IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 05TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR M.F.A. No.3632/2018 (GW) BETWEEN:
SRI M.U. PONNANNA S/O. UTHAIAH, AGED 37 YEARS, THAVALAGERI VILLAGE, T. SHETTIGERI POST, SRIMANGALANAD, VIRAJPET TALUK, SOUTH COORG – 571 218. ... APPELLANT (BY SRI N. RAVINDRANATH KAMATH, ADVOCATE) AND:
SMT. VISHMA .M.P W/O. M.M. PONNANNA D/O. LATE PONNAPPA, AGED 28 YEARS, NO.20, 6TH CROSS, NARAYANAPPA STREET, RAMASWAMY PILLAI, M.S. NAGAR, BANGALORE – 560 033. ... RESPONDENT (BY SMT. RACHITA NANAIAH BY M.T. NANAIAH & ASSTS.) THIS MFA IS FILED UNDER SECTION 47(a) OF THE GUARDIANS & AND WARDS ACT, AGAINST THE JUDGMENT DATED 06.04.2018 PASSED IN G & WC NO.7/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, VIRAJPET, DISMISSING THE PETITION AS NOT MAINTAINABLE FILED U/S 7 & 25 OF THE GUARDIAN & WARDS ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. Appellant is the father, while respondent is the mother of minor child, Manya Muthamma. The appellant/father filed a petition under Sections 7 and 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as “the G&W Act” for brevity) seeking permanent custody of the minor daughter, Manya Muthamma. By the impugned order dated 06/04/2018, the trial Court has dismissed the petition G&WC.No.7/2016 as not maintainable. Being aggrieved, the father of the minor child has preferred this appeal.
3. We have heard learned counsel for the appellant and learned counsel for the respondent at length and perused the material on record.
4. This appeal has a checkered history.
M.C.No.18/2013 was filed by the parties under Section 13(B) of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act” for the sake of brevity). By order dated 24/04/2013, the trial Court granted a decree of dissolution of marriage i.e., divorce by mutual consent. In the said decree, there was no direction issued with regard to custody of child. Hence, the respondent filed MFA.No.5342/2013 before this Court, seeking modification of the judgment and decree in M.C.No.18/2013 dated 24/04/2013. The said appeal was allowed and disposed by order dated 04/07/2014 and the matter was remanded to the trial Court directing the respondent herein to file a review petition. But the respondent has not filed review petition before the trial Court, instead she filed I.A.Nos.III and IV under Section 26 of the Hindu Marriage Act, which were allowed by the trial Court by orders dated 02/03/2015. Being aggrieved by the order dated 02/03/2015, the appellant herein preferred MFA.Nos.2261/2015, 2330/2015 and 2329/2015. The said appeals were dismissed by this Court by judgment dated 26/11/2015 confirming the order of the trial Court granting permanent custody of Manya Muthamma to respondent/ wife. Being aggrieved by the said judgment of this Court, the appellant herein had filed SLP.Nos.271-273/2016 before the Hon’ble Supreme Court. By order dated 15/01/2016, the Hon’ble Supreme Court permitted the appellant herein to withdraw the said special leave petitions. Thereafter, the appellant herein filed G&WC.No.7/2016 before the trial Court under Sections 7 and 25 of the G&W Act. By the impugned order, the trial Court has held that the petition was not maintainable although evidence was recorded in the said case. Being aggrieved, the father has preferred this appeal.
5. We have heard learned counsel for the appellant/husband and learned counsel for the respondent/wife and perused the material on record.
6. Appellant’s counsel contended that the trial Court was not right in dismissing his petition filed under Sections 7 and 25 of the G & W Act as not maintainable. That although permanent custody of the minor child was handed over to the respondent/wife in a matrimonial proceeding instituted under Section 13B of the Act and subsequently, under Section 26 of the Act pursuant to the directions issued by this Court in the earlier round of litigation as per judgment of the Hon’ble Supreme Court, it does not matter as to under which law, a person is seeking custody of a minor child, it could be under the G & W Act, the Hindu Minority & Guardianship Act or under the Act. In the instant case, the appellant filed the petition under Sections 7 and 25 of the G & W Act as the proceedings under the Act had concluded by the earlier orders passed by the trial Court. He submitted that after recording of evidence, the trial Court could not have dismissed the petition filed by the appellant on the ground of its maintainability. In support of his submission, he relied on two judgments of the Hon’ble Supreme Court in the case of Gayatri Bajaj vs. Jiten Bhalla [(2012)12 SCC 471] as well as Ashish Ranjan vs. Anupma Tandon & another [(2010)14 SCC 274]. Learned counsel for the appellant also drew our attention to a judgment of the Co- ordinate Bench of this Court in the case of Madhavan Nair vs. Ravindran Unni [ILR 1992 Kar 2197] (Madhavan Nair), as the trial Court relied upon the said dictum to hold that the petition filed by the appellant/father under the provisions of G & W Act is not maintainable.
