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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. L...I...T.......T.......T.......T.......T.......T.......T..J

   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@@                                      JJJJJJJJJJJJJJJJJJJJJJJ the  respondent  submitted that both the parties have  filed@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 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@@                                       JJJJJJJJJJJJJJJJJJJJJJ the  appellant  contended that though the appellant  has  no@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 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@@             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ the  High  Court  under challenge.  We  are  constrained  to@@ JJJJJJJJJJJJJJJJ 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