Sakshi Mittal vs Gaurav Rajendra Mittal
2022 Latest Caselaw 8743 Kant

                             1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF JUNE 2022

                        PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

           THE HON'BLE MS.JUSTICE J.M. KHAZI

             M.F.A. NO.2104 OF 2019 (GW)

BETWEEN:

SAKSHI MITTAL
W/O GAURAV RAJENDRA MITTAL
AGED 35 YEARS
PRESENTLY RESIDING AT
FLAT NO.104, V2 NIRVIK APARTMENTS
13TH CROSS, SECTOR-5
HSR LAYOUT, BENGALURU -560102.
                                          ... APPELLANT

(BY MR. AZHAR MEER, ADV., FOR APPELLANT
    MR. K.N. PHANINDRA, SR. COUNSEL THE AMICUS CURIAE)

AND:

GAURAV RAJENDRA MITTAL
S/O RAJENDRA NITTAL
AGED 40 YEARS
PRESENTLY RESIDING AT 1132
SHRI VASHNAVI NIWAS
17TH CROSS, 9TH MAIN
HSR LAYOUT, BENGALURU -560 102.
                                         ... RESPONDENT
(BY MR. ARUN GOVINDRAJ, ADV., FOR
    MR. GOVINDARAJU L, ADV., FOR C/R)
                           ---
                                 2




     THIS M.F.A. IS FILED U/S 47 (A) OF THE GUARDAINS AND
WARDS ACT, AGAINST THE JUDGMENT DATED 28.02.2019
PASSED ON G & WC NO.155/2016 ON THE FILE OF THE II
ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU
DISMISSING THE PETIITON FILED U/S 7 & 17 OF GUARDIANS AND
WARDS ACT.

      THIS M.F.A. COMING ON FOR FURTHER HEARING, THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal emanates from judgment dated

28.02.2019 passed by the Family Court by which the petition

filed by the appellant / wife under Section 7 of the Guardian

and Wards Act, 1890 (hereinafter referred to as 'the Act' for

short), has been dismissed, whereas the petition filed by the

respondent / husband seeking appointment of guardian with

respect of the children of the parties, has been allowed.

2. Facts giving rise to filing of this appeal briefly stated

are that the marriage between the appellant and the

respondent was solemnized on 15.07.2005 in Bengaluru.

Out of the wedlock, a son namely Lakshya (hereinafter

referred to as 'the son' for short) was born on 11.09.2006

and a daughter namely Pariniti (hereinafter referred to as

'the daughter' for short) was born on 01.03.2013. The

appellant as well as respondent resided together till May

2016. The respondent, on 23.05.2016 noticed that the

appellant is using another mobile phone for secret

communications and secured the custody of the aforesaid

phone of the appellant. The appellant thereafter, on

25.05.2016 left the matrimonial home and went to New

Delhi. The conversation recorded between the appellant and

the respondent reflects that the appellant has admitted the

fact of having adulterous relationship with her brother-in-law

(sister's husband) namely Rakesh Gupta.

3. The appellant returned to Bengaluru some time in

the first week of June 2016 and filed a petition on

07.06.2016 seeking her appointment as guardian in respect

of two children. The respondent thereafter filed a petition

on 16.06.2016 under Section 13 of the Hindu Marriage Act,

1955 seeking dissolution of marriage on the grounds of

cruelty and adultery. Thereafter, on 17.06.2016, the

respondent filed a petition under Section 7 of the Act.

4. By an order dated 16.10.2017, the Family Court

permitted the children to spend Diwali vacation with the

respondent. However, the appellant was granted the custody

of the children on 19.10.2017 between 10 a.m. to 7 p.m., on

20.10.2017 between 9 a.m. to 1 p.m. and 21.10.2017

between 10 a.m. to 7 p.m. On 21.10.2017, the son was

taken by the appellant to the police station in HSR Layout,

Bengaluru, where he lodged a complaint against the

respondent, his grand mother and his uncle alleging assault.

Thereafter, the Family Court, by an order dated 22.10.2017,

allowed the son to be with the appellant.

5. However, by an order dated 02.11.2017, the Family

Court directed to return the custody of the daughter to the

appellant. The said order was challenged in

W.P.No.51253/2017 before this Court which was dismissed

on 16.04.2018. The respondent returned the custody of the

daughter to the appellant on 02.05.2018. The Family Court

by an order dated 10.09.2018, granted an interim order with

regard to custody of the children. The appellant filed an

application for modification of the said order which was

rejected by an order dated 14.09.2018. The respondent

thereafter filed interlocutory applications seeking action

against the appellant for having violated the orders passed

by the Family Court. The said applications were allowed in

part on 29.09.2018. The order passed by the Family Court

dated 29.09.2018 was subject matter of challenge in

W.P.No.50186-87/2018.

