Dismissed

Nooty Vasishta Venkateshwarlu v. Smt Nooty Sindhu Sharma

Telangana HC15 Dec 2020CRP/1058/2020

Case brief

AI extract

What is this about?

The High Court of Telangana dismissed a civil revision petition challenging an order denying interim custody of a minor child to the father. The father alleged the child was made to repeat a class against his will; the mother cited academic advice. The Court held the lower decision was in the child's best interest.

What did the court decide?

Civil Revision Petition dismissed with no costs.

Nooty Vasishta Venkateshwarlu Vs Smt Nooty… — Child Custody and Guardianship | Telangana HC (2020)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE FIFTEENTH DAY OF DECEMBER

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TWO THOUSAND AND TWENTY

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PRESENT

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THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO

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CIVIL REVISION PETITION NO: 1058 OF 2020

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Petition under Article 227 of the Constitution of lndia, against the Order dated. 28-09-2020 made in l.A. No. 21 of 2020 in O.P.No. 117 of 2019 on the file of the Court of the Additional [,4etropolitan Sessions Judge for the Trial of Jubilee Hills Car Bomb Blast Case-cum-Add itional Family Court-cum-XXlll Additional Chief Judgecum-lX Additional [,4etropolilan Sessions Judge, Hyderabad

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Betwee n:

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Nooty Vasishta Venkateshwarlu, S/o. Nooty Ramamohana Rao, Aged 34 years, Rio. Plot No.3-A, Ashwini Layout, Journalists Colony, Jubilee Hills, Hyderabad500033 Telangana Slate.

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... Petitione r/Petitione r

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AND

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Nooty Sindhu Sharma, Wio. Nooty Vasishta Venkateshwarlu, Aged 30 years, Rio. H.No. 2-19175118, Laxminarayana Street, Road No.1 Kalyanpuri, Uppal, Hyderabad-500039.

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...RespondenURespondent

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lA NO: 2 OF 2020

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased be pleased to permit Baby Rishitha to be examined by expert Doctors at Rainbow Hospital or at any other similar Super Specialty Paediatric Hospital for treatment for the alleged COVID INFECTION duly entrusting the custody of her to the Petitioner.

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lA NO: 1 OF 2020

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Petition under Seclion 26 of the Hindu lr,4arriage Act r/w Sectionl5l CPC praying thal in the circumstances stated in the affidavit filed therewith, the High Court may be pleased this Honourable Court, in the interest of^justice, with a view to protect, preserve and promote the welfare of Baby Rishitha be pleased to direct entrustment of the custody of the Baby Rishitha immediately to the petitioner with appropriate Visitation Rights to the Respondent.

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Counsel for the Petitioner: SRI SUNIL B GANU

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Counsel for the Respondents: SMT S. VANI

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The Court made the following: ORDER

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.tFIE HONOUITABLE SRI JUSTICI., Nl.S.RAMACHANDRA RAO

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CIVIL REVISION I'ETITION No.l058 of²⁰²⁰

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ORDER:

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This Revision is filed by the petitioner assailing the order dr.28.09.2020 in I.A.No.2l of 2020 in O.P.No.1l7 of 2019 on the lile of the Additional Metropolitan Sessions Judge for Trial of Jubilee Hills Car Bomb Blast Case-cum-Additional Family CourtcLrm-XXIII Additional Chiel' Judge-cum-lX Additional Metropol itan Sessions Judge, l-l"u"derabad

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Tht, said O.P. was filcd on 12.09.2019 by the petitioner under Section li(lXi)(a) of the IIindu Malriagc Act, 1955 alleging that iesponcler,t leattii hinr and his ihnril-v rnembers rvith cluelty, and relief ol dissolu iion of marriage solemnized betr.r,een petitioner and respondent on 02.08.2012, was sought in the said O.P.

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Two children were born to the parties by name Baby Rishitha, aged between 4 to 5 years and Baby Sri Vidya, aged less then 3 Y ears.

