Full Judgment Text
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CASE NO.:
Appeal (civil) 2863 of 2001
PETITIONER:
KUMAR V.JAHGIRDAR
Vs.
RESPONDENT:
CHETANA K.RAMATHEERTHA
DATE OF JUDGMENT: 18/04/2001
BENCH:
D.P. Mohapatra & Shivaraj V. Patil
JUDGMENT:
D.P. MOHAPATRA, J
Leave granted.
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The controversy raised in this case relates to the
custody of a minor girl, Aaruni K. Jahgirdar, who, as
stated by learned counsel for the parties, is about 6 years
of age. The petitioner herein is her father and the
respondent, her mother. The marriage between the spouses
was dissolved by mutual consent on certain terms vide the
order dated 17th April, 1999 of the Ist Additional Principal
Judge, Family Court at Bangalore. The operative portion of
the order reads : The petition is allowed;
a) dissolving the marriage between the petitioners
dt.2.6.86 by mutual consent under the provisions of Sec.13-B
of the Hindu Marriage Act;
b) appointing both the petitioners as joint guardians
and custodians of their minor child, subject to conditions
as at para 8(d) of the petition.
The conditions agreed between the parties which are
relevant for the purpose of the present case, are extracted
hereinbelow:
7. The parties have come to an understanding that they
obtain decree of divorce by mutual consent.
8a. The Petitioners have full faith in each other with
regard to safety and both are duly concerned about the
welfare of the child. Keeping the welfare of the child as
the paramount concern it is agreed that both the petitioners
will continue to remain as joint guardians and the child
should be shifted alternate weeks. The child should
continue to study at her present school only i.e., Sophia
High School, Palace Road, Bangalore until she completes her
10th standard. She should not be admitted in any Boarding
School, under any circumstances.
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8b. Both the parties undertake that the child should be
sent to the school regularly. The child shall not absent
classes for whatever reason except under inevitable
circumstances of ill-health.
8c. The Passport should be exclusively under the
custody of the 1st Petitioner and the fathers name has to
be recorded as legal guardian in her Passport until the
child attains her Majority. The II Petitioner shall be
given the passport whenever she wants to take the child
abroad for holiday trips.
8d. Any petitioner settling outside the jurisdiction of
this Honble Court i.e., Bangalore shall automatically loose
the custodial right
8e. The custody of the child shall not be under any
third party (friends or relatives care under any
circumstances and at any point of time).
8f. All jewellery of the child should continue to be in
HDFC Bank locker, Kasturba Road Branch, Bangalore and the
locker fees shall be paid by the father and S.B.Account
No.009123612 corresponding to this locker account should be
maintained jointly, until the child attains reasonable age.
8g. All documents pertaining to minors account and
records of the same should be maintained by the I Petitioner
and should be operated by the I petitioner in the welfare of
the minor. The accounts opened by the II petitioner in the
name of the minor shall be operated by the II petitioner.
8h. Both the parties undertake the safety and welfare
of the child. It shall be the responsibility of the I
petitioner to maintain all costs pertaining to the childs
welfare.
After the marriage was dissolved by the decree of
divorce, the respondent married Anil Kumble, a cricketer,
who represents India in matches in and out of the country.
After the case was disposed of by the Family Court, several
rounds of litigations have taken place on the applications
filed by the respondent seeking permanent custody of the
child, permission to take the child to Australia, Europe and
other foreign countries and orders were passed by the Court
rejecting the prayer for permanent custody but permitting
her to take the child abroad.
On the application filed by the respondent seeking
permission of the court to take the child to Europe during
the period 10.4.2000 to 10.6.2000, the Family Court by the
order passed on 4th April, 2000 in M.C.No.1195 of 1998
ordered as follows: IA No.15 is allowed, on the following
conditions:
1. The second petitioner is permitted to take the minor
Aaruni to Europe for the period from 10.4.2000 to 10.6.2000
and the first petitioner shall hand over the passport of his
daughter to the second petitioner;
2. It is further made clear, since the first petitioner
is deprived of the company of his daughter during this
vacation, the same is made good by permitting the first
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petitioner to have the custody of the child from 10.6.2000
till the end of December 2000, with a condition that during
week ends, he shall hand over the custody of the minor
Aaruni to the second petitioner, if she is in India;
3. It is also made clear during Dasara and Christmas
vacation, the second petitioner will not have a right to
take the child during vacation to any other place and during
that period, the first petitioner will be under the care and
custody of the minor child Aaruni.
No order as to cost.
