IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD F.C.A.No.170 of 2011 Dated:22-12-2011 Between: V.Madhu Sri ….Appellant. And V.V.Tata Satya Prasad ….Respondent. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD F.C.A.No.170 of 2011 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the Orders passed by the Judge, Family Court, Hyderabad in F.C.O.P.No.1457 of 2010 on 18.07.2011. The appellant herein is the respondent in the above said O.P. and the respondent herein has filed the application under Section 25 of Guardians and Wards Act read with Section 7 of Family Courts Act for grant of permanent custody of the children by name Vidudala Arjun, aged about 16 years and Vidudala Ashwin Chandra, aged about 11 years. The parties in the appeal are being referred to as mentioned in the petition before the lower Court. According to the petitioner, the marriage between himself and the respondent took place on 07.03.1991 at Jaggaiahpet, Krishna District as per Hindu rites and customs and the marriage was consummated and they were blessed with two male children viz., Vidudala Arjun and Vidudala Ashwin Chandra. At the time of marriage, the petitioner was gainfully employed in U.S.A., and after marriage, the petitioner and respondent stayed at Chicago, Illinois, later shifted to St.Louis, Missouri State and later moved to Staten Island, New York. During that time, the respondent committed several acts of cruelty on the petitioner and because of her acts, the marriage was break down and the respondent has obtained divorce from Rockland country Court, New York and the custody of the children was granted to the respondent and supervisory visitation was granted to the petitioner. The petitioner spent with children on several occasions. The Court while granting divorce in favour of the respondent imposed a restriction not to take the children to India without the consent of the petitioner. In violation of the said Order, the respondent without any intimation came down to India with children and got them admitted in local schools. The respondent also committed acts of cruelty even on the children and even she prevented them from writing examination and she has harassed, humiliated and physically assaulted the children. After divorce, the respondent remarried and also obtained divorce. The petitioner made several efforts to trace-out the children in the year 2008. Finally, he could able to trace-out children through his mother-in-law and then he moved to India in the year 2009 to protect the welfare of the children by leaving a good job with good salary in U.S.A. On 29.10.2010 the children came to his house and narrated about their miserable life in the hands of the respondent and how they were traumatized. They also feared that they are not only being brought up and they are being continuously physically assaulted and mentally harassed, and their education will be severely impacted negatively because of the respondent’s irrational behaviour. The children were kept on constant threats as they were coming to him. The respondent also filed a criminal complaint about the missing of the children knowing fully well that the children will be with him. The respondent approached the Karkhana police and police called him to the police station and enquired him about the children and finally handover the children to the respondent in spite of the protest from the children with a direction to respondent not to assault the children and also obtained a written statement from her. Under the above circumstances, the children were once again constrained to leave their mother’s house and joined the petitioner on 30.01.2010 at about 9.00 P.M. On enquiry, the children told that they are not at all interested to join the respondent and also telephoned the respondent and informed her about their presence in the petitioner’s residence. The respondent has been unfair and did not bother about the welfare of the children and leading her luxurious life. The petitioner is highly educated with good job and very good salary, apart from immovable properties in the State of Andhra Pradesh and undertakes to spend money for their education and welfare. He is also not married at the larger interest of the children. Hence, the custody of the children may be given to him. The respondent opposed the application by filing counter and denied the allegations made against her by the petitioner. She admitted about her marriage with the petitioner and also the parentage of the children and also about the obtaining divorce from Rockland Country Court, New York. But she denied about the restrictions imposed by the Court while granting divorce that not to take the children to India without the consent of the petitioner. She also denied about the cruelty and harassment caused to the minor children. According to her, the petitioner had no static employment and because of his belligerent attitude towards his bosses, he was compelled to leave his job and look for a fresh job and due to his uncertain jobs, the petitioner indulged in malpractices by doing false share dealings and marketing and duped many of the Indians. The Supreme Court of State of New York gave custody of the minor children to her and directed the petitioner to pay $120.72 per week for her maintenance and also maintenance of children and granted supervisory visitation for him with prior appointment. The petitioner has not paid any amount to the respondent and her two minor children and defaulted in payment of the amount. The petitioner absconded from his place of residence and his whereabouts were not known for more than two years i.e. during 2003 to 2005 and