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CASE NO.: Appeal (civil) 1685-1686  of  2001

PETITIONER: R.V.SRINATH PRASAD

       Vs.

RESPONDENT: NANDAMURI JAYAKRISHNA & ORS.

DATE OF JUDGMENT:       02/03/2001

BENCH: D.P. Mohapatra & Shivaraj V. Patil

JUDGMENT:

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D.P.MOHAPATRA,J.

Leave granted.

   The  controversy  raised  in this case  relates  to  the interim  custody of the two minor sons of the appellant.  He has  filed  this appeal assailing the  judgment/order  dated 16th  November, 2000 of the High Court of Madras in which  a Division  Bench of the Court ordered that interim custody of the  children should be with the maternal grand-parents, the respondents  herein,  till the matter is finally decided  by the  competent court.  The Division Bench also directed  the Family Court to number the petition filed by the respondents for custody of the children and dispose of the same as early as  possible  within three months of the date of receipt  of the  order.  It is stated in the judgment/order that interim custody  of  the children is to be given to  their  maternal grand-parents  for their better welfare and also to  perform the  rituals/karma  of  their deceased  mother.   The  Court permitted  the appellant and paternal grand- parents of  the children  to  visit them, if they so desire, twice  a  month with  prior  intimation till the matter is finally  decided. The  High Court also granted liberty to the parties to  move the Court under the Guardians and Wards Act and also to move for an interim custody, after withdrawing the petition filed before  the  Family  Court.   It was  made  clear  that  any observation  made  in the judgment/order will not  prejudice either side and the arrangement made in the order is only an interim  arrangement  and  will  not  create  any  right  or prejudice to the case of either side.  The facts of the case leading  to  the  present proceeding, shorn  of  unnecessary details,  may  be  stated   thus:   R.V.Srinath  Prasad  the appellant  was  married to Kumudini, daughter of  respondent no.1.   Two sons, Jay Viraj, now aged about 5 years and Neal Krishna  aged  about 3 years were born of the said  wedlock. Both  the  parties  belong to well to  do  families.   While respondent  no.1  is  the  son of  late  N.T.Rama  Rao,  the appellant  is a businessman engaged in commercial activities in  U.S.A.  After their marriage in 1993 the couple lived in USA  till December, 1999 and during the said period the  two

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children  were born, one in 1995 and the other in 1997.  The wife  returned  to India with the two children in  December, 1999  and  lived with her parents-in-law at Chennai  between January  to  July,  2000.  On 24th October,  2000  the  wife consumed  some poisonous material in her friend’s house  and fell  ill.  After remaining in coma from 24th October,  2000 she  expired  on  29th October, 2000.   Shortly  before  the tragic  incident happened the wife with her two children had shifted  to  a  flat purchased by her father -  at  Chennai. Before going to her friend’s house on 24th October, 2000 she had   left  the  children   with  her  parents-in-law.   The cremation  of her body was done in Chennai.  The  respondent no.1 filed a petition in the Family Court at Chennai seeking custody of the minor children on 7th November, 2000.  On the same day he filed a writ petition in the High Court seeking, inter  alia, a writ of Mandamus to the Family Court, Chennai to  dispose of the petition expeditiously.  In the said writ petition,  an  application for interim order was filed  with the prayer, which reads as follows:  "For the reasons stated in  the accompanying affidavit, the petitioner herein  prays that  pending  disposal of the above writ,  this  Honourable Court  may be pleased to direct the respondents, to handover the  interim  custody  of the Two grand children  Jay  Viraj Prasad  and Neal Krishna to the petitioner to enable him  to take  them  to Hyderabad for performing the Karma  of  their deceased  mother  and  the  petitioner’s  deceased  daughter Kumudini  on  8.11.2000 and continue to have the custody  of the  said  two grand children until further orders  of  this Honourble  Court and pass such other further order or orders as  this Honourble Court may deem fit and proper, under such circumstances of this case."

