Disposed

S Sunil Vellore v. Smt. Divya Lakshmi @ Divya 1 Vellore

Karnataka HC8 Aug 2024WP/13100/2023

Case brief

AI extract

What is this about?

A father sought rejection of his wife's guardianship/custody petition under Order VII Rule 11 CPC, citing jurisdictional objections and a Maryland foreign-court decree granting him custody. The High Court held such contentions exceed the scope of Order VII Rule 11 and must be tested at trial, directing disposal within a year and weekly video calls between father and child.

What did the court decide?

Writ petition disposed; Trial Court to dispose of G&WC within one year; father allowed weekly Sunday video calls with child; all IAs closed.

S Sunil Vellore Vs Smt. Divya Lakshmi @… — Child Custody and Guardianship | Karnataka HC (2024)

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NC: 2024:KHC:31650 WP No. 13100 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 13100 OF 2023 (GM-FC)

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BETWEEN:

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S. SUNIL VELLORE, S/O. MR. SUDHARSHAN VELLORE, AGED ABOUT 38 YEARS, R/AT.NO.6820, WARFIELD STREET, GLEN BURNIE, MARYLAND – 21060, UNITED STATES OF AMERICA.

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…PETITIONER

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(BY SMT. RAJARAJESHWARI T.S.,ADVOCATE)

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AND:

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Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA

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SMT. DIVYA LAKSHMI @ DIVYA 1 VELLORE AND ANOTHER, W/O. S. SUNIL VELLORE, R/AT.NO.916, 9TH CROSS, 26TH MAIN ROAD,1ST SECTOR, HSR LAYOUT, BANGALORE – 560102.

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MS. SHREYA S. VELLORE, MINOR DAUGHTER OF MR. SUNIL VELLORE, AGED ABOUT 12 YEARS, PRESENTLY UNDER THE CARE AND CUSTODY OF THE RESPONDENT THE MOTHER.

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…RESPONDENTS

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(BY SRI. GOVINDRAYA KAMATH K.,ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 06.07.2022 PASSED ON I.A. UNDER VII RULE 11 R/W SEC. 151 OF CPC IN G AND WC.NO.120/2017 ON THE FILE OF IV ADDL. PRINCIPAL JUDGE, FAMILY COURT AT BANGALORE VIDE

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ANNEXURE-A AND FURTHER BE PLEASED TO ALLOW THE SAID APPLICATION FILED BY THE PETITIONER AND ETC.

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THIS PETITION, COMING ON FOR PRILIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL ORDER

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The present Writ Petition is filed aggrieved by the order passed in I.A.No.16 in G & WC.No.120/2017 dated 06.07.2022 by the IV Addl. Principal Judge, Family Court, Bangalore, the petitioner/father is before this Court.

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The parties are referred to as husband and wife for the sake of convenience.

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The facts of the case are that the respondent No.1/mother had filed G & WC.No.120/2017 seeking custody of the daughter. It is her case that she was residing along with her husband in US and they are blessed with a daughter and as the husband subjected her and her infant daughter to mental and physical abuse, due to which they were subjected to cruelty at the hands of the petitioner/husband. He deserted her and finally left with no other option she was forced to come to India along with the minor child and since April 2016, she is

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living along with her parents at Bangalore within the jurisdiction of the Court. She is well qualified, employed and taking good care of her minor daughter, who is aged 5 years, going to a Montessori school. The petitioner/husband had written a mail to her on 23.09.2016 threatening to take away the child from her as such it made her to file this petition seeking custody of the minor daughter.

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On 03.10.2018, the petitioner/husband had filed the present application under Order 7 Rule 11 of CPC to reject the petition. It is the case of the petitioner/husband that the respondent/wife had filed her petition seeking custody of the minor daughter with suppression and misrepresentation of the facts. The child is a US citizen and holds a valid citizenship and India is not an ordinary place of residence for the child as such the Courts at Bangalore have no jurisdiction and in the light of the judgment passed by the Foreign Court that the present G & WC itself is not maintainable. It is the case of the petitioner/ husband that he had filed a petition for divorce and also permanent custody of the minor daughter before the Court at

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Anne Arundel County, Maryland Court which is a proper and jurisdictional Court and also the permanent domicile of the

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child. On 20.07.2017, the Court had passed a judgment by granting decree of divorce and also further ordered that the custody of the child shall be given to the father. The wife was served with the notice of the Court, the wife without contesting the matter choose to flee from USA and suppressing the fact that the custody is already given to the father and also divorce is obtained, the present petition is filed. It is stated that as Bangalore is not the ordinary place of residence for the minor, the application is not maintainable. Further, already there is an order of the Foreign Court which is binding on the Family Court and even on that count also as it is barred by Law and it is not maintainable and accordingly, came up with this application to reject the plaint. The Trial Court by impugned order had dismissed the petition. While dismissing the said petition, the Trial Court had considered the judgment relied on by the petitioner/father. The Trial Court is of the opinion that as the mother and the daughter are now residing within the jurisdiction of the Court, the Court has every right to try the matter in connection to the legal custody of the ward in the better interest of the child. Apart from that at the time of passing the orders by the Foreign Court, the petitioner and the

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child were not at all residing in the said country. On the other hand, the interest of the ward is a matter which has to be investigated in the present petition which is filed before the Court in the native place of the ward where it is now residing with her mother. The Trial Court has come to the conclusion that the Court has jurisdiction to investigate the matter by way of enquiry in the petition and accordingly, rejected the application filed by the petitioner/father.

