Allowed

Malike Saba v. Sameer Hamsa Ramla

Karnataka HC29 Oct 2022MFA/2094/2022

Case brief

AI extract

What is this about?

This miscellaneous first appeal assailed an order rejecting a custody petition for residence jurisdiction reasons held under Section 9 Guardians and Wards Act against the Supreme Court rule best interest of child paramount consideration while deciding threshold bar jurisdiction.

What did the court decide?

The impugned order allowing rejection of plaint under Order VII Rule 11(d) CPC is set aside, and the petition is remanded for disposal based on merits.

Malike Saba Vs Sameer Hamsa Ramla — Child Custody and Guardianship | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF OCTOBER, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE S.VISHWAJITH SHETTY

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M.F.A. NO.2094/2022 (GW)

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BETWEEN:

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MALIKE SABA AGED ABOUT 39 YEARS W/O SAMEER HAMSA RAMIA R/AT APARTMENT NO.3067 PRESTIGE SHANTHINIKWETHAN ITPL ROAD, WHITEFILED BANGALORE - 560 048. ...APPELLANT

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(BY SRI GAUTHAM NARAYAN, ADV. FOR SRI PRABHUGOUD B. TAMBIGI, ADV.)

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AND:

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SAMEER HAMSA RAMLA AGED ABOUT 37 YEARS S/O LATE ALIYARU KUNJU HAMSA R/AT C/O RAMLA BEEVI ABDUL KHARIM, "HAMSAM" TC.7/966 (2) ULSOOR BHASI NAGAR, KOCHU ULLOOR, MEDICAL COLLEGE P.O THIRUVANANTHAPURAM KERALA - 695 011 PRESENTLY RESIDING AT 1161, COLFAX AVENUE DES PLAINES, USA - 60016. ...RESPONDENT (BY MISS. DEEPA J., ADV.)

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THIS WRIT APPEAL IS FILED UNDER SECTION 47 OF GUARDIAN AND WARDS ACT 1890, PRAYING TO SET AIDE THE ORDE DATED 08.02.2022 IN G & WC 24/2021 PASSED BY THE HON'BLE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT BENGALURU ARRAIGNED AS ANNEXURE 'A' IN THIS PETITION AS ILLEGAL AND UNSUSTAINABLE IN LAW.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This miscellaneous first appeal is filed under Section 47 of the Guardians and Wards Act, 1890 assailing the order passed in I.A.No.II by the Court of VIII Additional District & Sessions Judge, Bengaluru Rural District, Bengaluru dated 08.02.2022 in G & WC No.24/2021.

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Heard the learned counsel appearing for the parties and also perused the material available on record.

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Brief facts of the case as revealed from the

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records which would be necessary for the purpose of disposal of this appeal are, the marriage of the appellant with the respondent was solemnized on 25.09.2016 at Thiruvananthapuram, Kerala State. After the marriage, the appellant joined the respondent at United States of America, where he was employed and from the wedlock,

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the couple have a daughter namely Zoya Sameer Malike born on 10.07.2018 at Illinois, U.S.A. It appears that subsequently, the relationship between the parties was strained allegedly in view of the harassment meted out by the respondent and his family members on the appellant. It appears that on one such incident were the appellant was tortured by the respondent a police complaint was lodged against him on 05.12.2018 and thereafter, appellant had gone back to her brother’s house at Pennsylvania in U.S.A. In view of subsequent developments, the appellant had again joined the respondent on 15.12.2018, however on 29.12.2018, the respondent and his family members allegedly once again abused and assaulted the appellant and as a result on 03.01.2019, she returned to India along with the child to live with her parents. Thereafter, as per the demand of the respondent, appellant’s father paid him a sum of Rs.5 lakhs in the year 2020 and subsequently, he agreed to take back the appellant and accordingly, the appellant joined the respondent with the child on 03.12.2020 in Chicago, U.S.A. On 02.06.2021, the respondent once again allegedly assaulted the appellant and attempted to

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kill her and after escaping from the clutches of the respondent, the appellant called the police from the neighbour’s phone and she had also initiated proceedings in U.S.A seeking protection order for herself and the child. Thereafter, she had returned to Bengaluru, India on 22.06.2021 and ever since then she is residing at Bengaluru. Since there was a threat with regard to custody of the child, she had initiated proceedings under Section 7 and 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as ‘the Act of 1890’) before the jurisdictional Court at Bengaluru with a prayer to grant sole legal custody of the daughter to her and also to appoint her as a legal guardian of her daughter.

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In the said proceedings, after service of notice, the respondent had filed an application under Order VII Rule 11(d) of CPC with a prayer to reject the plaint on the ground that the petition was barred under Section 9 of the Act of 1890. The learned District Judge vide the order impugned has allowed the said application and being aggrieved by the same, the present appeal is filed.

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The learned counsel for the appellant submits that the learned District Judge was not justified in allowing the application for rejection of plaint. He submits that the averments made in the petition alone was required to be considered and not the contention urged in the application filed by the respondent under Order VII Rule 11(d) of CPC while passing an order on the said application. He submits that the appellant as well as her minor daughter were residing in Bengaluru for about two years after they had returned from U.S.A in the year 2019 and again ever since they returned in the year 2021 from USA they have been residing in Bengaluru and therefore, it cannot be said that the Bengaluru is not a place where the minor child ordinarily resides. He submits that in a case where the parents are involved in inter-country dispute and proceeding is also initiated under the Guardians and Wards Act, while deciding the question of jurisdiction, the paramount consideration should be the best interest of the child and in support of his arguments, he has relied upon the judgment of the

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Hon'ble Supreme Court in the case of Jasmeet Kaur v. Navtej Singh¹ .