The respondent challenged the said order before the High
Court of Karnataka, in R.P.F.C. No.74 of 2000 which was
disposed of by the Court vide the order dated 29th
September, 2000. The operative portion of the order reads
as follows:
In the result, the petition is allowed, the impugned
order is set aside with the following conditions.
1. The custody of the child will be given to the mother
for a period of one year from the date of this order.
2. The Respondent shall deposit passport in the Court
of the Principal Family Judge, at Bangalore.
3. The respondent is permitted to meet the child at
every week ends between 9 a.m. and 9 p.m. and further
permitted to take the child to his house on second and
fourth Saturday of every month with the condition that he
should bring back the child on the same day before 9 p.m.
4. The custody of the child shall be positively given
to the petitioner by the respondent on or before 8th
October, 2000.
5. Whenever either of the party wants to take the child
abroad, the necessary permission should be sought for from
the Principal Family Judge, Bangalore. Such order should be
necessarily beneficial for the minor child.
The said order is under challenge in the present appeal
filed by the father of the minor child. At the outset, Shri
Rohinton F.Nariman, learned senior advocate appearing for@@
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the respondent submitted that both the parties have filed@@
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separate applications seeking custody of the minor child,
the applications are pending for adjudication before the
Principal Judge, Family Court, Bangalore. In the
circumstance, Sri Nariman submitted that this Court may not
take any decision in the matter and direct the Family Court
to dispose of the petitions expeditiously. On the other
hand, Shri S.S.Javeli, learned senior advocate appearing for@@
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the appellant contended that though the appellant has no@@
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objection for expeditious disposal of the petitions pending
before the Family Court, but this Court should clarify the
position that the Family Court, while deciding the petitions
for custody of the child, should not be influenced by any
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observation or finding made in the impugned order of the
High Court. We have heard learned counsel for both the
parties at some length. We have also perused the order of@@
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the High Court under challenge. We are constrained to@@
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observe that the High Court in its approach to the case has
ignored the well-settled principle that in a matter relating
to the custody of a minor child, the interest and welfare of
the child is the paramount consideration and not the
convenience or pleasure of the parents. The learned Judge
while stating the facts has observed that .the petitioner
(respondent herein) has married again whereas the respondent
(appellant herein) has remained unmarried even after
separation. He is a stock broker by profession and he is
more prosperous, wealthy and affluent man with good
financial background. After noticing certain decisions
cited before him, the learned Judge observed in paragraph 11
of the order that :.while passing the order in case of
custody of minor child, the paramount consideration is the
welfare of the minor child. In paragraph 12, the learned
Judge has observed : Admittedly he has not remarried. In
event he had remarried, there could not have been any
guarantee that the child could have been looked after well
by the second wife. In paragraph 14, the learned Judge
expressed the opinion that the condition 8a (quoted earlier)
is not a healthy condition as it has lost site of the fact
that the welfare of the child is the paramount
consideration. The learned Judge has expressed his views by
saying that Merely there is a divorce and merely she has
remarried again does not mean that she can afford to
ill-treat her child. In paragraph 17 of the order, the High
Court observed: the petitioner is although a divorcee,
she is not doing any work, she has got all the time in the
world to attend to the needs of the girl. We do not
intend to consider in-depth the merits of the case for the
reason that both the parties have approached the Family
Court with petitions seeking custody of the minor child.
Suffice it to say that the High Court does not appear to
have considered the welfare of the minor child in its proper
perspective. Therefore, the order and the directions issued
by the High Court should not influence the Family Court
while deciding the question of custody of the child. We
dispose of this appeal by passing the following orders: 1.
Custody of the minor child Aaruni will remain with the
mother (respondent herein) till disposal of the petitions
filed by the parties for custody of the child; 2. The
father of the child, appellant herein, will have the right
to visit his daughter or take her out between 10 a.m. to 8
p.m. on Saturday and Sunday every week. He may also keep
the child with him overnight on a Saturday once a month with
prior intimation to the mother of the child. 3. Till the
disposal of the petitions filed for the custody of the child
by the Principal Judge, Family Court, Bangalore, the mother
will not take the child out of the country. If she is to go
abroad at any time she will leave the child in custody of
the father during her absence. 4. The Principal Judge,
Family Court, Bangalore will dispose of the petitions filed
by the parties for custody of the child expeditiously within
a period of four months from today without being influenced
by the observations and findings in the order passed by the
High Court on 29th September, 2000 in R.P.F.C.No.74/2000.
5. The above arrangements will remain operative till
disposal of the petitions filed for custody of the child by
the Family Court, Bangalore. This order is passed without
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prejudice to the rights and contentions of the parties in
the proceedings for custody of the child which is pending
before t he Family Court, Bangalore. costs.
The appeal is disposed of on the above terms. No