Madras High Court Shobha Duggirala-vs-Madhukar Duggirala on 7 September, 2007
DATD : 11.11.2009
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
O.P.No.571 of 2007
Shobha Duggirala…Petitioner
Vs.
Madhukar Duggirala…Respondent
Original Petition is filed under Sections 3,7 to 10 of the Guardian and Wards Act to appoint the petitioner herein as the Guardian of the person of the minor children Suraj aged 13 years, born on 16.04.1994 and Sonal aged 10 years, born on 13.01.1997.
For Petitioner : Mrs.Geetha Ramaseshan For Respondent : Mr.J.R.K.Bhavanandham
O R D E R
The Original Petition was filed under Sections 3, 7 to 10 of the Guardian and Wards Act for directing the entrustment of the custody of the minor children Suraj and Sonal to the petitioner.
2. The brief facts leading to the filing of the petition were as follows:
It was stated in the OP that the marriage between the petitioner and the respondent took place on 17.04.1987 at Chennai according to Hindu Rites and Customs. They also registered the marriage in the United States of America on 08.08.1997. Two children were born out of the wedlock in USA. The first minor boy Suraj was born on 16.04.1994 and he is presently 15 years old. The second minor girl Sonal was born on 13.01.1997 and she is presently 12 years old.
3. It was stated in the OP that at the time when the petitioner got married with the respondent, the respondent was living in USA. She left for USA in May 1987. The respondent is an Engineering Graduate from Chennai and got his Post Graduate Engineering degree in USA. He was initially employed in a company at Sunnyvale, California. The petitioner while in USA, pursued her higher studies and obtained a degree in Computer Science from the University of San Jose State, California in 1993. Infact, she was working during day time and by attending evening college and paying for her education herself got her degree.
4. It was stated that they lived together at Fremont since 1997. Both the petitioner and the respondent as well as their children were citizens of USA. The petitioner further stated that while in USA, she felt harassment at the hands of the respondent. For the sake of the children, she lived with the respondent hoping that the situation will improve.
5. During 1999, the respondent started his own consultancy but that could not be continued beyond 2002. It was claimed by the petitioner that the respondent stopped working and was having hallucination on many issues and became obsessive that he was a master through self realisation. The petitioner claimed that she was taking care of the house as well the children. Since she could not bear the physical and mental abuse heaped by the respondent including the infliction of torture on the children, the petitioner was forced to seek intervention of police at times.
6. The petitioner also stated that the respondent started a cult called AUMware and behaved in extreme and bizarre manner and started calling himself to be the "lord of universe" and that he is the "divine light from which all forms emerge". Since California became an earthquake prone area and due to constant torture given by the respondent, she signed the papers for selling their home at USA. The sale proceeds were split into four quarters and were shared equally. The share of the children was invested in a recurring compound interest, both of them being their guardians. The respondent without authority sold her car and kept the sale proceeds himself.
7. The petitioner further stated that both of them came to India during 2005 on the pretext of starting a new life. They started living at Chennai in Nungambakkam along with the respondent’s mother. But after coming to India, the respondent’s cult practices started increasing. He started luring his children also to join in the cult and many times experimented with the children about his faith. Since the respondent’s cult practice was increasing, many disciples visited their house. In order to save the privacy for herself and her children, the petitioner shifted her house along with the children and started living with her parents at Chetpet (Chennai).
8. In the mean while, the respondent filed a petition in O.P.No.28 of 2006 before the Family Court, Chennai seeking for restitution of conjugal rights. Though the matter was referred to mediation, it did not fructify into a final result. Even while the said petition was pending, it was claimed that on 06.02.2006 the respondent charged into the house of the petitioner and assaulted her and children in front of others. Unable to bear the agony any more, the petitioner lodged a complaint before the police and an FIR was registered against the respondent under Sections 406 r/w 498A IPC.
9. The petitioner stated that the children were at present studying in a reputed school at Kilpauk and she was taking care of their needs. The respondent had not paid any money towards the education of the children or maintenance. The petitioner is now working as a Director of a Commercial Section in an outsourcing company and has been living with the children since September 2005. The conduct of the respondent is not conducive for the welfare of the children since he suffers from mental instability due to his new cult practice. In the interest of the welfare of the minor children, she must have the custody of the children without any hindrance or harassment by the respondent.
