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Amitabh Sinha S/O Late M.C. Sinha vs Karthickeya Motwani, on 24 May, 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 24TH DAY OF MAY, 2019

PRESENT

THE HON’BLE MR.JUSTICE K.N. PHANEENDRA

AND

THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

WRIT APPEAL NO.1600/2018
BETWEEN:

AMITABH SINHA, S/O LATE. M.C. SINHA
AGED ABOUT 41 YEARS
R/AT NO.179, TIWARIPURA FIRST
P.O.SEWANS TANNERY
ADARSH NAGAR,
KANPUR-208 010. U.P.INDIA. … APPELLANT

(BY SRI PRITHVI RAJ B N., ADV)

AND

1. KARTHICKEYA MOTWANI
S/O AMITABH SINHA, 15 YEARS
F-1801, AJMERA INFINITY APTTS
89/1 DODDATHOGURU
BEGUR HOBLI,NEELADRI ROAD
ELECTRONIC CITY-1
BENGALURU-560 100.
REP. BY HIS MOTHER SUNITA MOTWANEE

2. UNION OF INDIA
MINISTRY OF EXTERNAL AFFAIRS
ROOM NO.20, PATIALA HOUSE ANNEXE
TILAK MARG, NEW DELHI-110 001.
REP. BY JOINT SECRETARY [CPV] … RESPONDENTS

(BY SMT. SUNITHA MOTWANI – C/R1
SRI. C. SHASHIKANTH., ASGI FOR R2.)
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THIS WRIT APPEAL IS FILED U/S. 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER DATED 4.6.2018 PASSED BY THE SINGLE JUDGE IN
WP NO. 48962/2016 BY ALLOWING THIS WRIT APPEAL OF
SUFFICIENT APPEAL IN TIME.

THIS WRIT APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 26.04.2019, COMING ON
FOR ‘PRONOUNCEMENT OF JUDGMENT THIS DAY, K.N.
PHANEENDRA, J., MADE THE FOLLOWING:

JUDGMENT

This intra court Writ Appeal is filed against the order

passed by the learned single Judge in Writ Petition

No.48962/2016 (GM-RES) dated 4.6.2018 by making some

interim arrangements between the parties in respect of the

school fee of the respondent No.1, who is the child of the

appellant and Smt. Sunitha Motwanee, the natural mother

and guardian of the first respondent-child.

2. We have heard the arguments of the learned

counsel for the appellant and also Smt. Sunitha Motwanee,

next friend and guardian of the first respondent Karthikeya

Motwanee, appearing party-in-person. We have also

carefully perused the order passed by the learned single

Judge in Writ Petition No.48962/2016 dated 4.6.2018.
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3. Before adverting to the grounds elaborated by the

learned counsel for the appellant, we feel it just and

necessary to have the brief factual matrix that emanate

from the records in Writ Petition No.48962/2016 is that:

The petitioner (respondent No.1 herein) – Karthikeya,

minor son of Smt. Sunita Motwanee, has filed the above

said Writ Petition against the respondent, father of the

petitioner – Amitabh Sinha, (appellant herein) for the

following reliefs i.e.,-

(a) Petitioner’s mother unfit to support
him. Please pass an order for respondent to look
after the well-being of the minor son i.e., the
petitioner till he becomes an adult.

(b) Petitioner may be handed over to the
respondent so that the petitioner’s fundamental
rights of a human being are protected in the
interest of justice and equity in accordance with
law.

(c) Pass any such orders as this Hon’ble
Court may deem fit and proper in the facts and
circumstances of the case.

4. The said Writ Petition was actually contested by

the other side and in the mean time, during the pendency
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of the Writ Petition, an application was moved by the

petitioner through his mother-next friend and guardian by

way of filing IA No.1/2018. In the said application, the

petitioner has prayed for a direction to the respondent No.1

that,-

“To pay the educational expenses of the
petitioner (which includes school fees, Activity
fees, Transportation, Books, Notebooks,
Uniforms, competitive examinations coaching
class fees etc.,) which comes to Rs.1,65,000/-,
supplemented by the computer for the
petitioner and charges of coaching classes for
Grade-XI without further delay as an interim
measure till the final disposal of the petition in
the interest of justice and equity. And also
prayed for payment of Rs.25,000/- to school
immediately to block the seat for the
petitioner in Grade XI.”

On the above said application, after hearing both the sides,

the learned single Judge has passed the impugned order.

5. There is no dispute with regard to the relationship

between the parties i.e., the respondent No.1 is the son of

the appellant as well as the mother of the respondent No.1

who is representing the child now, as next friend.
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6. The appellant’s counsel has submitted before the

court that Writ Petition itself is not maintainable because

the above said prayer sought in the Writ Petition cannot be

granted by the writ court because it is the jurisdiction of

the family court or the Guardian and Wards Court to pass

such an order. Further, it is submitted before this court

that, the appellant is ready and willing to take the child to

his custody and look after all his education and

welfare. Therefore, in view of the above said admission on

the part of the appellant, the Writ Petition itself does not

survive and therefore, the order passed by the learned

single Judge is bad in law.

