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

Leave granted.

   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.

   8b.  Both the parties undertake that the child should be sent  to  the school regularly.  The child shall not  absent

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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 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

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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 the respondent submitted that  both the parties have filed 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 the appellant contended that  though the  appellant has no 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 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  the  High Court  under challenge.  We are constrained to observe  that the  High Court in its approach to the case has ignored  the well-settled  principle  that  in a matter relating  to  the

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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.

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   This order is passed without prejudice to the rights and contentions of the parties in the proceedings for custody of the  child  which  is  pending   before  the  Family  Court, Bangalore.

   The appeal is disposed of on the above terms.  No costs.