10. The Original Petition was filed on 16.07.2007. After notice to the respondent, several applications were filed. The first application was filed by the petitioner seeking for a direction to the respondent to hand over the passports of the minor children under the apprehension that he may remove the children to USA without her consent, thereby making her effort for custody infructuous. This Court by an order dated 07.09.2007 directed the respondent to deposit the passports of the minor children with the Registry and gave liberty to either side in case they want to take the minors out of the country, they will take appropriate orders from the Court.
11. Thereafter, the respondent filed applications for visitation rights and for interim custody of the minor children for one week during Christmas holidays. This Court after examining the children by an order dated 14.12.2007 observed that while the children were willing to go with the father during day time, they were apprehensive and felt uncomfortable to stay overnight with their father. Noting the same, this Court directed that the respondent can take out the children during day time on 23.12.2007, 01.01.2008 and 13.01.2008. The respondent was also given visitation rights once a fortnight and also during Pongal holidays. The Court also observed that if the children have any special class or any other programme in the school, the respondent shall take the children to those classes as required. Subsequently, applications in A.Nos.7933 and 7934 of 2007 were closed by an order dated 03.04.2008 as they have become infructuous by efflux of time.
12. A detailed counter affidavit dated 27.06.2008 was filed by the respondent. He had stated that both under Guardian and Wards Act and Hindu Minority and Guardianship Act, the father is the natural guardian. During the lifetime of the father, the petitioner being the mother is not competent to act as a guardian. It was stated that he has always taken care of the children whenever necessary by attending to their health, academic and educational needs. It was stated that his spiritual progress did not interfere with his marital obligations. The SELF-Awareness concept created by him in the name of AUMware has also been trade marked in USA, where he had conducted workshops for individuals, groups and corporate bodies. It is the petitioner, who deserted the respondent and took away the children at the end of August 2005. He was supporting the children till December 2005. Thereafter, the petitioner declined his financial support. The petitioner was leading an immoral and non- disciplined life. She had affairs with several men and her immoral conduct will destroy the future of the children. At many times, the children were taken care of by appointment of baby sitters. The petitioner was whimsical in her behaviour. She had filed a false case against the respondent and his mother on the allegation of dowry harassment. The custody of the minor children with the petitioner was not conducive. The respondent has filed a petition for divorce in O.P.No.3637 of 2007 which was pending on the file of the II Additional Family Court.
13. In the elaborate counter affidavit, several instances were listed about the behaviour of the petitioner including her drinking habits. The respondent claimed that he had heard the father of the petitioner describing her as a mad woman. The respondent in his counter affidavit also dealt with the invention of AUMware created by him and various workshops conducted by him. While he came back to India and stayed along with her, the petitioner had taken away the children without informing him. Specific allegation with regard to the conduct of the petitioner was also made in Paragraph 36 about the incident that had allegedly took place on 06.02.2006. The respondent also claimed that he helped the children in their studies including doing their home work. The respondent denied the allegation that he was suffering from any mental instability. It is the petitioner who had suffered from mental depression and stress. He also reserved his right to file appropriate application for calling relevant documents from appropriate hospitals regarding her mental condition and documents to show her driving violations.
14. When the matter came up on 16.07.2009, this Court directed the matter to be posted before the Court for recording oral evidence of the parties. Both the parties filed proof affidavits. The evidence of the petitioner was recorded as P.W.1 and cross examined by the respondent’s counsel. Exs.P1 to P17 were marked through her. Further cross examination was continued on 03.08.2009 and 05.08.2009. The respondent marked Exs.R1 to R6 during cross examination of P.W.1. Subsequently, the respondent was cross examined by the petitioner’s counsel. Exs.R7 to R34 were marked through him. Through his cross examination, Exs.P18 to P21 were also marked. Then oral evidence was closed on 06.08.2009. Arguments were heard on 07.08.2009.
15. In the proof affidavit filed by the petitioner, the petitioner claimed that the children were studying in 10th and 8th standards respectively at Chinmaya Vidyalaya. She has also filed the school receipts of the children in proof of the same and they were marked as Exs.P1 and P2. The school records about the children’s achievements were marked as Exs.P3 and P4. The birth certificates of both the children were also filed. Ex.P17 is the photocopy of the First Information Report filed in Crime No.721 of 2005 dated 28.09.2005 given by the petitioner. The attempt by the respondent to discredit the evidence of the petitioner that the respondent helped her with the education of the petitioner and the conduct of the petitioner was not proved. Though she was made to state that she was not a teetotaller that she used to go to pubs and bars with other men was denied by her. She also stated in cross examination that it was customary in USA to keep a mini bar in the house in which liquor was stored.
