1
IN THE COURT OF JUDGE, FAMILY COURT-CUM-XII ADDITIONAL DISITRICT JUDGE,
GUNTUR Present: Sri Virupaksha D. Gouda, M.A., L.L.B.,
JUDGE, FAMILY COURT-CUM-XII ADDL. DISTRICT JUDGE, GUNTUR.
Tuesday, the 30th day of June, 2015.
F.C.O.P.364/2013
(Originally filed in the Court of Principal District Judge, Khammam and numbered as G.W.O.P.2/2012 and transferred to this Court as per the orders of the Hon'ble High Court of A.P., in Tr.C.M.P.430/2013)
Between:
Kalluri Umamahesh, S/o.K.N.Rao, aged 35 years, Occupation : Pvt. Employee, R/o.Jammibanda, Khammam Town
and District. ...Petitioner.
-AND-
K.Anjula, W/o.Umamahesh, D/o.Nimmaraju Prasad, aged 31 years, Occupation : Household, R/o.H.No.12-3-25,
Prakash Nagar, Narasaraopet of Guntur District. ...Respondent.
* * * This petition is coming on before me for final hearing on 10-06-2015 in the presence of Sri K.L.Narasimha Rao and Sri R.N.Vamsi Krishna, Advocates for the petitioner and of Sri C.Venkata Ramaiah, Advocate for the respondent and upon perusing the material on record and having stood over for consideration till this day, this Court made the following:
ORDER
The petitioner is the husband of the respondent. The petitioner has filed this petition U/s. 25 of Guardians and Wards Act praying to grant permanent custody of the minor ward i.e. male child to the petitioner.
The allegations in the petition in brief are that the marriage between the petitioner and the respondent took place on 31-08-2007 at
Tirumala as per Hindu rites and customs and that the petitioner was employed at Europe and that he was not present at the time of settlement of the marriage and that there was no presentation of dowry etc at the time of marriage. It is stated that the respondent made a promise to the parents of the petitioner in the premises of Venkateswara Swamy Temple,
Tirumala that she will not raise any disputes between the family members 2 and that she would be helpful and would cooperate with all the family members. It is stated that both parties went to honeymoon to North India and that the petitioner spent Rs.1,50,000/- and that both parties lived happily for 3 years. It is alleged that the respondent used to visit the house of her parents frequently and she was with the petitioner for a few days only. It is stated that the respondent went to the house of her parents for delivery in December, 2009 and at that time she was hale and healthy and that the petitioner went to U.S.A in January, 2010 and that he returned to
India in February, 2010 and brought the respondent to his native place at
Khammam and thereafter the parents of the respondent took her back to their house for delivery and at that time the petitioner was working at
Bangalore and that he took full care of the respondent and consulted the doctors as and when necessary.
It is stated that in March, 2010, the petitioner received a phone call from the respondent stating that she is suffering from high B.P and Oedema in the 8th month of pregnancy and that he asked her parents to shift her to a hospital and that on the next day evening, her parents got her admitted in the nursing home of Dr.Padmavathi at Guntur and that the doctor opined that the condition of the mother and baby is serious. It is stated that the parents of the respondent failed to provide proper treatment to the respondent in time and that they neglected to take care of the health of the respondent. It is stated that when the petitioner questioned them, they bore grudge against him and that he spent entire medical expenses for the delivery of the respondent at the Padmavathi nursing home and that the respondent gave birth to a male child on 21-03- 2010 and that it is a premature delivery. It is stated that the petitioner 3 and his parents were present at the time of delivery and they extended all service to the parents of the respondent and also paid the entire hospital bill.
It is stated that the petitioner visited Guntur frequently to take care of the respondent as well as the baby and that the baby was born during “Chitta” Star and that “santhi” pooja was to be performed and that the petitioner wanted to perform such poojas and that the parents of the respondent did not cooperate for the same and that the respondent, on the instigation of her father, started unnecessary quarrels and that the parents of the respondent created enmity between the petitioner and the respondent and that the said disputes arose only because the petitioner questioned them about their negligent act in providing treatment to the respondent.
It is stated that on 19-04-2010, the petitioner went to the temporary residence of the respondent's father at Guntur, to see the respondent and the baby and at that time the respondent picked up a quarrel and that the parents of the respondent kept quite and that he brought a new dress and that he gave a valuable camera which was purchased at Belgium and asked the respondent to send the photos of the baby. It is stated that the respondent intentionally sent the photos of the child to her sister and brother-in-law without sending any photographs to the petitioner and his parents.
It is alleged that the petitioner did not get any response from the respondent's side till the first week of June, 2010 and he asked the respondent's father over phone to send the respondent and the baby and that on 03-06-2010, the respondent's father brought the respondent and the 4 baby to their house at Khammam and left the respondent and the baby infront of the house and went away and that the petitioner questioned the respondent about such conduct of her parents and that the respondent became angry and called her father over phone and both of them left the place to her home town, without informing the petitioner.
It is stated that the respondent has an elder sister by name
Aparna and her husband Chandra Sekhar is an employee of Bajaj Finance at
Pune and that the respondent's family members were calling the respondent with a pet name as 'Bujji' and that the brother-in-law of the respondent was also calling her as 'Bujji' and that the same was disliked by the petitioner and that he informed the respondent and her parents to tell
Mr.Chandra Sekhar not to call the respondent with the pet name and that the same created disputes. It is stated that the sister of the respondent is very much jealous about the job and the status of the petitioner and that they used to interfere in the family affairs of the petitioner and the respondent and they tried to create disputes between them. It is stated that the respondent's sister did not have any cordial relations with her in- laws and that she tried to repeat the same with the respondent also.
