(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying this Hon'ble Court the following reliefs:-
1) The Impugned order at Annexure-E (Order passed on I.A. No. 1, dtd: 26.10.2010 by Senior Civil Judge, Honnavar in G. and W. No.1/2010) may kindly be quashed by issuing Writ of Certiorari.
2) A Writ of Mandamus may kindly be issued by directing the Court of Senior Civil Judge, Honnavar to dismiss the pending G. and W. Case No. 1/2010 for want of Territorial Jurisdiction by holding that the court at Honnavar, Dist: Karwar, has no territorial jurisdiction to try and adjudicate the case bearing G. and W. Case No. 1/2010.)
1. The petitioners, who claim to be the grand-mother, uncles and aunts of the minor children, are before this Court, challenging the order dated 26th October 2010, made in Guardians and Wards Case No. 1 of 2010 on the file of the Senior Civil Jude at Honavar, rejecting the application filed by them under Section 9 of the Guardians and Wards Act, 1890 (8 of 1890), (Herein after referred to as the GandW Act', for short).
2. The respondent, who is the mother of the minor children has filed a petition under Section 7 of the GandW Act, before the Senior Civil Judge, Honavar, in GandW Case No. 1/2010, contending that she is the wife of one late Nandakumar Vittal Tandel. Petitioner No. 1 herein is the mother of her husband i.e., her mother-in-law and petitioner Nos.2 to 7 herein are the brothers and sisters of the deceased husband of the respondent. The marriage of the respondent and the said Nandakumar Vittal Tandel was solemnised on 27.04.2001 at Goa Mardola, Mahalasa Narayani Temple, as per the Hindu rites and customs. Out of the wedlock, two male children were born to them. The eldest son-Kalpesh was born on 29.06.2003 and the 2nd son-Mayuresh was born on 11.10.2004. The martial life of the respondent with her husband was very smooth and happy till the death of her husband. The respondent and petitioners 1 to 6 were living separately in the same apartment, which was obtained on lease by the respondent's husband himself. Unfortunately, the husband of the respondent died on 01.07.2008 due to cardiac failure. After the death of her husband, the petitioner started torturing the respondent and the petitioners forcibly took the signature of the respondent on some blank papers as well as blank bond papers by putting her under threat of life. The petitioners together started to give mental and physical torture to the respondent and they were planning to murder to respondent. Fortunately, the respondent with great difficulty escaped from that place and reached to her parental house safely. But, at that time, she could not take her children along with her; they have been kept separately in a locked room by the petitioners.
3. When she reached her parental house, she lodged a complaint against the petitioners as well as against all family members of the petitioners in Manki Police Station and the police registered a First Information Report against the petitioners and transferred the same to Bombay Wadala Police Station for further investigation and the same is still pending for consideration. It is also contended that when the news reached to petitioners, they jointly kept the children of the respondent forcibly with them and they did not allow the children to go along with the respondent and they never gave a chance to the respondent to look her children at once. The respondent is the mother and natural guardian of her minor children and she is ordinarily residing at the address mentioned above (in the cause-title), with her brother in the parental house. The brothers of the respondent also have love and affection towards their son-in-laws. The respondent does not have any adverse interest against the minors, and nobody is appointed as the guardians of the minors by any Court, till today. She also contended that till date, no other application has been made by her or anybody else, for the appointment of guardian of her minor children.
4. The respondent further contended that the minors are having the property of their father in Mumbai and also having apartment in Shrinivas Building, Plot No. 469, C.B. Road, Manigaon, Mumbai and valuables in the name of their father i.e., in the name of the deceased Nandakumar Tandel/the husband of the respondent. The respondent is the mother of minor children and the children were living with the respondent, since the time of death of her husband and till she escaped from the husband's house. The respondent is a home-maker and she is ambitious to lead a happy life along with her children. The indifferent and cruel attitude of the petitioners towards the respondent and her minor children resulted in her and her minor children leading a terrified and frightful life in the company of the petitioners. The petitioners are very inhuman; they never showed love and affection either towards the respondent or her minor children, after the death of her husband. The petitioners are trying to grab all the properties of the minors as well as the respondent, by pretending that they have love and affection towards the minors and with the respondent; but, they never treated the minor children with love and affection as any prudent man expected to treat; that the petitioners have always behaved in such a manner which has caused mental agony to the respondent and her minor children and affected their health; if the said minors continued to reside with the petitioners, there is imminent danger to the welfare of the children.
