THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY F.C.A. No.57 of 2011 (House – Motion) Dated : April 02, 2011 BETWEEN : Malini Byanna D/o. Narasimhaiah Byanna, Aged about 42 years, Occupation : Attorney, R/o.1493, Sandburg Drive, Schaumburg, Illinois, USA. …Appellant AND Vikram Akula S/o. Dr.Akula V. Krishna, Aged about : 42 years, Occ : Business, R/o. House No.69, Whisper Valley, Toli Chowki, Hyderabad. …Respondent THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY F.C.A. No.57 of 2011 ORDER : (Per GR,J) Heard the appellant party-in-person and the respondent represented by counsel Sri Anil Kumar Tandale. The appeal is by the respondent in F.C. O.P. No.1167 of 2009 seeking intervention in the order dated 10-03-2011 of that Court whereby in an application filed (by the petitioner therein – the respondent herein) under Section 25 of the Guardians and Wards Act against the appellant, guardianship of the minor child (aged about 10 years – born on February 16, 2001) was granted to the respondent after the appellant was recorded ex parte. By a common order of the same date, I.A. No. 158 of 2011 in F.C.O.P. No.1167 of 2009 – an application filed by the appellant under Order IX Rule 7 read with Section 151 CPC to set aside the order dated 01 – 02 – 2011 of the Family Court setting the appellant ex parte, was rejected. The parties herein were married on 18-12-1999 and while residing in the United States (they are citizens of USA) applied for dissolution of their marriage. By an order dated 04 – 12 – 2009, the Circuit Court of Cook County, Illinois, United States, passed an order of dissolution of the marriage. Annexed to the order of dissolution of the marriage are the terms of settlement between the parties whereby and whereunder the respondent consented to the appellant (mother) having sole residential custody, care, control and education of the child with reasonable visitation rights as specified in favour of the respondent – father. The child master Tejas Bayanna Akula alias Tejas Paul Akula was born on 16-02-2001. The other terms of the settlement between the parties (which is made a part of the order of custody relating to the care and welfare of the minor child Master Tejas) are not necessary and relevant for the purposes of this appeal under and hence are not recorded. In July, 2009, the parties herein arrived in India along with the Master Tejas. It appears the child suffered ill-health and his stay in India had therefore to be extended. He was admitted in the International School at ICRISAT Campus, Patancheru, Hyderabad, in August, 2009 and is continuing his education there. The child is now in the 4th Class. The child being a natural born American citizen has obtained due permission for his extended stay in India. While so, the respondent-father filed F.C.O.P. No.1167 of 2009 under Section 25 of the Guardians and Wards Act read with Section 7 of the Family Court Act before the Principal Family Court, Hyderabad, seeking guardianship and custody of the child exclusively to himself; grant of visitation rights to the appellant consistent with her alleged bipolar disorder (a health condition) and for incidental reliefs in I.A. No.770 of 2009 in F.C.O.P. No.1167 of 2009. The respondent filed an application under Order 39 Rules 1 & 2 read with Section 151 CPC for a n ad-interim injunction to restrain the appellant from disturbing his custody of the child. Suffice it to record for the present proceedings that by an order dated 12-10-2009, the Family Court in I.A. No.770 of 2009 granted ad–interim injunction against the appellant restraining her from interfering with the respondent’s interim custody of the child. The appellant filed I.A. No.805 of 2009 under Order 39 Rule 4 read with Section 151 CPC seeking vacation of the ex parte injunction order dated 12-10-2009. By an common order dated 24-11-2009 in I.A. Nos.770 and 805 of 2009, the Family Court, Hyderabad, in an elaborate order declared that it had jurisdiction to determine the issue as to the custody of the child while the child is residing in India, notwithstanding the custodial rights granted to the appellant-mother by the Cook County Court in the US; observed that disturbing the custody of the minor child who was with the respondent-father pursuant to its orders dated 12-10-2009 would not be in the interests of the child while in India and noting that the child was pursuing education in the International School, Hyderabad, declined to vacate the ad interim injunction dated 12-10-2009. The Court below accordingly dismissed I.A. No.805 of 2009, allowed I.A. No.770 of 2009 and made the ad interim injunction dated 12-10-2009 absolute. The parties herein were also directed not to remove the child Master Tejas from the International School, Hyderabad, till the child completes education up to the 5th standard at least in the present school. Against the order dated 24-11-2009 of the Family Court, the appellant herein filed F.C.A. No.324 of 2009. By an order dated 22-12-2009, this Court granted stay of further proceedings in F.C. O.P. No.1167 of 2009, for a period of 4 weeks. There was no extension