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Per contra , the learned counsel appearing for the respondent submits that the minor child was born in U.S.A and therefore, it has to be considered that the child is a resident of U.S.A for all purpose. He submits that merely for reason the child was brought to Bengaluru a few days back by the appellant, the Court in Bengaluru does not get jurisdiction to entertain a petition under Section 7 and 25 of the Act of 1890. He submits that in view of the bar under Section 9 of the Act of 1890, the learned District Judge has rightly allowed the application filed by the respondent under Section VII Rule 11(d) of CPC. In support of his contention, he has relied upon the judgments of the Hon’ble Supreme Court in the following cases:

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LAHARI SAKHAMURI VS. SOBHAN KODALI²

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2. MUKUND SWARUP VS. MANISHA JAIN³

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1 (2018) 4 SCC 295

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2 (2019) 7 SCC 311

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3 2009 (110) DRJ 396

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It is trite law that while considering an

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application under Order VII Rule 11(d) of CPC, the Courts are required to take into consideration only the averments made in the petition and not the averments made in the statement of objection or the application filed by the respondent. From a reading of the averments made in the petition, to be more specific, from paragraph Nos.21, 23, 26, 27 and 29, it is clear that after the child was born on 10.07.2018, the appellant was being illtreated and harassed by the respondent and her in-laws. Unable to withstand the same, she had returned along with her baby to India, initially on 03.01.2019. From 08.02.2019 onwards, she along with the child started residing at Bengaluru till they returned to U.S.A on 03.12.2020, since the respondent had agreed to take them back. Thereafter, the appellant and the minor child returned back to Bengaluru on 22.06.2021 and ever since then, the appellant and the minor child have been residing at Bengaluru. The petition before the Court at Bengaluru under Section 7 and 25 of the Act of 1890 was filed on 29.07.2021.

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From the aforesaid narration of the facts, it is

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clear that after the child was born, she had resided in U.S.A totally, only for a period of 405 days and she had resided in Bengaluru, India for about 710 days. Merely for the reason that the child was born in U.S.A or for the reason that the parents were involved in a legal battle in U.S.A, it cannot be said that the minor child was the ordinary resident of U.S.A. The Hon’ble Supreme Court in similar circumstances in the case of Jasmeet Kaur (supra) has held that in a proceeding initiated under the Act of 1890, while considering the question of jurisdiction, the paramount consideration should be the best interest of the child and in paragraph Nos.3, 4 and 5 of the said judgment it has been observed as follows:

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"3. We have gone through the judgments of this Court in Surya Vadanan v. State of TN² , (2015) 5 SCC 450, V. Ravi Chandaran (2) v. Union of India and Others³ , (2010) 1 SCC 174, Dhanwanti Joshi v. Madhav Unde⁴ , (1998) 1 SCC 112, Surinder Kaur Sandhu v. Harbax Singh Sandhu⁵ , (1984) 3 SCC 698, and Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479. These judgments were considered by this Court in a recent Three-Judge Bench Judgment in Nithya Anand Raghavan v. State (NCT of Delhi)⁷ , (2017) 8 SCC 454 and it was observed :

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“39. We must remind ourselves of the settled legal position that the concept of forum convenience has no place in wardship jurisdiction. Further, the efficacy of the principle of comity of courts as applicable to India in respect of child custody matters has

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been succinctly delineated in several decisions of this Court.

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66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a foreign Court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration. The principle of comity of courts as observed in Dhanwanti Joshi case⁴ , in relation to non-convention countries is that the Court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. While considering that aspect, the Court may reckon the fact that the child was abducted from his or her country of habitual residence but the Court's overriding consideration must be the child's welfare.”

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4. In view of above, principle of comity of courts or principle of forum convenience alone cannot determine the threshold bar of jurisdiction. Paramount consideration is the best interest of child. The same cannot be subject-matter of final determination in proceedings under Order 7 Rule 11 of the C.P.C.

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5. Accordingly, we set aside the impugned order. The application under Order VII Rule 11 is dismissed."

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9. In the case of Lahari Sakhamuri (supra),

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the Hon’ble Supreme Court was considering a case where

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the children were natural born US citizens and had come

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to Hyderabad, India, only 20 days prior to the application

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being filed for custody of the children under the provisions of the Act of 1890 and it is under the said circumstances, it was held that the Family Court, Hyderabad had no jurisdiction to entertain the application. In the case of Mukund Swarup (supra), the minor children were the residents of Delhi and they were temporarily shifted to Chennai for the purpose of their education and it is under the said circumstances, the Delhi High Court held that the Court at Delhi alone had territorial jurisdiction to consider the application under the provisions of the Act of 1890. The said judgments on which reliance has been placed by the learned counsel for the respondent would not be applicable to the facts and circumstances of the present case. Under these circumstances, we are of the considered view that the learned District Judge was not justified in allowing the application filed by the respondent under Order VII Rule 11(d) of CPC, more so, having regard to the averments made by the appellant in the petition filed under Section 7 and 25 of the Act of 1890 and in view of the law laid down by the Hon’ble Supreme Court in the case of

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Jasmeet Kaur (supra) and therefore the impugned order cannot be sustained. Accordingly, the following :-

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:: ORDER ::

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Miscellaneous First Appeal is allowed. Order dated 08.02.2022 passed on I.A.No.II in G & WC No.24/2021 by the Court of VIII Additional District & Sessions Judge, Bengaluru Rural District, Bengaluru is set aside and the matter is remanded for disposal in accordance with the law.

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SD/JUDGE SD/JUDGE NMS

Malike Saba v. Sameer Hamsa Ramla

Case brief

What is this about?

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Malike Saba v. Sameer Hamsa Ramla

Case brief

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