5. She further submitted that the petitioners are not entitled to the guardianship and custody, as that would go against the welfare and interest of her minor children; the respondent is legally entitled for the custody of her minor children as natural guardian mother and if their custody is continued with the petitioners, their life will be in jeopardy. Her minor children are living in the four-corners of the wall without any free mind. She also contended that the petitioners are incompetent, unfit and least qualified to be in the custody of her minor children, on the other hand, the respondent is capable of taking care of the children. The petitioners were incapable of taking care of the children personally and the minor children are bound to be neglected and may even go away straying, if they are given to the custody of the petitioners. The respondent has made all attempts to ensure that the children get full attention and have a good up-bringing. The minor children are very much attached to the respondent rather than petitioners. The minors are of the tender age and require great love and affection, physiological and emotional care and concern, religious teachings and also the protection of their properties. The same cannot be provided by the petitioners, who are the persons with an indifferent attitude. The respondent is virtually leading a miserable life without her children. The cause of action has arisen for the respondent on 31.01.2009 and also subsequently, at Honavar, where the respondent is ordinarily residing in her parental house, which is within the jurisdiction of the Court, etc.
6. The present petitioners, who are the respondents before the trial court, filed objections, denying the entire petition averments and contended that no cause of action arises within the jurisdiction of the Civil Court at Honavar, because the respondent herself has escaped from her own responsibilities and chose to stay at the above mentioned address of her parental house and by filing G and W Case No. 1/2010, she is trying to extort money from the petitioners. Hence, whole intention for filing the case is for extorting money. They further contended that the respondent at one side goes on filing false and fictitious complaints against the petitioners and at the other side, she abandoned her minor children, neglecting their welfare and upbringing. In fact, the said minors have become the victims of circumstances being abandoned by the respondent, who is claiming to be their natural mother. The said minors are very much happy and comfortable with their grand-mother i.e., petitioner No. 1 and their exclusive custody is lying with her and being financially supported by petitioner No.2.
7. The petitioners have admitted the relationship of the respondent and her deceased husband and have contended that petitioner Nos. 3 to 7 are unnecessarily made parties to the case and they are in no way concerned or played any role in the case on hand. Therefore, petitioner Nos. 3 to 7 sought to delete their names from the array of parties. The petitioners have further contended that the minor children were born at Mumbai. The death of the husband of the respondent was in Mumbai. It is unfortunate on the part of the respondent who claimed that her marital life with her deceased husband was smooth and happy till his death and she has not mentioned the cause of death of her husband correctly, since, her husband did due to Various vein diseaseand not due to Cardiac Failureas stated by the respondent. It is submitted that prior to the marriage of the respondent with her deceased husband, the petitioners were staying at the address Room No. 93, in Nutan Shrinivas Co-operative Housing Society Mazgoan.
8. It is also contended that a false complaint has been made against the petitioners; 1st petitioner is the grandmother of the minor children and all the educational and daily expenses of the minor children are borne by the 2nd petitioner, continuously. The minor children have no problems at all. The custody sought by the respondent will disturb their physical and mental growth and they may lose their growing age of development, smooth education and atmosphere under which they are being taken care by petitioner Nos. 1 and 2. It will be prejudicial to them and will cause irreparable loss to the mental and physical growth of the minor sons, because they are very well and feel very comfortable with the petitioners and on the other hand, the respondent is a lady of less education, with lack of financial arrangements. Hence, she is unable to give proper welfare and vigil to the utmost satisfaction and welfare of the minor children. The minor children are very much happy and willing to stay with the petitioners and they are afraid of their own mother, etc. Hence, they sought for dismissal of the petition.
TRIAL COURT PROCEEDINGS:
9. During the pendency of the proceedings, the present petitioners filed an application I.A. No. 1 under Section 9 of the G and W Act and prayed for dismissal of the G and W Case No.1/2010, for want of territorial jurisdiction, contending that the birth of the minor children was at Mumbai and are in the care and custody of the petitioners and they are ordinarily residing at Mumbai. The Court at Honavar has no jurisdiction to proceed with the case and the petition filed by the respondent, who is staying temporarily in her parental house at Manki village, Honvar, is nothing but just no harass the petitioners, etc. Therefore, they sought for dismissal of the petition.
10. The said application was resisted by the respondent/mother by filing objections, specifically contending that both the children were born at Honavar and she has produced birth certificates and they are ordinary resident of Honavar along with the mother and petitioners kept her children by force and in view of threat to her life, she escaped from their house and filed an application for custody of the children and therefore, the Court at Honavar has got the jurisdiction. Therefore, she sought for dismissal of the application filed by the petitioners.
11. After hearing both parties, learned Civil Judge at Honavar, by his impugned order dated 26th October 2010, on I.A. No. 1 has rejected the application filed by the petitioners under Section 9 of the G and W Act, holding that as per the prima facie material available on record, the respondent was forced to leave her husband's house after the death of her husband and now, she is residing in her parent's house within the jurisdiction of the Court at Honavar. Moreover, the respondent/mother has produced the copy of the Birth Certificates of the minors, which clearly show that the children were born in the parentshouse of the respondent within the jurisdiction of the Court at Honavar and the respondent was forced to leave her husband's house at Mumbai by her parents-in-law after the death of her husband and now, she is residing in her parents house within the jurisdiction of the trial court. Therefore, she cannot be expected to go to Mumbai to file the petition, claiming custody of her minor children and further held that it is undisputed fact that the minor children of the respondent are within the age of seven years. Therefore, the minor children are expected to reside with the mother/respondent. The trial court relying upon the judgment of this Court in the case of K.C. SHASHIDHAR Vs. SMT. ROOPA, reported in AIR 1993 KAR 120 and also the decision of the Hon'ble High Court of Gujarath reported at AIR 2003 Gujarat 74 in the case of HARSHADBHAI ZINABHAI DESAI Vs. BHAVNABEN HARSHADBHAI DESAI and relying upon the provisions of Section 9 of the G and W Act, has come to the conclusion that the petitioners have failed to show that the petition is not maintainable for want of territorial jurisdiction. Accordingly, rejected their application.
