 at Canada. It is the

specific case of the appellant that since the very beginning of the

marriage, things never went smoothly and she was subjected to

cruelty at the hands of the respondent. On account of differences,

temperaments and attitudes, the marriage between the parties had

irretrievably broken down and there was no possibility of they living

together as husband and wife. Keeping in mind the paramount

interest of the child, the appellant-wife decided to come back to

India with her daughter and thus filed a petition for divorce under

the Hindu Marriage Act before the Family Court, which is pending

consideration. During the pendency of the said petition for divorce,

she filed a petition - G & W C 337/2018 under the provisions of

Sections 7, 10 and 17 of the Guardians and Wards Act, 1890 for

declaration of appellant as the Guardian of the minor child Anvita

born on 11th February, 2012 from the lawful wedlock between the

appellant and respondent, as well as an application for grant of

exparte interim custody of the minor daughter to her.

19. It is also not in dispute that during the pendency of the

said petition, the respondent-husband filed an application - I.A.5

under Order VII Rule 11 of the Code of Civil Procedure reiterating

the averments made in the statement of objections contended that

the Family Court, Bengaluru has no jurisdiction to entertain the

petition filed for custody of the minor child or guardianship filed by

the appellant as the child was citizen of Cananda and she has come

to India only along with the appellant in terms of the Therapy

Agreement signed and notarized at Cananda with a return tickets

during the pendency of the suit before the Superior Court of Justice

and there is no cause of action for filing the petition before the

Family Court, Bengaluru. It is also not in dispute that, the

appellant had also filed a petition as well as custody of the children

before the Superior of Justice Toranto, Ontario, Canada.

20. Though several contentions are raised by both parties

with regard to conduct of each other i.e., mother and father of the

minor child and the atmosphere, we are not concerned with the

conduct of the mother and father when the present miscellaneous

first appeal is arising out of rejection of plaint of the wife on the

ground of cause of action and jurisdiction to entertain the petition

before the Family Court for custody of the Child.

21. On careful reading of the petition filed by the mother-

appellant, though the child was born on 11.2.2011, in the entire

petition, the appellant does not disclose where the child was born.

In paragraph-10 of the petition, it is contended that keeping in

mind the psychological welfare of the minor child and her future as

well as on the advice of her parents, she decided to come back to

India with her daughter and file a petition for divorce under the

Hindu Marriage Act. Admittedly, the petition is filed for custody of

the minor child and the entire petition does not disclose the fact

that she has executed the Therapy Agreement signed and notarized

at Canada with return tickets during the pendency of the petition

for divorce as well as custody of the minor child before the Superior

Court of Justice at Canada. Though the learned Counsel for the

appellant has disputed the fact that the child was born in Canada,

he has contended that the child is residing in India for the last three

years. The intention of the mother to reside in India is an

important factor which has to be considered while deciding the

jurisdiction to entertain the petition under the provisions of Section

9 of the Guardians and Wards Act. The fact remains that the

appellant has not produced any single document to prove that the

child was born in India.

22. According to the learned Counsel for the appellant, under

the provisions of Section 9 of the Guardian and Wards Act, the

application with respect to the guardianship of the person of the

minor, shall be made to the District Court having jurisdiction in the

place where the minor ordinarily resides and the District Court shall

have to take into consideration over all pleadings and contentions

and facts and circumstances of the case and cannot alone decide to

reject the application filed under Order VII Rule 11 of the Code of

Civil Procedure without holding any enquiry for the simple reason

that on careful reading of Section 9 of the Guardians and Wards

Act, it clearly depicts that, if an application is filed with respect to

the guardianship of the persons of the minor, it shall be made to

the District Court having jurisdiction in the place where the minor

ordinarily resides. It has to be taken into consideration the place

where the minor ordinarily resides and whether it is within the

jurisdiction of the Court where an application is filed. "In the

present case, the material documents clearly depict that that the

child was born in Canada and a citizen of Canada and has come

back to India in terms of the Therapy Agreement signed and

notarized at Canada along with return tickets. Though the

appellant at paragraph-10 of the petition states that she has

decided to come back to India, but in the entire petition, there is no

whisper about she residing permanently in India or that she would

never go back to Canada or has filed a petition for divorce and

custody of the minor child which is still pending consideration

wherein an interim order has been passed by the Superior Court of

Justice, Canada."

