Supreme Court - Daily Orders
K.M Vinaya vs B.R Srinivas on 14 May, 2015
Bench: V. Gopala Gowda, C. Nagappan
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 4461 OF 2015
(arising out of S.L.P. (C) No. 552 of 2014)
K.M VINAYA ... APPELLANT(S)
VERSUS
B.R SRINIVAS ...RESPONDENT(S)
WITH
CIVIL APPEAL No. 4462/2015 @ S.L.P.(C) No. 3835/2014 &
CONTEMPT PETITION (C) No. 100/2015
O R D E R
Leave granted.
Heard learned counsel for the parties. For the sake of convenience, the parties are hereinafter referred to as they are arrayed in Civil Appeal No. 4461 of 2015.
We have perused the impugned judgment and other connected papers. The dispute is in relation to the custody of the minor child, namely, Vathan. Learned Principal Judge, Family Court, vide his judgment dated 1.02.2011 after adverting to the relevant facts, evidence on record and rival legal contentions, held Signature Not Verified that the respondent-father is entitled to the custody Digitally signed by Sushil Kumar Rakheja Date: 2015.05.15 17:38:06 IST Reason: of the child and further directed the appellant-mother to handover the custody of the child within a period 2 of one month. The correctness of the said judgment is challenged by the appellant before the High Court of Karnataka on various grounds. The High Court vide its judgment dated 13.09.2013 in MFA No. 1729/2011, after adverting to the rival legal contentions examined the correctness of the finding recorded in the judgment of the Family Court Judge, modified the judgment of the Family Court Judge to the effect by allowing the appeal partly and modified the Order dated 1.02.2011 in G & WC 106/2004 passed by the III Additional Principal Judge Family Court, Bangalore, holding that the respondent-father is entitled to the custody of the minor child from 1st January to 30th June and the appellant-mother is entitled to custody of the minor child from 1st July to 31st December of every year, till the minor son attains the age of majority. The correctness of this modified order is challenged by the parties before this Court by filing these appeals.
We have carefully examined the findings and reasons recorded by the High Court in the impugned judgment keeping in view the decision rendered by this Court on the question of welfare of the child and custody of the child when there is a serious dispute with regard to the matrimonial issues between the father and 3 mother. It would be necessary for us to extract from the judgment of this Court in the case of Lekha vs. P. Anil Kumar reported in (2006) 13 SCC 555, the relevant paragraphs are extracted hereinbelow;
“16. In Samuel Stephen Richard v. Stella Richard, AIR 1955 Mad 451, the High Court in deciding the question of custody held as follows:
“ In deciding the question of custody, the welfare of the minor is the paramount consideration and the fact that the father is the natural guardian would not ‘ipso facto’ entitle him to custody. The principal considerations or tests which have been laid down under Section 17, in order to secure this welfare, are equally applicable in considering the welfare of the minor under Section 25. The application of these tests casts an ‘arduous’ duty on the court. Amongst the many and multifarious duties that a Judge in Chambers performs by far the most onerous duties are those cast upon him by the Guardians and Wards Act. He should place himself in the position of a wise father and be not tired of the worries which may be occasioned to him in selecting a guardian best fitted to assure the welfare of a minor and thereafter guide and control the guardian to ensure the welfare of the ward—a no mean task but the highest fulfilment of the dharmasastra of his own country. It is only an extreme case where a mother may not have the interest of her child most dear to her. Since it is the mother who would have the interest of the minor most at heart, the tender years of a child needing the care, protection and guidance of the most interested person, the mother has come to be preferred to others.”
17. In Thrity Hoshie Dolikuka v. Hoshiam 4 Shavaksha Dolikuka, (1982) 2 SCC 544, this Court held as under:
“17. The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a 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. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.”” We have heard this matter on different combination on number of dates and suggested to both the parties to arrive at an amicable settlement with regard to the arrangement of custody of child keeping in view the larger interest of the welfare of the child. It is an undisputed fact that the child is in the custody of the appellant-mother at present and the father has been given certain days custody. He is attending the school from the house of the mother. In this view of the matter, it would be just and proper for this Court to give the visitation rights to the respondent-father, as agreed between the parties.
(i) The minor child-Vathan will live with the appellant-mother from Monday to Friday. On 5 every Saturday from 8.00 a.m. till Sunday at 8.00 p.m. the appellant-mother will send the child to the custody of the respondent-father and he shall return the child to the mother by 8.00 p.m. on every Sunday.
(ii) The aforesaid arrangement is for a period of first three weekends in a month and in the last week of the month the child will remain in the custody of the appellant-mother for the purpose of updating his studies.
(iii) Both the parties are directed to see that the child shall be made available for the respondent-father during summer vacation/winter vacation/ X-mas vacation. The child shall spend first half of the vacation periods with the father and the second half periods of the vacation the child will remain in the custody of the mother.
(iv) The custody of the child during the festivals, birthdays etc. will be shared between the father and the mother on a mutually agreed basis.
(v) We also further direct the parties to bring up the child in the joint custody and 6 guardianship in future.
(vi) As agreed by both the parties, they shall take steps and withdraw all the proceedings pending before the Courts below and withdraw all the allegations made against each other by filing necessary affidavits by both in all the proceedings.
(vii) It is agreed between the parties that the father can have access to the son through mobile phone, landline or Skype, during the week days at a mutually agreed time. Similarly, the mother will also have access when the boy is with the father.
We further observe that the appellant-mother is sending the son to the house of the respondent-father, as directed above, the mother must make necessary arrangements to send required Books and other materials to see that the child when he is in the custody of the father in the weekends, the study of the child is not affected.
We also make it very clear that the respondent-father has to see during the custody of the child during weekends, if there is any tuition to be 7 attended by the minor child, the arrangement for the same may be made by the father.
We further hope and trust that the parents will see that the welfare of the child and his growth and development must be only criteria to be kept in their mind, they shall not conduct themselves in any manner to the prejudicial interest of the child. With the aforesaid modification in the impugned order of the High Court, the appeals are disposed of and the contempt petition is closed.
...........................J. (V. GOPALA GOWDA) ..........................J. (C. NAGAPPAN) NEW DELHI, MAY 14, 2015 8 ITEM NO.22 COURT NO.10 SECTION IVA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). 552/2014 (Arising out of impugned final judgment and order dated 13/09/2013 in MFA No. 1729/2011 passed by the High Court of Karnataka At Bangalore) K.M VINAYA Petitioner(s) VERSUS B.R SRINIVAS Respondent(s) (Interim relief and office report)(For Final Disposal) WITH SLP(C) No. 3835/2014 (Interim custody of child and Office Report) CONMT.PET.(C) No. 100/2015 in SLP(C) No. 3835/2014 (With Office Report) Date : 14/05/2015 These petitions were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE V. GOPALA GOWDA HON'BLE MR. JUSTICE C. NAGAPPAN For Petitioner(s) SLP 552/14 Mr. P. R. Ramasesh,Adv. SLP 3835/14 & Mr. P.Vishwanath Shetty, Sr. Adv. CP 100/15 Ms. Rukhsana Choudhury,Adv.
Mr. Deepak Shetty, Adv.
For Respondent(s) Mr. P.Vishwanath Shetty, Sr. Adv.
Ms. Rukhsana Choudhury,Adv.
Mr. Deepak Shetty, Adv.
UPON hearing the counsel the Court made the following O R D E R Heard learned counsel for the parties. Leave granted. The appeals are disposed of and the contempt petition is closed in terms of the signed order.
(S. K. RAKHEJA) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed order is placed on the file)