Father/ hubby gets minor daughter custody EVEN after wife's incriminating suicide note & FATHER / hubby having married II time!!
MADRAS HC Gem.
Marriage in 2002. Two minor children out of wedlock one son and a daughter. Wife commits suicide and is said to have left an incriminating suicide note against husband and wife / mother says in her suicide note that children to be brought up by maternal grandfather and maternal uncle . Father approaches HC. PAternal father in law also approaches HC and opposes father's / husband's petition.
Still, HC hands over minor daughter to father . Interests of child Paramount , Minor daughter entitled to brotherly love and fatherly care, says the Honourable Madras HC.
Also a lot of discussion on whether the concurrent jurisdiction of the HC is ousted by virtue of the Family court's act !!
Super judgment !!
However please note that NO criminal case seems to have been filed against the husband and SO the maternal grand father is NOT on a strong footing
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CASE FROM JUDIS DOT NIC DOT IN SITE
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.04.2010
Coram: THE HON'BLE Ms.JUSTICE R.MALA
Application Nos.692 and 641 of 2010 in O.P.No.637 of 2009
R.MALA,J
In O.P.No.637 of 2009, the petitioner-K.Srinivasan is the father of the minor child C.S.Shruthi and the respondent-G.Raja is the maternal grandfather of the minor child C.S.Shruthi. For the purpose of convenience, the parties are referred to as they are ranked in O.P.No.637 of 2009.
2. The petitioner-father of the minor child C.S.Shruthi, has come forward with Original Petition No.637 of 2009 under Section 25 of the Guardians and Wards Act, for the custody of his minor child C.S.Shruthi, aged about 3 years, to him, against the respondent-father-in-law, who is none other than the maternal grandfather of the minor child Shruthi.
3. During the pendency of O.P.No.637 of 2009, the petitioner has come forward with Application No.692 of 2010 for the interim custody of the minor child Shruthi, pending disposal of the main O.P.No.637 of 2009, stating that his wife Chitralekha died on 24.1.2007 after the minor child Shruthi was born on 25.12.2006 and the minor child Shruthi is in the custody of the respondent, who is none other than the maternal grandfather of the minor C.S.Shruthi. The petitioner wanted to admit his minor child Shruthi in L.K.G. in S.B.O.A. School at Anna Nagar, Chennai, that he submitted application form, dated 17.1.2010, for the admission in the School, that he received communication from the School, directing the petitioner to be present along with his minor daughter C.S.Shruthi in connection with the admission, on 30.1.2010, but when the petitioner informed the respondent over phone about the admission process in S.B.O.A. School, the respondent refused to come to the School with the child. So, he made a request to the School Management to give some more time to bring the child in connection with her admission. For the welfare of the minor child to admit in the School, it is absolutely necessary to give interim custody of the minor child. Hence, the petitioner has come forward with Application No.692 of 2010 seeking for interim custody of the minor child.
4. The gist and essence of the counter affidavit filed by the respondent in Application No.692 of 2010, are as follows:
(a) Due to ill-treatment and cruelty committed by the petitioner to his wife, she was forced to end her life on 24.1.2007 and she has left behind her a detailed letter in the form of suicide note, wherein, she has castigated the conduct of the petitioner and his family members, which forced her to resort to the extreme step of committing suicide. In the suicide note, she has clearly stated that her two minor children, namely C.S.Sabareesh and C.S.Shruthi should be brought up and educated by the respondent and his son Sathishkumar Raja, who is employed as a Software Engineer. After the death of the daughter of the respondent, the children were taken care of by the family members of the respondent. By playing fraud upon the respondent, and under the garb of education, the petitioner has retained the custody of the minor child C.S.Sabareesh and now, he is adopting the same method for wresting the custody of the minor child C.S.Shruthi.
(b) It is further stated by the respondent that he admitted the minor child Shruthi in Pre-K.G. in Tagore Vidyalaya and he applied for L.K.G. admission in three reputed institutions which are located near his residence. The petitioner telephonically threatened the respondent that unless he parted with the custody of the minor child, the respondent and his family members will have to face dire consequences at his hands.
(c) It is further stated that the respondent filed a guardian O.P. in G.W.O.P.No.4123 of 2009 before the Principal Family Court, Chennai, for appointing the respondent and his son Sathishkumar Raja as joint Guardians for both the minor children. It is further stated that the respondent and his son, have filed another application in A.No.641 of 2010 before this Court, for transferring the present O.P.No.637 of 2009 to the file of the Principal Family Court, Chennai, for being tried along with G.W.O.P.No.4123 of 2009.