12. Aggrieved by the said orders, the petitioners filed this writ petition to quash the impugned order dated 26.10.2010 passed by the learned Senior Civil Judge on I.A.No. 1 in G and W Case No. 1/2010 and issue writ of mandamus directing the Senior Civil Judge, Honavar, to dismiss G and W Case No. 1/2010 for want of territorial jurisdiction, holding that the Court at Honavar, District: Karwar, has no territorial jurisdiction.
EARLIER THIS COURT ORDER:
13. During the pendency of this Writ Petition this Court has directed all the parties including children to be present before the Court. Accordingly, the parties were present on 30.01.2014. After consideration of the matter, this Court passed an order holding that the minor children are now residing with their paternal grandmother and uncles, as paternal grandfather is no more. Having regard to the fact that these two sons are young, their rightful place is that of the mother. The mother's love and affection cannot be substituted by anything else. Under these circumstances, prima facie, the proper thing to do is to see that the custody of these minor sons is given to the mother so that they shift their residence, they are admitted to good schools at Honavar. If the love and affection showered by the paternal grandmother and uncles is true, they could pay the entire tuition fees, for books, uniform and for other needs of the children, whereas the mother shall take care of their food and shelter. However, as they are studying, it will not be proper to discontinue their studies right now. Let them complete their course of this academic year. Then, they could be withdrawn from the school at Bombay and could be admitted in Honavar, in the interest of the minors. ?
ORDER-SHEET OF THIS COURT:
14. Thereafter, this Court by an order dated 12.06.2014 directed the learned counsel for the petitioners to keep the minor children present before the Court on 19.06.2014. On that day, the children were not present and hence, the case was adjourned to 20.06.2014. On 20.06.2014 also, there was no representation on behalf of the petitioners, therefore, this Court observed that the petitioners have no respect or regard for the Court orders, this Court ordered to issue non-bailable warrant to petitioner Nos. 1 and 2 with whom the minor children were staying through the Superintendent of Police, Dharwad, returnable by 30.06.2014. Since, the Non-Bailable Warrant returned unexecuted, on 30.06.2014, this Court directed to re-issue Non-Bailable Warrant to petitioner Nos. 1 and 2 and also to bring the minor children. Again the matter was posted to 04.07.2014. On that day, the Sub-Inspector of Police, D.S.A. Unit, Office of the Superintendent of Police, Dharwad, filed detailed affidavit with regard to the efforts made by them to arrest petitioner Nos. 1 and 2. From the affidavit, it is clear that the petitioners are evading the process of law and they have scant respect for the court orders. The learned counsel for the petitioners is of no assistance to give effect to the orders of this Court. In fact, it appears that every order passed by this Court is communicated to only frustrate the orders. In the circumstances, it is appropriate to issue Non-Bailable Warrant to all the petitioners except petitioner No. 1 who is under treatment. Therefore, this Court directed re-issue of Non-Bailable Warrant to petitioner Nos. 2 to 7 through the Superintendent of Police, Dharwad, returnable by 10.07.2014. The police were directed to produce the minor children i.e. Kalpesh Nandakumar Tandel and Mayuresh Nandakumar Tandel, before this Court immediately after they were traced. The Commissioner of Police, Mumbai, was also directed to give necessary assistance to Dharwad Police to execute the NBW. It is also observed in the said order to the effect that the conduct of the petitioners and their Counsel is unacceptable and appropriate proceedings will be initiated after the children are produced. Again, when the matter was posted on 08.07.2014, on that day, both petitioners 1 and 2, and the minor children were present before the Court. Therefore, this Court passed on order, to the effect that in terms of the order dated 30.01.2014, the minor children were handed over to the custody of Smt. Sharada W/o. Nandakumar Tandel, who is the mother of the minor children. The Police Inspector, Dharwad Rural Circle, was directed to give protection to the mother and minor children till they reach their home safely.
HON'BLE SUPREME COURT ORDER:
15. In the meanwhile, the present petitioners filed a Special Leave to Appeal (Civil) No. 19539 of 2014 before the Hon'ble Supreme Court of India, against the order dated 30.01.2014 passed by this Court and the Hon'ble Supreme Court, after consideration of the matter, by its order dated 19.01.2015 requested this Court to decide the present writ petition and also directed to decided the question of custody of the children, since the order dated 30.01.2014 passed by this Court is in the nature of interim order and also allowed the visitation rights to the petitioners who are grand-mother and uncle of the children and that the petitioners will be entitled to visit the children once a fortnight with prior notice to the respondent and fixed the duration of the visit for two hours and if required, the venue to be a neutral place agreeable to both parties.