16. In the counter affidavit, though sweeping allegations were made against the conduct and character of the petitioner in cross examination, except for making some suggestions, the respondent was not able to prove many of the allegations made in the counter affidavit. With reference to the specific allegation made regarding the conduct of the petitioner while in India as mentioned in Paragraph 36 of the counter, in the cross examination, the petitioner explained the incident that took place on 06.02.2006. She stated that their common friend Ravi brought the children from the house of the respondent to her house and he did not stay in the house during the night. Even about Ex.R4 (containing three photographs), the petitioner had explained about them. The incident that had taken place on 06.02.2006 as elicited in cross examination was as follows:- "… It is not correct to state that the minors stayed overnight with the respondent on 05.02.2006 at house. Ravi brought back the minors from the house of the respondent on 05.02.2006. Ravi did not stay in my flat in the night of 05.02.2006 till the morning of 06.02.2006. Ex.R4 Series contains three photographs and they depict the minors, myself and Ravi. In the morning of 06.02.2006 the respondent visited my house and pressed the calling bell. Since Ravi was sitting close to the door he opened the door on that day. Yes, I was trying to hide myself behind the door to protect myself. At that time the minors were in the school uniform and they came from terrace. It was around 7.45 a.m. to 8.00 a.m."
17. The allegation that he had influenced the police to file a police complaint was denied by her. The assertion made in the counter affidavit that appropriate applications will be made for issuance of subpoena calling for relevant documents from appropriate hospital to prove her mental condition and DMV for her driving license were not carried out by the respondent subsequently.
18. In the proof affidavit filed by the respondent, the respondent once again repeated the averments made in the counter affidavit filed by him. While the counter affidavit ran into 50 paragraphs, the proof affidavit ran into 73 paragraphs. In the proof affidavit, the respondent admitted that he withdrew the application for restitution of conjugal rights filed in O.P.No.28 of 2006 and filed a fresh petition in O.P.No.3637 of 200 for divorce. He also stated that on 07.02.2006, the police men from the Central Crime Branch took him and his mother and remanded them in judicial custody for 10 days and thereafter he came out on bail with a condition that he should sign in the Crime Branch, Trichy. Subsequently, the conditions were relaxed during May 2006.
19. With reference, to new cult practice in paragraph 18 of the proof affidavit, he has averred as follows:
"18. I started AUMware in Fremont in February 2003 aimed at SELF-Awarness, SELF-Development and Stress Management. I gave severl workshops in the USA and India and the list may be marked as Ex.R14. I also applied for and obtained a prestigious trademark for the name AUMware from the US Patents and Trademark office. The certificate of registration issued by Acting Director of the United States Patent and Trademark Office may be marked as Ex.R15. Individuals, groups and corporations participated in AUMware workshops, typically conducted in Conference rooms, library halls, Recreation rooms, corporate seminar halls etc. in public view. The petitioner’s sister and brother-in-law who lives in New Jersey hosted and attended these workshops, photograph may be marked as Ex.R16. AUMware is not a cult. It does no harm to society. The proceeds were used for chartitable purposes such as Anna-Dhaan and educational needs of children. Two programmes that stand out are "Your Journey to Light" and "Your Journey to Heath" that were appreciated by many participants."
20. In the cross examination of the respondent, R.W.1., it was established that the house in USA had a mini bar and their friends were served alcohol at home. Even the respondent was consuming alcohol and having non-vegetarian food till 1999. With reference to Ex.P5, which was a notebook kept by the respondent, noted about his spiritual personal experience. The extract from the note books were put to the respondents. With reference to his spiritual experience and his attempt to treat the children with his own spiritual power, the respondent stated in cross examination in pages 13 and 14 are as follows: "In para 8 of page 24 of Ex.P5, the recording is based on my spiritual personal experience. In Page 31 of Ex.P5 I have written "Sometime a week ago we went to Hindi Movie. Swami gave me dharshan as Lord Shiva. The experience was phenomenal". The Greta referred to in Page 35 of Ex.P5 was the Nanny working in our house at that time. The experiences described in Page 38 of Ex.P5, on 31.07.2007 was one such experience and was not repetitive one. In Page 43 of Ex.P5, what I have stated about earthquakes is out of the wipes I got and it is not a conclusion. California is an earthquake prone state in USA. Both the petitioner and myself experienced earthquakes in various degrees in California. The notes in Page 43 mentioned is one such hunch. Once or twice I had told the petitioner that there would be earthquakes in California. I deny the suggestions that whenever I had medical problem, I have not taken medications and that I have healed myself. I deny the suggestion that whenever the minors had fever or pain, I have not given them medication and instead of taking them to Doctor I have put my hands on their head saying that I am healing them. I tried healing the minors without putting my hands on them. Ex.P5 is the book of my experiences from the period from 20.06.1999. Ex.P20 are the two e-mails one dated 07.04.2005, which is from Aumware and another dated 06.04.2005, which is from Vaaak Sounds, Siva Baba. In the e-mail dated 07.04.2005, the recipients are Sunitha and Sakthi. I address my aspirants as Athmaswaroops. The term aspirant used by me in my proof affidavit is one who looks for some kind of guidance from me or anybody. ..I do not know how may aspirants I have in India and US for Aumware, but at a time I have around 25 aspirants for AUMWARE. Ex.P21 is the photograph showing some of the aspirants of AUMWARE. Pooja an Latha are also found in Ex.P21 photograph. The aspirants aspired to learn self-awareness at AUMWARE. Journey to light is about 6 hours and journey to health is about 4 to 6 hours. I am currently writer, publisher and soft-skills trainer for schools, colleges and corporates. I have provided training in schools, colleges and corporates in Chennai."