It is stated that in July, 2010, the petitioner fell sick with a compliant of I.T.P as the count of platelets had fallen down to 25,000 and that he was shifted to NIMS, Hyderabad and the same was informed to the respondent and her parents and that the respondent did not evince any interest in seeing the petitioner. It is stated that on 23-02-2011, the respondent and her parents went to Tirumala and the respondent's father performed Kesakandanam and naming ceremony of the baby without informing the petitioner or parents of the petitioner. It is stated that as 5 per Hindu customs, the father of the baby has to name the baby and that the kesakandanam has to be performed by inviting friends and relatives. It is stated that the petitioner is a devotee of Venkateswara Swamy and that he wanted to take the baby to Tirumala along with the respondent and that however the parents of the respondent intentionally performed the said ceremonies only to cause pain to the petitioner and his parents.
It is stated that the petitioner again became sick in February, 2011 and that he underwent a surgery at Global Hospital, Hyderabad and that on being informed, the respondent came to Hyderabad and informed the petitioner about the Kesakandanam and naming ceremony and that the petitioner felt bad and that the respondent left the place.
It is stated that the parents of the petitioner tried to effect conciliation and that the respondent's father did not respond and that in
December, 2010, the parents of the petitioner sent the younger brother of the petitioner and others to the native place of the respondent and that they did not heed the words of the mediators. It is stated that one Aparna, the sister of the respondent commented that her father is giving food to the baby and that the baby is a beggar and that such words caused pain to the petitioner and that the reputation of the petitioner and his family was seriously affected. It is stated that it is not safe for the child to be in the custody of the parents of the respondent.
It is alleged that in March, 2011, when the petitioner was attending his office work from his home, he received a threatening call from one Aditya who is a cousin of the respondent and that he threatened to kill the petitioner and that on the request of the petitioners' parents, one Chakrapani tried to talk to Aditya and that Aditya spoke discourteously 6 with Chakrapani also. It is alleged that all these were done due to the influence of Aparna, Chandra Sekhar and the respondent's parents.
It is alleged that the petitioner went to the house of the respondent's parents in the last week of April, 2011 and that the father of the respondent alone was present and informed that the respondent went to Pune in search of a job and is staying at the house of her brother-in-law and that he refused to give the phone number and the particulars of the respondent.
It is stated that it is painful to the petitioner that the respondent and the baby went to the house of Chandra Sekhar without coming to the house of the petitioner in the first instance. The petitioner further states that he filed a petition vide case No.147/Conciliation/2011 on the file of Karnataka Legal Services Authority at Bangalore and that she did not turn up for conciliation and therefore the case was closed on 13-10-2011.
It is stated that the petitioner lost the company of the respondent and the baby for more than 1 ½ years. It is stated that the respondent has also love and affection towards the petitioner and that however she is unable to join his company due to the influence of her sister, her brother-in-law and her parents. It is stated that the petitioner is suffering mental agony and faced inconvenience without the company of the respondent and the child.
It is stated that the attitude of the respondent is irresponsible, inhuman and that the respondent and her parents are not even intimating the location of the child and that the respondent will fill 7 poison in the mind of the child against the petitioner and that if the child is continued in their custody, as the respondent and her parents having rivalry with the petitioner for unknown reasons and that it is causing mental agony to the petitioner.
It is stated that the petitioner lost the company of the respondent and the baby for more than 1 ½ years. It is stated that the respondent has also love and affection towards the petitioner and that however she is unable to join his company due to the influence of her sister, her brother-in-law and her parents. It is stated that the petitioner is suffering mental agony and faced inconvenience without the company of the respondent and the child. The petitioner has therefore sought permission for permanent custody of the child to him.
The respondent has filed a counter denying the material allegations made in the petition. It is admitted that the marriage took place on 31-08-2007 at Tirumala. It is stated that after the marriage, the respondent came to know that the petitioner had no job either in Europe or in India and that he married her by deceiving. It is stated that the promise at Tirumala referred to by the petitioner was made by both parties after the marriage and not before the marriage. It is stated that the petitioner did not keep his word and that he abused the respondent, her sister, her brother-in-law and her parents for the sake of money and also on the ground that she hails from Andhra, whereas he belongs to Telangana area.
It is stated that the respondent stayed at Khammam itself and that she went to the house of her parents only on one occasion when she suffered throat infection and that she had to go to the house of her parents as the petitioner asked her to get treated with the money of her parents. It is 8 stated that he took lot of money from the respondent's parents and that on one occasion he asked for instant transfer of money to his account and that he threatened them with dire consequences. It is alleged that the petitioner subjected the respondent to a gruelling journey from Bangalore to Khammam, via Hyderabad, ignoring the health condition of the respondent and that the same caused ill-health to the respondent in the 6th month of pregnancy and that the health condition deteriorated as it progressed. It is stated that the threatening phone calls of the petitioner from January to 26-03-2010 also affected the health of the petitioner. It is alleged that while at Bangalore, the petitioner made the respondent to do
additional domestic work, only to harass her. It is stated that the
respondent was under the treatment of Dr.V.Kamala Jayaram on 27-03-2010
before 8 a.m and that there is no negligence on the part of the respondent's
parents in providing necessary medical treatment to the pregnant daughter.
It is stated that on the other hand the petitioner subjected the respondent to torture every day on the advise of his mother and the same affected the health of the respondent. It is stated that the petitioner was not present at the time of delivery and no one was present at the time of discharge of the respondent from the hospital and that no services were rendered by the petitioner or his parents and that the entire medical expenses were paid by the respondent's father. It is stated that the petitioner visited the temporary residence of the respondent at Guntur only twice and that he did not choose to stay at Guntur to make arrangements for “santhi” pooja and therefore the respondent's father got such pooja done by spending
Rs.15,000/-. It is stated that the petitioner used to visit Guntur only to pick up quarrels with the respondent and that on 19-04-2010, he harassed 9 the respondent for nearly three hours by not permitting her to take food and also not allowing her to feed the new born child and that such harassment was done only to take money from the respondent's father.