THIS COURT'S ORDER-SHEET AFTER REMAND FROM THE HON'BLE SUPREME COURT OF INDIA:
16. In pursuance of the order passed by the Hon'ble Supreme Court, the matter was taken up for further hearing by this Court, on 04.03.2015 and learned counsel for both parties have requested the Court to refer the matter to Mediation Centre to try for an amicable settlement of the dispute. Taking into consideration the submissions made by the learned counsel for both parties and keeping in view the paramount interest of the children, the matter was referred to Mediation Centre on 10.03.2015 and thereafter, again the matter was posted on 13.04.2015. But, it was observed that neither the respondent nor her counsel was present before the Court. Therefore, the matter was posted to 17.04.2015. Again, on 17.04.2015, learned counsel for the petitioner filed I.A.No. 1/2015 for amendment of the writ petition, which runs to 15 pages along with additional documents, total pages of which runs to 86 pages. Learned counsel for the respondent sought time to file objections and the matter was posted to 20.04.2015 to file objections by the respondent. On that day, all the parties were present before the Court, including the children. After hearing for some time, this Court felt the need of in-camera proceedings to know the views/wishes of both the minor children. Accordingly, the children were invited to the Chambers at 2.00 p.m. and views/wishes of the minor children were collected and thereafter, petitioner Nos. 2 to 6 and respondent along with their counsel were also invited at 2.15 p.m. and discussion was held with cordial atmosphere. They have stated that some initiation will be made to resolve the dispute amicably. Recording their submissions, the matter was adjourned to 23.04.2015. Again on 23.04.2015, the matter was not heard. Ultimately, the matter was heard on I.A. on 04.06.2015 and the learned counsel for the respondent has stated that he has no objections to allow I.A. No.1/2015 for amendment of pleadings. After completion of pleadings, the matter was posted for hearing the arguments on main matter. On 25.06.2015, learned counsel for the petitioners was heard and the matter was posted for arguments of the respondent, to 26.06.2015. Learned counsel for the respondent was heard in part and again on 01.07.2015, learned counsel for the respondent filed statement of objections with Annexures to the main petition. Again, the matter was heard on 02.07.2015 and the reply arguments was also heard on 03.07.2015 and after completion of arguments on both sides, the matter was reserved on that day.
17. After the remand from the Hon'ble Supreme Court, the petitioners filed amended Writ Petition and the respondent also filed objections to the main petition.
18. The substance of the entire writ petition is that the children were born at Mumbai and the respondent was also residing along with her husband at Mumbai. Therefore, the Court at Honavar has no jurisdiction to decide the custody of the children. The petitioners have also produced various documents to show the jurisdiction at Mumbai, their financial capacity and photos to show that the children were happy with them, etc. Therefore, the impugned order passed by the trial court is contrary to law and contrary to the facts and circumstances of the case. Therefore, they sought to set aside the order passed by the trial court.
19. In the statement of objection filed by the respondent, she has denied the entire writ petition averments and contended that the 1st petitioner/ Smt. Rama W/o. Vittal Tandel, is aged about more than 85 years, as evidence from the records and she is suffering from illness, old-age and under treatment and admitted to hospital on and often, and now, she is bed-ridden. The 1st petitioner was not in a position to take care of the wards. The 2nd petitioner was, admittedly, a driver and he has to drive the car round the clock and his presence in the home is uncertain. In the meagre earning of Rs. 16,694/- per month in Mumbai City is very difficult to maintain himself as he has to take the food outside. Therefore, the earning of the 2nd petitioner may not be sufficient being hand to mouth considering the cost of living in a city like Mumbai and also contended that since, her life and property was in threat in Mumbai, she was constrained to leave Mumbai in the mid-night in the night dress. A complaint was filed in Manki Police Station, Honavar, against the petitioners, which was transferred to the jurisdictional Mumbai Police for investigation and it is learnt that the charge-sheet is also filed. The order passed by this Court dated 30.01.2014 and subsequently, handing over the children to the custody of the mother is not disturbed by the Supreme Court. Inspite of the order passed by this Court, the petitioners have not paid the tuition fees, books, uniform and other needs, if really, their love and affection is true and the respondent/mother has made arrangement for education and admission of the wards. This Court, by an order dated 08.07.2014, handed over the custody of the wards to the respondent/mother considering the character, conduct and behaviour of the petitioners in the open Court and the Court also directed the Police Inspector to give protection to the mother and minor children till they reach home safely. Now, the children, who are admitted to good schools in Honavar, are studying well. The children have secured good marks in the academic year and participated in other competitions and the certificates issued by the Principal of the School are produced as per Annexures R1to R4and also the receipts for having paid the fees are produced at Annexures R5to R8'. The respondent also stated that she has received the monetary benefits, as her husband was in service. The cash received is deposited in the name of the wards and getting periodical interest. She has invested Rs. 2,19,000/- each in fixed deposit in the name of both the children as per Annexures R11and R12and she is getting quarterly interest of Rs. 7,938/- out of the said deposits, which she can use for the educational purpose of the children. The pension papers are processed and will get the family pension shortly and the respondent is very much sound physically and mentally and working hard to maintain her children. The brothers and sisters are assisting the respondent and treating the respondent and her children well. The respondent and her children are happy, healthy and they are being educated in good atmosphere and the person and property of the children is safe in the custody of the respondent. The documents produced by the petitioners are created for the purpose of this case and it is also contended that the petitioners are misusing the innocence of the children and it appears that they forced and threatened to send messages making false allegations, etc. She has also produced revenue documents to show that she has capacity to maintain her minor children. Therefore, she sought for dismissal of the writ petition.