7. It is further submitted by the learned counsel for

the appellant that the writ court has not at all considered

the avocation as well as the earning capacity of the

appellant. However, it passed an order directing the

appellant to pay school fee etc., It is further contended

that the writ court has not even taken into consideration

that in various proceedings under the SectionDomestic Violence

Act, the learned JMFC u/s.125 of SectionCr.PC., petition, a total

amount of Rs.30,000/- has already been awarded as
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maintenance to the mother of the respondent and further,

granted an amount of Rs.19,000/- towards rentals as

prayed for by the mother of the respondent and these

factors has not been appreciated by the writ court and

further directed the appellant to meet the educational

expenses of the child, which is erroneous and liable to be

set aside.

8. Per contra, the next friend of the respondent No.1

party-in-person Smt.Sunita Motwanee has strenuously

contended that the writ court has not decided about its

jurisdiction. Of course, totally an amount of Rs.49,000/-

has been awarded by the different courts, but so far as the

rental amount is concerned, an amount of Rs.19,000/-

granted by the Trial Court has been set aside by the first

appellate court and in fact, the High Court has again

allowed the said rentals granted in favour of the mother of

the respondent. But having not satisfied with the same,

the appellant has preferred an SLP before the Hon’ble

Supreme Court, challenging the said order and the said SLP

is pending. However, the said amount has not been paid by

the appellant hitherto.

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She has further contended before this court that an

amount of Rs.30,000/- admittedly as ordered by the Trial

Court under the SectionDomestic Violence Act has been confirmed

by this court in WP No.15406/2017 connected with WP

No.20884/2017 (GM-FC) by an order dated

27.7.2017. Therefore, with the meager amount of

Rs.30,000/- towards maintenance, it is very difficult for the

respondent No.1 to maintain the child and also to bear the

educational expenses including school fees, uniform,

transportation, coaching fees etc., Therefore, she has

approached this writ court with the above said prayer.

She has further contended that, the writ court has

considered all the above said points raised by the learned

counsel for the appellant with regard to the granting of an

amount of Rs.49,000/- per month including the rentals and

also considering the capacity of the appellant. Further, the

writ court considered the efficiency and intelligence of the

child, held that the child requires a good and standard

education for his future welfare. Therefore, the writ court

has passed an appropriate order which deserves no

interference at the hands of this court. Therefore, she

prayed for dismissal of the Writ Appeal.

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9. On careful perusal of the grounds urged by the

learned counsel for the appellant and also the contention

taken by the mother of respondent No.1, it appears that, it

is only an interim arrangement made by the writ court vide

order dated 4.6.2018 in WP No.48962/2016 for the benefit

and welfare of the minor child who is studying in XI

standard.

10. On perusal of the order of the learned single

Judge, it appears that the learned single Judge has

observed that the Constitution (86th SectionAmendment) Act,

2002, the Parliament has added Clause (k) to the

Fundamental Duties under SectionArticle 51A of the Constitution

as well as inclusion of SectionArticle 21A to the Constitution, i.e.,

Right to Education, which mandates that the State shall

provide free and compulsory education to all children up to

the age of 14 years from the age of 6 years, in such

manner as the State may, by law, determine. Of course,

thereafter, the said fundamental right will not in any

manner vanish, but that can still be exercised by the child

against their parents, who are responsible for the welfare

of the child and also guardians of the child to take care of
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the education of the child. Though the said provision

SectionArticle 21A of the Constitution, cannot be exercised in the

court of law by virtue of the said Article, but on the basis of

the moral responsibility of the father and the guardians,

the child can definitely seek for such a relief against the

father. In this particular case, the learned single Judge has

considered the magnanimous ambition of the Constitution

and passed the interim order directing the appellant to

meet the educational expenses of the child.

11. The materials placed before the court as well as

the order passed by the learned single Judge, clearly

discloses that in pursuance of the order dated 4.6.2018,

the appellant has to inform the court about the payment of

fee in respect of the petitioner-child with regard to the

admission of the minor child to PSBB Learning Leadership

Academy to prosecute his studies in XI standard in Science

stream. Further, the learned Single Judge has observed

that, by an order dated 11.4.2018, the appellant has

already paid an amount of Rs.25,000/- to the said

Academy for the purpose of blocking the seat for the minor

child. When the matter was listed on 1.6.2018, the court

has observed that the court has granted time to ascertain
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about the payment of fees and other incidental charges to

the Learning Leadership Academy, but it appears the said

amount has not been paid in spite of the direction by the

Court. The child in fact was admitted to the said school

and the respondent submits that, she has paid the amount

for admission and other things to XI standards, but the

appellant has not paid any amount, as submitted before

the court that the child can be admitted to National College

7th Block, Jayanagar as he is unable to pay huge fee etc.,

In the said school, the college fee itself is Rs.40,000/- per

year and he is ready and willing to pay such an

amount. Therefore, it clearly discloses that the appellant is

not willing to pay any amount so far as the education of

the child in the said institution is concerned i.e.,

PSBB Learning Leadership Academy.