(d) The respondent further states that the petitioner has contracted second marriage with one Priya and it would not be safe to grant the interim custody of the minor C.S.Shruthi to him. The petitioner is not in a position to look after the minor female child. The respondent is ready to provide decent education to the minor C.S.Shruthi. The respondent prays for dismissal of Application No.692 of 2010.
5. The gist and essence of the application in A.No.641 of 2010, filed by the respondent, i.e. the father-in-law of the petitioner and his son Satishkumar Raja, seeking for transfer of the present O.P.No.637 of 2009 pending before this Court, to the file of the Principal Family Court, Chennai, for joint trial along with the Guardian O.P. in G.W.O.P.No.4123 of 2009, pending on the file of the Principal Family Court, Chennai, are as follows:
The marriage between the petitioner and the respondent's daughter R.Chitralekha took place on 1.2.2002 and out of their wedlock, she gave birth to two children, viz., son C.S.Sabareesh and daughter C.S.Shruthi, born on 2.11.2004 and 25.12.2006 respectively. It is further stated that unable to bear the ill-treatment by the petitioner-husband, the respondent's daughter committed suicide. The children are in the custody of the respondent-grandfather. The petitioner-husband contracted second marriage. The respondent and his son Sathishkumar Raja filed G.W.O.P.No.4123 of 2009 for appointing them as joint Guardians to the abovesaid minor children. As per Section 15 of C.P.C., every suit shall be instituted in the Court of the lowest grade and hence, the respondent-grandfather wants to transfer the main O.P.No.637 of 2009 pending before this Court, to the Principal Family Court, Chennai, for avoiding multiplicity of proceedings.
6. Heard both sides.
7. The father of the minor child Shruthi is the petitioner in O.P.No.637 of 2009 and the maternal grandfather of the minor child Shruthi is the respondent in O.P.No.637 of 2009. The marriage between the petitioner K.Srinivasan and K.Chitralekha, the daughter of the respondent, is admitted. The paternity and maternity of the minor children Shruthi and Sabareesh, are admitted. Admittedly, the minor Sabareesh is in the custody of his father, the petitioner-K.Srinivasan. The petitioner-K.Srinivasan has come forward with the main O.P.No.637 of 2009 before this Court, seeking for the custody of the minor child Shruthi, aged about 3 years, stating that the child was born on 25.12.2006 and the mother died on 24.1.2007. From the date of the birth of the minor child Shruthi, she has been in the custody of her maternal grandparents. The petitioner-father wanted to admit the minor child Shruthi in S.B.O.A. School at Anna Nagar, Chennai, and hence, he wanted interim custody of the minor child Shruthi, as he has to pursue the admission process in the said School.
8. Repudiating the said contentions, the respondent-grandfather stated that from the date of the birth of the minor child Shruthi, she is with him and that he is having financial status to give good education to her. Furthermore, the respondent-grandfather submits that the petitioner-father contracted second marriage. The respondent-grandfather prayed for dismissal of A.No.692 of 2010. The respondent-grandfather further stated that he has already filed petition before the Principal Family Court, Chennai, for appointing himself and his son Sathishkumar Raja, as joint guardians in G.W.O.P.No.4123 of 2009. Hence, the respondent-grandfather prayed for transferring O.P.No.637 of 2009 pending before this Court, to the file of the Principal Family Court, Chennai, instead of deciding the interim custody application in A.No.692 of 2010.
9. Learned counsel for the petitioner would submit that the petitioner-Srinivasan is the father of the minor child and he is employed in Wheels India Limited, Padi, Chennai, as Manager (MFG) his net pay is Rs.51,747/- p.m. and he is also having monthly rental income to the tune of Rs.10,000/-. He is having his mother and second wife to look after the child and so, considering the welfare of the child and as the education of the child is very important, the petitioner is seeking for admission in well reputed School, i.e. S.B.O.A. School, in Anna Nagar, Chennai. The petitioner prays for interim custody of the minor child Shruthi. Learned counsel for the petitioner further submitted that the transfer application in A.No.641 of 2010, filed by the respondent-father-in-law, is not maintainable, because, as per Clause 17 of the Letters Patent of the Madras High Court, Order 21 of the Original Side Rules of the Madras High Court and Section 4(4) of the Guardians and Wards Act, this Court has concurrent jurisdiction, along with District/Family Court, to entertain a petition for the custody of the minor child. Learned counsel for the petitioner relied upon a Full Bench decision of this Court reported in AIR 1990 Madras 100 (Mary Thomas Vs. K.E.Thomas), stating that even after the enactment of the Family Courts Act and the constitution of the Family Courts, the jurisdiction of the High Court is not ousted and hence, this Court has concurrent jurisdiction to decide the matter. Learned counsel for the petitioner-father prayed for dismissal of the transfer application in A.No.641 of 2010 and prayed for interim custody of his minor child Shruthi.