20. I have heard the learned counsel for the parties to the lis at length for four days.
ARGUMENTS OF LEARNED COUSNEL FOR BOTH PARTIES:
21. Sri. K.L. Patil, learned counsel for the petitioners, has re-iterated the averments made in the petition and contended that the dispute is in between the mother-in-law, brother-in-laws, sister-in-laws and the respondent/wife, who filed G and W Case No. 1/2010 for appointment of guardian and the application filed by the respondent is not maintainable and the same is liable to be dismissed on the ground of want of jurisdiction. He also contended that admittedly, the property is situated in Mumbai as on the date of the petition and minors also residing at Mumbai. As such, the Court at Honavar has no jurisdiction to entertain the petition. Therefore, the impugned order passed by the trial court rejecting the application filed by the petitioners is erroneous, contrary to law and contended that the petitioners have better financial capacity to look-after the children of the respondent, since they are working in private companies. The respondent has no capacity to maintain the minor children and the proper custody is only the petitioners and not the respondent. The respondent cannot maintain them as she has no means. He also produced some Certificates to show that the petitioners are getting handsome salary as per Annexures N', O', P', Q', R', Sand T', issued at Mumbai, by the concerned authorities. He also invited the attention of this Court to the photographs produced along with the Writ Petition and submitted that the children are happy with the petitioners at Mumbai and he also relied upon the decision of this Court in the case of SIDDAPPA APPANNA REDDI Vs. RAMAPPA YAMANAPPA PATIL AND OTHERS reported in 1963 Mys. L.J. 679 and RUCHI MAJOO Vs. SANJEEV MAJOO reported in (2011) 6 SCC 479, to the effect that the children are ordinary residents of Mumbai as on the date of the application. Therefore, the Court at Mumbai has got the jurisdiction and not the Court at Honavar. He also relied upon the other judgments of the Hon'ble Supreme Court with regard to custody, reported in AIR 1973 SC 2090 (ROSY JACOB Vs. JACOB A. CHAKRAMAKKAL) and AIR 1999 SC 1741 (POOJA BAHADUR Vs. UDAY BAHADUR) and contended that the petitioners are in better position than the respondent and they are taking care of the children effectively. Therefore, he sought to set aside the impugned order passed by the trial court.
22. Per contra, Sri. S.V. Yaji, learned counsel for the respondent, has re-iterated the averments made in the statement of objections and contended that the respondent is staying with her brothers and parental house at Honavar and the respondent/mother is the natural guardian in respect of her children, who are minors. As per Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (32 of 1956), the father, and after him, the mother is the natural guardian of the minor children and as on the date of the application filed for custody, the age of the children was five and six years respectively and both the children were born at Manki village in Honavar Taluk in support of the same, he has produced Birth Certificates as per Annexures R10and R11and the custody of the children was given to the mother, by this Court by order dated 08.07.2014 and a complaint is also lodged by the respondent against the petitioners on 11.04.2009 and the Mumbai police have registered a Criminal Case against the petitioners in Crime No. 9/2009 under Sections 323, 498A, 505A and 149 of the Indian Penal code and charge-sheet is also filed. He further contended that the petitioners have not filed any application either under the provisions of Section 7 or Section 8 of the G and W Act and the persons mentioned under Section 8 are entitled to apply for an order for custody of the children. The petitioners are not the persons entitled to custody of the children and he further contended that the 1st petitioner is aged about 85 years and she is bed-ridden and 2nd petitioner is earning meagre sum and it is not sufficient to maintain children and also contended that the petitioners have not filed any application for custody under Section 7 of the Act till today for custody of the children. Therefore, they have no locus standi to take the children from the custody of the respondent. In view of non-filing of any application under Section 7 or Section 8 of the G and W Act by the petitioners, they have no right to raise any defence with regard to the decision of this Court as well as the custody of the children and in the objections filed before the learned Civil Judge, they have not taken any contention with regard to jurisdiction of the Court. Therefore, it is not open for them to file an application under Section 9 of the G and W Act and that the petitioners are not entitled to any relief before this Court under Article 226 and 227 of Constitution of India. The question of jurisdiction is a mixed question of law and facts and it requires enquiry.