12. We have also perused the impugned order,

wherein the learned Single Judge has observed that, there

is no dispute by the respondent herein that the Family

Court in a matrimonial case, has awarded an amount of

Rs.20,000/- per month towards the maintenance and the

jurisdictional Magistrate has also granted an amount of

Rs.10,000/- per month as maintenance to the respondent’s
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mother, and further ordered an amount of Rs.19,000/-

towards the rentals and totally an amount of Rs.49,000/-

per month has been awarded. But she has contended

before this court that the said amount has not been paid

i.e., the rentals and out of the interim award of

maintenance an amount of Rs.30,000/- has been paid.

But, there is no order by any court with regard to the

educational expenses and the school fee, uniform,

transportation fee etc., of the child. It is also the

contention taken and not disputed that the child has

secured 92.5% in the X standard CBSE Board examination.

13. Looking to the above said factual aspect, this

court has observed that whatever may be the differences

between the husband and wife, this is not the stage where

the claim of the respondent child is to be denied because

the child has secured 92.5%, who has got a bright future.

In fact, when a seat has been blocked in the said school, it

becomes the duty of the father to pay the said

amount. Therefore, in this background, for the welfare and

benefit of the child, learned Single Judge has directly

invoked the powers under SectionArticle 226 of the Constitution of

India on the basis of SectionArticle 21A of the Constitution of India
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holding that such a claim of the petitioner is also

maintainable u/s.20(3)(b)(i) of the Hindu Adoptions and

SectionMaintenance Act, 1956 and it is also observed that in fact,

this is a fundamental right permeated in personal law or

private law. The court has also observed and noted that

Right to Education is also recognized not only a

fundamental right, but also a human right which a child

particularly, a minor child could seek to enforce as it is a

fundamental duty of the parents to educate their children.

14. As could be seen from the records and the order

of the learned Single Judge, the Writ Court has also taken

into consideration that, an amount of Rs.49,000/- has been

awarded by various courts in favour of the respondent

No.1. Of course, various pleas for the said amount have

been taken by the appellant’s counsel, on account of lack

of funds, as the same is very huge amount and therefore,

he requested the court to dismiss the said

application. However, in spite of considering the above said

submission, the court has passed the impugned order

keeping in view the welfare and status of the child and the

mother.

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15. It is not the case of the appellant before this

court that the respondent’s mother, next friend and

guardian is having any avocation and also earning and she

is also capable of meeting all the educational expenses of

the child. It is also clear that, the mother of the child is

maintaining herself and the child on the basis of the

maintenance award perhaps awarded by the various courts

as admitted by the parties. Further, added to that, as

could be seen from the order of the learned Magistrate,

produced before the court under the SectionDomestic Violence Act

and u/s.125 of SectionCr.P.C. an amount of Rs.10,000/- and

Rs.20,000/- were awarded only towards maintenance of

the child. In our opinion, the said amount of Rs.30,000/- is

not sufficient to the respondent even to meet all the

education expenses as admitted by the appellant himself

that much of huge amount, he cannot make such payment

and therefore, he sought for admission of the child in

National College, Jayanagar. Therefore, it goes without

saying that the respondent No.1’s mother is also not able

to meet the educational expenses of the child.
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16. Though in the applications, it is claimed with

reference to the coaching class fees etc., separately, but as

could be seen from the orders of the learned Single Judge

at page 30, the respondent’s mother has expressly stated

that so far as XII Standard is concerned, what has to be

paid is only tuition fee and other incidental fee to the

Academy and no further amount shall be sought towards

additional coaching charges and the learned Single Judge

has placed on record the said submission.

Therefore, looking to the above said facts and

circumstances of the case; the learned Single Judge has

only made an interim arrangement during the pendency of

the Writ Petition. Therefore, we find absolutely, no reason

to interfere with such a reasoned and logical order passed

on the basis of the facts.

17. The learned Single Judge has in fact, directed

the respondent – father to pay the balance school fee in

respect of the minor petitioner to get admission to PSBB

Learning Leadership Academy Centre. And the court has

also directed respondent No.1 to make a request with the

said institution for payment of the amount in installment
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basis and also the court expressed its hope and trust that

the said institution has magnanimously considered the said

request of the appellant.

