IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MAY, 2019 PRESENT THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY WRIT APPEAL NO.1600/2018 BETWEEN:
AMITABH SINHA, S/O LATE. M.C. SINHA AGED ABOUT 41 YEARS R/AT NO.179, TIWARIPURA FIRST P.O.SEWANS TANNERY ADARSH NAGAR, KANPUR-208 010. U.P.INDIA. ... APPELLANT (BY SRI PRITHVI RAJ B N., ADV) AND 1. KARTHICKEYA MOTWANI S/O AMITABH SINHA, 15 YEARS F-1801, AJMERA INFINITY APTTS 89/1 DODDATHOGURU BEGUR HOBLI,NEELADRI ROAD ELECTRONIC CITY-1 BENGALURU-560 100.
REP. BY HIS MOTHER SUNITA MOTWANEE 2. UNION OF INDIA MINISTRY OF EXTERNAL AFFAIRS ROOM NO.20, PATIALA HOUSE ANNEXE TILAK MARG, NEW DELHI-110 001.
REP. BY JOINT SECRETARY [CPV] ... RESPONDENTS (BY SMT. SUNITHA MOTWANI - C/R1 SRI. C. SHASHIKANTH., ASGI FOR R2.) THIS WRIT APPEAL IS FILED U/S. 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 4.6.2018 PASSED BY THE SINGLE JUDGE IN WP NO. 48962/2016 BY ALLOWING THIS WRIT APPEAL OF SUFFICIENT APPEAL IN TIME.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 26.04.2019, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT THIS DAY, K.N. PHANEENDRA, J., MADE THE FOLLOWING:
JUDGMENT This intra court Writ Appeal is filed against the order passed by the learned single Judge in Writ Petition No.48962/2016 (GM-RES) dated 4.6.2018 by making some interim arrangements between the parties in respect of the school fee of the respondent No.1, who is the child of the appellant and Smt. Sunitha Motwanee, the natural mother and guardian of the first respondent-child.
2. We have heard the arguments of the learned counsel for the appellant and also Smt. Sunitha Motwanee, next friend and guardian of the first respondent Karthikeya Motwanee, appearing party-in-person. We have also carefully perused the order passed by the learned single Judge in Writ Petition No.48962/2016 dated 4.6.2018.
3. Before adverting to the grounds elaborated by the learned counsel for the appellant, we feel it just and necessary to have the brief factual matrix that emanate from the records in Writ Petition No.48962/2016 is that:
The petitioner (respondent No.1 herein) - Karthikeya, minor son of Smt. Sunita Motwanee, has filed the above said Writ Petition against the respondent, father of the petitioner - Amitabh Sinha, (appellant herein) for the following reliefs i.e.,-
(a) Petitioner’s mother unfit to support him. Please pass an order for respondent to look after the well-being of the minor son i.e., the petitioner till he becomes an adult.
(b) Petitioner may be handed over to the respondent so that the petitioner’s fundamental rights of a human being are protected in the interest of justice and equity in accordance with law.
(c) Pass any such orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
4. The said Writ Petition was actually contested by the other side and in the mean time, during the pendency of the Writ Petition, an application was moved by the petitioner through his mother-next friend and guardian by way of filing IA No.1/2018. In the said application, the petitioner has prayed for a direction to the respondent No.1 that,-
“To pay the educational expenses of the petitioner (which includes school fees, Activity fees, Transportation, Books, Notebooks, Uniforms, competitive examinations coaching class fees etc.,) which comes to Rs.1,65,000/-, supplemented by the computer for the petitioner and charges of coaching classes for Grade-XI without further delay as an interim measure till the final disposal of the petition in the interest of justice and equity. And also prayed for payment of Rs.25,000/- to school immediately to block the seat for the petitioner in Grade XI.”
On the above said application, after hearing both the sides, the learned single Judge has passed the impugned order.
5. There is no dispute with regard to the relationship between the parties i.e., the respondent No.1 is the son of the appellant as well as the mother of the respondent No.1 who is representing the child now, as next friend.
6. The appellant’s counsel has submitted before the court that Writ Petition itself is not maintainable because the above said prayer sought in the Writ Petition cannot be granted by the writ court because it is the jurisdiction of the family court or the Guardian and Wards Court to pass such an order. Further, it is submitted before this court that, the appellant is ready and willing to take the child to his custody and look after all his education and welfare. Therefore, in view of the above said admission on the part of the appellant, the Writ Petition itself does not survive and therefore, the order passed by the learned single Judge is bad in law.