6. During the pendency of the aforesaid writ petition

before this Court, the parties filed a joint memo and agreed

for interim custody of the children to the respondent, from 10

a.m. on Saturday till 2 p.m. on Sunday. In pursuance of the

aforesaid order between the period from December 2018 to

23.02.2019, the children spent time during the weekend with

respondent and his family and even travelled to Ooty.

7. The Family Court, by a common judgment dated

28.02.2019, decided the petitions filed by the appellant as

well as the respondent seeking custody of the children. The

Family Court, inter alia, held that respondent is staying alone

in an apartment and has no independent source of income to

maintain children. It was further held that conduct of the

appellant is not conducive to promote the welfare of the

children and the respondent is a graduate and has financial

resources. It was also noted that the respondent stays with

his mother, his elder brother and family who are having 2

children of similar age as that of son and daughter.

Accordingly, the petition filed by the respondent seeking

appointment as a guardian of the children was allowed

whereas the petition filed by the appellant under Section 7 of

the Act was dismissed. However, the appellant has filed this

appeal only against judgment dated 28.02.2019 passed in G

and WC No.155/2016 by which her petition seeking

appointment as guardian of children has been dismissed, and

has not filed any appeal against the judgment and decree

dated 28.02.2019 passed in G and WC No.177/2016 by

which the respondent has been appointed as guardian of

children.

8. In this appeal, a Bench of this Court had passed an

order dated 23.04.2021 by which the respondent was

directed to pay the school fee of the children on or before

10.05.2021. The said order was challenged in a special leave

petition namely SLP(C) No.7139/2021 which was disposed of

by the Supreme Court by an order dated 25.05.2021 with an

observation that in case a request for early hearing is made,

this Court would give due consideration to the same.

9. Thereafter, a bench of this court by an order

dated 18.08.2021 directed the respondent to deposit an

initial sum of Rs.10 Lakhs so that directions for release of the

said amount on monthly basis could be issued from living

expenses of herself and the children including rental

expenses and other incidental expenses. The respondent was

further directed to pay medical expenses incurred towards

treatment of son. The respondent was also directed to

deposit the amount on or before 26.08.2021 and was further

directed to file an undertaking to incur the expenses of the

children apart from educational expenses. The court took

note of the medical records produced in respect of the son

and directed the same to be kept in custody of Registrar

(Judicial).

10. Thereafter, on 26.08.2021, after interacting with

the parties, a bench of this court found that the respondent is

not certain and firm about his intention to incur expenses

towards his wife and children. Therefore, taking into account

the fact that the parents of the appellant are in Delhi, this

Court permitted the appellant to take the children from

Bengaluru to Delhi to her maternal house and reside with her

parents for a period of one year so that the son is able to

complete his Xth Standard. The appellant was directed to file

a monthly report on the welfare of minor children. The

appellant was also directed to facilitate an interaction

between the respondent and the children through Skype

video conference on weekly basis. It was further directed

that after completion of Xth Standard by the son, the

question of residence of the appellant and children in Delhi in

pursuance of the order of this court shall be reviewed. It is

pertinent to note that against the aforesaid orders, Special

Leave Petition No.15517-5518/21 was preferred and the

Special Leave Petition was dismissed by the Supreme Court

by an order dated 04.10.2021. In the aforesaid factual

background, this appeal has come up for our consideration.

11. Learned counsel for the appellant submitted that

the appellant is the mother of the children and the daughter

is of tender age. It is also urged that since 2017, the

children are in the custody of the appellant. It is also pointed

out that son was assaulted on 21.10.2017 by the respondent

and his mother as well as the brother of respondent. It is

also urged that the son is old enough to make an intelligent

preference and wants to stay with the appellant. However, it

is fairly admitted that in respect of the aforesaid alleged

incident which took place on 21.10.2017, a closure report

has been filed by the police authorities and the protest

petition filed by the appellant has been rejected and the

closure report has been accepted by the Magistrate. It is

pointed out that son is suffering from depression and

treatment has been given to him. It is also stated that for

past about one year, even education expenses have not been

paid by the respondent. It is also argued that appellant is

available for the children and has taken care of the children.

12. It is submitted that financial capacity alone cannot

be a criteria for appointment of guardian in respect of the

children. Therefore, the impugned judgment insofar as it

rejects the petition filed by the appellant under Section 7 of

the Act, deserves to be set aside. In support of aforesaid

submissions, reliance has been placed on the decision of this

Court in 'CHETHANA RAMATHEERTHA Vs. KUMAR

JAHGIRDAR' (2003) 3 KAR.L.J. 530, decision of Madras

High Court in 'N.PUNIDHA Vs. J.SELVAN' IN OSA

NO.156/2008 AND M.P.NO.2/2008 and decision of

learned Single Judge of Delhi High Court in 'PRABHATI

MITRA Vs. D.K.MITRA' (1984) 25 DLT 186.