23. Learned counsel for the respondent has relied upon the following decisions:
AIR 2004 KAR 1740 (ABRAHAM G. KARIMPNAL Vs. NIL);
AIR 1993 KAR 120 (K.C. SASHIDHAR Vs. SMT. ROOPA);
AIR (MAD) 1983 Pg. 9 (BHAGYALAKSHMI Vs. K.N. NARAYAN RAO);
(1997) 10 SCC 342 (ANJALI ANIL RANGARI Vs. ANIL KRIPASAGAR RANGARI);
AIR 2011 (SCW) 3311 (RUCHI MAJOO Vs. SANJEEV MAJOO).
24. He also contended that the order passed by this court on 08.07.2014 handing over the children to the respondent is final and conclusive. Therefore, he sought to dismiss the Writ Petition.
25. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record.
POINTS FOR CONSDIERATION:
26. In view of the rival contentions urged by the learned counsel for both the parties, the points that arise for consideration are:-
(I) Whether the trial court is justified in holding that it has got the jurisdiction to entertain the petition filed under Section 7 of the G and W Act?
(II) Who is entitled the interim custody of the minor children between the parties to the lis till the disposal of the main petition before the trial court?
POINT No. 1: JURISDICTION:
27. The respondent/Wife filed the petition before the trial court under Section 7 of the G and W Act for declaring her as the guardian of the children and she is entitled to custody of her two minor children, contending that there was no dispute till her husband was alive and disputes arose between the petitioners and respondent only after the death of her husband and she has specifically stated that the minor children were born at Honavar, by producing Birth Certificates as per Annexures R10and R11issued by the jurisdictional Registrar of Births and Deaths, Town Panchayat, Honavar, to show that the these two children were born on 29.06.2003 and 11.10.2004 respectively at Honavar, within the jurisdiction of the Court at Honavar and she was forced to leave the husband's place as the petitioners have threatened her and with great difficulty she escaped from Mumbai and reached her parental house and lodged a police complaint against the petitioners at Manki Police Station, Honavar and she also produced material documents to show that she is capable of looking-after the children and accordingly. She has admitted the children at good schools at Honavar and they are studying very well. She also produced Certificates issued by the Principal of the concerned Institution and receipts for having paid the fees as per Annexures R1to R8'.
28. Per contra, it is alleged in the objections to I.A. and the present petition that the respondent has left the children abruptly without taking care of the children; she went to her native place and abandoned the children. Therefore, she is not entitled for custody of the children and the children were born at Mumbai and they are ordinary residents of Mumbai and the petition filed before the Court at Honavar is not maintainable for want of jurisdiction.
29. It is also the case of the respondent that being the mother of the children, she has inevitably initiated criminal proceedings against the petitioners and ultimately got the children to her custody through the Order of this Court dated 30.01.2014.
30. In the present case, the children are minors and the legal guardian would be the mother and the place of her residence as on the date of presentation of the petition is the place where it has to be construed as the minors ordinarily resided and as such, the finding given by trial court at Honavar that it has got jurisdiction to decide the case, does not suffer from any legal infirmities.
31. In the present case, there are allegations and counter-allegations and misapprehensions expressed against each other parties, whether the trial court was justified or not, in allowing the petition for custody of the minor children, on the ground that the Court at Honavar had jurisdiction to entertain the petition, etc. are all seriously disputed by the parties. Thus, for these questions of fact, a satisfactory answer could be given by the trial court where the custody case was filed only after the parties were given an opportunity to adduce evidence in support of their respective versions. The solitary test for determining the jurisdiction of the Court under Section 9 of the G and W Act is the Ordinary residence of the minor children. 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 be, at best, 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.
32. The Hon'ble Supreme Court, while considering the provisions of Section 9 of the G and W Act, in the case of RACHI MAJOO Vs. SANJEEV MAJOO reported in (2011) 6 SCC 479, held that the Court at the mother place of the ward has got the jurisdiction to entertain the petition. In the said case, a child of NRI parents was born in America. The wife on account of husband's alleged addiction to pornographic films, internet sex and adulterous behaviour during the couple's stay in America, took a decision to educate the child in Delhi and the husband consented to it. But, later the husband filed a case of abduction of minor child against the wife in America and an Interpol red corner notice was issued against the wife. The wife took refuge under an order passed by the District Court, Delhi, in a petition filed under Sections 7, 8, 10 and 11 of the G and W Act, granting interim custody of the minor to her. A Writ filed by the husband was allowed by the impugned order of the High Court, whereby the High Court set aside the order passed by the District Court and dismissed the custody case filed by the mother and ultimately, the Hon'ble Supreme Court held that the Court at Delhi, in the facts and circumstances of that case, was competent to entertain the application filed by the appellant/mother.