7. It is further submitted by the learned counsel for the appellant that the writ court has not at all considered the avocation as well as the earning capacity of the appellant. However, it passed an order directing the appellant to pay school fee etc., It is further contended that the writ court has not even taken into consideration that in various proceedings under the Domestic Violence Act, the learned JMFC u/s.125 of Cr.PC., petition, a total amount of Rs.30,000/- has already been awarded as maintenance to the mother of the respondent and further, granted an amount of Rs.19,000/- towards rentals as prayed for by the mother of the respondent and these factors has not been appreciated by the writ court and further directed the appellant to meet the educational expenses of the child, which is erroneous and liable to be set aside.
8. Per contra, the next friend of the respondent No.1 party-in-person Smt.Sunita Motwanee has strenuously contended that the writ court has not decided about its jurisdiction. Of course, totally an amount of Rs.49,000/- has been awarded by the different courts, but so far as the rental amount is concerned, an amount of Rs.19,000/- granted by the Trial Court has been set aside by the first appellate court and in fact, the High Court has again allowed the said rentals granted in favour of the mother of the respondent. But having not satisfied with the same, the appellant has preferred an SLP before the Hon'ble Supreme Court, challenging the said order and the said SLP is pending. However, the said amount has not been paid by the appellant hitherto.
She has further contended before this court that an amount of Rs.30,000/- admittedly as ordered by the Trial Court under the Domestic Violence Act has been confirmed by this court in WP No.15406/2017 connected with WP No.20884/2017 (GM-FC) by an order dated 27.7.2017. Therefore, with the meager amount of Rs.30,000/- towards maintenance, it is very difficult for the respondent No.1 to maintain the child and also to bear the educational expenses including school fees, uniform, transportation, coaching fees etc., Therefore, she has approached this writ court with the above said prayer.
She has further contended that, the writ court has considered all the above said points raised by the learned counsel for the appellant with regard to the granting of an amount of Rs.49,000/- per month including the rentals and also considering the capacity of the appellant. Further, the writ court considered the efficiency and intelligence of the child, held that the child requires a good and standard education for his future welfare. Therefore, the writ court has passed an appropriate order which deserves no interference at the hands of this court. Therefore, she prayed for dismissal of the Writ Appeal.
9. On careful perusal of the grounds urged by the learned counsel for the appellant and also the contention taken by the mother of respondent No.1, it appears that, it is only an interim arrangement made by the writ court vide order dated 4.6.2018 in WP No.48962/2016 for the benefit and welfare of the minor child who is studying in XI standard.
10. On perusal of the order of the learned single Judge, it appears that the learned single Judge has observed that the Constitution (86th Amendment) Act, 2002, the Parliament has added Clause (k) to the Fundamental Duties under Article 51A of the Constitution as well as inclusion of Article 21A to the Constitution, i.e., Right to Education, which mandates that the State shall provide free and compulsory education to all children up to the age of 14 years from the age of 6 years, in such manner as the State may, by law, determine. Of course, thereafter, the said fundamental right will not in any manner vanish, but that can still be exercised by the child against their parents, who are responsible for the welfare of the child and also guardians of the child to take care of the education of the child. Though the said provision Article 21A of the Constitution, cannot be exercised in the court of law by virtue of the said Article, but on the basis of the moral responsibility of the father and the guardians, the child can definitely seek for such a relief against the father. In this particular case, the learned single Judge has considered the magnanimous ambition of the Constitution and passed the interim order directing the appellant to meet the educational expenses of the child.
11. The materials placed before the court as well as the order passed by the learned single Judge, clearly discloses that in pursuance of the order dated 4.6.2018, the appellant has to inform the court about the payment of fee in respect of the petitioner-child with regard to the admission of the minor child to PSBB Learning Leadership Academy to prosecute his studies in XI standard in Science stream. Further, the learned Single Judge has observed that, by an order dated 11.4.2018, the appellant has already paid an amount of Rs.25,000/- to the said Academy for the purpose of blocking the seat for the minor child. When the matter was listed on 1.6.2018, the court has observed that the court has granted time to ascertain about the payment of fees and other incidental charges to the Learning Leadership Academy, but it appears the said amount has not been paid in spite of the direction by the Court. The child in fact was admitted to the said school and the respondent submits that, she has paid the amount for admission and other things to XI standards, but the appellant has not paid any amount, as submitted before the court that the child can be admitted to National College 7th Block, Jayanagar as he is unable to pay huge fee etc., In the said school, the college fee itself is Rs.40,000/- per year and he is ready and willing to pay such an amount. Therefore, it clearly discloses that the appellant is not willing to pay any amount so far as the education of the child in the said institution is concerned i.e., PSBB Learning Leadership Academy.