It is stated that the respondent begged the petitioner to take them to Bangalore and that he refused to take them on the ground that the respondent had a defective vision and the child was weighing less than 2
Kgs. It is stated that the petitioner never allowed the respondent to touch his camera or any other valuables. It is stated that from 19-04-2010 till the first week of June, 2010, the petitioner never contacted the respondent and on 03-06-2010, the respondent and the child went to the house of the petitioner at Khammam and that the petitioner and his parents abused the respondent in an objectionable manner and that he threatened that he would slap the respondent's father with his footwear and demanded dowry and abused the respondent and therefore she asked her father to come back to take her away and accordingly the respondent's father came back to the house of the petitioner and at that time the father of the petitioner requested the respondent's father, not to take the respondent away and at that time the petitioner tried to kill his own father in the presence of respondent and her father and that both of them saved the petitioner's father and that subsequently the petitioner also tried to kill his mother and the same was averted by the respondent and that the petitioner's father declared that he would die by walking on a railway track as he was vexed with the psychic attitude of the petitioner and at that time the respondent's father infused courage to the petitioner's father. It is alleged that the respondent was driven out of the house. It is stated that the sister and brother-in-law of the respondent are no way in the picture and that 10 they never tried to make any disputes and that the objection regarding the respondent being called as 'Bujji' was well taken and it was respected and that the same did not cause any disputes as alleged by the petitioner. It is stated that the sister and the brother-in-law of the respondent, extended their help at the time of the marriage ceremony and the same was appreciated by the relatives of the petitioner also. It is stated that on being informed about the illness of the petitioner, the respondent wanted to go Hyderabad along with child, however since the child was pre mature baby, the doctors at Guntur and Narasaraopet advised that the child shall not be taken to hospital and that inspite of the same, the respondent made all arrangements to travel by bus and at about 9 p.m, the father of the respondent informed that they are staying at the house of his sister at
Hyderabad and that the respondent did not proceed to Hyderabad as it was understood that there was nothing serious and that however, the respondent's father went to Hyderabad and met the petitioner and his family members at NIMS hospital. It is stated that Kesakhandanam was performed on 23-02-2011 and that naming ceremony was not performed and that however the respondent decided the name of the baby in Sanctum
Sanctorum. It is stated that the respondent visited the petitioner in the hospital along with child and accompanied by her cousin Aditya and that they were driven out of the hospital and accordingly she returned to
Narasaraopet. It is stated that the petitioner's mother declared that she can not manage a small child of low weight and that the petitioner always tried to avoid to take any responsibility of the child and that now since the child is well grown, the petitioner wants to snatch away the child. It is stated that Aditya treats the respondent as his own sister though she is the 1st 11 cousin and that he came to India from Australia and he had liked the petitioner also and therefore he intended to bring about reconciliation between two parties and that the petitioner's father also encouraged Aditya to continue his attempts. It is stated that on one occasion, the petitioner spoke to Aditya in an abusive language and quarreled that he is the father of Anjula and that he threatened Aditya. It is stated that on 08-05-2011, the petitioner along with Chakrapani, Ashok, Kiran and Venkata Rao came to the house of respondent's father and threatened him. It is admitted that the respondent went to Pune to attend the written examination for some post in R.B.I and that she selected Pune as examination centre and gave the address of her sister to receive the hall ticket. It is stated that she was forced to seek employment, because of the cruel attitude of the petitioner, as he forced her to beg him for every small thing. It is stated that he snatched her educational certificates and passport and carried them in his laptop bag wherever he went and that he had an evil design to keep the respondent as a slave. It is stated that due to the intervention of police constable at Bangalore, at the behest of M.Anji Babu, her certificates and passport were returned to the respondent on 28-08-2011. It is stated that the respondent had to suffer as the parents of the petitioner managed in such a way that the petitioner was left with no money and he was job less at the time of marriage and also for several months thereafter. It is submitted that the petitioner filed petition for conciliation before
Karnataka Legal Services Authority and that said petition was filed with all false allegations and that the respondent sent her reply by registered post and that she could not personally appear before the authority as she had no means to travel to Bangalore. It is stated that after several requests, the 12 petitioner took the respondent and the child from Narasaraopet to
Bangalore on 24-08-2011 and after 3 days stay, the petitioner came in a drunken condition and beat the respondent brutally and he threatened to stab the child to death and that they escaped providentially. It is stated that when the petitioner went under the influence of alcohol, she locked herself and the child into a balcony and rang the petitioner's father and surprisingly the father of the petitioner informed that he and his wife have goaded the petitioner to perpetrate such a brutal assault on the respondent. It is stated that the respondent called her father at
Narasaraopet and one of his father's friend Anji Babu came there with the assistance of a constable at HAL Police Station and rescued the respondent and the child and took them to his house and that the respondent's father brought them back to Narasaraopet.
It is stated that the respondent received the notice from the
Family Court, Khammam and that to resolve the issue amicably, she went to the house of the petitioner on 07-12-2011 and that she tried her best to settle the issue and the petitioner snatched the baby and threatened to kill her with a knife, if she does not bring Rs.2,00,000/- and that being frightened, she managed to take back the child from the petitioner and left the place with the help of her father along with the child and came back to
Narasaraopet and gave a report at Narasaraopet and that a case was registered at Narasaraopet.