10. Repudiating the said contentions, learned counsel for the respondent-grandfather would submit that because of the attitude of the petitioner-husband, the respondent's daughter Chitralekha committed suicide and from the date of the birth of the minor child Shruthi, she is with the respondent-grandfather and he has also taken steps for giving good education and even sought to obtain admission in C.S.I. Bain School, Kilpauk, Chennai, that the child is with the grandparents, and if the child is given interim custody, the welfare of the child will be deprecated. Learned counsel for the respondent-grandfather further submits that the main relief in the O.P. is for the custody of the minor child and if the interim custody is ordered, the relief sought for in the main O.P.No.637 of 2009 will be fulfilled and hence, he prayed for dismissal of the application seeking for interim custody of the minor child. Learned counsel for the respondent-grandfather further submitted that the grandfather has already filed Guardian O.P. before the Principal Family Court, Chennai, in G.W.O.P.No.4123 of 2009 for appointing himself and his son Sathishkumar Raja as joint Guardians for both the minor children Sabareesh and Shruthi, and the said petition is pending. As per Section 15 C.P.C., the petitioner-father ought to have filed a petition before the lower forum. Learned counsel for the respondent-grandfather prayed for transferring the main O.P.No.637 of 2009 pending before this Court, to the file of the Principal Family Court, Chennai, for joint trial with G.W.O.P.No.4123 of 2009, to avoid multiplicity of proceedings and conflict of decisions.
11. Now, it has to be decided as to whether this Court has jurisdiction to entertain O.P.No.637 of 2009 and the other applications filed by the respective parties.
12. The respondent-grandfather has filed A.No.641 of 2010 for transferring O.P.No.637 of 2009 pending before this Court, to the file of the Principal Family Court, Chennai, for joint trial with Guardian O.P. in G.W.O.P.No.4123 of 2009, pending before the Principal Family Court, Chennai, stating that after the enactment of the Family Courts Act and the constitution of the Family Courts, even though the High Court is having jurisdiction to entertain the main O.P., as per Section 15 C.P.C., the party must seek for remedy only before the lowest forum.
13. At this juncture, it is appropriate to extract Section 4(4) of the Guardians and Wards Act, Clause 17 of the Letters Patent of the Madras High Court, Order 21 of the Original Side Rules of the Madras High Court, Section 15 of the Civil Procedure Code and Sections 7 and 8 of the Family Courts Act: Section 4(4) of the Guardians and Wards Act:
Section 4(4) of the Guardians and Wards Act
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Section 4: Definitions.--In this Act, unless there is something repugnant in the subject or context,--
... .... ....
(4) "District Court" has the meaning assigned to that expression in the Code of Civil Procedure Code, 1882 and includes a High Court in the exercise of its ordinary original civil jurisdiction."
Clause 17 of the Letters Patent of the Madras High Court:
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"Clause 17: Jurisdiction as to infants and lunatics.--And We do further ordain that the said High Court of Judicature at Madras shall have the like power and authority with respect to the persons and estates of infants, idiots and lunatics within the Presidency of Madras, as that which is now vested in the said High Court immediately before the publication of these presents."
"Order 21 of the Original Side Rules of the Madras High Court:
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"Guardians and Wards"
Rule 1: All proceedings under the Guardians and Wards Act, 1890, in this order called "the said Act" shall be entitled "in the matter of the minor" as in Form No.27.
"Section 15: Civil Procedure Code:
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Court in which suits to be instituted: Every suit shall be instituted in the Court of the lowest grade competent to try it."
"Family Courts Act: Chapter III. Jurisdiction:
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Section 7: Jurisdiction.--(1) Subject to the other provisions of this Act, a Family Court shall--
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purpose of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation.--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order of injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise,--
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
Section 8: Exclusion of jurisdiction and pending proceedings.--Where a Family Court has been established for any area,--
(a) no district court or any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature of referred to in the Explanation to that sub-section;
(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in the explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),--
(i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established."