                       (Emphasis supplied)

   The  writ  petition and the interim application came  up before a single Judge of the High Court on the same day i.e. the 7th November, 2000 on which day the learned single Judge while  ordering  notice of motion returnable by  four  weeks passed  an ex- parte interim order, the operative portion of which reads as follows:

   "Accordingly,   there  shall  be  a  direction  to   the Commissioner  of  Police, Chennai to trace out the  children Jai Viraj and Neal Krishna immediately and handover the said children  to  the custody of the counsel on record  for  the petitioner  Ms.B.Saraswati.   When the children  are  handed over,  they  must  be accompanied to Hyderabad  with  Police protection  and  the  children must be  allowed  to  perform obsequies.  It is also made clear that the petitioner who is the   maternal  grand  father  of   the  children  must   be responsible for the safe custody of the children."

                       (Emphasis supplied)

   The  said order was challenged before the Division Bench in  Writ  Appeal  No.1954  of 2000 filed  by  the  appellant herein.  In the said appeal an application for interim order being  CMP  No.17059 of 2000, was also filed.  The  Division Bench disposed of the writ appeal as well as the application for  interim  order by the order dated 16th  November,  2000 which is under challenge in this appeal.

   Shri  Shanti  Bhushan, learned senior counsel  appearing for the appellant strenuously urged that the entire approach of the Division Bench to the matter is grossly erroneous and

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that  has  vitiated  the order passed by it.   The  Division Bench,  submitted  Shri  Shanti  Bhushan,  has  ignored  the essential material facts;  that the appellant, father of the minor  children,  is  their natural guardian;  that  he  has returned  to  India with a view to carry on  business  here; that  he is staying with his parents at Chennai and that the children  were staying with them.  According to Shri  Shanti Bhushan,  no material was produced before the Division Bench and  none  has  been  noticed in  the  judgment/order  under challenge which would even prima facie show that the custody of  the  minor  children  should be  changed.   Shri  Shanti Bhushan  further submitted that the children are attached to their father and miss him very much.  Both the children were attending  school  at Chennai and their schooling had to  be discontinued  in view of the order directing interim custody of  the children to be given to the maternal grand- parents. Refuting  the  observation  in   the  judgment/order   under challenge  that  the  appellant stays in  USA,  Shri  Shanti Bhushan  filed  an affidavit by the appellant  containing  a statement  that he has decided to settle down in Chennai for the  purpose of carrying on business.  He has also set up  a factory  at  the Export Processing Zone at Chennai.   It  is further  stated  in the affidavit that the  appellant  stays with  his  parents  - respondent nos.2 and  3  herein;   his sister,  who is a medical practitioner running a hospital at Coimbatore  has two children, a daughter aged 7 years and  a son  aged  3  years;  she visits Chennai at  least  twice  a month.   Referring  to  the affidavit  Shri  Shanti  Bhushan submitted  that if custody of the children is left with  the appellant  there will be no difficulty in giving them proper care  and  attention.   They will have the  company  of  the children  of his sister.  Shri Shanti Bhushan contended that the  procedure  followed  by the Division Bench  in  hastily disposing  of  the  writ  appeal dealing  with  the  interim custody  of  the  children while leaving the matter  to  the Family  Court  for decision on merits is  unsustainable  and should be set aside.

   Shri  K.N.Bhat, learned senior counsel appearing for the respondents  supported the contentions raised by Shri Shanti Bhushan.

   Shri  Rakesh  Dwivedi, learned senior counsel  appearing for   the  contesting  respondents   urged  that  there  are materials  on  record to show that in the life-time  of  the deceased wife, the appellant had ill-treated and ignored her which  caused serious mental torture to the lady  compelling her  to part company with her husband and return to Chennai. Ultimately she committed suicide.  Sri Dwivedi relied on the note  left by the deceased in support of his contention.  It was  the further submission of Sri Dwivedi that the deceased wife suspsected that her husband was having an extra-marital affair  with  one Tania Kapoor, whose father is  a  business associate  of  the appellant.  In the circumstances  of  the case,  Sri  Dwivedi submitted it is in the best interest  of the  children  to  place them in custody of such  a  person. Shri  Dwivedi also raised the contention that the High Court has  independent  jurisdiction under the Letters  Patent  to decide  the question of custody of minors and therefore,  no exception can be taken to the impugned judgment/order on the ground of lack of jurisdiction.