21. With reference to the petitioner living along with their parents at Chetpet, the respondent agreed in his cross-examination that the petitioner was living in the ground floor having two bed rooms and her parents were living on the first floor. He also admitted that the children were in the custody of the petitioner since August 2005 and he has not filed any application before the Family Court seeking for the custody of the children before.
22. In their pleadings as well as in their oral evidence, both sides tried to throw many accusations against each other. This Court is of the opinion that it is unnecessary to traverse them elaborately as it will have relevance only in their matrimonial dispute. To such extent the allegations which will have bearing on the child custody issue, this Court had referred to them and discarded the unwarranted issues. It is in the backdrop of these allegations and counter allegations, the case projected by both sides will have to be analysed.
23. Ms.Geetha Ramaseshan, learned counsel for the petitioner submitted that the children are at present 15 and 12 years respectively and they are capable of understanding the relationship between the parents. Even when this Court examined them, they had expressed reluctance to stay overnight with their father while they were willing to go out with him during day time. It is also an admitted fact that since August 2005, the children were living with their mother and undergoing education in a good school at Chennai. At this stage, they should not be disturbed from the present environment as it is crucial stage for the boy, who has to enter the higher secondary course. With reference to the girl, it is always conducive that she should stay with her mother especially when she is at present 12 years old. She also submitted that the attempts made by the respondent to impeach the character of the petitioner has been miserably failed and nothing was elucidated in cross examination. No documentary proof was shown to stigmatise her character. It is also admitted by the respondent that he was not supporting the petitioner since August 2005 and that he was involved in some spiritual exercise over which he is fully convinced and attempting to propogate the same to many others. His belief about himself is found expressed in his own writings found in Ex.P5. It is further submitted that the concept that under the Guardians and Wards Act and Hindu Minority and Guardianship Act, the father is the natural guardian has been given up by the Courts long before. The only test that should be applied is the paramount consideration of the welfare of the children and not the statutory rights of the parties.
24. In this context, the learned counsel for the petitioner pressed into service the latest judgment of the Supreme Court in Nil Ratan Kundu and Another v. Abhijit Kundu reported in (2008) 9 SCC 413. In paragraph 52, the Court dealt with the principles governing the custody of minor children which is as follows:
"52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a childs ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor."
25. Infact in paragraph 63 of the same judgment, this Court dealt with a case of a husband facing a complaint under Section 498A IPC which may prove the ‘character’ of a guardian. Paragraphs 63 and 64 may be usefully extracted below:-
"63. In our considered opinion, on the facts and in the circumstances of the case, both the courts were duty-bound to consider the allegations against the respondent herein and pendency of the criminal case for an offence punishable under Section 498-A IPC. One of the matters which is required to be considered by a court of law is the character of the proposed guardian. In Kirtikumar010, this Court, almost in similar circumstances, where the father was facing the charge under Section 498-A IPC, did not grant custody of two minor children to the father and allowed them to remain with the maternal uncle.
64. Thus, a complaint against the father alleging and attributing the death of the mother, and a case under Section 498-A IPC is indeed a relevant factor and a court of law must address the said circumstance while deciding the custody of the minor in favour of such a person. To us, it is no answer to state that in case the father is convicted, it is open to the maternal grandparents to make an appropriate application for change of custody. Even at this stage, the said fact ought to have been considered and an appropriate order ought to have been passed."