13. On the other hand, learned counsel for the

respondent, while inviting the attention of this Court to

evidence on record, submits that from perusal of Ex.P58 i.e.

the conversation recorded between the appellant and the

respondent, it is evident that the appellant has agreed that

she is in adulterous relation with her brother-in-law namely

Rakesh Gupta. Our attention has also been invited to Ex.R20

to Ex.R25 and it has been stated that even when the

appellant was residing with the respondent in the

matrimonial home, she has tried to commit suicide more

than once and therefore, suffers from mental disorder and is

not a fit person to be a guardian of the children. It is also

urged that the appellant has filed frivolous complaints

against the respondent. It is also argued that this Court has

to take into account the character and capacity of a person

seeking appointment as guardian.

14. We have considered the rival submissions made on

both sides and have perused the record. Section 17 of the

Act deals with the matters to be considered by the Court in

appointment of a guardian. Section 17(1) mandates that the

Court, while appointing or declaring the Guardian of a minor

shall subject to provisions of the Section, be guided by the

law to which the minor is subject, as well as the

circumstances to be for the welfare of minor. Section 17(2)

provides that the Court shall have due regard to the age, sex

and religion of the minor and the character and capacity of

the proposed guardian. Section 17(3) provides that if the

minor is old enough to make an intelligent preference, the

Court may consider the same. Thus, the Court should be

guided by the sole consideration of welfare of the minor

which depends on the facts and circumstances of each case.

The father as well as mother are natural guardians of the

minor. However, the issue with regard to guardianship has to

be decided with reference to suitability of either the father or

mother of the child who can ensure the welfare of the minor.

15. The object and purpose of guardian and wards

Act, 1890 is not mere physical custody of the minor but due

protection of rights of ward's health, maintenance and

education. In considering the question of welfare of minor

due regard has to be given to the right of father as natural

guardian but if the custody of father cannot promote the

welfare of children, they may be refused such guardianship.

[See:'ROSY JACOB VS. JACOB A.CHAKRAMAKKAL',

(1973) 1 SCC 840]. It is a well settled legal principle that

there is a difference between custody and guardianship.

Guardianship is a more comprehensive and more valuable

right than mere custody. The court while exercising parens

patriae jurisdiction is guided by sole and paramount

consideration of what would best subserve the interest and

welfare of the child to which all other consideration must

yield. The welfare and benefit of the child would remain the

dominant consideration.[See: 'SMRITI MADAN KANSAGRA

VS. PERRY KANSAGRA', (2020) SCC ONLINE SC 887].

16. In a dispute between the parents, the children

are not chattels and are not the toys for their parents. The

children have to grow up in a normal balanced manner to be

useful members of the society and the court in case of a

dispute between the mother and the father is expected to

strike just and proper balance between the requirements of

the welfare of the minor children and the rights of respective

parents over them. [See: GAURAV NAGPAL VS.

SUMEDHA NAGPAL', (2009) 1 SCC 42]. The expression

'welfare of the child' comprehends an environment which

would be most conducive for optimal growth and

development of the personality of the child. [See: VIVEK

SINGH VS. ROMANI SINGH', (217) 3 SCC 231].

17. Now we may advert to the facts of the case in

hand. The marriage between the parties was performed on

15.07.2005. Two children were born out of the wedlock and

parties have stayed together till May 2016. Thereafter, the

respondent discovered about the infidelity of the appellant

and she left the matrimonial home in May 2016. It is not in

dispute that on a petition being filed by the respondent, the

marriage between the parties has been dissolved by a decree

of divorce on the ground of cruelty and adultery on the part

of the appellant.

18. Perusal of Ex.R20 to Ex.R25 discloses that

appellant tried to commit suicide on 21.04.2015 as well as on

13.07.2015. The aforesaid fact indicates that the appellant is

not mentally stable and the record also depicts that son is

also suffering from depression and has received treatment

for the said mental disorder during his stay with the mother.

19. The respondent is a graduate and is a

businessman and has resources to provide quality education

to the children. The respondent lives in a joint family with his

mother, brother, brother's wife and brother's children who

are of same age as that of son and daughter. The respondent

has filed an affidavit that he shall uphold the bringing up of

the children to their advantage and shall educate them with

great care, concern and love, which is a family tradition. It

has also been averred in the affidavit that respondent shall

spend necessary time and money for upbringing of the

children and shall expose them to travel and recreation. It

has also been stated by respondent in the affidavit that he

has flexible work timings and the business is being managed

by the joint family. He has also stated that he shall ensure

that best of medical care, treatment and education is given

to the children.