of stay thereafter. The Family Court was therefore free (after the efflux of the period of stay granted by this Court) to proceed with the adjudication of F.C.O.P. No.1167 of 2009. As part of the narrative (though not relevant for the purposes of this appeal) it requires to be stated that the appellant herein on 23- 12-2009 filed W.P. No.28402 of 2009 by way of a habeas corpus application and sought an interim direction therein for production of the child before this Court on 29-12-2009. On 29-12-2009 and later on 31-12-2009 this Court directed the respondent to deliver the child to the custody of the appellant at Chicago, on the premise that the child was in Chicago USA at that point of time, having been taken there by the respondent. It transpires however that the child was not taken to the US but to Lebanon during 24-12-2009 to 02-01-2010, during vacations of the school. The respondent, aggrieved by the orders of this Court (in W.P. No.28402 of 2009), dated 29-12-2009 and 31-12-2009, filed S.L.P. (Criminal) Nos.38 to 40 of 2010 before the Supreme Court, on 04-01-2010. Meanwhile, the appellant filed C.C. No.7 of 2010 in this Court for proceeding against the respondent for contempt of the orders dated 29-12-2009 and 31-12-2009, in not delivering the child to the custody of the appellant in US. By the order dated 12-01-2010, (it is represented on behalf of the respondent herein), the Supreme Court granted stay of further proceedings in C.C. No.7 of 2010. The appellant also filed S.L.P. No.5019-20 of 2010 against the order dated 24-11-2009 of the Family Court, in I.A. Nos.770 and 805 of 2009. It is the conjoint representation of the parties herein that S.L.P. (Criminal) Nos.38 to 40 of 2010 and S.L.P. (Civil) No.5019-20 of 2010 are being taken up for joint consideration but are pending adjudication before the Supreme Court and that no orders except the order staying further proceedings in C.C. No.7 of 2010, are passed in those appeals. As the stay of further proceedings granted for a period of 4 weeks in F.C.A. No.324 of 2009 was not extended thereafter, the Family Court proceeded to adjudicate finally and after recording the appellant herein as ex parte on 01-02-2011 finally disposed of F.C.O.P. No.1167 of 2009 by the order impugned dated 10-03-2011, whereby and whereunder, the respondent herein is appointed as guardian of Master Tejas and the appellant declared to have visitation rights of the child as and when she visits and as long as she remains in India; at the convenience of both the parties herein and the child as well; and without disturbing the education of the child in any manner. From the pleadings on record and the contentions addressed to us by the parties herein (we have heard the respondent as well though represented by counsel) there is deep and persistent acrimony between the parties despite the dissolution of their marriage and occasioned by the residual nexus between the parties on account of Master Tejas. The child was produced at residence today and we have examined the child in privacy and outside the presence of parties herein (the parents) and the counsel of the respondent. The child is very articulate, highly intelligent, clear, expressive and categorically so. He does not appear emotionally disturbed. He has clearly expressed his wishes during our long conversation with him. Despite our delicate but persistent probing, the child expressed no animus against either of the parents and has no complaints regarding their treatment or behaviour towards him. He has expressed clearly and unambiguously that he would be happy in the company of both the parents. But that unfortunately is not to be, as the marriage between them has been dissolved and the order of dissolution attained finality with neither parties interested in revisiting that area. The child has also expressed that in the event it is not possible to have the care and comfort of both parents, he clearly prefers to stay with the appellant (mother). The child has also expressed that while he is able to cope with the different educational matrix in India vis-à-vis in the U.S., he would clearly like to be educated in the U.S. We are informed by master Tejas; and we are satisfied that this statement is out of free will and volition and in due awareness of the reality, that he is more comfortable with the mother, in the event the company of both parents is not possible (as it is not); and that he would be happy and like to go back to the U.S. for continuing his education in that country under the care of his mother. In the context of the Family Court’s common order dated 24- 11-2009 however, we are not called upon in the facts and circumstances and the restricted appellate scrutiny we are required to exercise in this appeal to pronounce upon or revisit the order of the Family Court dated 24-11-2009; particularly as the appeal against that order preferred in F.C.A. No.324 of 2009 has since been withdrawn by the appellant herein; but an appeal thereagainst is pending adjudication before the Supreme Court in S.L.P. (Civil) No.5019-20 of 2010 and is stated to be scheduled for adjudication