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4.^'Ihe petitioner had initially tiled I.A.No.91 of 2019 under Section 26 of the Hindu Marriage Act seeking ten'tporary custodl, of the both children everv u,eek anci dLrrins school holidavs.^'lhe said I.A. had been disposed ol on 13. 12.10 19 b1 the Court belorv ernphasizing the need to grant visitation rights ancl the l-act that the children are entitled to love and afltction ol'both parents. lt granted

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custody of elder child Baby Rishitha on every Saturday from 5 p.m. to Sunday 5 p.m. and during her school holidays from Friday 5 p.m. to Monday l0 a.m. and custody of the younger child Baby Sri Vidya on every Sunday from 9 a.m. to 6 p.m. until further orders

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The respondent had questioned the same in C.R.P.No.735 ol 2020. The petitioner had filed C.R.P.No.360 of 2020 seeking modiflcation of the ordel of the trial Courl and seeking pennission to take both childrcn at thc sanre tirne and fbr the sante duration and custody of both childlen during sunrmer holidays

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6.^'I'his Cloun had disposed of the sarne on 01-06-2020 allowing C.R.P.No.360 of 2020 and disrnissing C.R.P.No.735 ol 2020.

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During the perrdency olthe said C.R.Ps., the petitioner had fi1ed I.A.No.5 of 2020 seeking permanent custody of the children.

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Since the relief prayed in the said I.A. was outside the scope of I.A.No.9l ol 2019, the said application was dismissed granting liberty to the petitioner to approach the Family Curt, if so advised.

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I.A.\o.21 of 2020

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9.^'fhereafter I.A.No.2l ol 2020 rvas flled by the petitioner seeking custody of elder minor child Babl Rishitha pending disposal of the O.P. while g:anting visitation rights to the respondent.

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The main ground on which the said relief is sought is that Baby Rishitha was made to repeat U.K.G. class in Little Flower School. Uppal in the acadernic year 2020-21 instead of studying the higher

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Cllass-I, though the said child had already graduated from U.K.G. class as per a certificate issued to her in a graduation ceremony held on 08.02.2020. It was contended that this would result in loss of one year in the academic career of the child, that the above informati<jn was suppressed frorn the petitioner and it indicates that respondent is not taking adequate care of the welfare and wellbeing o1'the child.

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I l. Reliance is also placed on certain er,ents w'hich occurred befbre a Division Bench olthis court in W.P.No. l0l,1l ol20 l9 inter-partes and it was pointed out that when the said Writ Petition was pending in the Cour-t, an aftldavit rvas tlled on 28.08.20 l9 by the respondent stating that the child was admitted in U.K.G. class in Little Flower School. Uppal in August, 20 19. and it is contended that since the child would have normally passed out olU.K.G. at the end of 201920 and thereafter got promoted to Class-I, the respondent cannot make the child again repeat U.K.G. class in Little Flower School.

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It is stated that petitioner came to knorv about this f'act rvhen a video was uploaded on respondent's Face Book page on 2l .06.202A in which the child disclosed that she was attendins [J.K.G. class again in Little Flower School, Uppal

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( ounter affidavit of thc rcsDondent

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Counter-aftidavit was llled in the Cor-rrt belou, bv the respondent stating that due to turbulent events between the XsTioner^{and respondent.whichareset out in detail in the O.P., the}

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child's academic perlormance got allected and she did not cope with the sudden promotion to U.K.G. class, and the Principal of thc School and the Class Teacher advised the respondent to retain the child in U.K.G. class stating that the perfomance ought to be commensurate with her age. It is also contended that the National Education Policy prescribes mininrum age lor admission of a child to Class-l as 5.5 to 6 years and the child Baby Rishitha was bom on 25.07.2015 and she completes 51'ears on25.07.2020 and no school which tbllows the said Policv u'ould allow her in Class-I. It is stated that taking into account the advice ofthe School Principal, the respondent allowed the child to lcpeat U.K.G., which would be in the best interest olthe clrild.

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'f hc ordcr dt.2ti.9.2020 in L\ \o.21 of 201(l

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After hearing both sides, the Court below dismissed I.A.No.2l of 2020 on28.09.2020.

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After referring to the contentions of both sides and case law cited by the parties, the Court below observed that interest and welfare of the minor children is of paramount importance and it is the duty of the Coun to take into consideration the said factor ',vhener^{er dispLrtcso1- custodyarerelluired to bc considered.}

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It held that the petitioner did not make an1' allegation against the respondent about the u'ay'she brought up the children except on the aspect of education of Baby Rishitha; though the petitioner, as father of the child, was anxious about her education and career, the

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respondent had stated that the child was under aged to be^promoted to Class-I as per the norms of CBSE and she would not be able^to cope up with the syllabus due to under age, and on the advice of the School Principal and Class Teacher, in the best interest ofthe child, she had allowed to retain the child in U.K.G

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It held that the explanation given by respondent^r,i'as convincing and on the sole ground of alleged negligence by respondent in making the child to repeat U.G.K. class, custody of the child cannot be changed lrom her mother.