20. However, it is pertinent to note that the appellant

has only passed Xth examination and has no source of

income. This court by an interim order dated 26.08.2021,

which has been upheld by the supreme court had permitted

the appellant to take the children from Bangalore to Delhi to

her maternal house and to reside with her parents for a

period of one year i.e., till the completion of the academic

year so that the son can complete Xth standard examination.

However, in contravention of the aforesaid order and without

seeking any leave of the court, the appellant with children is

staying alone and away from her parents in Gurgaon. The

appellant has violated the interim orders of the court and

despite the admitted fact that academic session of the son is

over has not returned to Bangalore. It is pertinent to note

that the appellant has not filed any application permitting her

to stay in Gurgaon. There is no material on record to

indicate that at present, son is being treated for mental

disorder in Delhi. Neither any application nor any affidavit

has been filed in this regard except by making oral

submission. It is also noteworthy that a bench of this court

by an dated 26.08.2021, had directed the appellant to submit

monthly report with regard to welfare of the children.

However, even the aforesaid direction has not been complied

with and monthly reports dated 10.09.2021, 10.01.2022 and

14.02.2022 have been filed. It is also noteworthy, that in

the report dated 14.02.2022, the appellant herself has stated

that the son is taking medication prescribed by Doctors at

St.John's Hospital, Bangalore.

21. The children need the environment and living

conditions conducive to their holistic growth and

development of the child. The respondent is residing in a

joint family along with his mother and brother and brother's

wife and children. The respondent has resources to ensure

the physical and mental well being of the child. In Bangalore,

children can stay in a joint family along with their grand

mother, uncle and aunt and their children who are of the

same age. The respondent has also undertaken to ensure

that best of education and medical facilities are provided to

children. Needless to state that the son can receive

treatment for mental disorder in Bangalore, if required. Thus,

the children can grow up in a conducive atmosphere which is

necessary for their optimal growth and development of their

personality. The children at this point of time needs the love,

care, affection and guidance of their father. The son has

admittedly passed the Xth Class examination and is required

to be admitted in XIth Class and he would need the guidance

of his father for making choice with regard to his career. The

appellant admittedly is living alone with the children in

Gurgaon and not in her maternal home. Even otherwise, on

the touchstone of the criteria laid down in Section 17(2) of

the Act, the conclusion arrived at by the Family Court is

justified.

22. For yet another reason, no relief can be granted

to the appellant as she has not filed an appeal against the

judgment dated 28.02.2019 passed in G & WC No.177/2016

by which respondent has been appointed as guardian of the

children. For the aforementioned reasons, we do not find any

ground to interfere with the conclusion arrived at by the

Family Court with regard to appointment of the guardian.

23. However, this court is under an obligation to

ensure that sufficient visitation rights are granted to a parent

who has not been appointed as Guardian so that children

may not loose social, physical and psychological contact. The

appellant who is the mother of the children needs to have

access to the children . The parents are under an obligation

to provide for an atmosphere which is reasonably conducive

to the development of the child. It is in the best interest of

the child to have parental care of both the parents, if not

joint atleast separate. The children would remain in the care

and custody of the respondent, therefore, the appellant

should have access to the child. Therefore, we issue following

directions:

(i) The appellant is entitled to communicate with the child through phone / video call / skype etc.

(ii) The respondent shall provide the school calendar of the children with list of holidays along with dates of examination to the appellant.

(iii) The respondent shall keep informed the appellant of day to day development of the children on a weekly basis and the said communication shall be sent to the appellant on a Sunday every week.

(iv) In case, appellant decides not to shift to Bangalore, the respondent shall provide tickets by air to the appellant once in two months to enable her to travel to Bangalore. The appellant shall intimate her desire to meet the children to the respondent in advance to enable him to procure the tickets. The appellant shall be at liberty to meet the children and spend time with them once in a month on a Sunday between 10.00 a.m. to 2.00 p.m. The appellant shall hand over the custody of the children on

or before 27.06.2022 to the respondent so that they can be admitted in a school in Bangalore and can pursue their academic career in a school in Bangalore.

(v) In compliance of interim order dated 18.08.2021, the respondent has deposited the amount of Rs.10 Lakhs by way of Demand Draft. The children have stayed with appellant in Gurgaon. The appellant has incurred expenses on account of rent as well as expenses on account of education of the children. Therefore, she is held entitled to withdraw the amount of Rs.10 Lakhs after handing over the custody of children to the respondent. The Registry shall pay the amount to the appellant upon due verification.

The medical records submitted by Department of

Psychiatry, St.John's Hospital, Bangalore is directed to be

handed over to the respondent.

Before parting with the case, we place on record our

appreciation for Mr.K.N.Phaneendra, learned Senior counsel

who on our request, interacted with the appellant and has

rendered assistance to us.

In the result, the impugned judgment and decree is

modified to the extent mentioned above and the appeal is

disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

SS