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Learned counsel appearing for the petitioner/father submits that the Trial Court had failed to consider the application filed by the petitioner/father under Order 7 Rule 11 of CPC in its proper perspective. It is submitted that as per Section 9 of the G & WC Act, the Court in whose jurisdiction the minor ordinarily resides would get the jurisdiction, whereas in this case, the ordinary residence of the child is in US, but not in Bangalore. The Trial Court had failed to consider the judgment of the Foreign Court wherein notice is also served on the wife and without contesting the same she had shifted to India and the said judgment is binding on the wife. On both these grounds the G & WC petition is not maintainable on law as well as on the aspect of jurisdiction before the Courts at Bangalore

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and this aspect was not considered. It is their further case that right from the year 2017 till now, the petitioner/father was never permitted to see the child and as per the orders passed by this Court on the last occasion, he could interact with the child through the video call. In the earlier attempts the child used to completely close her face and petitioner/father never had an opportunity to see her face and it is submitted that the G & WC is not maintainable and the application filed under Order 7 Rule 11 of CPC has to be allowed.

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Learned counsel appearing for the respondent No.1/mother submits that the mother has come to India in the year 2016, as both the mother and daughter were put to physical and mental harassment by the petitioner/father and having no other option she had to come back to India and when there was a threat from the husband, she had to file this petition seeking custody. As on the day when the petition is filed, the child and the mother are residing within the jurisdiction of the Court and the Court had jurisdiction to entertain this petition. It is submitted that with regard to binding nature of the foreign judgment and other things are subject to evidence, whether the notice is served, she has

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contested the matter or not, all these issues have to be decided by the Trial Court after the full fledged trial. At this stage, on an application filed under Order 7 Rule 11 of CPC, the petition cannot be rejected. It is the contention of the learned counsel for the respondent/wife that earlier when the father had come to India, he had interacted with the child and it is his case that except filing these kinds of petitions, right from the year 2017 neither he has take care of the child nor he has contributed anything monetarily for the maintenance of the child.

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Learned counsel appearing for the petitioner/father had denied the same and submits that the petitioner/father never had an opportunity, except with the orders passed by this Court to interact with the child.

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Having heard the learned counsels on either side, perused the material on record. The respondent No.1/mother had filed G & WC petition seeking custody of the minor child. The undisputed facts in this case are that the father, the mother and the child were residing in US till the year 2016 and it is the case of the respondent No.1/mother that because of the disputes arose between the parties and as the

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petitioner/husband has abandoned and harassed her and she had to come to India and she is in India from the year 2016. It is also not a disputed fact that the child is a US citizen. Now, it

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is the case of the father that the Courts at Bangalore have no jurisdiction as this is not the ordinary residence of the child and also that the foreign judgment where he was granted divorce and the custody of the child is binding on the Indian Courts and this petition cannot be entertained. The learned counsel appearing for the petitioner/father had relied on the judgment of the Hon’ble Apex Court in case of Lahari Sakhamuri Vs.

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Sobhan Kodali¹ basing on this, it is submitted that an application under Order 7 Rule 11 of CPC is maintainable. Before going into the merits of the matter, it is appropriate to look at Order VII Rule 11 of CPC which reads thus:

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11. Rejection of plaint - The plaint shall be rejected in the following cases-

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(a) where it does not disclose a cause of action;

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(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

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(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently

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1 [2019] 5 S.C.R. 240

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stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

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(d) where the suit appears from the statement in the plaint to be barred by any law;

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[(e) where it is not filed in duplicate;]

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[(f) where the plaintiff fails to comply with the provisions of rule 9:]

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[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]

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According to the learned counsel for husband, she falls under clause II(d) where the suit appears from the statement in the plaint to be barred by any law. While considering an application under VII Rule 11 of CPC, the Court has to necessarily look at the plaint/petition and the Court cannot look at any other evidence. Now, in this case, she is relying on the judgments and several documents that are filed by her and all those aspects have to be gone into while deciding this application. In the considered opinion of this Court, that is not the scope of a petition under Order 7 Rule 11 of CPC and the

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Court cannot look into any other document than the petition and looking at the petition, it do not demonstrate that it is barred by any law and the Courts at Bangalore do not have jurisdiction. All the contentions that are raised by the petitioner/husband have to be decided in the full fledged trial where the issue with regard to the jurisdiction and the binding nature of the judgment of the Foreign Court have to be decided by framing issues and also by adducing the evidence, but at a threshhold under Order 7 Rule 11 of CPC, it cannot be decided. The contents and the points that are raised by the petitioner/father are beyond the scope of Order 7 Rule 11 of CPC and further considering the fact that the G & WC is filed in the year 2017 and it is already been seven years. This Court deems it appropriate to pass the following,

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ORDER

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i. The Trial Court is directed to dispose off the G & WC within a period of one year from the date of receipt of the copy of the order.

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ii. Considering the fact that the petitioner/father is not able to meet the child, the father can speak to

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the child through video call on every Sunday between 7.00 and 8.00 pm., if it is not possible on any of the Sundays. It should be compensated by some other day in the week.

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iii. At any point of time, if the order of this Court is not complied with by the respondent No.1/ mother, the same shall be brought to the notice of the Trial Court and the Trial Court shall pass appropriate orders.

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