Bhavana Jawhare and 2 others v. Siddharth Jawhare
Court: High Court for State of Telangana
Bench: G SRI DEVI
Judgment date:
Case summary
High Court for State of Telangana judgment dated 2020-12-28. Bhavana Jawhare and 2 others v. Siddharth Jawhare. Read the judgment and case details on...
Judgment text
IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD IUONDAY, THE TWENTY EIGHTH DAY OF DECEMBER TWO THOUSAND AND TWENTY PRESENT THE HONOURABLE JUSTICE G SRI DEVI CIVIL REVISION PETITION NO: 233 OF 2020 Petition under Afticle 227 of Constitution of lndia, aggrieved by the Order dated 1811212019 in lA No. 270l20'19 in GWOP No. 03/2019 on the file of the Court of the Judge, Family Court at L. B. Nagr, Ranga Reddy District. Between: 1. Bhavana Jawhare, W/o Siddharth Jawhare, 2. Satish Kumar Nilangekar, 3. Rupa Nilangekar, W/o Satish Kumar Nilangekar, ... REVISION PETITIONERS/ DEFENDANTS NO,1 TO 3 AND Siddharth Jawhare, S/o Lakashman Rao Jawhare, ,,. RESPONDENT/ PLAINTIFF lA NO: 1 OF 2020 Petition under Section 151 of CPC praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to grant interim suspension of the order passed in l. A. No. 27012019 in GWOP No. 03 of 2019 dated 1811212019 on the file of Hon'ble Judge, Family Court at L. B.
Nagar, Ranga Reddy District. lA NO: 2 OF 2020 Petition under Section 151 of CPC praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to fix an early date of hearing to dispose of the matter in dispute in the present Civil Revision Petition. For the Petitioners : M/s. SAGARIKA LOYA, Advocate For the Respondent : SRI SURESH SHIV SAGAR, Advocate The Court made the following: ORDER THE HONOURABLE JUSTICE G. SRI DEVI CIVIL REVISION PETITION No. 233 of 2020 ORDER: The present Civil Revision Petition is filed under Article 227 ol the Constitution of India, aggrieved by the order, dated 18. 12. 2019 passed in I. A. No. 270 of 2019 in G. W. O. P. No. 03 of 2019 on the file of the Family Court at L. B. Nagar, Ranga Reddy District, Judge, wherein and whereunder the application filed by the respondent herein seeking custody of his minor female child was allowed. The facts in nutshell are as under: The 1. t petitioner is thc.
wife of the responclent, whoreas petitioners 2 and 3 are the parents of the 1't petitioner. The respondent filed G. W. O. P. No. 3 of 2019 seeking a direction to the petitioners to handover custody of Riddhima, who is the daughter of the respondent and 11. rg 1st petitioner, aged about 4 years to the respondent herein. During pendency of the said G. W. O. P. , the respondent herein filed I. A. No. 270 o12019, seeking a direction to the petitioners herein to permit him to take his daughter Riddhima from the house of the petitioners to his house for three hours on everv Saturday and Sunclay from 5. 00 I']. N,I, to 8. 00 P. M. The contents of the affidavit filed in support of the petition, would show that the 1,t petltioner is the legally r,r,edded wife of the lespondent and their marriage was performed on 17. 03. 20. 12 as per Hindu Rites ancl Customs at R. T. C.
Kalyana Mandapam, Musheerabad, Hyderabad; that the said marriage was corlsurrmatec-l ar-rd out of wedlock they blessed with a female chilcl by name Riddhima on 23. 01. 2014. It was also stated that for few months, both the 1st petitioner and the respondent 1ed cordial conjugal life and subsequently nunor differences cropped up between them and the elders of the community tried to settle the same amicably and that to a great extent they lived harmoniously except some minor issues. It was further stated that while things stood thus, in April, 2017, the 1st petitioner left the matrimonial company of the respondent herein to her parents house, along w,ith the minor child; that though the elders of the community on many occasions tlied to bring the 1st petitioner and the minor child to the matrimorrial house of the respondent, but of no avail.