14. Learned counsel for the petitioner-father, relied upon the decision reported in AIR 1990 MADRAS 100 (Mary Thomas Vs. K.E.Thomas), wherein, a Full Bench of this Court held as follows:
| "5. A reference to certain provisions of the Letters
| Patent is necessary. Cls.11 to 21 deal with
| Extraordinary Original Civil Jurisdiction, and
| Insolvency Jurisdiction; Cls.22 to 30 deal with
| Criminal Jurisdiction; Cl.31 deals with the exercise
| of jurisdiction outside the ordinary place where the
| High Court sits; Cls.32 and 33 deal with Admiralty and
| Vice-Admiralty Jurisdiction and Cl.34 deals with the
| Testamentary and Intestate Jurisdiction. The ouster of
| the jurisdiction exercised by the High Court on its
| Original Side under the provisions of the Letters
| Patent cannot be readily inferred unless there is
| express provision in any enacted law taking away such
| jurisdiction. Under Art.225 of the Constitution of
| India the pre-existing jurisdiction of the High Court
| is preserved subject of course to the provisions of
| any valid law that may be made. Does the Act contain
| any provision militating against the exercise of
| jurisdiction on the Original Side of this Court in
| respect of matters falling under the Explanation to
| S.7 of the Act and does the Act contain any express
| provision taking away such jurisdiction vested in the
| High Court?"
|
| "20. On a consideration of the relevant provisions of
| law and the decisions which have been cited, we are
| clearly of the opinion that the jurisdiction of the
| High Court on its Original Side is not ousted by any
| of the provisions contained in the Act and the High
| Court shall continue to exercise the jurisdiction
| vested in it under the Letters Patent and all other
| laws, notwithstanding the provisions of S.7 and S.8 of
| the Act. In this view, therefore, we hold that the
| decision of Abdul Hadi,J, in Patrick Martin. In the
| matter of the Minor Rekha (1989) 103 Mad L.W. 241, and
| confirmed by the Division Bench in O.S.A.No.186 of
| 1988 and reported in Patrick Martin Mr. Etc.
| Appellants, (1989) 103 Mad.L.W. 246 : (AIR 1989 MADRAS
| 231) is no longer good law.
|
| 21. We answer the Reference as follows: "After the
| constitution of the Family Court for the Madras area,
| the original Jurisdiction of the High Court in respect
| of matters that may fall under the Explanation to S.7
| of the Act is not ousted and the High Court can
| continue to exercise its jurisdiction notwithstanding
| the coming into force of the Family Courts Act, 1984".
15. Relying on the said Full Bench decision of this Court, learned counsel for the petitioner-father, argued that the High Court is having concurrent jurisdiction to entertain the case relating to Guardians and Wards Act.
16. Learned counsel for the respondent-grandfather relied upon the decision reported in AIR 2002 MADRAS 435 (A.V.Arockiam Vs. Arul Mary), in which, this Court held as follows:
| "32. Thus pursuant to the order of reference by
| Srinivasan,J, the matter came up before the Full Bench
| for a verdict on the scope and ambit of Ss.7 and 8 of
| the Family Courts Act and on the question whether the
| jurisdiction exercised by the High Court under Letters
| Patent was in any manner affected by reason of the
| above said provisions in the Act. As to what the Full
| Bench held has already been noticed. The Full Bench
| approved the decision of N.S.Ramaswami,J. in
| S.P.S.Jayam & Co. Vs. Gopi Chemical Industries India
| (1977) 1 Mad.L.J. 286 stating that "the term "District
| Court" occurring in the Trade and Merchandise Marks
| Act of 1958 would not include the High Court and the
| fact that the local limits of the ordinary original
| jurisdiction of this Court is a District would not
| mean that this Court becomes a District Court and that
| in suits filed on the Original Side of this Court, it
| will be the Original Side Rules and the provisions of
| the Letters Patent that will have application."
|
| 33. It does not appear that either before
| Srinivasan,J, or before the Full Bench, the unreported
| decisions of Sadasivam,R.,J and Fakkir Mohamed,J, and
| the reported decisions of V.Sethuraman,J, and
| R.Sengottuvelan,J, were cited. The speech by the
| Hon'ble Mr.Maine in the Legislative Council on 26th
| March, 1869 was also not referred to. Apparently, the
| various provisions of the Indian Divorce Act, the
| proviso to Clause 35 of Letters Patent and S.15 of the
| Code of Civil Procedure were not brought to the notice
| of the Full Bench. The Full Bench merely stopped
| saying that the Original Jurisdiction of the High
| Court in respect of matters that might fall under the
| Explanation of S.7 of the Family Courts Act was not
| ousted and the High Court continued to exercise its
| jurisdiction notwithstanding the coming into force of
| the said Act.