23. "On Careful perusal of the order dated 1st November,

2017 passed by the Superior Court of Justice at Toronto, Ontario,

Canada in FS-17-417504-00 where it is ordered that "On a

temporary basis Pursuant to the Minutes of Settlement dated and

filed on November 1, 2017, the appellant shall have a temporary

access to the child of the marriage, name Anvita Mulemane

('Anvita") commencing November, 5, 2017 every Tuesday from

pickup after school finishes to drop-off in the lobby of the

respondent's building at 7.00 p.m. and every Sunday from 11.00

am, pick up at the lobby of the respondent's residence to drop-off

at the lobby of the respondent's residence at 7.00 p.m. It is also

observed that Anvita shall not have any direct or indirect contact

with Sanjeev Marathe and Sanjeev Marathe shall not be present

during the applicant's access with Anvita. Annexure-R8 - 'Consent

Letter for Children Travelling Aborad' is also produced along with

said order which clearly depicts that the present respondent has

given consent to his wife Anupama Nadagouda to accompany

Anvita Mulemane to visit to India and date of departure from

Cananda is 25th August, 2018 and date of return to Canada on

25.9.2018. The said material facts are suppressed in the present

petition filed before the Family Court at Bengaluru for custody of

the minor child."

24. Though the learned Counsel for the appellant relied upon

the dictum of the Hon'ble Supreme Court in the case of Ruchi

Majoo stated supra particularly paragraph-24, on perusal of the

same, it would clearly depict that the solitary test for determining

the jurisdiction of the Court under Section 9 of the Act is that

'ordinary residence' of the minor. The expression used is "where

the minor ordinarily resides'. Whether the minor is ordinarily

residing at a given place is primarily a question of intention which in

turn is a question of fact. It may at best be a mixed question of law

and fact, but unless the jurisdictional facts are admitted, it can

never be a pure question of law, capable of being answered without

an enquiry into the factual aspects of the controversy.

25. "Admittedly, in the present case, on careful reading of

the pleadings and the averments made in the petition for custody

and appointment of guardianship and objections, it clearly depicts

that the minor ordinarily resides in Canada. The appellant and child

have come back to India on temporary basis by virtue of the

interim order dated 1.11.2017 passed by the Superior Court of

Justice at Toronto, Ontario, Canada. The expression 'ordinary

residence' has got such a meaning that it rules out temporary

residence of the child. Therefore, the judgment relied upon by the

learned Counsel for the appellant in the case of Jasmeet Kaur -vs-

Navtej Singh reported in (2018) 4 SCC 295 wherein it was a case

where the Hon'ble Supreme Court while deciding jurisdiction of the

Family Court on an application filed under Order VII Rule 11 of CPC

has held that, principle of comity of courts or forum convenience

cannot alone determine threshold bar of jurisdiction. In the

matters of Guardians and Wards Act, paramount consideration is

always best interest of child. It cannot be subject matter of final

determination in proceedings under Order VII Rule 11 of CPC. On

careful perusal of Section 9 of the Guardians and Wards Act as well

as Order VII Rule 11 of CPC, the plaint, where it does not specify

the cause of action, it has to be rejected." In the present petition in

paragraph-14, it only states that the cause of action for filing the

petition was when the appellant learnt that the respondent-husband

is neglecting the child and acting detrimental to their interests.

When there is no mention about how the cause of action arises to

entertain the petition by the Family Court, Bengaluru for custody of

the child and appointment of guardianship and admittedly,

according to the appellant-wife, the husband including the child are

residents of Canada, where she has filed a petition for divorce and

custody of child which is pending consideration and the same

having been suppressed in the present case, the Family Court was

justified in allowing the application- I.A.5 and rejecting the plaint in

view of the provisions of Section 9 of the Guardians and Wards Act.