12. We have also perused the impugned order, wherein the learned Single Judge has observed that, there is no dispute by the respondent herein that the Family Court in a matrimonial case, has awarded an amount of Rs.20,000/- per month towards the maintenance and the jurisdictional Magistrate has also granted an amount of Rs.10,000/- per month as maintenance to the respondent’s mother, and further ordered an amount of Rs.19,000/- towards the rentals and totally an amount of Rs.49,000/- per month has been awarded. But she has contended before this court that the said amount has not been paid i.e., the rentals and out of the interim award of maintenance an amount of Rs.30,000/- has been paid. But, there is no order by any court with regard to the educational expenses and the school fee, uniform, transportation fee etc., of the child. It is also the contention taken and not disputed that the child has secured 92.5% in the X standard CBSE Board examination.
13. Looking to the above said factual aspect, this court has observed that whatever may be the differences between the husband and wife, this is not the stage where the claim of the respondent child is to be denied because the child has secured 92.5%, who has got a bright future. In fact, when a seat has been blocked in the said school, it becomes the duty of the father to pay the said amount. Therefore, in this background, for the welfare and benefit of the child, learned Single Judge has directly invoked the powers under Article 226 of the Constitution of India on the basis of Article 21A of the Constitution of India holding that such a claim of the petitioner is also maintainable u/s.20(3)(b)(i) of the Hindu Adoptions and Maintenance Act, 1956 and it is also observed that in fact, this is a fundamental right permeated in personal law or private law. The court has also observed and noted that Right to Education is also recognized not only a fundamental right, but also a human right which a child particularly, a minor child could seek to enforce as it is a fundamental duty of the parents to educate their children.
14. As could be seen from the records and the order of the learned Single Judge, the Writ Court has also taken into consideration that, an amount of Rs.49,000/- has been awarded by various courts in favour of the respondent No.1. Of course, various pleas for the said amount have been taken by the appellant’s counsel, on account of lack of funds, as the same is very huge amount and therefore, he requested the court to dismiss the said application. However, in spite of considering the above said submission, the court has passed the impugned order keeping in view the welfare and status of the child and the mother.
15. It is not the case of the appellant before this court that the respondent’s mother, next friend and guardian is having any avocation and also earning and she is also capable of meeting all the educational expenses of the child. It is also clear that, the mother of the child is maintaining herself and the child on the basis of the maintenance award perhaps awarded by the various courts as admitted by the parties. Further, added to that, as could be seen from the order of the learned Magistrate, produced before the court under the Domestic Violence Act and u/s.125 of Cr.P.C. an amount of Rs.10,000/- and Rs.20,000/- were awarded only towards maintenance of the child. In our opinion, the said amount of Rs.30,000/- is not sufficient to the respondent even to meet all the education expenses as admitted by the appellant himself that much of huge amount, he cannot make such payment and therefore, he sought for admission of the child in National College, Jayanagar. Therefore, it goes without saying that the respondent No.1’s mother is also not able to meet the educational expenses of the child.
16. Though in the applications, it is claimed with reference to the coaching class fees etc., separately, but as could be seen from the orders of the learned Single Judge at page 30, the respondent’s mother has expressly stated that so far as XII Standard is concerned, what has to be paid is only tuition fee and other incidental fee to the Academy and no further amount shall be sought towards additional coaching charges and the learned Single Judge has placed on record the said submission.
Therefore, looking to the above said facts and circumstances of the case; the learned Single Judge has only made an interim arrangement during the pendency of the Writ Petition. Therefore, we find absolutely, no reason to interfere with such a reasoned and logical order passed on the basis of the facts.
17. The learned Single Judge has in fact, directed the respondent – father to pay the balance school fee in respect of the minor petitioner to get admission to PSBB Learning Leadership Academy Centre. And the court has also directed respondent No.1 to make a request with the said institution for payment of the amount in installment basis and also the court expressed its hope and trust that the said institution has magnanimously considered the said request of the appellant.
18. Therefore, on plain reading of the order passed by the learned Single Judge, it is an interim arrangement made for the welfare of the child and for the benefit of the child so that the child’s education in any manner should not be paralyzed. It is the main object of the court as per the ambition of the Constitution of India.