18. Therefore, on plain reading of the order passed

by the learned Single Judge, it is an interim arrangement

made for the welfare of the child and for the benefit of the

child so that the child’s education in any manner should not

be paralyzed. It is the main object of the court as per the

ambition of the Constitution of India.

19. Now, coming to the two contentions raised by

the learned counsel for the appellant:

Firstly, the learned counsel for the appellant contends

that the Writ Petition itself is not maintainable and even

otherwise the appellant is ready and willing to take back

the child and take care of the child. The question of

whether the Writ Petition is maintainable or not, is yet to

be decided by the writ court itself and it is not the stage

where the writ court can pass an order with regard to its

jurisdiction, when such situation arose to safeguard the

interest of the minor child. Therefore, it is still open to the

appellant to question the jurisdiction of the court before the
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same court while arguing the matter on the merits of the

Writ Petition. Therefore, we do not find any strong grounds

as urged to interfere with the order impugned in this

appeal.

Further added to the above, the appellant has

expressed his willingness to take the child back. It is to be

noted that the Writ Petition was filed as long in the year

2016. We are in 2019. It appears he has made such

submission before this court only. Therefore, in our

opinion, it is not tenable at this stage when specifically

several orders have been passed against him on

11.4.2018, 1.6.2018 and 4.6.2018, without complying the

said orders in proper perspective, simply making

submission that he is ready and willing to take back the

child cannot be accepted at this stage.

Further, added to the above, the appellant has to

comply with the orders first in order to safeguard and

protect the valuable educational rights of the child and then

he would have placed such request before the court.

The order of the learned Single Judge does not

disclose any such representation was made before passing
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the order on 11.4.2018 itself or as on 4.6.2018 or on which

day the impugned order is passed. Therefore, the said

contention of the learned counsel at this stage is not

tenable.

The second contention is that the learned Single

Judge has not considered the avocation as well as capacity

of the appellant. Though it is argued before this court that

he has only earning Rs.30,000/- per month but the order

passed in WP No.15406/2017 c/w. 20884/2017, this court

vide order dated 27.7.2017 has confirmed the order passed

in MC No.68/2016 granting Rs.20,000/- maintenance and

also considering an amount of Rs.10,000/- awarded by the

Magistrate as maintenance earlier in favour of the

respondent mother. Therefore, it cannot be easily accepted

that the appellant is unable to pay such an amount even

otherwise, so far as the educational expenses for XI and XII

standard which are claimed by the respondent is one-time

payment so that the child can prosecute those two years

education in the said institution. Therefore, without any

strong materials on record, we cannot come to any

conclusion that the appellant was unable to make such a

payment as it is submitted by the respondent – mother that
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an amount of Rs.19,000/- awarded by the court towards

rental has not been paid by the appellant.

20. Looking to the above said facts and circumstances

of the case, we are of the opinion that there is no reason to

meddle with the order impugned.

21. Last but not least, there is no clarification in the

impugned order with regard to the payment of fee and

other incidental charges. However, the court had directed

the respondent No.1 to pay the balance school fee in

respect of the minor child for getting admission

to PSBB Learning Leadership Academy. However, the

claim of the respondent No.1 excluding the coaching

charges for the XII standard, is tenable and the child is

entitled for the said amount. At page 29 of the order

impugned, the writ court has in fact considered these

aspects such as payment of incidental charges including

transport charges, books and as well as uniform charges of

the child apart from the school fee, in the form of

installments. The mother of respondent herself has stated

that it is only the education fee and other incidental fee has

to be paid to the Academy. Therefore, we clarify by this
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order that the respondent (appellant herein) is directed to

pay the balance school fee in respect of the minor child to

PSBB Learning Leadership Academy which shall include not

only the school fee but also the transportation fee and

uniform and books of the child for the academic years XI

and XII i.e., balance school fee, transportation fee and then

books and also uniform fee shall be paid to the academy.

22. It is also submitted by the next friend of the

child that she has already paid some amount to the

academy towards the fee and other things. Remaining

school fee has to be paid to the school and whatever the

amount is paid against the school fee, transportation fee,

Uniform fee and books and for the coaching classes fee in

the same institution by her, the said amount has to be

reimbursed or paid to the mother of the child either by way

of DD or by depositing the amount before the Court, after

calculation.

23. Therefore, the appellant is hereby directed to

comply with the above said direction of this court within

one month from the date of receipt of a copy of this order

without fail, failing which, the respondent has already filed
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a CCC before this Court in CCC No.1480/2018 and she is at

liberty to proceed and prosecute the said CCC immediately

after the lapse of one month from the date of this order, if

the order is not complied.

With the above said observation, we are of the opinion

that this Writ Appeal has no merit and the same is liable to

be dismissed. Accordingly, dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

PL*

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