26. It is also an admitted fact that both appellant and

respondent being wife and husband have a right to seek custody of

the minor child or visitation rights under the provisions of the

Guardians and Wards Act, but at the same time, it has to be

remembered that a person after every knock at all the doors failed,

he approaches the judiciary as the last resort. It is the only temple

worshipped by every citizen of this nation, regardless of religion,

caste, sex or place of birth. Like any other organ of the State, the

judiciary is also manned by human beings, but the function of

judiciary is distinctly different from every organs of State. In the

sense, its function is devine. Today, the judiciary is the repository

of public faith. It is the trustee of the people. It is the last hope of

the people. As such, when the mother has approached the Court in

Bengaluru, she should have approached with clean hands without

suppressing the material facts i.e., filing of divorce petition as well

as seeking custody of the minor child at Canada Court wherein

there is an interim order. Nodoubt, mother has every right, but at

the same time, she has to prove where the minor ordinarily resides

as contemplated under the provisions of Section 9 of the Guardians

and Wards Act, and whether there is any cause of action as

contemplated under Order VII Rule 11(a) of CPC. But the pleadings

and material evidence on record clearly depict that the appellant-

wife has not made out any cause to prove that the child ordinarily

resides at Bengaluru as contemplated under Section 9 of the

Guardians and Wards Act, 1890 and also there is no cause of action

to file a petition as contemplated under Order VII Rule 11(a) of

CPC. As such, she has made an attempt even to waste public time

by suppressing the material facts that she had already approached

the Superior Court at Canada, and that ground itself is sufficient to

reject the plaint as observed by the Family Court while rejecting the

application as under:

"Hence, from the perusal of the case file wherein the petitioner has suppressed the true facts and also suppressed facts that her minor daughter-

Anvita is the citizen of Canada by birth and also she has been issued with Canadian citizenship and also OCI card held by the daughter Anvita in the petition filed by the petitioner she has suppressed true facts before this Court and she has obtained exparte order dated 07.12.2018 and even petitioner herself in her affidavit filed in support of I.A.No.11 dtd. 24.11.2020, wherein the petitioner

has admitted, that her daughter-Anvita is a citizen of Canada by birth and she has been issued passport and also issued overseas citizenship of India(OCI) card and she can travel and live in Indian country without need for separate visa and passport of the minor daughter of petitioner will expire 14.01.2020 and this admission made by the petitioner itself in the affidavit filed in support of I.A.No.11 oust the jurisdiction of this Court in entertaining this G & W C petition. Admittedly, the minor daughter-

Anvita is not ordinary resident of India and hence this petition filed by the petitioner for seeking of guardian ship of minor daughter-Anvita is lacking inherent jurisdiction of this Court and also on perusal of the main petition averments particularly para-14 and 15 of the main petition, wherein the petitioner has pleaded vague pleadings regarding cause of action stating that cause of action arise to her when the respondent has neglected the child and acting detrimental to her interest and also para-15 shows that the child is ordinarily residing within the jurisdiction of this Court, but considering the facts of the case and documentary evidence placed before the Court by the respondent at Annexure-A and B wherein the

case pleaded by the petitioner regarding ordinary residence of the minor is falsified on the contrary, the petitioner, respondent and minor child have visited India with Therapy agreement signed and notarized at Canada with return tickets during pendency of the divorce suit filed before the Superior Court of Justice, Ontario. Hence the relying upon the decisions quoted for the respondent wherein these decisions reported from Apex Court are aptly applicable to the facts of the case made out by the respondent, and on the contrary the decisions relied by the counsel for petitioner are not squarely and aptly applicable to the present facts of the case pleaded by the petitioner. Therefore, this court rejected the written arguments filed by the counsel for the petitioner and on the contrary the written arguments filed by the respondent's counsel dtd. 11.01.2021 and also additional written arguments filed by the respondent's counsel on 19.01.2021 are accepted on record and considering the documents produced in respect of minor daughter-Anvita and considering the provisions of Section 9(1) of G & W Act, 1890, Wherein ordinarily residence of minor daughter-Anvita is not of Bengaluru, but whereas the minor daughter