33. The facts of the said case are squarely applicable to the facts of the present case. Therefore, the impugned order passed by the trial court holding that the trial court has jurisdiction to entertain the petition, in view of the Birth Certificates of the minors produced by the respondent that they are born at Honavar, within the jurisdiction of that Court, is prima facie valid and it is always subject to the enquiry to be conducted by the trial court on the main petition filed under Section 7 of the G and W Act, pending between the parties. Therefore, the 1st point is answered in the affirmative holding that in view of the peculiar facts and circumstances of the case, based on the allegations and counter-allegations between the parties, the order passed by the trial court holding that the Court at Honavar has got jurisdiction, is prima facie valid, subject to proof, after full-pledged trial between the parties.
POINT No.2: CUSTODY:
34. The trial court, based on the pleadings of the parties has observed that the mother is the natural guardian and in the facts and circumstances of the present case, taking into consideration the old age of the 1st petitioner/grandmother, aged about 85 years, and she is bed-ridden and somebody should look-after her welfare in her evening days and the respondent/mother has specifically stated on oath that she is capable of taking care of her children. Admittedly, the father of the wards died. Under the law, after the death of the father, the only natural guardian is mother. The trial court while rejecting the application of the petitioners under Section 9 of the Act, has observed that the respondent is the natural guardian of the children and the present and future would be better secured in the custody of the respondent.
35. By a reading of the provision of Section 13 of the Act, the welfare of the minor should be the paramount consideration. In the appointment or declaration of any person as Guardian by a Court, welfare of the minor children shall be the paramount consideration. The Hon'ble Supreme Court, in the case of NIL RATAN KUNDU AND ANOTHER Vs. ABHIJIT KUNDU reported in (2008) 9 SCC 413, while considering the provisions of Sections 4, 7 and 17 of the G and W Act, has held that the principles in relation to custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the Welfare of the Child and not the rights of the parents under a statute for the time being in force and also held that in view of the provisions of Section 17(3) of the G and W Act, wishes of the minor children should be ascertained before passing the order and such examination also helps the Court in performing the onerous duty in exercising the discretionary jurisdiction and in deciding the delicate issue of custody of a tender-aged child. Moreover, the final decision rests with the Court which is bound to consider all questions and to make an appropriate order, keeping in view the welfare of the child. Therefore, in custody cases, wishes of the minor child should be ascertained by the Court before deciding the case as to whom the custody should be given.
36. The provisions of Section 13 of the Hindu Minority and Guardianship Act, 1956, reads as under:
13. Welfare of minor to be paramount consideration.-
(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of the opinion that his or her guardianship will not be for the welfare of the minor. ?
37. While considering the provisions of Section 13 of the Hindu Minority and Guardianship Act, 1956, interpreting Section 13, the Hon'ble Supreme Court, in the case of GAURAV NAGPAL Vs. SUMEDHA NAGPAL, reported in (2009) 1 SCC 42, has held as under:
The word welfareused in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens partiae jurisdiction arising in such cases.
Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield 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 and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. ?
38. It is relevant to state at his stage that the object and purpose of the Guardians and Wards Act, 1890 is not merely physical custody of the minor but due protection of the rights of wardshealth, maintenance and education. The power and duty of the Courts under the Act is the welfare of the minors. The children are not mere chattels, nor are they mere play things for their parents. The better financial resources of either of the parents or their love for the child may be one of the relevant considerations, but, cannot be the sole determining factor for the custody of the children.
39. The provisions of Section 17 of the Guardians and Wards Act, 1890, reads as under:
17. Matters to be considered in appointing guardian. “ (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
[(4) x x x]
(5) The Court shall not appoint or declare any person to be a guardian against his will. ?
Taking into consideration the provisions of Section 17(3) of the G and W Act and in compliance of the same, the minor children who are aged about 10 years and 11 years respectively, were invited to the chambers, on 20.04.2015 at 2.00 p.m., with love, affection, sentiments and applying human touch to the problem and the views/wishes of the minor children were collected and the children found to be quiet intelligent “ they unequivocally refused to go or stay with the petitioners and preferred to stay with their mother/respondent and also stated that they are happy with the mother and would like to continue with her. On the same day, both the parties and their respective counsels were invited at 2.15 p.m. Later, the parties have stated that some initiation will be made to resolve the dispute between the parties.
40. It is worthwhile to mention here that while considering the provisions of the Guardians and Wards Act, 1890, the Hon'ble Supreme Court in the case of ROSY JACOB Vs. JACOB A.CHAKRAMAKKAL, reported in (1973) 1 SCC 840, held 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 and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.
41. The Apex Court in the case of LEKHA Vs. P. ANIL KUMAR reported in (2006) 13 SCC 555, while considering the provisions of Sections 7 and 17 of the Guardians and Wards Act, 1890, has held as under:
18. According to the Hindu Law, the natural guardian of a minor child is the father. In the next place, the guardian of a child is the mother. The very principle of guardianship is that there is a presumption that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians.
19. The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the Court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in S. Soora Reddi vs. Chennai Reddi, AIR 1950 Mad 306 where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.