in such circumstances she was forced to work and earn to maintain herself and her two children. Sometime during April-May, 2005 the petitioner contacted her and informed that he was working at Wisconsin, U.S.A. and then she moved an application before the Family Court of State of New York in the Country of Rockland for enhancement of the child support obligation granted on 06.11.2003 and the said Court modified the said Order by enhancing the child support obligation to $792.15 per month. In order to settle down herself, she has returned back to India on 31.05.2008 and joined initially with her parents at Kendriya Vihar, Miyapur, Hyderabad and then started searching different schools for admission of her minor children and in July, 2008 she managed to obtain admission of her two children in Delhi Public School, Nacharam for academic year 2008-2009 and then shifted her residence to Nacharam for the purpose of education of her two children. Her parents have no male children, as such, her mother demanded her to give one of her two sons in adoption, but she refused to do so, as such, her mother Smt.Rajyalakshmi colluded with the petitioner and started passing on information regarding her and her children to the petitioner and arranging secret meeting of children with the petitioner under coercive methods. The petitioner started visiting the Kendriya Vidhyalaya, Secunderabad and used to manage to meet the children behind back of her and without knowledge of the school management and slowly mesmerized the children to divert from her. In order to avoid payment of due arrears of maintenance amount of Rs.12,00,000/-, the petitioner kidnapped the minor children on 29.10.2010 from the lawful guardianship of her with an intention to confine them wrongfully and secretly, to deprive peace and tranquility of her. The respondent filed a criminal complaint dated 09.11.2010 before the XI Additional Chief Metropolitan Magistrate, Secunderabad against the petitioner and Smt.V.Rajyalakshmi. Having come to know through police regarding respondent filing kidnap case against him and her mother, the petitioner filed the present O.P. with an intention to avoid criminal proceedings against him and to harass the respondent. In fact the two minor children are citizens of America, who are on Visa to India and American Supreme Court has refused to give visitation rights without a specific Order and presence of a Court approved supervisor, as such, it is necessary to handover the custody of the minor children to her. Hence, the petition is liable to be dismissed. During the course of enquiry before the lower Court, the petitioner examined himself as P.W.1 and got marked Exs.P.1 to P.8 and the respondent examined herself as R.W.1 and got marked Exs.R.1 to R.8. The lower Court by taking into consideration of both oral and documentary evidence allowed the petition and the petitioner was granted permanent custody of two minor children and the respondent is directed to deposit the passports, study and other academic certificates, proof of submission of PIO (Persons of Indian Origin) cards of the minor children before the Court within one month from the date of the Order. Aggrieved by the said Order, the present appeal is filed by the respondent therein. The appellant/respondent has pleaded that while granting divorce to her the Rockland Country Court, New York has given the custody of the children to her, the supervisory visitation rights to the petitioner and the Court also granted child support obligation and the respondent/petitioner without paying any child support obligation as ordered by the U.S.A Court, meeting the minor children behind her back and pressurize them and mesmerized them to come to him. After she came to India on 31.05.2008, the respondent/petitioner has kidnapped the children on 29.10.2010 from her lawful guardianship with an intention to avoid the child support obligation granted by the U.S.A. Court. Therefore, she has lodged a complaint with the Karkhana police and police enquired him and handover the children to her with a direction not assault the children. Thereafter, she filed a private complaint before XI Additional Chief Metropolitan Magistrate, Secunderabad and the same is pending before the said Court and when the kidnapping case is pending against the respondent/petitioner, he is not entitled to seek for the custody of the minor children. She further pleaded that the petitioner is not looking after the welfare of the children and there is nobody in his house to take care of them after their return from the school, thereby their education is being spoiled and in the interest of the minors welfare, it is just and necessary that the custody of the minors may be granted to her by setting aside the impugned Order of the lower Court. The respondent/petitioner’s counsel on the other hand has pleaded that the appellant/respondent is not having any employment and after obtaining divorce from the petitioner, she again remarried and again obtained divorce. She is not in good terms even with her mother and lodged a private complaint against her alleging that she also colluded with the petitioner for kidnapping the children and she has no source of income, as such she cannot able to maintain the children. She further pleaded that even if the appellant/respondent has got employment, there will be nobody in the house to look after the children. According to the minor children, she is not providing proper food to them and she is providing only outside food, as such they could not live in the custody of the appellant/respondent and thereby they voluntarily came to the respondent/petitioner