It was also stated that in April,2018, the respondent visited the house of petitioners 2 and 3, where the 1st petitioner was residing along with his daughter and took his daughter with him in spite of protest from the petitioners. ths 1st petitioner along with petitioners 2 and 3 lodged a police compiaint against the respondent and created huge hue and cry, due to which he agreed to send his daughter to the petitioners' place on the assurance of the petitioners that they will soon allow him to take his daughter to his house; that the petitioners, however, did not keep up their promise and many times, the respondcnt visited Pallavi An,are International School, Saroornagar, Hyderabad, in which his daughter was aclmitted in U. K. G. to see her and to ascertain her progless in studies, but the school authorities at the instance of the petitioners have refused to disclose any information and denied permission to meet his daughter and that on 18. 08.
2018, the respondent knocked the door of police, but in vain and that he came to know that in the month of 2018 the 1st petitioner had left to Canada purportedly for higher July, stutlies without his knowledge and that the respondent tried to talk 11-r" 1st petitioner through cell phone, but she changed her phone number. It was further stated that a giri of four years must need love, affection and care of both the parents, however, the 1. t petitioner left her in the custody of petitioners 2 anrl 3, who are agecl about 60 years and that 2,,d petitioner is a diabetic patient and also suffers from high blood pressure and, therefore, the environment is not conducive for upbringing of his daughter. It was further stated that in the absence of the 1.
t petitioner, the respondent being a father is the best person to look after the welfare of his daughter and, therefore, prayed to issue a direction to the petitioners to permit him to take his daughter Riddhima from the house of the petitioners for three hours on every Saturday and Sunday from 5. 00 P. M. to 8. 00 P.
i\1 petitioner 'l't 2,,r herein, n,lro is thc father of thc r, Fetitione filed a counter-affidavit, inter nlin, contending that the respondent herein did not have any job at the time of marriage and even after' the marriage, he did not make any attempts to secure job and he is dependent on his parents; that the mother of the respondent is in the I habit of making quarrels for everv small and petty issues and it leads to lengthy arguments among their family members and his daughter (1't petitioner) suffered lot of mental agony and hardship due to their non-cooperative behaviour; that the parents of the respondent did not have love and affection towards Riddhima for the reason of being female child and that the respondent also did not have natural iove and affection towards the child and failed to provide necessary medical care; that the respondent manhandled the 1. t petitioner publiclv on 01. 0,1. 2018 in front of his residence and he glabbed his granddaughter from the hands of the 1.
t petitioner, alrused and slapped 16p l. t petitioner and fled away along \,vith his granddaughter; that the 1'r petitioner filed a counselling petition in Bhagat Singh Nagar Womerr Police station and after courrselling, the 1.
t petitioner asked the responclent to pat,his daughter's school fee, but the respondent did not pay the same and did not evince any interest to take Riddhima outside every week; that after coming to know that 11rs lst petitioner had gone to Canada, the respondent started harassing the 1* petitioner through e-mails asking her to sponsor his Visa to Canada; that despite going through all the harassment and torture from the respondent, the 1't petitioner keeping in mind her child's welfare offered to sponsor Visa to the resp-rondsnl as a delrenderrt to her to Canada, along with their chilcl Riddhima; that the responclent an urlreasonable conclition that Lrut the child should live \\,ith him ar-rd his parents in his residence at // 5 Hyderabad for few months; that the child is not in a position to stay with the respondent as she is petrified at the sight of her father; that without considering the request of the 1't petitioner to furnish necessary papers, again the responclent wanted the kid to join with him before coming to Canada; that the mail corresponclence between the respondent and the 1't respontlent clearly indicates the immature and illogical thinking of the respondent, whose main aim is to harass 11-r" 1st petitioner under the guise of the custocly of the chilcl and that therefore, the petition is not maintainable and the same is liable to be dismissed with exemplary costs.