20. A man in his social capacity may be reckless or eccentric in certain respects and other may even develop a considerable distaste for his company with some justification but all that is a far cry from unfitness to have the natural solace of the company of one's own children or for the duty of bringing them up in proper manner. Needless to say the respondent husband, in this case, seems to be anxious to have the minor child with him as early as possible in order to look after him properly and to provide for his future education. The feelings being what they are between the respondent and the appellant we think it is also natural on the part of the husband to feel that if the minor child continues to live with his former wife, it may be brought up to hate the father or to have a very adverse impression about him. This certainly is not desirable. Needless to say, this Court is not called upon to find that the respondent husband has been entirely blameless in his conduct and few occasions referred to in this case and by the boy at the time of interview, it is not the duty of this Court even to ascertain whether the respondent is a responsible and good citizen and a preferred individual. Many people have shortcomings but that does not imply that they are not deserving of the solace and custody of their children.
21. However, in the present case, we have to decide in the interest of the child as to who would be in a better position to look after the child's welfare and interest. The general view that the courts have taken is that the interest and welfare of the child is paramount. While it is no doubt true that under the Hindu Law, the father is the natural guardian of a minor after the age of six years, the court while considering the grant of custody of the minor to him has to take into account other factors as well, such as the capacity of the father to look after the child's needs and to arrange for his upbringing. It also has to be seen whether in view of his other commitments, the father is in any position to give personal attention to the child's over-all development.
22. As indicated hereinbefore, we have spoken to the child who, in our view, is intelligent and appears to be capable of expressing his preference. In fact, he has in no uncertain terms indicated his desire to stay with his mother. His mother's second marriage, instead of proving to be a disadvantage, has proved to be beneficial for the child who seems to be happy and contended in his present situation and we do not think it would be right to unsettle the same.
23. The High Court committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the Courts to be of relevance in deciding grant of custody of minor children. We are, therefore, inclined to restore the order passed by the Family Court and to give custody of the minor boy to his mother, but as indicated hereinbefore, we do not want the child to grow up without knowing the love and affection of his natural father who too has a right to help in the child's upbringing. We are of the view that although the custody of the minor child is being given to the mother, the child should also get sufficient exposure to his natural father and accordingly, we permit the respondent to have custody of the child from the appellant during Onam and other important festivals and during the school vacation. We make it clear that the appellant mother shall hand over the chid to the respondent father during every mid summer vacation for about a month without adversely affecting the child's education. The appellant should not also prevent the respondent father from coming to see the child during weekends and the appellant should make necessary arrangements for the respondent to meet his child on such occasions. The appellant should not also prevent the child from receiving any gift that may be given by the respondent father to the child. ?
42. The provisions of Sections 7, 9, 12, 13, 17 and 25 of the Guardians and Wards Act, 1890, and Section 6 of the Hindu Minority and Guardianship Act, 1956, makes it manifestly clear that the paramount consideration is the welfare of the minor child and not statutory rights of the parents. The problem has to be solved rather with a human touch. In selecting a guardian, the Court exercises parens patriae jurisdiction. It must give due weightage to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, as well as physical comfort and moral values “ Court must ascertain children's wishes and a child is not a property or commodity. Such issues should be handled with love, affect, sentiments and applying human touch to the problem.
43. Keeping in view of the propositions stated above and in the facts and circumstances of the case and taking into consideration the old age of the 1st petitioner, who is aged about 85 years and bed-ridden, and after considering the entire evidence on record, both oral and documentary, this Court is of the considered opinion that the custody of the children should be continued with the mother, who is the natural guardian, in terms of the order of this Court dated 30.01.2014, granting visiting rights to the petitioners who are paternal grand-mother, uncles and others, on account of the love and affection shown by them towards the children, which is evident in the way in which they are fighting the litigation, with a fond hope that the parties being educated and cultured, all modern outlook and well-off, would continue to maintain cordial relations and conduct themselves decently, courteously and extend full co-operation for the well-being of the children, which is the paramount object of the provisions of the Guardians and Wards Act, 1890. Accordingly, the 2nd point is answered in favour of the mother, holding that the respondent-mother is entitled for interim custody of her minor children till the disposal of the main petition before the trial court.
44. In the result, the Writ Petition is disposed of, with the following directions:
(a) The trial court shall decide the main petition G and W No. 1/2010 filed under Section 7 of the Guardians and Wards Act, 1890, expeditiously, taking into consideration the fact that the petition was filed as long back as on 21.11.2009;
(b) The minor children shall continue to reside with the mother as per the order passed by this Court on 30.01.2014 and in accordance with the wishes expressed by the minor children in the Chambers of this Court on 20.04.2015, till the disposal of the main petition before the trial court;
(c) The visitation rights is granted to the petitioners to visit the minor children once in a month, with prior notice to the respondent/mother and the duration of the visit shall be for three hours and if required, the venue shall be a neutral place agreeable to both sides and also the petitioners are permitted to pay the tuition fees, books, uniform and other needs of the children and at the same time, they should not try to disturb the mindset of the children;
(d) In view of the close relationships between the parties, parties to bear their own costs.