Anvita is a citizen of Canada as per the original birth certificate and also as per the original Visa issued by Canada Government. This being the position, this court has no jurisdiction to entertain this petition as this court is ceased its jurisdiction to entertain and try this petition and even petitioner has not made out any cause of action to file this petition before Family Court at Bengaluru. On the contrary, the cause of action shown in para-14 of the petition is imaginary and concocted one. Though, the respondent has filed counter claim relief along with objection statement in the above case, but it does not amounts to acquiesce of rights by acceding to the jurisdiction of this Court, on the contrary, the petitioner/wife, who has approached this court for seeking relief at the hands of this court, the petitioner has to make out clear, perfect and pecuniary jurisdiction, showing that to this court is having perfect and competent jurisdiction grant relief. But in this case, the petitioner has suppressed true facts and obtained exparte interim order dated 07.12.2018 without producing birth extract and once this court is lacking its jurisdiction to entertain this petition and also there is no cause of action for the petitioner to file this petition against the

respondent and hence the respondent has made out a case for rejection of the petition on the ground of lacking jurisdiction and non existence of cause of action. Hence, I.A.No.5 filed by the respondent in the above case under Order 7 Rule 11 of C.P.C. deserves to be allowed. Accordingly, I answer point No.1 raised for my consideration in the affirmative in favour of respondent."

27. A Co-ordinate Bench of this Court while considering the

provisions of Section 9 of the Guardians and Wards Act in the case

of Dr. Mashmoom -vs- Mr. Sajid and Others in MFA 22302/2013

(G & WC) DD 14th December, 2016 at paragraph-5 has held as

under:.

"5. The Family Court has referred to Section 9 of the Guardians and Wards Act, 1890. On reading of the Section, it can be noticed that the application must be presented before the Court having jurisdiction in the place where the minor ordinarily resides. The word 'ordinarily' has got such a meaning that it rules out temporary residence of the children. In this case, the children were born at Doha Qatar and are pursuing their studies at that place only. If they had come to Belgaum, at the time when the marriage between the appellant

and the 1st respondent was dissolved, it does not mean that they are ordinarily residents of Belgaum. This being the position, it has to be now said that the Family Court has rightly held that it has no jurisdiction to entertain the petition. We do not find any infirmity or illegality in the said order. Therefore the following Order:

Appeal is dismissed."

28. The Hon'ble Supreme Court in the case of Lahari

Sakhamuru -vs- Sobhan Kodali reported in AIR 2019 SC 2881 in

an identical circumstances while considering the provisions of

Section 9 of the Guardians and Wards Act at paragraph-31 relying

upon the judgment cited by the learned Counsel for the appellant

therein in the case of Jasmeet Kaur -vs- Navtej Singh reported in

2018(4) SCC 295 at paragraph 4 has held as under:

"4. In view of the above, principle of comity of courts or principle of forum convenience alone cannot determine the threshold bar of jurisdiction. Paramount consideration is the best interest of the child. The same cannot be the subject-matter of final determination in proceedings under Order 7 Rule 11 CPC."

29. In view of the above, it is clear that the appellant-wife

has not come to the Court with clean hands. She has suppressed

the material facts of the case as well as the pendency of the

proceedings before the Superior Court of Justice, Canada. Thereby

she has wasted judicial public time not only before the Family

Court, but also before this Court. The conduct of the appellant is

nothing but daring raid on the Court which cannot be encouraged.

As such, this is a fit case to award cost so as to ensure that the

parties should not misuse the Temple of Justice.

30. A message has to go to the parents like the present

appellant that when they are dealing with the minor child,

paramount interest of the child should be taken note of and without

disturbing the mind and future of the child, the parents as well as

Court which is a temple of justice should handle it with utmost care

since they are responsible in ensuring their child becomes a good

citizen of the Country. Unfortunately, today the atmosphere is

different. Merely becoming parents, they are trying to harass the

children in violation of human rights applicable to the children

including Article 21 of the Constitution of India to live honourably.

The parents shall not play with the children and on their career.

31. The best interest of the child has been placed at the

vanguard of family/custody disputes according the optimal growth

and development of the child primacy over other considerations.

The child is often left to grapple with the breakdown of an adult

institution. While the parents aim to ensure that the child is least

affected by the outcome, the inevitability of the uncertainty that

follows regarding the child's growth lingers on till the new routine

sinks in. The effect of separation of spouses, on children,

psychologically, emotionally and even to some extent physically,

spans from negligible to serious, which could be insignificant to

noticeably critical.