After considering the rival submissions, the Court below allowed the said petition. Challenging the same, the present Civil Revision Petition is filed by the petitioners, who are wife and in-larvs of the respondent. Heard Ms. Sagarika Munclra, learned Counsel for the petitioners, Sri Suresh Shiv Sagar, learned Counsel for the respondent and perused the record It has been submitted bv the learned Counsel for the petitioners that the order, dated 18. 12. 2079 passed in 1. A. No. 270 of 2019 in G. W. O. P. No. 3 of 201. 9 on the file of the ]udge, Family Court at L. B. Nagar, Ranga Reddy District, is illegal and contrary to law; that the Court below erred in allowing the I. A. No. 270 of 2019 basing on the wrong conclusions, that the Court below has gone beyond the scope and allowed the petition for a prayer which was not made in the petition; that the petition was filed for visitation rights on particular days, hon,ever, the Court below has erroneously granted the custody of tl.
re child to the father; that the Court below failed to consider the oral and documentary evidence produced by the petitioners; that the Court below failed to appreciate the fact that the 1st petitioner has gone to Canada for higher studies so that she can get better career prospects and in turn, providing better iife to the child; that ever since the separation of the 1. t petitioner and respondent, it is on-ly the parents of the 1. t petitioner who have been taken care of all the finances of the 1. t petitioner and her chilcl except for some minor expenses, r'vhich has been incurred by the resprondent. It is also submitted that it is not out of place to mention that all the educational expenses of the 1.
t petitioner and her child have been incurred by her father; that the contention of the respondent that the 2,,d petitioner is a diabetic patient and has undergone a surgery is simply a sheer misuse of the facts; that the sugar levels and blood pressure of the 2na petitioner have been constantly at the normal phase and the same can be verified with the medical reports of the 2.
d petitioner; that the /nd petitioner has undergone a surgery for knee replacement, which has gone absolutely successful and has actually enhanced his ability to walk and the same can be certified by the doctor and that the 3rd petitioner is even though aged, however, she is absolutely healthy / ,/ and she does not suffer from any illness whatsoever; that the parents of the respondent are more aged than the parents of the 1't petitioner and they themselves expressed their unwillingness to keep the custocly of girl child when requestetl by the 1st petitiorler and that the child will be actuallv stavirrg with the paternal grandparents instead of maternal grandparents as was the case before the custody was granted and that the respondent will be available only on the weekends for which visitation rights would suffice the purpose. In support of her contentions, she relied on the judgment of the Apex Court in Nll R atan Kundu and another a. Abhijit Kunihl.
Learned counsel for the respondent would submit that as the father is the natural guardian under Section 6 of the Hindu Minolity and Guardianship Act, (32 of 1956) and as the mother of the child is at Canada for her higher studies, the Court below has rightly passed the impugned order and that there are no grounds n,arrantirrg interference of this Court. I{e fr,rrther subrnits that the Court belorv has given liberty to the mother of the chilc'l i. e. , 1st prs1111.. er to file a petition for the custody of the minor child or for the visitation of the child, if she returns to India and intends to have the custody of the chi1cl. The only point that arises for consideration in this Civil Revision Petition is whether the Court below has right in granting custody of the minor child in favour of the respondent/ father?
(2008) 9 ' scc 4 t3 I Whenever a question arises before Court pertaining to the custody of a minor chilci, the matter is to be decided not on considerations of the legal rights of parties, but on the sole arrd predominant criterion of what w,oulcl best serve the interest anc'l welfare of the minor It is the objective of the Guardian and Wards Act that every trial is only to ensure paramount welfare and interest of the children. The guardianship Court is not a platform where litigating parties can be permitted to vent their grudges and feelings against each other and that matters and relevant is as to what would be done to secure the welfare and interest of the minors since in all the gualdianship cases it is the minors only who are the victims even though they have no role to pla1, in the failed marriages of their parents. . lst It is not in clispute that the petitioner and respondet-rt are nife and husband and their marriage was performed on 77. 03. 2072.