|
| 34. In Civil Reference No.12/91, AIR 1993 Bombay 61 a
| Special Full Bench of the Bombay High Court held that
| petitions for dissolution of marriage or nullity of
| marriage on specific grounds stated in S.19 of the
| Indian Divorce Act could be entertained both by the
| District Court and the High Court and that both the
| Courts had concurrent jurisdiction. The Full Bench
| drew analogy from the provisions of S.482 of the Code
| of Criminal Procedure Code where revisional
| jurisdiction is vested concurrently in the High Court
| as well as the Sessions Court. The analogy drawn by
| the Bombay High Court, in my respectful view, cannot
| be stated to be apposite.
|
| 35. There is a provision in the Code of Civil
| Procedure under S.24 giving general power of transfer
| and withdrawal both on the District Court and the High
| Court. But what makes all the difference between the
| Indian Divorce Act on the one hand and the provisions
| of the Code of Civil Procedure and the Code of
| Criminal Procedure on the other is the presence of the
| expression "as the case may be" in S.3(4) of the
| Indian Divorce Act. The said expression "as the case
| may be" would only mean that if the parties last
| resided together at a particular place, the District
| Court having jurisdiction over that place would be
| alone competent to entertain a petition under the
| Indian Divorce Act. Proviso to Clause 35 of the
| Amended Letters Patent cannot also be ignored. If the
| parties resided within the jurisdiction of the High
| Court, the High Court as also the Family Court would
| have jurisdiction to entertain the petition. That
| appears to be the only logical way of looking at this.
|
| 36. Be that as it may, S.15 of the Code of Civil
| Procedure, which is not excluded by S.45 of the Indian
| Divorce Act clearly enjoins the parties to approach
| the lowest Court having jurisdiction, for relief,
| though in view of the Full Bench decision, the High
| Court has concurrent jurisdiction even if the husband
| and the wife do not reside or did not last reside
| together, within the jurisdiction of the High Court.
| The High Court has also a discretion in such matters.
| It does not have to entertain them merely because they
| are presented before it. It is entitled to return them
| for presentation before proper court or to transfer
| them to the District Courts or the Family Courts as
| the case may be.
|
| 37. The question for consideration is therefore
| answered in the following manner:
|
| Though, in view of the judgment of the Full Bench in
| Mary Thomas v. Dr.K.E.Thomas (1989) 104 Mad L.W. 344
| the High Court may be said to have concurrent
| jurisdiction, the petitions have to be filed only
| before the District Courts concerned in view of S.15
| of the Code of Civil Procedure.
|
| 38. In O.M.S.No.24/96 the parties last resided
| together as husband and wife at No.Panjampatty,
| Dindigul Taluk, Anna District. Only the petitioner is
| a resident of Madras and the first respondent is a
| resident of Dindigul as also the second respondent. In
| the circumstances, the proper Court to try the case is
| the Principal District Court, Dindigul. O.M.S.No.24/96
| therefore will stand transferred to the file of the
| Principal District Court, Dindigul, for disposal. The
| parties to appear before that Court on the 10th of
| June, 2002.
|
| 39. The parties in O.M.S.No.7/2001 last resided
| together at Palaymkottai. Both the petitioner and the
| respondent live in Palayamkottai as per the petition.
| The proper Court is the Principal District Court,
| Tirunelveli. O.M.S.No.7/2001 will stand transferred to
| the file of the Principal District Court, Tirunelveli,
| for disposal. The parties to appear before the
| Principal District Court, Tirunelveli, on 10.6.2002."
17. The above said citation reported in AIR 2002 Madras 435, is not applicable to the facts of the present case, because, in that decision, the matrimonial cases came to be filed before the High Court and it was held that though the High Court is having concurrent jurisdiction along with the District Court, since the parties lastly resided only in Anna Dindugal District/Tirunelveli District and not within the jurisdiction of the High Court, this Court came to the conclusion that the cases have to be transferred to the Courts where both parties lastly resided together as husband and wife, and as they lastly resided at Panjampatty, Dindigul Taluk, Anna District/Palaymkottai, Tirunelveli District, and in one of the cases, the petitioner therein was a resident at Madras and the first respondent and the second respondent therein were residents of Dindigul and so, the cases were transferred to Principal District Courts, Dindigual/Tirunelveli. But in the case on hand, both the petitioner-father of the minor child and the respondent-grandfather of the minor child, are residing within the jurisdiction of this Court and so, the above citation is not applicable to the facts of the present case.