and in the interest of the minors, it is just and proper to give the custody of the minor children to the respondent/petitioner, who is having good job, salary and properties. She also further pleaded that the minor children being the male children, father’s control is essential on the children for their brought up in future life and as the appellant/respondent has no control over the children she is harassing them by beating, which they could not tolerate. She further pleaded that the lower Court examined the minor children before passing the Order and taking into consideration of the views of the minor children, the lower Court has rightly granted the custody of the minor children to the respondent/petitioner and the said Order does not warrant any interference by this Court. Admittedly, the marriage between the respondent and petitioner was dissolved by the decree of divorce by the Rockland Country Court, New York by giving custody of the minor children to the appellant/respondent and the respondent/petitioner was directed to pay child support obligation for the maintenance of the minor children. Admittedly, the appellant has brought the minor children to India on 31.05.2008 and admitted them in the schools in Hyderabad and residing along with the minor children in India. The lower Court by relying upon the decision of the Apex Court reported in “Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC, 112”, has rightly come to the conclusion that even though the US Court has given the custody of the children to the respondent/mother, the Indian Court has to take an independent decision on merits on the basis of elaborate inquiry with regard to custody of the children having regard to the children welfare and the Order of the foreign Court is only one of the factor for consideration. Therefore, even though t h e U.S. Court has granted custody of the children to the appellant/respondent, the Court in India has to take independent decision on the merits and circumstances of the case and taking into consideration of the welfare of the children. The main contention of the appellant/respondent, the respondent/petitioner has kidnapped the children on 29.10.2010 from her lawful custody and she has filed a criminal complaint against the respondent/petitioner and Smt.Rajyalakshmi and when the same is pending for adjudication, the present application for custody of the children filed by the respondent/petitioner is not maintainable. The appellant/respondent admitted that the children came to his house from the respondent/petitioner on 29.10.2010 and she lodged a complaint with the police and the police called him to the police station and handover the custody of the children to the appellant. Again on 30.10.2010 during night time, the children left to the respondent/petitioner and informed the same to the appellant by telephone. Thereafter, she lodged a complaint on 09.11.2010. Therefore, as the children have gone on their own accord to the respondent/petitioner on 30.10.2010. The petitioner has filed the present petition on 02.11.2010 and obtained the interim Order restraining the appellant from taking away the children from his custody. Subsequently, on 09.11.2010 she has filed a complaint alleging the kidnapping of the children. In the above circumstances, the pendency of a complaint filed by the appellant is not a bar for the adjudication of the present petition. The next contention of the appellant is that to avoid the payment of child support obligation granted by the US Court, the respondent/petitioner has lured their children by giving huge amount as their pocket money and by giving such a huge amount to the minor children they are being spoiled in the hands of the respondent. Admittedly, there is no material on record to show that the respondent is giving huge money to the minor children. According to the respondent/petitioner’s counsel the minor children were not provided proper food by the appellant when they were in her custody and she is not even cooking food and only providing outside food to them, which they are not relishing and the respondent/petitioner has engaged a cook for preparation of food for the children and he is having good source of income and other properties to look after the welfare of the children. R.W.1 has admitted that she used to provide food to the children at Chennai Cafe, nearby her house, some times at I-Max and sometimes in Rainbow and other places. According to her, the children themselves have certified that she is a best cook and they wanted the food prepared by her and not even allowed the professional chef in the house. Admittedly, the appellant is living alone at Hyderabad, even though her mother is residing at Hyderabad, she is not having good terms with her mother. Admittedly, she has lodged a complaint against her husband and mother for kidnapping the children. The appellant during the course of arguments has admitted as on today she is not having any job and she is going to get the job and she is able to maintain the children with her income. When she was questioned about the looking after the children after they return from the school, she replied that she can work from her house on laptop and earn money without going to office, as such she could able to manage the children after they return from the school. Thus, admittedly as on today the appellant has no employment of her own and she has no source of income, on the other hand, the respondent is having a good job, apart from that he is having other immovable properties. The children are also willing to stay with their father. The lower Court examined the children in the chambers