along with S.L.P. (Criminal) No.38-40 of 2010. The appellant party-in-person states that the impugned order dated 10-03-2011 granting custody of Master Tejas to the respondent herein (in F.C. O.P.No.1167 of 2009) was passed after she was set ex parte and without considering her version and case. She states that she could not attend the proceedings on a few occasions for a number of reasons; (a) on account of the protracted and extended litigation between the parties herein following the marital discord she underwent a lot of mental trauma and has also piled up a lot of debt; (b) her parents were retired and were unable to continue providing her economic and other support and she had to fend for herself; the Court summons and scheduled dates of hearing were received by her on every occasion only a short while before the scheduled dates and since she is resident in the US she could not obtain travel arrangements in time; since she had fallen behind rather drastically in her professional commitments (she had been a practicing attorney in the US) she had to cater to the emergent professional requirements as well; and that in these compelling and other circumstances she was unable to either attend the scheduled hearings in the matter or file counter-affidavit in the case. She further contended that in view of the custody granted to her of her son Master Tejas by the competent court in the US by the order dated 04-12-2002 and in the context of the said custody having been granted with the categorical consent of the respondent, she should not be deprived of the reasonable opportunity of being heard in the matter before passing an order regarding grant of custody of the child to the respondent. The appellant has also undertaken to adhere to any timeframe to be fixed by this Court in the appeal with regard to the hearing of the O.P. and agreed to participate in the proceedings regardless of other commitments. In response, Sri Anil Kumar, learned counsel for the respondent submits that in view of the failure of the appellant in filing a counter- affidavit in F.C. O.P. No.1167 of 2009 even long after the period permitted under the CPC, the order setting her ex parte in the O.P. and proceeding to pass final orders warrants no interference. He further submits that as per the settled law and precedents on this aspect, there is no error in the impugned order of the Family Court warranting interference therewith; and that as the appellant exhibited persistent negligence and apathy in the matter of participating in the proceedings, filing a counter-affidavit and attending the hearings, she is not entitled to any further indulgence. It is also contended that in view of the appellant’s past conduct of not attending the Family Court proceedings there could be no assurance that she would not try to protract the matter further even if an opportunity is now provided to her after setting aside the order impugned. We have carefully considered the respective contentions. The appellant is an Attorney practicing in the U.S. and asserts considerable inconvenience and distress in arranging her professional and personal affairs in the U.S. on account of the dislocation caused by the protracted lis between the parties ever since the strained relations between the parties; the marital discord; and the several proceedings in the U.S. County Courts. It is also her plea that an issue as important as the custody of the child claimed by the respondent- father should not be permitted to be finally concluded by the Family Court without providing her one final opportunity to contest the matter on merits, notwithstanding her earlier inability for what she asserts are just and sufficient reasons for not filing a counter and contesting the mater on merits. In the facts and circumstances and having carefully considered the several factors we are not inclined to deprive the appellant of an opportunity to contest this important issue regarding the custody of her son solely on account of the earlier failure in participating in the O.P. proceedings; particularly in view of the clear and categorical views expressed by the child in our interview with him exclusively, in privacy and outside the hearing of the parents or the counsel for the respondent. In matters of this sort, procedures being a hand-maiden of justice, substantive justice requires, in particular the interests of the child which are paramount in the context of this court’s role as a parens patriae, that the appellant be granted one last opportunity, duly fixing timeframes for each state of proceedings, for the hearing of F.C.O.P. No. 1167 of 2009 de novo by the Family Court. We are not unmindful of the fact that the protraction of the litigation in F.C.O.P. No.1167 of 2009 on account of the asserted inconvenience of the appellant is cumbersome and traumatic for the respondent who has his own life and career to pursue. The respondent is also gainfully employed and while the custody of the child which he claims in the F.C.O.P. No.1167 of 2009 is a priority, it is not the only avocation of the respondent. In the totality of the circumstances, we