The allegations that both of them lived happily for 3 years and that the respondent used to go away to the house of her parents frequently and that the petitioner never asked money from the respondent or her parents and that he never quarrelled or manhandled the respondent at any 13 time and that he has love and affection towards the respondent and that he took care of her at Bangalore during her pregnancy and that the parents of the respondent neglected to take care of the respondent and that he and his parents extended all service at the time of delivery and that he paid the medical expenses at the time of delivery and that he visited Guntur to take care of the respondent and the child and that the parents of the respondent did not cooperate for doing santhi pooja and that the
Kesakhandanam and naming ceremonies were performed without informing him and he gave a valuable camera to the respondent and that the respondent did not send photos of the child to him, as instructed etc are all have been denied as false.
It is stated that the child of the respondent would be brutally killed by the psychic petitioner as he is a person who tried to kill his parents and it would be disastrous for the child to be given to the custody of an evil person like the petitioner. It is stated that the petitioner and his parents never bothered about the health and well being of the child and that they only focused on dowry and that they never even enquired about the health of the child from the date of birth of the child till to day. The respondent has prayed that the petition may be dismissed.
5. The petitioner/husband is examined as P.W.1. Two more witnesses are examined on his behalf. Exs. A1 to A13 are marked on his behalf. The respondent/wife is examined as R.W.1. Two more witnesses are examined on her behalf. No documents are marked on her behalf.
6. Heard both sides. The learned counsel for the petitioner has filed written arguments.
14
7. The points for consideration are:
1.Whether the petitioner is entitled for the relief as prayed ?
2.To what relief?
8. POINT No.1:-
The parties have raised several controversies. However, the disputes appear to have escalated ever since the admission of the respondent in a hospital due to her pregnancy. For a proper adjudication of the issue involved in this case, I am of the opinion that one or two incidents which are highlighted by the parties have to be examined in detail. One of the issues pertain an incident at Khammam on 03-06-2010.
The other issue pertains to an incident said to have taken place at
Bangalore during August, 2011.
THE INCIDENT AT KHAMMAM
As per the case of the petitioner in the 1st week of June, 2010, he asked the respondent's father over phone to send the respondent along with the baby and that on 03-06-2010, the respondent's father brought the respondent along with baby to the residence of his parents at Khammam and threw their luggage and left the respondent and the baby in front of his house and he questioned the respondent about the ugly behaviour of her parents towards his parents and that immediately she called her father on phone and both of them went to their home town, without informing to him. On the other hand, the respondent states that on that day, she and her child went to
Khammam along with her father and that her father was not received well by the petitioner and therefore her father went away and that 15 the petitioner and his parents abused her in an objectionable manner and the petitioner threatened that he would slap her father with his footwear and he asked for dowry and abused her and that meanwhile her father had reached the railway station and therefore she called her father back to the house and accordingly her father came. She states that the petitioner's father requested her father, not to take her away and at that time the petitioner tried to kill his own father and his father was saved by her father and that the petitioner also tried to kill his mother and once again she saved the petitioner's mother and that the petitioner's father declared that he would better walk on the railway line to hit the speedy train and that her father infused courage in the mind of the petitioner's father. She states that the father of the petitioner arranged a taxi to go to Narasaraopet.
Thus, on one hand the petitioner claims that the respondent's father behaved in a rude manner and that he questioned the respondent and that the respondent called back her father and left the house. On the other hand, the respondent alleges that her father was not received well and therefore he went away and thereafter she was abused and therefore she called her father. There is no independent evidence in connection with this incident. Hence, the truth of the rival versions will have to be decided based on the available material. In his cross examination, the petitioner has stated that both the respondent and her father came to his house and the respondent's father did not enter into the house and went away and 16 that the respondent entered into the house and within 5 minutes her father came back while talking to some one on phone and called the respondent and took her away. The petitioner admits that his father requested the respondent's father not to take away the respondent. It is suggested to him that he caught hold the neck of his father and pushed him to the wall and that the respondent and her father rescued his father and that when his mother intervened, he tried to kill her and once again, the respondent rescued his mother and that on seeing the psychic behaviour of his son, his father stated that he would rather die by falling across a running train. The petitioner has denied the same. But he has volunteered that his father uttered those words as he was aggrieved with the behaviour of the respondent's father who went away without entering the house and by keeping the luggage at the entrance. He further volunteers that his father returned from morning walk and on seeing the respondent's father going away, he requested him to come into the house and at that time the respondent's father abused his father and pushed him aside and went away. He admits that he has not stated either in his petition or in affidavit that the respondent's father abused his father and pushed him aside. Though he claims that he personally witnessed the respondent's father abusing and pushing his father, the said fact is not mentioned in his petition or in his affidavit. What is stated in the petition and the petitioner's affidavit is that the respondent's father simply threw the luggage and went away. From the above statement 17 made by the petitioner in his cross examination, it can be inferred that the version put forth by the respondent is more probable. The further evidence of P.W.1 would rather show that he is not speaking the truth. He says that he personally witnessed the respondent's father abusing and pushing his father and that at that time he was inside his house and that by the time he came out, the respondent's father went away in an auto. Though he says that the respondent stayed at the house for 10 to 15 minutes, he says that he did not spend any time with the respondent and his child as he received a phone call from his office and he was talking over the phone. When he claims that he asked the respondent's father to bring the respondent and the child to his house, he should be eager to receive his wife and the new born child, but he says that he was inside the house while the altercation was taking outside and that he did not talk either to the respondent and he did not spend any time either with her or with the child and that he was busy talking over phone in connection with the office work. Such conduct on the part of the petitioner would show that either he has no concern for the respondent or child or he is speaking falsehood to cover up the real incident that took place on that day. As stated above, the petitioner admits that his father requested the respondent's father not to take away the respondent. He also admits that his father commented that he would rather die by falling across a running train. These two statements which are part of the version put forth by the respondent 18 would indicate that whatever is stated by the respondent is more probable.