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1E. It obselved that respondent is pl'eslrmed to have taken the said decision on the advice of the Principal of the School, that she had also assured the Courl that the performance of the child would henceforth be excellent and that respondent would continue her efforts for al1-round development ofher children.

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i9. It also observed that petitioner has opportunity to monitor the studies of the child since he has got temporary custody every week and w,ould have also time to spend vacations rvith the child equaliy as per the orders passed by this Coum and petitionel can also interact with the School Authorities about her studies and progress liom trme to tlme.

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'l'he rrrcsent Revision

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Assailing the same, this Revision is filed.

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Heard Sri Sunil B.Ganu, learrred counsel lor petitioner and

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Smt.S.Vani, learned counsel fbr respondent.

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'I'hc considcration bv thc Court

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The question to be considered is:

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"whether the impugned order passed by the Court below warrants interference by this Court in exercise of its discretionary jurisdiction under Article 227 of the Constitution of India?"

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It appears that the relationship between the petitioner and respondent has s.ot severelv strained and thev have rrade several allegations against each other and their family members in the pleadings llled in the O.P. and also in I.A.No.21 of 2020

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But the admitted lact is that Baby Rishitha is of tender age and was born on 25.07.2015 and had been in the custody ol mother/respondent ever since the O.P. has been filed on 12.09.2019. Even prior thereto, she was with the respondent only.

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The petitioner requested the Court to grant him interim custody by taking the child away from the custody of respondent on the ground that respondent rnade the child to repeat U.K.G. class in l-ittle F lower lligh School by not paying attention to child's education and without infbrming hinr and taking his consent. According to him, the cliild rvould lose one academic year on account ol the said fact and this ground is sufJlcient to change the cr.rstodr ol the ch ild.

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No doubt orders relating to custody ofchildren are by^theirvery nature not final, but are interlocutory in nature^{and subjectto} modification at any future time upon proof of change of circumstances requiring change of custody, but such change in custody must be prol)ed to be in the parantount inlerests oJ the child and that it ntust be estctblishecl that the previous^{(trrangement:rus} not conductivc to the chilcl s tel/it'e^r..t r that it had protluc'ecl Ltnsat is/'actory) results. (Dhanwanti Joshi vs Madhav Untler).

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As rightly held by the Court bclorv. rvelt-are o1'the minor child is paramount consideration which has to be kept in rnind in matters relating to grant custody of minor child.

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It is undeniable that the child would experience shock in the event ol change of custody when proceedings are still pending before a Court of competent jurisdiction.

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The Supreme Court has held that stability and consistency in the alfairs and routines of children is also an impofiant consideration for change of custody of minor in inLerim custody proceedings (Athar Hussain vs Syed Siraj Ahmed & Orsr).

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It'the respondent had takcn the clccision to nrake the child Babr Rishitha repeat U.K.G. class on accolrnt of advice of Principal ol the School, where the child is admitted, I<eeping in mind the age of the child and her mental capacity and also the stress which the child is faced on account of litigation between the parlies, it cannot be said

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' 6eeay^{r scct rz}

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'z^{lzoro;z sccos+}

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that there are circuntstances rlarranting change ol custody on that

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sole ground.

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Therefore I do not find any valid reason to interfere with the

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order passed by the Court below at this point of tirne.

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Accordingly, the Civil Revision Petition fails and it is

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dismissed. No costs.

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Consequently, rniscellaneous petitions, pending if any, shall

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stand closed-

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Sd/.I.NAGA LAKSHMI ASSISTANT REGIST

,TRUE COPY'

'AI

SECTION OFFICER

To,

The Additional lVletropolitan Sessions Judge for the Trial of Jubilee Hills Car Bomb Blast Court-cum-Additional Family Court-cum-XXlll Additional Chief Judge-cum-lX Additional l.tletropolitan Sessions Judge, Hyderabad.

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