18. Moreover, as per the Full Bench decision of this Court reported in AIR 1990 MADRAS 100 (cited supra), this Court has concurrent jurisdiction along with the Family Court after the constitution of the Family Courts under the Family Courts Act.
19. As already quoted in the earlier paragraph, as per Clause 17 of the Letters Patent of this Court, Order 21 of the Original Side Rules of this Court and Section 4(4) of the Guardians and Wards Act, this Court is having jurisdiction to entertain the main O.P.No.637 of 2009.
20. It is true that guardian O.P. in G.W.O.P.No.4123 of 2009 has been filed before the Principal Family Court, Chennai, but there is no document to show as to when it was filed and whether it was filed after the filing of the present O.P.No.637 of 2009 or before the filing of the present O.P.No.637 of 2009.
21. It is true that the present O.P.No.637 of 2009 pending before this Court and G.W.O.P.No.4123 of 2009 pending before the Principal Family Court, Chennai, are to be tried jointly to avoid conflict of decisions and multiplicity of proceedings. But there is no document to show as to when G.W.O.P.No.4123 of 2009, was filed, for deciding whether the same has been filed in the earlier point of time. In the abovesaid circumstances, it is premature to transfer the present O.P.No.637 of 2009.
22. In such circumstances, there is no need to transfer the main O.P.No.637 of 2009 pending before this Court, to the file of the Principal Family Court, Chennai. Hence, A.No.641 of 2010 seeking for transfer of O.P.No.637 of 2009, is liable to be dismissed as devoid of merits.
23. The marriage between the petitioner-K.Srinivasan and Chitralekha, the daughter of the respondent, is admitted and out of their lawful wedlock, she gave birth to one male child Sabareesh and admittedly, the minor child Sabareesh is now with his father, the petitioner. The second child, minor Shruthi, was born on 25.12.2006, and the mother Chitralekha died on 24.1.2007 in a fire accident. The respondent, the father-in-law of the petitioner, raised a contention that unable to bear the cruelty meted out by her husband, she committed suicide. She has left behind her a suicide note. As per the suicide note, she requested her father and her brother to take care of her children and it is the last will of his deceased daughter and therefore, the respondent-father-in-law does not want to give the custody of the minor grand-daughter Shruthi to the petitioner-father.
24. Learned counsel for the respondent-grandfather relied on the decision of this Court reported in 1998 (I) M.L.J. 515 (Thirumavalavan Vs. Natarajan), wherein, this Court held as follows:
| "10. When we compare the handwriting in Ex.R-2 with
| the admitted handwriting contained in Exs.R-6 to R-8
| the handwriting is beyond any doubt, in the hand of
| the deceased. Her last desire is contained in the said
| letter, the said letter deserves to be treated as a
| testament. She has signed four times immediately after
| the completion of the sentence in the letter. That
| itself is an indication that she wanted that letter to
| be accepted and acted upon and dispel any doubt about
| its genuineness. In my view, if anything is done
| contrary to the last wishes of the deceased, we will
| fail to satisfy the desires of a departed soul. In
| such circumstances, we should not harp upon the legal
| rights conferred upon the father and ignore the
| sentiments expressed by the mother that too at the
| time of her suicide. When we consider the welfare of
| the child also, a female child in the custody of a
| grand-father or mother would feel better and happier
| than to in the custody of a step-mother. In my view,
| when we come across a case like this, we must take
| note of the traditional proverbial treatment of a step-
| mother and as far as possible, the court must stretch
| its arms to prevent the chances for such a treatment.
| As otherwise, even from the childhood the minor child
| will begin to experience a frustration and nurture a
| hatred towards the step-mother and to some extent
| towards the father, who usually ignores the cry of a
| minor child for fair treatment at the influence of his
| second wife. In this case, the respondent has admitted
| that he has taken a second wife. Further, it is also
| stated that the second wife has also conceived."
25. In the present case, the xerox copy of the suicide note of the deceased Chitralekha, has been filed before Court, and whether it was written by the deceased Chitralekha or not, has to be decided only during trial, after letting in oral and documentary evidence, and not at this stage.