INCIDENT AT BANGALORE:
As per the case put forth by the respondent, the petitioner came to Narasaraopet and took her to Hyderabad and from there they flew to Bangalore on 24-08-2011 and the petitioner showed hell on the midnight of 27-08-2011 by abusing her in filthy language and by slapping her and kicking her and that while as he slipped into sleep in a drunken condition, she entered the balcony and called her father-in-law and that surprisingly her father-in-law supported the petitioner and later she called her father and that her father's friend brought a constable and rescued her and that her certificates and passport were restored to her on 28-08-2011 by a constable at HAL
Police Station and that on the next day, her father came to Bangalore and took her away to Narasaraopet. The petitioner either in his petition or in his affidavit, does not make any mention about any such incident at Bangalore. It is suggested to him that he came to
Narasaraopet and took the respondent and the child to Bangalore on 24-08-2011 and that she stayed at Bangalore for 3 days and that on the night of 27-08-2011, he came home in a drunken condition and beat her and that when he became semi conscious due to drunkenness, she called her father-in-law and her father and that her father's friend brought a Police Constable and rescued her and that on the next day, her father came to Bangalore and brought her back to 19
Narasaraopet. The respondent has denied the said suggestions.
However, he says that on 24-08-2011, the respondent came to
Bangalore along with the child and her father and a friend of her father and took her certificates and went away and that she came to
Bangalore only to take back her certificates. The fact of the respondent coming to Bangalore along with her father and her father's friend either to take back the certificates or for whatever reason, is a crucial fact and for the reasons best known to the petitioner, he does not mention the same in his petition or in his affidavit. Admittedly, he has filed a Pre Litigation petition on the file of Karnataka State
Legal Services Authority in case No.147/Conciliation/2011. When he is questioned whether he has mentioned this fact in the said petition, he says that to the best of his memory, he has informed the Legal
Services Authority in writing that the respondent came to Bangalore on 24-08-2011 and took away her certificates with an acknowledgment and he can produce the proof that he made a such statement to Legal
Services Authority. The petitioner has not placed any such proof. The very fact that the petitioner has not mentioned any anything about the incident dt.24-08-2011 shows that he has deliberately suppressed the same in his evidence. The petitioner claims that the respondent gave such acknowledgment on 24-08-2011. It is represented by the learned counsel for the respondent that the petitioner himself has filed the said acknowledgment in the connected F.C.O.P 364/2013 on the file of this court filed by the petitioner seeking custody of the 20 minor ward and that the said letter filed by the petitioner himself bears the date as 28-08-2011. The very fact that the petitioner has failed to refer to the return of documents at Bangalore either on 24-08-2011 or on 28-08-2011 gives rise to a serious doubt and probabalises the version of the respondent that there was some ugly incident during that period. The version put forth by the respondent is further supported by the fact that an independent witness (R.W.2) who is a resident of Bangalore has stated on oath before this court that in the earlier hours of 28-08-2011, he received a call from the respondent's father to the effect that the petitioner is harassing the respondent and that he is required to go to the house of the petitioner at Bangalore and that accordingly he and his son went to Hebbal
Police Station and requested assistance and that the police informed that the petitioner's residence is situated within the limits of HAL
Police Station and that accordingly he went to HAL Police Station and that the S.I of Police sent one Muni Raju a Constable to accompany them to the house of the petitioner and accordingly they went to the house of the petitioner and knocked the door and that the respondent opened the door and that there was some swelling on the left side of the respondent's face and that the constable spoke to the respondent and enquired whether she would join in a hospital and that the respondent replied that she would go to Narasaraopet as soon as her father comes and that she represented to the constable that her certificates and passport were kept with the petitioner in the Laptop 21 bag and requested to get them back and that at the instance of
Constable, the petitioner handed over certificates and passport at the police station by obtaining an acknowledgment and thereafter they went to his house and that the respondent's father came to Bangalore and took away the respondent. R.W.2 has been cross examined at length. It is suggested to him that the house of the petitioner falls within the jurisdiction of Varthuru Police Station and not HAL Police
Station. It is also elicited from him that Ex.A13 acknowledgment does not bear the signature of any Police Officer. There is no reason to disbelieve the evidence of R.W.2. In this connection, it is to be noted that the petitioner has stated in his evidence that on 24-08-2011, the respondent came to Bangalore along with the child, her father and a friend of her father and took her certificates and went away. The friend of the father referred to by the petitioner must be none other than R.W.2. Based on the available material, it must be held that the version put forth by the respondent that she joined the petitioner at
Bangalore and that there was some disturbance and that she was rescued by R.W.2 and thereafter brought back to Narasaraopet by the respondent's father, is true.
Thus, the evidence on record proves that both the incidents that took place at Khamma and Bangalore have widened the rift between the parties and there is no material to hold that the respondent is responsible for any of these incidents.