The minor child was born to 11-," 1st petitioner and responclent during their wedlock. Admittedly, due to the differences between the 1sr petitioner and respondent, the minor child was carried along with the 1st petitioner to her parents' house. However, the 1. t petitioner being the mother of the child left the custody of the child with her parents and went abroad for her higher studies in the month of July, 2018. Admittedly, in the case on hand, the conflict is between the mother and father regardir-rg custody of minor, in such case, it is the duty of the court to take into consideration, the welfare of the minor which is the paramount consideration. Under Sections 7 and 10 of Guardian and Wards Act, the golden principle eloquent as the luminous pole star in the entire gamut of the enactment in the matter of any adjudication relating to guardianship of the Ward is the rule that the welfare of the children is the paramount consideration, not the rights of the parents.
The Courts time and again held that the paramount corrsideration for custody of minor children or for appointment of guarclian for the minors is the welfare of the minors. It is r,r,ell settled that in matter concerning a minor has to be corrsideretl ant'l decided only from the point of vien, of the rvelfare and interest of the minor. In dealing with a rnatter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the weifare of the minor and to protect the minor's interest. ln considering the question of custody of a minor, the Court has to be guided by only consideration of the welfare of the minor. Thus, the father's fitness cannot override the consideration of the welfare of the child. In case, where the minor has another settled home, the funclamental question is whether the minol should be uprootecl from the said settled home. In doing so the Court is not to pass a mechanical order.
The court is always to see the parents, consult the wishes of the minor, keeping in view that the happiness of a child I a depends upon her playmates i. e. , associates, her work, her school and finally at her home u,here she gets all the love and affection which a child needs for her proper growth. While considering the provisions of the Guardian and Wards Act, the Apex Court in the case of Jitender Arora a. Sukriti Aroraz held as ur-rder: "15. Wc also hacl ir. rteraction \\'ith Vaishali in the chambers earlier. On the date of hearing also, Vaishali was present in the Court and in front of her parents, she unequivocallv expressed that she was happy with her father and wanted to continue in his company and did not want to go with her mother, much less to UK. From the interaction, it is clearly discernible that she is a mature girl who is in a position to weigh the pros and cons of two alternatives and to decide as to which course of action is more suited to her.
She has developed her personality and formed her opinion after considering all the attendant circumstances. Her intellectual characteristics are adequately developed. She is able to solve problems, think about her future and unclerstands the long-term cffccts of thc clccision which she has taken. We also firrci that shc has becrr brought up in a contlucivc atmospherc. It, tl-rus, becontes apparent that in the instant case, rve arc clealing w'ith thc custody of a child who is 15 years of age and has achieved sufficient level of maturity. Further, in spite of giving ample chances to the respondent by giving temporary custody of Vaishali to her, the respondent has not been able to win over the confidence of Vaishali. We, therefore, feel tl-rat her welfare lies in the continued company of her father which appears to be in her best interest. v6t 'lzorzy: scc zzo \\! - 17. On the facts of the prcsent case, we are convincecl that custody of the chilcl needs to be n'ith the father.
She is already 15 years of age ancl rvithin 3 vears, she would be major and all this custody battle between her parents would come to an end. She would have complete freedom to decide the course of action she would like to adopt in her life. We, thus, allow this appeal and set aside the judgment of the High Court. No costs. " ln Nil Ratan Kurultt a. Abhijit Krmdu (7 slrpra)/ n,hich n as relied upon by the learned Counsel for the petitioners, the Apex Court held as under: "52. In our thc lau, relating to custoc{_v of a . juclgment, child is fairly' well settled and it is this: in deciding a difficult and complex question as to the custocly of a minor, a court of lalv should keep irr mincl the relevant statutcs and the rights floh,ing therc from. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch.
A court while dealing with custody cases, is neither bound by stafutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parents patriae and is expected, nay bound, to give due . iurisdiction weight to a chilcl's ordinary comJort, contentment, health, education, intellectual c'levelopment and favourable surroundings. But over anrl above physical comforts, 'fhey moral and ethical values cannot be ignorecl. are equallv, or \\,e may sa\', cven rrore important, esscntial and inriispensable consiclcrations. lf thc minor is olci enough to form an intelligent prefercnce or the . judgruent, l'2 court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.