26. Now, it is appropriate to consider the typed set of papers filed by the petitioner-father (husband of the deceased), in which, in page 1, a registered F.I.R. copy is enclosed, in which it was stated it was an "accidental fire" and since she died in fire accident within seven years of the marriage, R.D.O. enquiry was conducted and report of the R.D.O. also finds place in page 3 of the typed set of papers, in which it is stated that the mother of the deceased Chitralekha, i.e. the wife of the respondent-father-in-law deposed in enquiry that both the husband and the wife were living together happily and because of gas leakage, she died. Admittedly, no criminal case has been filed against the petitioner.
27. Furthermore, during arguments, it was stated that even though she died on 24.1.2007, till the O.P. has been filed before this Court, for the custody of the minor child, the suicide note has not been brought to the notice of anybody. Besides that, both the children were in the custody of the respondent-grandfather and for the purpose of education, the minor son has been handed over to the petitioner-father and now, the minor son is staying with the petitioner-father and the custody of the minor daughter is sought for by the petitioner on the same ground of giving education.
28. It is also admitted by both sides that the second marriage of the petitioner-K.Srinivasan has been performed with the help of the respondent-father-in-law and their family members. Both the parties are in cordial terms and for submitting the custody of the minor child Shruthi/grand-daughter alone, there is a dint in the minds of both parties.
29. In this regard, it is appropriate to consider Section 9 of the Guardians and Wards Act, which reads as follows:
| "Section 9: Court having jurisdiction to entertain
| application.--
|
| (1) If application is with respect to the
| guardianship of the person of the minor, it shall be
| made to the District Court having jurisdiction in the
| place where the minor ordinarily resides.
|
| (2) If the application is with respect to the
| guardianship of the property of the minor, it may be
| made either to the District Court having jurisdiction
| in the place where the minor ordinarily resides or to
| a District Court having jurisdiction in a place where
| he has property.
|
| (3) If an application with respect to the
| guardianship of the property of a minor is made to a
| District Court other than that having jurisdiction in
| the place where the minor ordinarily resides, the
| Court may return the application if in its opinion the
| application would be disposed of more justly or
| conveniently by any other District Court having
| jurisdiction."
30. It is true that as per the Guardians and Wards Act, the father is the natural guardian of the minor child Shruthi. The second marriage of the petitioner-father, is not an impediment for having the custody of his minor child Shruthi. The welfare of the minor child is the paramount consideration for giving the custody.
31. In this regard, it is appropriate to consider the decision reported in 2009 (7) SCC 322 (Anjali Kapoor Vs. Rajiv Baijal), in which the Supreme Court held as follows:
| "26. Ordinarily, under the Guardian and Wards Act, the
| natural guardians of the child have the right to the
| custody of the child, but that right is not absolute
| and the courts are expected to give paramount
| consideration to the welfare of the minor child. The
| child has remained with the appellant grandmother for
| a long time and is growing up well in an atmosphere
| which is conducive to its growth. It may not be proper
| at this stage for diverting the environment to which
| the child is used to. Therefore, it is desirable to
| allow the appellant to retain the custody of the child."
32. While applying the said decision of the Supreme Court to the facts of the present case, as per the typed set of papers filed by the petitioner-father, it is seen that he is working in Wheels India Limited, Padi, Chennai, as Manager (MFG) and his Gross Pay is Rs.58,966.94 p.m. and the deductions are at Rs.7,200.52 and his Net Pay is Rs.51,747/-. It is stated that the petitioner-Srinivasan is having his mother and second wife to maintain.
33. It is undisputed that welfare and interest of the child is relevant and of paramount consideration in a case of this nature. In the normal course, the father is entitled to the custody of the child. But there are several circumstances, where a departure can be made keeping in view the welfare of the child. As per the dictum of the Supreme Court in the decision reported in AIR 1982 SC 1276 (Thirty Hoshie Dolikuka Vs. Hosham Shavaksha Dolikuka), the Court, while deciding the custody of the child, is to keep all relevant factors in mind and has to find out as to with whom the child would be better off and the matter is to be considered and decided only from that point of view and interest of the minor. In deciding the matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest, and has to be guided by the only consideration of welfare of the minor. When the atmosphere in a house is vitiated and rendered surcharged with tension as a result of bitter squabbles between the parties, it causes misery and unhappiness to a child, who has to live in constant psychological strain. The mental and physical growth of the child is bound to be seriously affected under such circumstances.