and taking into consideration of their views, granted the custody of the children to the respondent/petitioner. We also examined the children in chambers and they expressed their intention to stay with their father as he is providing proper food by engaging a cook and during their stay with their mother, she has not provided proper food and she used to beat them without any reason and they do not want to stay with their mother. Admittedly, the minor children are aged about ‘16’ years and ‘11’ years, they are grown up and they can take decisions about their welfare in the hands of their mother or father. In “SHEILA B. DAS V. P.R. SUGASREE[1]” the Apex Court held that “the welfare of the child is paramount consideration while granting custody of the minor children. In the above said case, the appellant mother, a paediatrician, claming to be a better position to take care of the needs of the minor and provide proper upbringing and better education, as also counseling, guidance and company during the period of adolescence. Family Court interviewed the girl, who preferred to stay with respondent father, a lawyer. The Supreme Court also with a view to ascertain the preference of the minor girl interviewed her alone and found her highly intelligent, doing well in her studies and in a position to make an intelligent choice with regard to her custody. She expressed no animosity towards her mother but preferred to be with the father with whom she felt more comfortable. She also informed that she had developed a good relationship with her paternal aunt who was staying in the father’s house and that she could relate to her aunt in matter concerning a growing girl during adolescence. Taking into consideration of the views of the child, the appeal was disposed of by retaining the Order passed by the Family Court”. In “LEKHA V. P.ANIL KUMAR[2]” the Apex Court held that “according to Hindu Law, the natural guardian of a minor child is the father. In the next place, the guardian of a child is the mother. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. However, the general view that the Courts have taken is that the interest and welfare of the child is paramount to grant custody of the child. The Supreme Court interviewed the child who is intelligent and appears to be capable of expressing his preference. At the interview, the boy has expressed his willingness and desire to live only with his mother and it was admitted by him that the mother will provide him good education. The mother is drawing pension of Rs.6,000/- P.M. and also having land and properties in her name. The Supreme Court taking into consideration of the views observed that it will be beneficial for the boy and his education for a better future, he must be in the custody of the mother and further observed that 2nd marriage of the mother is not disadvantage in giving the custody of the child to mother”. In “MAUSAMI MOITRA GANGULI V. JAYANT GANGULI[3]”, the Apex Court held that “the appellant mother was living separately on account of cruelty of the respondent father and had got an ex parte decree of divorce which attained finality. Though the Family Court gave the custody to the appellant mother, the High Court in appeal, by the impugned Order set aside the order of the Family Court, granted permanent custody of child to the respondent father and only visitation rights to the mother. In the above said decision, the appellant was a teacher drawing a salary of Rs.22,000/- per month. The respondent was a private contractor having irregular income. Respondent claimed that the child was studying in a prestigious school at Allahabad for which he was paying a fee of Rs.25,000/- per annum and had also nominated him in his insurance policy and he is having own house, telephone and a motor car, whereas the appellant has no house of her own and is living with her mother and brother in a two-room flat at Calcutta. Taking into consideration of the said aspects, the Apex Court has held that there is nothing on record to suggest that the welfare of the child is in any way in peril in the hands of the father and there are no grounds to upset the judgment and Order of the High Court giving exclusive custody to the father with visitation rights to the mother”. Therefore, in view of the above said decisions, the views of the minor children has to be taken into consideration for deciding the custody of the children. In the present case, admittedly, the minor children are interested to live with their father, who is having good source of income and providing all the facilities for the welfare of the children. On the other hand, the appellant/respondent is not having any source of income and she has to depend only on the child support obligation granted by the Court. Moreover, the minor children being the male children, the father’s support is essential for their up bringing in their future life and the respondent/petitioner was unmarried after obtaining divorce from the appellant/respondent. Therefore, in the above circumstances, the custody of the minor children be given to the respondent/petitioner. Thus, the Order of the lower Court does not warrant any interference by this Court in the appeal. In the result, the appeal is dismissed. However, the appellant is granted visiting rights and she can meet her children twice in a month i.e. on 1st and 3rd Sundays at the residence of the respondent/petitioner by taking prior appointment from the respondent/petitioner without disturbing their education. No costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:22-12-2011 Ksp [1] (2006) 3 SCC 62 [2] (2006) 13 SCC 555 [3] (2008) 7 SCC 673