22
The petitioner appears to be aggrieved that one Chandra
Sekhar, husband of the respondent's elder sister was calling the respondent with pet name “Bujji”. The petitioner claims that he asked the respondent and her parents to tell Mr.Chandra Sekhar not to call the respondent with pet name and that the same caused anger to the respondent and her family members. However, the respondent claims that the said objection was taken note of and Chandra Sekhar stopped calling her as “Bujji”. The petitioner has so much ire towards
Chandra Sekhar that when he is questioned whether he knows that the respondent appeared for R.B.I exam at Pune by staying at the house of her sister, he has stated that the respondent stayed at the house of her brother-in-law and when he is questioned whether her sister and her brother-in-law are staying separately, he says that he does not know whether they are living together or living separately. It is suggested to the petitioner that he is giving such answers only to malign the respondent. When it is suggested to the petitioner that he did not spend any money for the welfare of the respondent and the child at any time, the petitioner has voluntarily stated that he has given the A.T.M. Card to the respondent in March, 2010. He says that he does not know whether the respondent withdrew any money from his account by using that A.T.M.Card and that he never checked his account to verify whether there are any withdrawals. When he is asked whether he can produce the account he says that he can not produce the account copy and finally states that he has no evidence 23 to show that the respondent has withdrawn any money at any time by using his A.T.M.Card. The petitioner has various other grievances that the naming ceremony of the child was done without his knowledge and without any intimation to him and that the birth certificate is obtained without his knowledge and Kesakandanam was done while he was being treated as inpatient in a hospital and that the respondent did not visit him while he was at the hospital etc. The respondent claims that there was no naming ceremony as such and that the birth certificate was obtained as the 12 months period was fast expiring and that the petitioner was duly intimated about the Kesakandanam etc.
The petitioner has further grievances that the parents of the respondent did not take proper care of the health of the respondent at the time of delivery. No parent would fail to take necessary care of their daughter at the time of delivery. There does not appear to be any truth in such allegation. All these controversies are to be examined in the light of the evidence of PW3, the brother of the petitioner. P.W.3 has voluntarily stated that the respondent is a good woman. P.W.3 is none other than the younger brother of the petitioner. If at all, there was any adamant attitude or any such objectionable behaviour on the part of the respondent, P.W.3 would not have voluntarily stated that the respondent is a good woman.
However, this controversy between the parties has nothing to do with the custody issue. The above facts and circumstances are narrated to take note of the existing rivalry between the parties.
24
It is alleged that the petitioner is working as a Senior
Database Administrator at Bangalore and drawing a monthly salary of more than Rs.80,000/- and that he has a facility to work by staying at home and that his parents are also able to look after the child and that on the other hand, the respondent is unemployed and that she is not in a position to look after the welfare of the child or to provide better education or medical care to the child. The petitioner has alleged that the respondent and her parents are not informing him about the location of the child and that they are likely to fill poison in the mind of the child against the petitioner, if the child is continued in their custody.
Thus, one of the grounds urged by the petitioner to seek custody of the minor ward is that the respondent is unemployed and that she is not in a position to look after the welfare of the child or to provide better education or medical care to the child. However, it is to be noted that when the respondent sought interim maintenance in I.A557/2014, the petitioner vehemently contended that the respondent secured the job and that summons was served on her at her work place. The petitioner sought issuance of summons
I.A.1450/2014. In other words, the case of the petitioner is that the respondent was gainfully employed at Chennai. The respondent does not deny her employment at Chennai. However, she says that has resigned the job subsequently. Therefore the custody of the child 25 can not be granted to the petitioner only on the ground that the respondent is unemployed.
Since the respondent has subsequently taken up employment for some time, the petitioner alleges that the respondent is employed and since her parents are sick, they can not take care of the child. If that yardstick is applied the petitioner is also employed and both his parents are practicing Advocates. Therefore the claim of the petitioner for custody of the minor ward can not be considered on such ground.
The learned counsel for the respondent submits that the petitioner has never cared for the welfare of the child and that he never took the child into the arms and that there are no bona fides in his petition. As stated in the above paras, when the respondent and the child go to Khammam on 03-06-2011 and on that day, he does not spent any time either with the respondent or the child on the ground that he received a phone call from his office and he was talking over the phone. It is elicited from the petitioner that he never sent any greetings to the child on the occasion of his birth day all these years.
He claims that he sent gifts through his friends Kamalakar and Murali
Krishna. The same is denied by the respondent. The petitioner concedes that he did not make any efforts to pay money for the education of the child and that he did not send any money all these days for the expenses of the child. The petitioner concedes that the father of the respondent had retired even by the date of marriage and 26 that the parents of the respondent would have incurred an expenditure of Rs.2,00,000/- to Rs.3,00,000/- for the upbringing of the child and yet he has not made any arrangements to take care of the child, though he is getting a salary of Rs.85,000/- per month. It is further suggested to the petitioner that he did not pay the interim maintenance as ordered by the Court. The petitioner has stated that he had applied for the copy of order and that he would comply after getting the order copy. Admittedly the amount has been paid subsequently. The learned counsel for the respondent further contends that the petitioner has been demanding the production of the child as visitation orders granted by this court in I.A.119/2014, dt.19-08-2014 inspite of several inconveniences.
The learned counsel therefore submits that the petitioner did not pay any amount before the institution of the proceedings or at least after the institution of the proceedings voluntarily and the further fact that the petitioner has made valiant efforts to prove that the respondent is employed wold also show that the petitioner is rather interested in fighting the litigation rather than catering to the needs of minor ward. Admittedly, the child is a pre mature child. It is also admitted that the health of the respondent is seriously affected during the delivery. It is also admitted that the father of the respondent had retired from service with all the limited resources at their command, the respondent and her family members have taken very good care of the boy. Considering the tender age of 27 the minor ward who is born on 31-03-2010, it is desirable that his custody shall continue with the natural mother i.e. respondent.
Though the learned counsel for the respondent vehemently contends that the respondent by his conduct has forfeited his right to claim even the visitation rights, I am of the opinion that the conduct of the petitioner in relation to the respondent can not be deciding the factor while considering the claim of the father either for custody of the child or for visitation rights.