34. While applying the said decision of the Supreme Court to the facts of the present case, on hearing the petitioner-father, the two minor children (brother and sister), the respondent-father-in-law, the brother-in-law and the second wife, who were all present before Court, it is to be noticed that both the minor children (brother and sister) were playing with each other and they are in good terms with each other and the minor Shruthi mingled with both the petitioner-father and his relatives and the respondent-grandfather and his relatives, even though she has been continuously residing with the respondent-grandfather, his wife (grandmother) and their son Sathishkumar Raja (uncle) and both the minor children are also in talking terms. Considering the welfare of the minor child, she is entitled to parental care as well as brother-hood. Considering the tender age of both the minor children Sabareesh and Shruthi, it will be better if both of them reside under one roof, which will be very conducive for their future. Even though the minor child Shruthi is now with the respondent-father-in-law of the petitioner, as soon as the minor child Shruthi saw her father and brother (Sabareesh), in the Court, she voluntarily went and played with them.
35. At this juncture, it is pertinent to note that Sathishkumar Raja, the brother-in-law of the petitioner, i.e. the son of the respondent-father-in-law, also got married now. The respondent-father-in-law is somewhat old person. Even though the respondent-father-in-law stated that he is having financial status, but he has not furnished any materials to show as to what is his financial status and as to how he could bring up the minor child Shruthi. It is well settled principle of law that the second marriage is not an impediment for having the custody of the minor child. Further, this Court, in the decision reported in AIR 2006 Madras 330 (T.Kochappe Vs. R.Sadasivam Pillai), held that the natural guardian of minor children is father, so, only due to the fact that he had married for second time, it would not absolve his right to ask for custody of the children or for appointing him as guardian of the children, more so, when there was nothing on record to show that he had in any way acted against the interest of minors.
36. As per the dictum of the Supreme Court, the welfare of the minor child is of paramount consideration for handing over the custody of the minor child to the concerned party. In the present case, the battle is between the respondent-father-in-law and the petitioner-son-in-law, i.e. the maternal grandfather and the father of the child. As already discussed in the earlier paragraphs, the eldest child, minor son Sabareesh is studying and he is with his father, the petitioner. The petitioner-father is working as Manager in Wheels India Limited and earning nearly Rs.51,000/- p.m. as net income. As per the dictum of the Supreme Court, the second marriage is not an impediment for having the custody of the minor child.
37. Even though the minor child Shruthi is with the respondent-grandfather from the date of her birth till today, as soon as she saw her brother Sabareesh and her father (petitioner) in Court, she went and had fun with them and also played with them. In such circumstances, I am of the view that considering the welfare of the minor child, and for giving good education in S.B.O.A. School, Anna Nagar, Chennai, the petitioner-father has been taking all steps for getting admission in the School and in such circumstances, it is appropriate to hand over the interim custody of the minor child Shruthi till the disposal of the main O.P.No.637 of 2009.
38. Accordingly, the interim custody of the minor child Shruthi has to be given to her father, the petitioner-Srinivasan, for giving good education to her. The petitioner-father, at the time of arguments, stated that he is ready to send the child Shruthi on Friday evenings to the maternal grandfather (the respondent) and on Sunday evenings, he could get back the child for the purpose of sending her to School on Mondays. The respondent (father-in-law of the petitioner and the maternal grandfather of the child), if he wishes, can take the minor child Shruthi on Saturdays and Sundays.
39. Considering the said aspects, I am of the view that the petitioner-father is entitled to get interim custody of the minor child Shruthi for giving proper education to her, till the disposal of the main O.P.No.637 of 2009 and the same is accordingly granted and the custody of the minor child Shruthi shall be handed over by the respondent-grandfather to the petitioner-father, within one week from today. The petitioner-father shall hand over the minor child Shruthi during holidays, i.e. on Saturdays and Sundays, to her maternal grandparents on every Friday evenings and the petitioner-father shall get back the child from the maternal grandparents every Sunday evenings.
40. With respect to transfer of O.P.NO.637 of 2009 to the file of the Principal Family Court, Chennai, if necessary, and if the parties wish, on application, the guardian O.P. in G.W.O.P.No.4123 of 2009, shall be transferred to this Court, for being tried along with O.P.No.637 of 2009 and for disposal, in accordance with law.
41. With the above observations, A.No.692 of 2010 seeking for interim custody of the minor child, is allowed and A.No.641 of 2010, seeking for transfer of O.P., is disposed of.
20.04.2010
Index: Yes
Internet: Yes
cs
R.MALA,J
Judgment in
A.Nos.692 and 641 of 2010
in O.P.No.637 of 2009
20.04.2010
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