consider it appropriate to allow this appeal, F.C.A. No.57 of 2011. The order of the learned Principal Judge – Family Court, Hyderabad, dated 10-03-2011 is set aside. F.C.O.P.No.1167 of 2009 is restored to the file of the Principal Judge, Family Court, Hyderabad. The appellant shall, if so desirous, file an affidavit in response/counter to the respondent’s claim in F.C. O.P. No.1167 of 2009 by 13-06-2011 without further procrastination, after serving a copy thereof to the counsel for the respondent Sri Anil Kumar Tandale. Should the respondent desire to file a rejoinder/affidavit in reply (to the counter-affidavit of the appellant), the same shall be served on Sri Milind G. Gokhle, Advocate (the appellant agrees to this) and shall thereafter be filed into the Family Court, in O.P. No.1167 of 2009 by 23-06-2011. After the pleadings as above are filed and within the time stipulated herein for each pleading, the learned Family Court shall proceed to adjudication. The learned Principal Judge, Family Court, Hyderabad, is requested to commence hearing of F.C.O.P. No.1167 of 2009 expeditiously by framing issues (after duly considering any draft issues filed by the parties; if any within a period of 15 days from 23-06-2011). Thereafter, the proceedings for final adjudication of the F.C.O.P. No.1167 of 2009 shall be taken up with utmost expedition and concluded preferably by 30-08-2011. It would be open to the learned presiding officer of the Family Court, Hyderabad, to decline any request for adjournment by either parties to the proceedings if the Court below is satisfied that grant of such adjournment would protract the adjudication and final disposition of F.C.O.P. No.1167 of 2009, beyond 30-08-2011. We have seen from the order of the Family Court dated 24-11-2009 that while the custody of the child is granted to the father, the education of the child in International School is directed to be continued till the child completes the 5th class of instruction in the said school. We have also noticed that certain avoidable litigative issues have been occasioned on account of the child being taken out of the country to Lebanon during December, 2009 and January, 2010. Having considered the views of the child which we have already recorded, we consider it appropriate to direct the respondent not to take the child out of this country till the proceedings in F.C.O.P. No.1167 of 2009 attain finality by the Order of that Court. Accordingly and to effectuate this injunction the respondent who has the current custody of the child qua the order of the Family Court dated 24-11- 2009 is directed to deposit all the passports (past and current) of the child Master Tejas Byanna Akula alias Tejas Paul Akula, with the Registrar (Judicial) of the High Court of Andhra Pradesh. The Registrar shall retain custody of the passports until further orders to be made after disposal of F.C.O.P. No.1167 of 2009 by the Principal Judge Family Court, Hyderabad. The respondent shall deposit into this Court the passports without fail, demur or procrastination on 06-04- 2011. The learned Registrar (Judicial) shall cause a receipt of the deposit to be issued to Sri Anil Kumar Tandale, the learned counsel for the respondent. After pronouncement of final judgment in F.C.O.P. No.1167 of 2007, the appropriate party who is granted custody of the child may make an application for return of the passports. On such application appropriate orders shall be passed by the Registrar (Judicial) with regard to the return of the passports. Since we have set aside the order under appeal, dated 10-03- 2011 under which visitation rights have been provided to the appellant, we consider it appropriate and just in the interregnum and pending disposal of the F.C.O.P. No.1167 of 2009 to permit the appellant to have visitation rights to the child Master Tejas on every Saturday and Sunday as long as the appellant is in India and at the convenience of master Tejas. We hope and trust that despite the trenchant acrimony between the parties herein the visitation rights herein ordered in favour of the appellant in respect of the child will be duly accommodated by the respondent. Should the appellant face any difficulty in effectuation of her visitation rights she is at liberty to make an appropriate application to this Court, notwithstanding the disposal of this appeal. This appeal is accordingly allowed with the directions above, but in the circumstances without costs. Nothing in this order shall be considered as an expression by this Court on the merits or contentions of either parties and the learned Family Court will proceed to adjudicate F.C.O.P. No.1167 of 2009 on its own merits and on the basis of the material brought before it in the said petition. ______________________ JUSTICE GODA RAGHURAM ______________________________ JUSTICE G. KRISHNA MOHAN REDDY April 02, 2011. Ndr/* *Note : Copy of the order to be marked to The Registrar (Judicial). THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY F.C.A. No.57 of 2011 (Order of the Division Bench delivered by Hon’ble Sri Justice Goda Raghuram) Dated : 02-04-2011 Ndr/*