In a decision (2001) 4 SCC 71R.V Srinath Prasad vs Nandamuri
Jaya Krishna it is held that while granting the custody of minor children to one party, the courts usually extend the facility of visiting them to the other. In a decision 2011 (5) ALD 1 (SC)Ruchi Majoo vs
Sanjeev Majoo, it is held that even while granting interim custody, the court should make provision for the visitation rights of the other parent. It is observed that even an interim order of custody in favour of a parent should not insulate the minor from the parental touch and influence of the other parent which is so very important for the healthy growth of the minor and the development of his personality.
Their Lordships have deprecated any attempt on the part of the parent having the custody of the child, in promoting negative feelings against the other parent. It is stated that feeding the minor with such dislike and despise for one of the parents does not serve his interest or his growth as a minor child. It is laid down that the role of the father in up bringing and grooming the child to face the realities of 28 life cannot be undermined. Hence their Lordships have granted visitation rights to the father. In another decision, Sheila B. Das vs P.R
Sugasri dated 17-2-2006, the Honble Supreme Court has referred to a phenomena termed as “Parental Alienation Syndrome” which refers to the attempt on the part of the parent in poisoning the mind of the children against the other parent.
The observations of the Hon'ble Delhi High Court in Prabhat
Kumar vs Himalini Prabhat dt. 12-1-2010 in CM(M) 373/09 and CM(M) 821/09 are apt and the same are reproduced below:
“Before parting with this case, I would like to comment on the role to be played by the Bar in such matters.
Regretfully, it has been found that the
Bar is taking the guardianship cases in the same way as any other fiercely contestedadversariallitigation; though it ought not to be so. The members of the Bar can in such litigations play a very positive role.
Rather than advising their respective clients to take up accusatory and aggressive positions and building cases out of the figments of their imagination and their experience, they ought to apply a soothing balm to the aching hearts with which the parents reach them. It is the lawyers who without being the alter ego of their respective clients should encourage 29 them to avoid taking pleas of one upmanship over the other and advice the warring parents that such adversarial litigation over custody is not in the interest of the child. Rather than the courts making orders for interim visitation / custody, the rules / parameters whereof are by now well settled as also apparent from the judgments cited by the counsel for the respondent, the members of the
Bar should advise their clients accordingly. Instead of advising their clients that the child should not meet the other parent at all, they should advise them to allow the child to meet and interact with both the parents freely and also explain that such an approach bears the imprimatur of the
Courts. If the members of the Bar play such a constructive role there will be no need to call the children to the courts which is of course to their prejudice or for them to witness the verbal duel between the counsels of their parents in the courts. There would similarly be no need to force such meetings in the presence of the
Duty Magistrate or through the medium of the police as is often being found to be resorted to”.
30
Infact, as per the orders in I.A.119/2014, dt.19-08-2014 this court granted visitation rights to the petitiner. It is not in dispute that the child felt quite comfortable in the company of the petitioner and his parents, whenever they had such visitation in the court premises during the pendency of this case. I am of the opinion that it would be in the best interest of the child to continue the visitation rights to the petitioner at the same duration for some more time and thereafter permit the petitioner to take the minor ward for overnight stay with him and later to take the minor ward to his house for much longer duration.
In the result, the petition is allowed in part. The prayer of the petitioner for custody of the minor ward is hereby rejected.
However, the petitioner is granted visitation rights as noted below:
1)The petitioner shall be free to visit the minor ward on any two
Sundays/Public holidays every month for six hours with prior intimation to the respondent and without disturbing the child's educational schedule at a mutually acceptable place either at
Chennai where the respondent is said to be residing at present or at any other place of the residence of the respondent. It is further ordered that if the parties fail to reach consensus with regard to the place of visit, the child shall be brought to the premises of the Family
Court, Guntur on any such two Sundays/Public Holidays as mutually agreed upon.
31 2)After a period of one year from the date of this order, the petitioner shall also be entitled to overnight weekend visitation once in two months with prior intimation to the respondent without disturbing the child's educational schedule. The petitioner shall be free to keep the child with him overnight in the same city where the respondent resides.
3) After a period of two years from the date of this order, the petitioner shall be entitled to take the minor would in and around the city where the respondent resides for half of the duration of vacation not exceeding 5 days. However, he shall return to the same city by night.
4)The petitioner may also plan 2 to 3 days visit to distant places including his residence with effect from 2018 onwards.
5)The petitioner shall be entitled to speak to the minor ward over telephone/video conferencing at any reasonable time of the day without disturbing the child's academic schedule.
6) The petitioner shall be at liberty to make any type of correspondence with the minor ward through letters, cards, e-mails, telephone messages etc.
7)The petitioner shall also be entitled to present gifts, toys, clothes etc. The respondent shall not withhold or return any such gift items.
32
8)The petitioner shall be at liberty to visit the ward on the birthday of the ward for about three hours on every birthday with prior intimation to the respondent.
In the event of change of address or location or telephone 9) number, the respondent shall inform the same to the petitioner.
Both parties may seek further directions from this court with regard to any issue arising out of the implementation of visitation rights. Both parties do bear their own costs of the petition.
Dictated to the Personal Assistant, transcribed by him, corrected and
pronounced by me in open Court on this the 30thday of June, 2015.
JUDGE, FAMILY COURT-CUM-
XII ADDL. DISTRICT JUDGE,GUNTUR.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Petitioner: For Respondent:
P.W.1 : Kalluri Umamahesh.R.W.1 : K.Anjula. P.W.2 : Gadde Chakrapani.R.W.2 : Marlapati Anji Babu. P.W.3 : Kalluri Raghusanthan.R.W.3 : Shaik Mahaboob Subhani.