   Custody  of minor children is a sensitive issue.  It  is also  a  matter  involving sentimental attachment.   Such  a matter is to be approached and tackled carefully.  A balance

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has  to  be struck between the attachment and sentiments  of the  parties  towards the minor children and the welfare  of the minors which is of paramount importance.

   At the outset, we would like to observe that it will not be  fair  and proper for us to delve deep into the merit  of the  case since the petition filed for custody of the  minor children is pending before the Family Court at Hyderabad and any  finding  recorded  or observation made by  us  in  this proceeding  may  prejudice the parties.  Therefore, we  will try  to  avoid entering deep into the merits of the case  as far  as possible.  On a perusal of the judgment/order passed by  the  Division Bench, we are constrained to observe  that neither  the  manner of disposal of the proceeding  nor  the order  directing the change of custody of the children  from their   father  to  their   maternal  grand-parents  can  be supported.  The Division Bench appears to have lost sight of the  factual position that the time of death of their mother the  children  were left in custody of their paternal  grand parents with whom their father is staying and the attempt of the  respondent  no.1 was to alter that position before  the application filed by them is considered by the Family Court. For  this  purpose it was very relevant to consider  whether leaving  the minor children in custody of their father  till the  Family Court decides the matter would be so detrimental to  the interest of the minors that their custody should  be changed  forthwith.   The  observations that the  father  is facing  a  criminal case, that he mostly resides in USA  and that  it is alleged that he is having an affair with another lady  are,  in  our  view, not sufficient  to  come  to  the conclusion  that  custody  of the minors should  be  changed immediately.   It  is  relevant  to   state  here  that  the respondent  no.1  maternal  grand-parents  wanted  immediate custody  of the minor children for the purpose of performing certain  obsequies in connection with the cremation ceremony of his deceased daughter and that purpose had been served by the  order  passed  by  the learned single  Judge  and  such necessity  for interim custody had ceased when the  Division Bench  passed  the judgment/order under challenge.   On  the materials  on record we are not satisfied that there was any urgency  in  disposing of the case with such  haste  without affording  reasonable opportunity to the appellant to  place material  on  record.   The procedure followed by  the  High Court is neither fair nor proper.

   The  High  Court appears to have overlooked the  settled principle  that custody orders by their nature can never  be final;   however , before a change is made it must be proved to  be  in  the paramount interest of the  children.   In  a sensitive  matter like this no single factor can be taken to be  decisive.   Neither  affluence nor capacity  to  provide confortable  living  should cloud the consideration  by  the Court.   Here we may refer to the decision of this Court  in Jai  Prakash Khadria vs.  Shyam Sunder Agarwalla and another 2000(6)  SCC  598.   In such matters usually,  Courts  while granting  the custody of minor children to one party  extend the  facility of visiting them to the other.  At the cost of repetition  we  may  state that we are  not  discussing  the merits  of  the case pleaded by the parties in detail  since the  application for the custody is pending for adjudication before  the Family Court at Hyderabad.  For the reasons  set forth  in  the preceding paragraphs we are not persuaded  to sustain  the  order  passed by the High Court  changing  the custody  of  the minor children from their father  to  their maternal grand parents.

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   The  appeals  are  allowed.   The order  passed  by  the Division   Bench  dated  16.11.2000  in  Writ   Appeal   No. 1954/2000  and  in  C.M.P.No.17059/2000 is set  aside.   The respondent  no.1  shall  leave  the minor  children  in  the custody  of the appellant.  He will have the right to  visit the  children  twice  a month with prior intimation  to  the appellant.   The appellant shall make necessary arrangements for  the purpose.  This order is passed without prejudice to the  rights  and  contentions of the parties.   There  will, however, be no order for costs.