19. Now, coming to the two contentions raised by the learned counsel for the appellant:
Firstly, the learned counsel for the appellant contends that the Writ Petition itself is not maintainable and even otherwise the appellant is ready and willing to take back the child and take care of the child. The question of whether the Writ Petition is maintainable or not, is yet to be decided by the writ court itself and it is not the stage where the writ court can pass an order with regard to its jurisdiction, when such situation arose to safeguard the interest of the minor child. Therefore, it is still open to the appellant to question the jurisdiction of the court before the same court while arguing the matter on the merits of the Writ Petition. Therefore, we do not find any strong grounds as urged to interfere with the order impugned in this appeal.
Further added to the above, the appellant has expressed his willingness to take the child back. It is to be noted that the Writ Petition was filed as long in the year 2016. We are in 2019. It appears he has made such submission before this court only. Therefore, in our opinion, it is not tenable at this stage when specifically several orders have been passed against him on 11.4.2018, 1.6.2018 and 4.6.2018, without complying the said orders in proper perspective, simply making submission that he is ready and willing to take back the child cannot be accepted at this stage.
Further, added to the above, the appellant has to comply with the orders first in order to safeguard and protect the valuable educational rights of the child and then he would have placed such request before the court.
The order of the learned Single Judge does not disclose any such representation was made before passing the order on 11.4.2018 itself or as on 4.6.2018 or on which day the impugned order is passed. Therefore, the said contention of the learned counsel at this stage is not tenable.
The second contention is that the learned Single Judge has not considered the avocation as well as capacity of the appellant. Though it is argued before this court that he has only earning Rs.30,000/- per month but the order passed in WP No.15406/2017 c/w. 20884/2017, this court vide order dated 27.7.2017 has confirmed the order passed in MC No.68/2016 granting Rs.20,000/- maintenance and also considering an amount of Rs.10,000/- awarded by the Magistrate as maintenance earlier in favour of the respondent mother. Therefore, it cannot be easily accepted that the appellant is unable to pay such an amount even otherwise, so far as the educational expenses for XI and XII standard which are claimed by the respondent is one-time payment so that the child can prosecute those two years education in the said institution. Therefore, without any strong materials on record, we cannot come to any conclusion that the appellant was unable to make such a payment as it is submitted by the respondent – mother that an amount of Rs.19,000/- awarded by the court towards rental has not been paid by the appellant.
20. Looking to the above said facts and circumstances of the case, we are of the opinion that there is no reason to meddle with the order impugned.
21. Last but not least, there is no clarification in the impugned order with regard to the payment of fee and other incidental charges. However, the court had directed the respondent No.1 to pay the balance school fee in respect of the minor child for getting admission to PSBB Learning Leadership Academy. However, the claim of the respondent No.1 excluding the coaching charges for the XII standard, is tenable and the child is entitled for the said amount. At page 29 of the order impugned, the writ court has in fact considered these aspects such as payment of incidental charges including transport charges, books and as well as uniform charges of the child apart from the school fee, in the form of installments. The mother of respondent herself has stated that it is only the education fee and other incidental fee has to be paid to the Academy. Therefore, we clarify by this order that the respondent (appellant herein) is directed to pay the balance school fee in respect of the minor child to PSBB Learning Leadership Academy which shall include not only the school fee but also the transportation fee and uniform and books of the child for the academic years XI and XII i.e., balance school fee, transportation fee and then books and also uniform fee shall be paid to the academy.
22. It is also submitted by the next friend of the child that she has already paid some amount to the academy towards the fee and other things. Remaining school fee has to be paid to the school and whatever the amount is paid against the school fee, transportation fee, Uniform fee and books and for the coaching classes fee in the same institution by her, the said amount has to be reimbursed or paid to the mother of the child either by way of DD or by depositing the amount before the Court, after calculation.
23. Therefore, the appellant is hereby directed to comply with the above said direction of this court within one month from the date of receipt of a copy of this order without fail, failing which, the respondent has already filed a CCC before this Court in CCC No.1480/2018 and she is at liberty to proceed and prosecute the said CCC immediately after the lapse of one month from the date of this order, if the order is not complied.
With the above said observation, we are of the opinion that this Writ Appeal has no merit and the same is liable to be dismissed. Accordingly, dismissed.
Sd/- JUDGE Sd/- JUDGE PL*