DOCUMENTS MARKED
For Petitioner:
Ex.A1C.C of docket order of Karnataka Legal Service Authority, Bangalore. Ex.A2Positive photograph showing the Kesakhandanam of the baby done by the father of the respondent, dt.23-02-2011. Ex.A3Letter issued by the Guntur Municipal Corporation regarding name registration of the ward by the respondent, dt.12-01-2012. Ex.A4Reassignment to NIIT Technologies NV from NIIT Technologies to Europe of the petitioner employment dt.15-12-2006. Ex.A5Outpatient card of NIMS, Hyderabad, dt.16-07-2010.
Ex.A6Medical record issued by Janatha Super Speciality Hospital, Khammam along with the scan report from Medinova Diagnostic Khammam, dt.23-02-2011. Ex.A7Discharge summary issued by Global Hospital, Hyderabad, dt.06-03- 2011 Ex.A8Special Puja Invitation of Iskcon, Bangalore, dt.20-03-2012.
33
Ex.A9Certified copy of decree in HMOP 73/2011 on the file of Judge, Family Court, Khammam, which is renumbered as FCOP 122/2014 on the file of this Court. Ex.A10Certified copy of Judgment in HMOP 73/2011 on the file of Judge, Family Court, Khammam, which is renumbered as FCOP 122/2014 on the file of this Court. Ex.A11Certified copy of petition in HMOP 73/2011 on the file of Judge, Family Court, Khammam, which is renumbered as FCOP 122/2014 on the file of this Court. Ex.A12Web page of aaum research and Analytics. com which shows that the respondent is participating in works shop (Ex.A12 marked subject to proof) Ex.A13Letter addressed to the petitioner and written at Police Station at Bangalore as per the Instructions of Police.
For Respondent: – Nil.-
Judge, Family Court-Cum-
XII Addl. Sessions Judge, Guntur.
34 35
IN THE COURT OF JUDGE, FAMILY COURT-CUM-XII ADDITIONAL DISITRICT JUDGE,
GUNTUR Present: Sri Virupaksha D. Gouda, M.A., L.L.B.,
JUDGE, FAMILY COURT-CUM-XII ADDL. DISTRICT JUDGE, GUNTUR.
Tuesday, the 30th day of June, 2015.
F.C.O.P.364/2013
Between:
Kalluri Umamahesh, S/o.K.N.Rao, aged 35 years, Occupation : Pvt. Employee, R/o.Jammibanda, Khammam Town
and District. ...Petitioner.
-AND-
K.Anjula, W/o.Umamahesh, D/o.Nimmaraju Prasad, aged 31 years, Occupation : Household, R/o.H.No.12-3-25,
Prakash Nagar, Narasaraopet of Guntur District. ...Respondent.
* * * The petitioner is the husband of the respondent. The petitioner has filed this petition U/s. 25 of Guardians and Wards Act praying to grant permanent custody of the minor ward i.e. male child to the petitioner.
This petition is coming on before me for final hearing on 10-06-2015 in the presence of Sri K.L.Narasimha Rao and Sri R.N.Vamsi Krishna, Advocates for the petitioner and of Sri C.Venkata Ramaiah, Advocate for the respondent and upon perusing the material on record and having stood over for consideration till this day, this Court made doth Order and decree as follows:
i)That the petition be and the same is hereby allowed in part, that the prayer of the petitioner for custody of the minor ward is hereby rejected. However, the petitioner is granted visitation rights as noted below:
ii) That the petitioner shall be free to visit the minor ward on any two
Sundays/Public holidays every month for six hours with prior intimation to the respondent and without disturbing the child's educational schedule at a mutually acceptable place either at Chennai where the respondent is said to be residing at present or at any other place of the residence of the respondent. It is further ordered that if the parties fail to reach consensus with regard to the place of visit, the child shall be brought to the premises of the Family Court, Guntur on any such two Sundays/Public Holidays as mutually agreed upon.
iii) that after a period of one year from the date of this order, the petitioner shall also be entitled to overnight weekend visitation once in two months with prior intimation to the respondent without disturbing the 36 child's educational schedule. The petitioner shall be free to keep the child with him overnight in the same city where the respondent resides.
iv)that after a period of two years from the date of this order, the petitioner shall be entitled to take the minor would in and around the city where the respondent resides for half of the duration of vacation not exceeding 5 days. However, he shall return to the same city by night.
v)that the petitioner may also plan 2 to 3 days visit to distant places including his residence with effect from 2018 onwards.
vi)that the petitioner shall be entitled to speak to the minor ward over telephone/video conferencing at any reasonable time of the day without disturbing the child's academic schedule.
vii)that the petitioner shall be at liberty to make any type of correspondence with the minor ward through letters, cards, e-mails, telephone messages etc.
viii)that the petitioner shall also be entitled to present gifts, toys, clothes etc. The respondent shall not withhold or return any such gift items.
ix)that the petitioner shall be at liberty to visit the ward on the birthday of the ward for about three hours on every birthday with prior intimation to the respondent.
x) that in the event of change of address or location or telephone number, the respondent shall inform the same to the petitioner. Both parties may seek further directions from this court with regard to any issue arising out of the implementation of visitation rights; and xi) that both parties do bear their own costs of the petition.
Given under my hand and the seal of this Court, on this the 30th day of June, 2015.
JUDGE, FAMILY COURT-CUM-
XII ADDL. DISTRICT JUDGE,GUNTUR.
Table of costs
For Petitioner For Respondent
Rs. – Ps. Rs. – Ps. Stamp on petition 10-00 Stamp on vakalat 2-00 ---
----------- -----------
Total costs: *12-00 Nil ====== ===== * Institution costs
JUDGE, FAMILY COURT-CUM-
XII ADDL. DISTRICT JUDGE,GUNTUR.