Case: R.V. Srinath Prasad Vs. Nandamuri Jayakrishna

2. The controversy raised in this case relates to the interim custody of the two minor sons of the appellant. He has filed this appeal assailing the judgment/order dated 16th November, 2000 of the High Court of Madras in which a Division Bench of the Court ordered that interim custody of the children should be with the maternalthe respondents herein, till the matter is finally decided by the competent court. The Division Bench also directed the Family Court to number the petition filed by the respondents for custody of the children and dispose of the same as early as possible within three months of the date of receipt of the order. It is stated in the judgment/order that interim custody of the children is to be given to their maternalfor their better welfare and also to perform the rituals/karma of their deceased mother. The court permitted the appellant and paternalof the children to visit them, if they so desire, twice a month with prior intimation till the matter is finally decided. The High Court also granted liberty to the parties to move the Court under the Guardians and Wards Act and also to move for an interim custody, after withdrawing the petition filed before the Family Court. It was made clear that any observation made in the judgment/order will not prejudice either side and the arrangement made in the order is only an interim arrangement and will not create any right or prejudice to the case of either side.3. The facts of the case leading to the present proceeding, shorn of unnecessary details, may be stated thus : R.V. Srinath Prasad the appellant was married to Kumudini, daughter of respondent No. 1. Two sons, Jay Viraj, now aged about 5 years and Neal Krishna aged about 3 years were born of the said wedlock. Both the parties belong to well to do facilities. While respondent No. 1 is the son of late N.T. Rama Rao, the appellant is a businessman engaged in commercial activities in U.S.A. After their marriage in 1993 the couple lived in USA till December, 1999 and during the said period the two children were born, one in 1995 and the other in 1997. The wife returned to India with the two children in December, 1999 and lived with herat Chennai between January to July, 2000. On 24th October, 2000 the wife consumed some poisonous material in her friends house and fell ill. After remaining in coma from 24th October, 2000 she expired on 29th October, 2000. Shortly before the tragic incident happened the wife with her two children had shifted to a flat purchased by her father at Chennai. Before going to her friends house on 24th October, 2000 she had left the children with herThe cremation of her body was done in Chennai.4. The respondent No. 1 filed a petition in the Family Court at Chennai seeking custody of the minor children on 7th November, 2000. On the same day he filed a writ petition in the High Court seeking, inter alia, a writ of mandamus to the Family Court, Chennai to dispose of the petition expeditiously. In the said writ petition, an application for interim order was filed with the prayer, which reads as followsthe reasons stated in the accompanying affidavit, the petitioner therein prays that pending disposal of the above writ, this Honble Court may be pleased to direct the respondents, to hand over the interim custody of the two grand children Jay Viraj Prasad and Neal Krishna to the petitioner to enable him to take them to Hyderabad for performing the Karma of their deceased mother and the petitioners deceased daughter Kumudini on 8.11.2000 and continue to have the custody of the said two grand children until further orders of this Honble Court and pass such other further order or orders as this Honble Court may deem fit and proper, under such circumstances of thissupplied)5. The writ petition and the interim application came up before a single Judge of the High Court on the same day, i.e. the 7th November, 2000 on which day the learned Single Judge while ordering notice of motion returnable by four weeks passed an ex parte interim order, the operative portion of which reads as followsthere shall be a direction to the Commissioner of Police, Chennai to trace out the children Jai Viraj and Neal Krishna immediately and hand over the said children to the custody of the counsel on record for the petitioner Ms. B. Saraswati. When the children are handed over, they must be accompanied to Hyderabad with Police protection and the children must be allowed to perform obsequies. It is also made clear that the petitioner who is the maternal grandfather of the children must be responsible for the safe custody of thesupplied)The said order was challenged before the Division Bench in Writ Appeal No. 1954 of 2000 filed by the appellant herein. In the said appeal an application for interim order being CMP No. 17059 of 2000, was also filed. The Division Bench disposed of the writ appeal as well as the application for interim order by the order dated 16th November, 2000 which is under challenge in this appeal.

Reasoning:
The observations that the father is facing a criminal case, that he mostly resides in USA and that it is alleged that he is having an affair with another lady are, in our view, not sufficient to come to the conclusion that custody of the minors should be changed immediately. It is relevant to state here that the respondent No. 1 maternalwanted immediate custody of the minor children for the purpose of performing certain obsequies in connection with the cremation ceremony of his deceased daughter and that purpose had been served by the order passed by the learned Single Judge and such necessity for interim custody had ceased when the Division Bench passed the judgment/order under challenge. On the materials on record we are not satisfied that there was any urgency in disposing of the case with such haste without affording reasonable opportunity to the appellant to place material on record. The procedure followed by the High Court is neither fair nor proper.11. The High Court appears to have overlooked the settled principle that custody orders by their nature can never be final; however, before a change is made it must be proved to be in the paramount interest of the children. In a sensitive matter like this no single factor can be taken to be decisive. Neither affluence nor capacity to provide comfortable living should cloud the consideration by the Court. Here we may refer to the decision of this Court in Jai Prakash Khadria v. Shyam Sunder Agarwalla and another, 2000(6) SCC 598 : 2000(3) RCR(Civil) 143(SC). In such matters usually, Courts while granting the custody of minor children to one party extend the facility of visiting them to the other. At the cost of repetition we may state that we are not discussing the merits of the case pleaded by the parties in detail since the application for the custody is pending for adjudication before the Family Court at Hyderabad.