32. It is well settled and recognised that children are the

supreme asset of the nation. Rightful place of the child in the

sizeable fabric has been recognised in many international

covenants, which are adopted in this country as well. Child-centric

human rights jurisprudence that has been evolved over a period of

time is founded on the principle that public good demands proper

growth of the child, who are the future of the nation.

33. The child of today cannot develop to be a responsible and

productive member of tomorrow's society unless an environment

which is conducive to his social and physical health is assured to

him. Every nation, developed or developing, links its future with the

status of the child. Childhood holds the potential and also sets the

limit to the future development of the society. Children are the

greatest gift to humanity. Mankind has the best hold of itself. The

parents themselves live for them. They embody the joy of life in

them and in the innocence relieving the fatigue and drudgery in

their struggle of daily life. Parents regain peace and happiness in

the company of the children. The children signify eternal optimism

in the human being and always provide the potential for human

development. If the children are better equipped with a broader

human output, the society will feel happy with them. Neglecting the

children means loss to the society as a whole. If children are

deprived of their childhood -- socially, economically, physically and

mentally -- the nation gets deprived of the potential human

resources for social progress, economic empowerment and peace

and order, the social stability and good citizenry. The Founding

Fathers of the Constitution, therefore, have emphasised the

importance of the role of the child and the need of its best

development.

34. It is also well settled that the children are not mere

chattels : nor are they mere play-things for their parents. Absolute

right of parents over the destinies and the lives of their children

has, in the modern changed social conditions, yielded to the

considerations of their welfare as human beings so that they may

grow up in a normal balanced manner to be useful members of the

society. The child is the victim in custody battles. In the fight of

egos and increasing acrimonious battles and litigations between two

spouses, out experience show that more often than not, the

parents, who otherwise love their child, present a picture as if the

other spouse is a villain and he or she alone is entitled to the

custody of the child. The Court must, therefore, be very wary of

what is said by each of the spouses.

35. A child, especially a child of tender years requires the

love, affection, company, protection of both parents. This is not

only the requirement of the child but is his/her basic human right.

Just because the parents are at war with each other, does not mean

that the child should be denied the care, affection, love or

protection of any one of the two parents. A child is not an inanimate

object which can be tossed from one parent to the other. Every

separation, every reunion may have a traumatic and psychosomatic

impact on the child. Therefore, it is to be ensured that the court

weighs each and every circumstance very carefully before deciding

how and in what manner the custody of the child should be shared

between both the parents. Even if the custody is given to one

parent, the other parent must have sufficient visitation rights to

ensure that the child keeps in touch with the other parent and does

not lose social, physical and psychological contact with any one of

the two parents. It is only in extreme circumstances that one

parent should be denied contact with the child. Reasons must be

assigned if one parent is to be denied any visitation rights or

contact with the child. Courts dealing with the custody matters

must while deciding issues of custody clearly define the nature,

manner and specifics of the visitation rights.

36. The concept of visitation rights is not fully developed in

India. Most courts while granting custody to one spouse do not pass

any orders granting visitation rights to the other spouse. As

observed earlier, a child has a human right to have the love and

affection of both the parents and courts must pass orders ensuring

that the child is not totally deprived of the love, affection and

company of one of her/his parents.

37. This is a classic case, where both parents shall have to

act in a manner without detrimental to the interest of the child. As

such, the Family Court was justified in rejecting the plaint/petition

as it had no jurisdiction to entertain the petition. Accordingly, we

pass the following order:

ORDER

i) Miscellaneous first Appeal filed by the appellant is dismissed as being devoid of merits;

ii) The impugned order dated 4.2.2021 passed in G & WC No.337/2018 by the learned I Additional Principal

Family Court, Bengaluru, allowing the application I.A.5 filed under Order VII Rule 11 of the Code of Civil Procedure is hereby upheld;

iii) The appellant-wife is directed to deposit the cost of Rs.50,000/- (Rupees Fifty Thousand) before the Karnataka State Legal Services Authority within a period of four weeks for wasting public time of both the Family Court and this Court, and produce an acknowledgement for having deposited the said cost.

iv) If the appellant fails to deposit the abovesaid cost within the time stipulated, the Karnataka State Legal Services Authority is at liberty to initiate contempt proceedings in accordance with law.

Sd/-

Judge

Sd/-

Judge

Nsu/-