" In the aforesaid case, the boy was nirre years old and he was matured enough and he appeared to be quite intelligent. When the Court asked hir-r r'vhether he wanted to go to his father and to stay rvith him, he unequivocallv refused to go with him or 1o s13y n,i tl-r him. He also stated that he was very happy with his maternal grandpalents and rvoulcl like to continue to stav with them In the present case the minor girl is aged about four years. It is the contention of the petitioners that the minor girl is afraid of the respondent and is not in a position to stay with him even for few hours and that she is petrified at the sight of her father or either of his parents. At this stage, it is relevant to refer to the reasoning given by the Court below at paragraph No. 10 of the impugned order, dated 18. 72. 2019, which reads as under: "On production, the baby used to start crying to the notice of the Court when the case was called.
It is noticed that no tears were coming frorn the eyes oI the babv and it was only the voice of cry that r. vas coming from the mouth of the bab1,. " Havirrg felt tha. t the tralr), u,as tutored to crv on seeing the father, this Court initiatorl measures to make the babv sit cor. nfortabie along n'ith l. rcr granclparerrts ancl thc father in the Chamber of the Officer under the supen'ision of one of the staff members and a woman Home Guard. After one or two sittings, it is noticed that the baby was comfortable with the father in the absence of grandparents as such it could be said that it was not out of fear or for any i3 other reason the baby was crying on seeing her father but for the instructions and the signals given by the grand parents she resorted to act and to cry when this petition was taken up in the public Court.
In the said circumstances, I am of the impression and belief that the girl will be comfortable in the company of her father, who is making her to play, to convince, to entertain and to attend on her in the absence of the petitioners herein. " On careful perusal of the ir-rrpugr-recl order, it clearly depicts that the reasoning given by the Court below at paragraph No. 10 of tlie irnpugnecl order is consistent. Therefore, the citatiorr relied uporr b1, the Iearrrecl Counsel for the petitioner is not at all helpful to the petitioners. Apart from that, the l petitioner, who is the mother of the minor child, left the custody of the girl child with her parents and went to Canada way back in the month of 2018 and July, the maternal grandparents of the minor child are aged persons.
Further, the Court below while granting custody of the minor child to the respondent, has given a categorical finding that if the 1st petitioner, who is the mother of the minor child, returns to India and intends to have the custody of the minor child or for visitation of the child, she is at liberty to file a petition for the said relief and thereafter the Court below rnay consider the same ancl pass orders, on merits. Under the Guardiarrs anti l\/ards z\ct, 1890, the father is the guardian of the minor chilcl until he is found unfit to be the guardian of the minor chi1d. At the time of enquiry, no evidence w,hatsoever has been placed before the Court below. There is nothing on record to show that the respondent is not a fit person to be a guardian to his minor daughter and that no allegations against his abnormal behaviour have been made.
Therefore, taking into consideration the facts and circumstances of the case, I see no illegality or material irregularity has been committed by the Court below in granting interim custody of the minor child to the respondent and that there is no glourrd to interfere with the order passed by tl. rc Court belorv Accordingly, the Civil Revisior-r Petitiorr is clismissed . t Horvever, if thc 1 petitioner/ nlothcr returns to India from at',r'oad, she is at liberty to file a petition seekirrg custody of the minor child or for the visitation of the minor child, as observed by the Court below, and on such petition being filed, the Court below shal1 consider the same and pass appropriate orders on merits, keepirlg in view the prevailing circumstances of the case. As a sequel thereto, Miscellaneous Petitions pending if any, shall stand closed. There shall be no order as to costs. Sd/-K. AIVN/AJI ASSIS TAN T REGISTRAR //TRUE COPY' C{; SECTION OFFICER To 1. The Judge, Family Court at L. B.
Nagar, Ranga Reddy District 2. One CC to tt//s. Sagarika Loya, Advocate (OPUC) 3. One CC to Sri Suresh Shiv Sagar, Advocate (OPUC) 4. Two CD Copies Kr. /\\ ,/ ^r / XY // l,\ HIGH COURT DATED:2811212020 ! ,^. /4- *1HE o ( Io (J 3 0 DEC 2Pg a . I. ^ * * D j1. ORDER CRP. No. 233 of 2020 Dismissing the CRP. sW S-c-oP'eA a"\t-\'"ra )F I
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