26. Per contra, Mr.J.R.K.Bhavanandham, learned counsel for the respondent took this Court elaborately to the oral evidence as well as documentary evidence. He took pains to explain that the petitioner had thoroughly made herself disqualified from having the custody of the children. Her conduct and character is not conducive for the growth of the children. He also submitted that since the children were in the custody of the mother unlawfully for the last four years, the children were made to toe her line. Even when the respondent had the opportunity of visitation rights, that was successfully scuttled by the petitioner. In the guise of having forceful custody of the children, the petitioner cannot deny the respondent from even the right to interact with the children. The false case given by the petitioner against the respondent and his mother had created a great insult and humiliation to their family honour and the children cannot be left with the custody of such a person.
27. In this context, the learned counsel for the respondent referred to the judgment of the Supreme Court in Githa Hariharan and another v. Reserve Bank of India and another reported in (1999) 2 SCC 228. In that case, it was spelt out that even though under Section 6 of Hindu Minority and Guardianship Act, 1956 that father would be the natural guardian and after him, the mother will have no significance in cases involving dispute concerning the guardianship of minor. It was further held that the Court must be concerned only with paramount interest of minor in determining custody and guardianship. This judgment will in effect nullify the respondent’s assertion in the counter affidavit that he being the natural guardian must have the custody of the children as a matter of right. Therefore, this judgment does not help the case of the respondent.
28. The learned counsel also relied upon R.V.Srinath Prasad v. Nandamuri Jayakrishna and others reported in (2001) 4 SCC 71. It was held that the issue relating to custody of minor is a sensitive issue involving the emotions of the parties concerned and the Court must strike a balance between such emotions and the welfare of the minor, which is a matter of greater importance.
29. The leaned counsel lastly referred to the judgment of the Supreme Court in Sheila B.Das and P.R.Sugasree reported in (2006) 3 SCC 62. In that case, the custody of the minor girl was given to the father on the basis of personal interview with the child. The mother, who was a pediatrician was only given visitation right with sufficient access. In that case, the Supreme Court took the task of interviewing the minor girl without the presence of the parents. Since the girl was highly intelligent, the Court was convinced that despite the tussle between the parents, the minor girl will be in a position to work out her choice with regard to her custody. After the discussion with the minor girl, the Court found that she has no animosity with her mother but she would prefer to be with her father with whom she felt more comfortable.
30. If that test is applied in the present case, as noted by this Court in its common order dated 14.12.2007, that the children felt uncomfortable in a new environment and they were reluctant to stay overnight with their father (i.e. the respondent). The learned counsel for the respondent also referred to the very same judgment cited by the petitioner in Nil Ratan Kundu case (cited supra) in support of his contention. Ultimately, the Supreme Court has held that the paramount consideration should be the welfare of the minor children.
31. If it is seen in the context of the factual matrix of the case together with the legal precedent cited at the bar, then it can be safely held that the petitioner’s request to keep the custody of both the children is well founded. Since the petitioner was not disqualified on any grounds and the children have been successfully brought up single handedly by the petitioner since the last four years. It is desirable that the custody should be in the hands of the petitioner. It is ordered accordingly.
32. This finding did not mean that the respondent is disqualified from even having either interim custody or visitation rights given to him over the children. Therefore, in the interest of the minor children and considering the fact that the respondent is the father, it is hereby ordered as follows:
i)The respondent/father is entitled to have the custody of the minor children in the alternate Saturdays or Sundays when there is no examination for the children on the following Monday.
ii)The petitioner/mother is directed to entrust the minor children at 10.00 a.m on such Saturdays or Sundays as the case may be and the respondent shall return the custody of the children to the mother by 6.00 p.m in the Sunday evening.
iii) The respondent/father will have the custody of the children, if there are holidays during Dussehra and Christmas for a period of three days each and during summer vacation for a period of 10 days. The father is entitled to have the custody of the children from the mother during those periods. On the expiry of the stipulated period, the father shall hand over the custody of the children back to the mother. iv) The respondent/father is also permitted to visit the minor children on every birthday of the minor children.
v) The respondent is also permitted to visit the children on the New Year’s Day.
33. With the grant of the visitation rights to the respondent, the petitioner can have the permanent custody of the two minor children. The Original Petition is disposed of on the above terms. Parties are allowed to bear their own costs.
11.11.2009
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Index:Yes/No
Internet:Yes/No
K.CHANDRU,J.
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Pre-Delivery Order in
O.P.No.571 of 2007
11.11.2009