7. He further contended that the trial Court did not consider the aforesaid judgments, which were cited before it. He submitted that in a case concerning the custody of a minor child, all that has to be considered by the Court is the interest and welfare of the minor child and a Court ought not to have considered the question as to whether the petition is maintainable under the provisions of the particular Act or not. He submitted that the impugned order may be set aside and the relief may be granted to the appellant herein.
8. Per contra, learned counsel for the respondent supported the impugned judgment and award and contended that having regard to the judgment of the Co- ordinate Bench of this Court in the case of Madhavan Nair, and the law laid down therein, the petition filed by the appellant under Sections 7 and 25 of the G & W Act was not at all maintainable. He drew our attention to Section 26 of the Act and contended that if at all the appellant wanted to seek any revocation, modification or suspension of custody of the minor child in favour of the respondent herein, then the petition ought to have been filed under Section 26 as the said provision enables the Court to make order regarding revocation, modification or suspension passed under Section 26 of the Act. He submitted that there is no merit in this appeal and hence, the appeal may be dismissed.
9. By way of reply, learned counsel for the appellant contended that if this Court is to confirm the impugned judgment of the trial Court, then liberty may be reserved to the appellant to file a petition under Section 26 of the Act and liberty may also be reserved to the appellant to seek visitation rights. Hence, interim custody of the minor child in a petition be filed under Section 26 of the Act.
10. The detailed narration of facts and contention would not call for reiteration. The impugned order states that the petition filed by appellant herein under Sections 7 and 25 of the G & W Act is not maintainable having regard to the fact that earlier the proceeding was instituted under Section 13B(1) of the Act and subsequently under Section 26 of the Act wherein permanent custody of the minor daughter was granted to the respondent/wife. Section 26 of the Act reads as under:
“26. Custody of children.- In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made:
Provided that the application with respect to the maintenance and education of the minor children, pending and proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.”
A reading of the same would indicate that provision is made for revocation, suspension or variation of any order made with regard to the custody, maintenance and education of minor children even after the conclusion of the proceeding by grant of a decree or during the pendency of the proceeding where an interim order has been made earlier. In both cases, liberty is reserved to the other party to seek revocation, suspension or variation of any interim order or decree of the trial Court/Family Court in a proceeding instituted under the provisions of the Act. Therefore, the trial Court was justified in holding that the petition filed under Sections 7 and 25 of the G & W Act was not maintainable. In this regard, the trial Court rightly relied upon the decision of the Co-ordinate Bench of this Court in the case of Madhavan Nair by holding that Section 26 of the Act make some provision for seeking variation, revocation, suspension or any other modification of an order passed under Section 26 of the Act, either interim, order by way of a decree. We also place reliance on the judgment of the Co-ordinate Bench in the aforesaid matter.
11. In the circumstances, the petition filed by the appellant under Sections 7 and 25 of the G & W Act was not maintainable. The trial Court has rightly dismissed it on the ground of maintainability. However, liberty is reserved to the appellant to file a proceeding under Section 26 of the Act, if so advised. Liberty is also reserved to the appellant to seek any interim direction or order in such a proceeding to be instituted by the appellant vis-à-vis the minor child since the petition has been held to be not maintainable. In the event any proceeding is instituted by the appellant under Section 26 of the Act, the same shall be decided on its own merit and without reference being made to the evidence recorded in G&WC No.7/2016 as the said petition was not maintainable. Subject to the aforesaid liberty and observations made above, this appeal is dismissed.
In view of the dismissal of the appeal, all pending applications stand disposed.
Sd/- JUDGE Sd/- JUDGE S*